Slave Nation (25 page)

George Mason of Virginia repeated the long-held Virginia position that the international slave trade should be subject to restriction. Elsworth repeated his “let us not intermeddle” speech of the previous day. Charles Pinckney of South Carolina said that the southern states needed the discretion to decide whether to stop importing slaves, because “South Carolina and Georgia cannot do without slaves.”
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In the end, the Convention voted to refer to a committee issues concerning whether there should be restrictions on the slave trade and whether restrictions on foreign commerce should require a two-thirds vote. Gouverneur Morris from Pennsylvania recommended committing both issues to a committee because “these things may form a bargain among the northern and southern states.”
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The vote to refer the issues was nine to two.

The Convention was now adept at referring difficult matters to a committee and going forward with the easier issues. On August 22, these difficult issues included ex post facto laws (making criminal laws retroactive) and bills of attainder (legislative determination of individual guilt).

The threats of South Carolina delegates to walk out did not generate the heat of July 2 through 14. Almost all members of the Convention were now in a mood to complete their work. The walk-out threats by the southerners were not severe enough to interrupt the decision-making process.

August 23 was taken up with totally different matters. On August 24, the committee reported, recommending that the slave trade be allowed to continue until the year 1800 and that a requirement of a two-thirds vote on regulation of commerce be eliminated.
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This bargain was put off to be considered on August 25, and the Convention proceeded with other business. On August 25, General Pinckney moved that the slave trade be allowed to continue until 1808. The motion passed by seven votes to four.
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Morris, with tongue in cheek, wanted to name North Carolina, South Carolina, and Georgia as the beneficiaries of this extension, but he withdrew the proposal after a trio of negative comments.
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The Convention adjourned until Monday, August 27. That day was taken up with details of the judicial system. The discussion was carried over into Tuesday, August 28, followed by voting on several other less controversial issues. These included the provision dealing with privileges and immunities of residents of one state when they entered another state.
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The privileges and immunities clause in the Articles of Confederation was reshaped to conform with the agreement to exclude slaves from the northwest territory. The Articles had allowed “the removal of property imported into any state to any other state of which the owner is an inhabitant.”
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The notion that a slave owner from Virginia could buy land in Ohio and bring his slaves up to work it, taking them back when the snow fell so they could continue to do useful work, was inconsistent with the concept of a slave-free northwest territory. This clause was neatly snipped from the Articles without debate or explanation.
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The clause as adopted read:

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
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General Pinckney objected, wishing to continue the Articles version of the privileges and immunities clause. Madison’s notes brushed this effort off as saying he “seemed to wish some provision be included in favor of property in slaves.”
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This deletion was consistent with the agreement that the Ohio River would be the dividing line between slave and free states. Pinckney may have been attempting to improve the agreement, but the committee on detail ignored his concern. This decision completed the understanding which had been reached earlier concerning the no-slave status of the northwest territory. This change in the privileges and immunities clause made clear that the master’s right to take a slave into a non-slave state and then force him to return south—guaranteed in the Articles—was not a privilege or immunity of a citizen of the United States. This clause coupled with the fugitive-slave clause created a distinction between slaves who escaped from a slave state and were subject to recapture, and slaves who had been brought into a free state by their masters and could not be compelled to return.

At the end of same day, Tuesday, August 28, 1787, Butler and Pinckney from South Carolina suggested including fugitive slaves and servants in the extradition clause relating to returning criminals to the state where a crime was committed, but Sherman of Connecticut pointed out that there was “no more propriety in the public seizing and surrendering a slave or servant than a horse.”
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Butler withdrew his proposal to rephrase it.

On Wednesday, August 29, the package deal concerning the number of votes needed to regulate commerce and the duration of the slave trade was adopted. The slave trade was allowed to continue for twenty years, until 1808.
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The effort to require a two-thirds vote for regulation of commerce was rejected, meaning that a simple majority would be sufficient to adopt controls on commerce. Both provisions were adopted without dissent.

The provision dealing with fugitive slaves was more complex. The Northwest Ordinance had adopted King’s draft fugitive slave clause of 1785 without substantial change. It applied only to slaves “from whom labor or service is lawfully claimed in any one of the original states.” The word “lawfully” was deleted and the limitation to slaves escaping from the original states was removed, making the provision applicable to slaves escaping states which might be created later.
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No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
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This clause was also adopted without discussion. By 1787, the fugitive-slave issue would become important, as slaves began escaping north and the northern states were not helpful concerning their return.
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The fugitive-slave clause satisfied both northern and southern economic interests. Southerners might expect the clause to help get some of their runaway slaves back or discourage them from seeking freedom in the first place. The clause also assured northerners, concerned that former slaves would drive down labor rates, that they would not have to compete with so many escaped slaves seeking jobs that whites would otherwise hold.
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Nevertheless, the continuous efforts of slaves to escape across the line of the Ohio River, and of slave catchers to repossess them, served in the nineteenth century to sharpen the distance and increase the hostility between the settlers of slave states and those of free states. The antislavery mood in the northern states during the nineteenth century politicized a number of situations where slave owners sought to use the judicial process to recover their “property.”
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Thus the Constitution plus the Northwest Ordinance drew a line, not only between slave and free territories but between states which in the future might be created. It continued the subordination of free-state law to that of the slave states but only with respect to fugitives. The case of a slave who had come to a free state or territory with his master and refused to return—the issue in the
Somerset
case—presumably would be subject to the law of the jurisdiction in which the question of freedom was raised. This was the rule announced in Somerset’s case. The United States Supreme Court in the
Dred Scott
case of 1857 disavowed the distinction between slave and free states drawn in the Northwest Ordinance with respect to black slaves. It held that slavery was lawful everywhere in the country. This decision all but guaranteed that a civil war would follow.

The final reference to slavery at the Convention came on September 10, in a discussion of the method of amending the Constitution:

Mr. Rutledge said he never could agree to give a power by which the articles relating to slaves might be altered by the states not interested in that property and prejudiced against it. In order to obviate this objection, these words were added…‘provided that no amendments which may be made prior to the year 1808, shall in any manner affect’ [the extension of the slave trade until 1808].
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The interaction between the Convention and the Congress illuminates the role of Manasseh Cutler of Massachusetts, the agent for the Ohio Company, which had been seeking extensive lands in the northwest territory since 1783. Cutler was a distinguished clergyman, a military chaplain during the Revolution, a doctor, and a scientist. Ohio Company speculators, including many former soldiers, had been seeking land in the northwest since 1783 to encourage migration from the crowded North. They petitioned Congress for land again in 1787.

Cutler made a trip to both New York and Philadelphia in July of 1787. He arrived in New York on July 5, presented letters of introduction to members of Congress on July 6, attended meetings with the committee that was considering the Ohio Company proposition, saw the sights, and met extensively with people both in and out of Congress who could aid in his project.
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On July 10, while awaiting the report of the committee drafting a revised Northwest Ordinance, a committee composed of Carrington, King, Dane, and Bension reported favorably on the Ohio Company’s request to buy land in the territories from the Congress. All except Bension were also members of the committee that would recommend the Northwest Ordinance.

Cutler then went to Philadelphia for five days where he met with many of the delegates to the Constitutional Convention. He was hustling the most important people in the nation over the terms of the land deal which he hoped to make with the Congress. He had thought the ordinance issue was largely settled when he left New York. The remaining question involved the terms on which the land deal would be made, and the personnel who would govern the northwest territory.

Cutler and Congress engaged in hard bargaining after his return to New York from Philadelphia on July 19. On July 23, Congress passed a bill setting terms for an agreement with the Ohio Company which were not favorable enough for Cutler. He reacted by threatening to take his money and credit and buy lands then held by some of the states. He also dropped General Samuel Holden Parsons as the Company’s candidate for governor of the territory, and threw his support to Congressional president Arthur St. Clair, a Scottish-born Revolutionary War soldier who had moved to Pennsylvania. Cutler’s diary suggests that his decision to drop Parsons in favor of St. Clair was well received by his “southern friends,” and smoothed the way for the contract. St. Clair’s views were well known to southerners whom he had served with under General Nathanael Greene in the Revolution. They may have seen him as more “flexible” toward southern interests than General Parsons, a puritanical New Englander, was likely to be.

Once it was assured that St. Clair would become governor of the territory, he used his influence to gain support for the contract with the Ohio Company. St. Clair’s later pro-slavery interpretation of the Northwest Ordinance may have been anticipated by his southern supporters for the governorship. St. Clair lobbied the northeastern delegates to support the proposed deal, and on July 27, Congress adopted more favorable terms, enabling the Ohio Company to buy millions more acres of land than it had originally sought.
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The haste in which this newly modeled Northwest Ordinance was adopted is attributable to the Congress’s desire for the land deal to go through. The inclusion of such fundamental matters as slavery would have caused at least raised eyebrows, unless some such matters had been agreed upon beforehand by those in Philadelphia who found the ordinance compatible with the protection of slavery.

The agreement to divide the federal territory into slave and free areas was ratified by the Virginia legislature in 1788, and by the First Congress under the Constitution in 1789 and 1790.
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In December, 1788, after the Constitution had been ratified, Virginia had an opportunity to invalidate, or at least thoroughly confuse the legality of the Northwest Ordinance. In 1783, Virginia had ceded the northwest territory to the federal government, on condition that ten states be created in the territory north of the Ohio River in accordance with a plan developed by Jefferson. But by 1786, on the basis of a recommendation from Monroe, Congress concluded that this division was impractical.
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It asked Virginia to modify its cession agreement to allow between three and five states in the territory. Congress included the three to five state proviso in the Northwest Ordinance, and, after its adoption, sent it to Virginia with a request that Virginia ratify the change. Edward Carrington, who had voted for the ordinance as a delegate to the Continental Congress had no doubt that Virginia would do so. He reported to Jefferson on October 23, 1788:

The western territory belonging to the United States has more effectually received the attention of Congress during this session than it ever did before. Enclosed you will receive the ordinance for establishing a temporary government there, and providing for its more easy passage into permanent state governments. Under the old arrangements the country might upon the whole have become very populous, and yet be inadmissable to the rights of state government, which would have been disgusting to them and ultimately inconvenient for the empire. The new arrangement depends on the accession of Virginia which there can be no doubt of obtaining.
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Virginia did so on December 30, 1788. The Virginia legislation recited the provision of the Northwest Ordinance which required that the constitutions and governments be formed in conformity to the principles contained in the ordinance—which included the no-slavery clause. The Virginia legislature, knowing that these principles included a prohibition on slavery, “ratified and confirmed” the Northwest Ordinance.
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