Authors: Alfred W. Blumrosen
Slave Nation (35 page)
1
. Hunter Miller, Ed.,
Treaties and Other International Acts of the United States of America
, Volume 2 (Washington, DC: Government Printing Office, 1931) Documents 1–40. Britain had considered this area a headache from the 1760s on. It had discouraged settlements and speculators by a “proclamation line” of 1763, which was supposed to keep speculators and settlers from disturbing the Native American tribes in order to avoid more fighting.
2
.
JCC
Vol. 26, 114
3
. The Articles did not provide Congress with express power to regulate federal territory. The land cessions to the Congress by the states in the1780s created “federal” territory. See Jensen,
Articles of Confederation
, 185–238, for a discussion of the web of problems surrounding the western lands. Onuf,
Statehood and Union
, examines the way in which the approaches to these problems influenced the Northwest Ordinance of 1787. Acceptance of the cessions by Congress was treated as creating congressional power to control development in the territories. Madison claimed the Northwest Ordinance was not constitutional in the
Federalist
38, 248–49, (Jan. 15, 1788) “All this has been done; and without the least color of constitutional authority, yet no blame has been whispered; no alarm has been sounded.”
4
. Nine states were required for ratification of a treaty. Francis Wharton, Avalon Project of Yale Law School, Edited under the Direction of Congress, “Proclamation of Congress Respecting the Definitive Treaty; By the United States in Congress Assembled, Jan. 14, 1784,”
The Revolutionary Correspondence of the United States
, Volume VI, Washington, DC: Government Printing Office, 1889.
5
. Ibid. Art. XVIII.
7
. Kimberly C. Simmons, JD,
American Jurisprudence
45, 2d Edition, International Law (St. Paul, MN: West Grou, 2004)
§ 33 “As a matter of strict English usage the term “cession” refers to voluntary surrender of territory or jurisdiction rather than a withdrawal of such jurisdiction by the authority of a superior sovereign.
Cession effects a change of sovereignty over the territory ceded, and a transfer of title to property that is vested in the sovereign making the cession, but it does not affect the property rights of the inhabitants of the territory involved
.” [emphasis added]
8
. Wills,
Negro President
, paints the sharpest picture of Pickering as a highly competent, puritanical opponent of slavery on religious grounds.
9
. “During the Revolutionary War, the Continental Congress authorized the printing of paper ‘money’ called ‘Continentals,’ which depreciated in perceived value [inflated] so quickly and so badly that, soon, they were ‘not worth a Continental.’”
http://www.geocities.com/tthor.geo/debasedmoney.html
10
. Charles B. Galbreath,
History of Ohio
(American Historical Society, Inc., 1925) 154–57 “ 11. That a constitution for the new state be formed by the members of the association previous to their commencing the settlement, two-thirds of the associators present at a meeting duly notified for that purpose agreeing therein.
The total exclusion of slavery from the state to form an essential and irrevocable part of the constitution
.” Ibid. 156. [emphasis added]. See Jay. A. Barrett,
Evolution of the Ordinance
, 7–9
11
. See Alden T. Vaughn,
Roots of American Racism
, (New York: Oxford University Press, 1995) 136–174 for a discussion of debate over the origins of racism.
12
. Calliope Film Resources.
Shays’s Rebellion
. Copyright 2000 CFR.
http://www.calliope.org/shays/shays2.html
, visited October 19, 2004
13
. Statuary,
Shays’s Rebellion
, 120–134
14
.
JCC
, Vol. 26, 275-79. The plan applied to territory “ceded or to be ceded” to the United States, thus covering territory both north and south of the Ohio river. This was the coverage of all proposed ordinances until 1787. Lynd,
Class Conflict
, 192
15
.
http://www.yale.edu/lawweb/avalon/presiden/jeffpap.htm
.
16
.
JCC
, Vol. 26, 247, April 19, 1784. The rules of the Congress required that at least two delegates vote for a measure for the state’s vote to count.
17
. Randall,
Thomas Jefferson
, 363
18
. Prearranged absences at critical junctions in the legislative process are not unknown today.
19
. By 1784, Massachusetts had abolished slavery by court decision and Pennsylvania had enacted its gradual emancipation act.
The number of states that might be created north of the Ohio was reduced to three to five. See Barrett,
Evolution of the Ordinance
, 17–27 discussing the number of states, and including a map.
When the territory acquired twenty thousand “free inhabitants,” a convention could be called to establish a permanent constitution and government. These states were to be admitted to the union “on equal footing with the said original states” when the population equaled that of the least populous state and upon meeting certain conditions. The states were to: (1) remain in the confederation; (2) be subject to the Articles of Confederation (3) not interfere with U.S. land titles or regulation concerning disposition of U.S. lands (4) pay part of the federal debt apportioned as with the other states; (5) not tax lands or property of the U.S. (6) have a republican government without hereditary titles (7) not to tax non resident proprietors higher than residents; The ordinance was to be a “charter of compact” and “stand as fundamental constitutions between the thirteen original sates and each of the several states newly described.” This provision sought to bridge a gap in the power of the Confederacy. The Confederation had no power over territories because none had been provided in the Articles; yet it was necessary to provide for governance for many reasons. The Articles could be amended only by unanimous consent which was never achieved. The voluntary adoption of a “compact” would obscure the want of power. Pinckney at the Convention and Madison in the
Federalist
both considered the NWO to be unconstitutional under the Articles.
20
. See Peter S. Onuf, “Settlers, Settlements, and New States,” In Jack S. Green, Ed.,
The American Revolution: Its Character and Limits
(New York: NYU Press, 1987) 171–96
21
. See Freehling,
Road to Disunion
, 138–41. An expression of this concern is found in Timothy Pickering’s letter to Rufus King in 1785. See
Chapter 9
25
. Finkelman,
Slavery and the Founders: Race and Liberty in the Age of Jefferson
, 2ed, 148; Wiecek,
Antislavery Constitutionalism
, 60.
26
. Ernst, “Pickering to King, March 8, 1785,”
Rufus King
, 54–55
27
. See Wills,
Negro President
, 183–93
28
. The third possibility, of course, was that Congress expressed no judgment on the slavery issue. This seems unlikely, given that there was existing law about that issue; it was a “two value” proposition—slavery was either legal or illegal.
29
. The reasoning assumes, as was true in connection with the slavery issue, that there is no third possibility. The approach taken by Marshall was a variation on the canon “Expressio unius est exclusio alterius,” commonly applied when the legislature has chosen one concept over others which are inconsistent with it. Sutherland,
Statutory Construction
, 4e (Willmette, IL: 1984). The “founding fathers” agreed that the Constitution was to be interpreted as if it were legislation, in accordance with the wellknown principles of statutory interpretation set forth by Blackstone. See H. Jefferson Powell, “The Original Understanding of Original Intent,” from 98
Harvard L. Rev.
In Jack N. Rakove, Ed.,
Interpreting the Constitution: The Debate Over Original Intent
(Boston: Northeastern University Press, 1990) 53. Story agreed; Story,
Commentaries
, 134–148. Blackstone’s first edition was well known in the colonies. Volume 1, 59–62, contains general principles of interpretation designed to identify the “intent” of the legislature. Blackstone,
Commentaries
, 59–62
30
. See
Chapter 8
. This restriction had been a part of the southern led effort to protect state supported slavery from external control under the Articles.
31
. “Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United Sates, nor prohibited to the states, are reserved to the states or to the people’; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments.” McCullough at Story,
Commentaries
, adopts this language without attribution, 147. See discussion in Warren,
The Supreme Court in United States History
, (1926) 501. The omission of the term “expressly” from the tenth amendment was discussed in oral argument in McCullough by Mr. Pinckney. “The reservation in the tenth amendment to the Constitution of ‘powers not delegated to the United States’ is not confined to powers not expressly delegated. Such an amendment was indeed proposed, but it was perceived that it would strip the government of some of its most essential powers and it was rejected.” “Landmark Briefs and Arguments of the Supreme Court of the United States,”
Constitutional Law
, Vol. 1, 170.
Marshall’s doctrine of implied powers was interpreted by John Randolph, Chief Justice of Virginia in 1824 as permitting Congress to “emancipate every slave in the United States.” Albert J. Beveridge,
Life of John Marshall
, Vol. IV (Houghton, Mifflin Co., 1919) 308–309, 420
In
Marbury v. Madison
, Marshall used analogous reasoning. He stated “Affirmative words are often, in their operation, negative of other objects than those affirmed.”
32
. The only background law applicable in light of congressional silence was the anti-
Somerset
provision of the Articles, which protected slavery in all the states. This background law may not have been fully recognized by the historians because it was not supported by case law during the short period of the operation of the Articles. But the very shortness of the period, coupled with the absence of any centralized court, made it unlikely that the Articles would have had an extensive judicial exegesis. It is our two-hundred-plus years’ experience with a centralized high court which makes us think that judicial interpretations of the Constitution are crucial to its understanding.
33
. When a similar issue arose in Ohio in the nineteenth century, the Circuit Court treated the answer as obvious. One Palmer sought to enjoin the county commissioners from building a drawbridge over the Cuyahoga River on the grounds that it would obstruct navigation, in violation of the “free navigation” clause of the Northwest Ordinance. Defendants argued that the ordinance was inapplicable because the “western reserve” had not been ceded by Connecticut to the federal government until some time after the Ordinance was adopted. Justice McLean, after holding that the drawbridge was not an obstruction within the meaning of the ordinance, concluded:
“That this reserve was, to some extent, subject to the legislation of Connecticut for several years after the date of the ordinance is admitted. But when this territory and the jurisdiction over it were ceded to the United States it became subject to the ordinance, the same as every other part of the northwest territory. Rights acquired under the former laws are governed by those laws. But on its cession to the union, all the laws of the territory, and especially its fundamental law, became the law of the reserve.”
Palmer v. Cuyahoga County Commissioners
, 2 Ohio Federal Decisions 264, 266 (1843).
This situation was similar to that of slavery in Virginia at the time of cession to the federal government. Rights to hold slaves acquired under Virginia law remained governed by those laws; on cession to the union, the laws of the territory would apply, but there was no law prohibiting slavery at the time of cession in 1783, and none became applicable until 1787.The deed of cession states that “certain settlers…who have professed themselves citizens of Virginia, shall have their possessions and titles confirmed to them, and be protected in the enjoyment of their rights and liberties.” The settlers were identified as “French and Canadian inhabitants, and other settlers of the Kaskaskies, St. Vincents, and the neighboring villages.”
JCC
Vol. 26, 114. The possible negative inference that slavery was to be illegal in the vast reach of the territory not mentioned in the cession agreement would not outweigh the underlying Virginia law protecting slavery.
34
. “That there shall be neither slavery nor involuntary servitude in any of the states, described in the resolve of Congress of the 23 April, 1784, otherwise than in punishment of crimes, whereof the party shall have been personally guilty: And that this regulation shall be an article of compact, and remain a fundamental principle of the Constitutions between the thirteen original states, and each of the states described in the said resolve of the 23 April, 1784.”
JCC
, Vol. 28, 164, March 16, 1785.
