this Territory, consented, by her delegates in the Old Congress, to this
Ordinance. Not only Virginia, but North Carolina, South Carolina, and
Georgia, by the unanimous votes of their delegates in the Old Congress,
approved of the Ordinance of 1787, by which Slavery is forever abolished
in the Territory northwest of the river Ohio. Without the votes of these
States, the Ordinance could not have been passed; and there is no
recollection of an opposition from any of these States to the act of
confirmation passed under the actual Constitution."]
[Footnote 10:--"The famous Ordinance of Congress of the 13th July, 1787,
which has ever since constituted, in most respects, the model of all our
territorial governments, and is equally remarkable for the brevity and
exactness of its text, and for its masterly display of the fundamental
principles of civil and religious liberty."--_Justice Story, 1
Commentaries_: §1312.
"It is well known that the Ordinance of 1787 was drawn by the Hon.
Nathan Dane, of Massachusetts, and adopted with scarcely a verbal
alteration by Congress. It is a noble and imperishable monument to his
fame."--_Id._ note.
The ordinance was reported by a committee, of which Wm. S. Johnson and
Charles Pinckney were members. It recites that, "for extending the
fundamental principles of civil and religious liberty, which form the
basis whereon these republics, their laws and constitutions, are
erected; to fix and establish those principles as the basis of all laws,
constitutions, and governments which forever hereafter shall be formed
in the said Territory; to provide also for the establishment of States
and permanent government, and for their admission to a share in the
federal councils, on an equal footing with the original States, at as
early periods as may be consistent with the general interest--
"It is hereby ordained and declared, by the authority aforesaid, that
the following articles shall be considered as articles of compact
between the original States and the people and States in the said
Territory, and forever remain unalterable, unless by common consent, to
wit:"
"_Art._ 6. There shall be neither slavery nor involuntary servitude in
the said Territory otherwise than in the punishment of crimes whereof
the party shall have been duly convicted; provided always that any
person escaping into the same, from whom labor or service is lawfully
claimed in any one of the original States, such fugitive may be lawfully
reclaimed, and conveyed to the person claiming his or her labor or
service."
On passing the ordinance, the ayes and nays were required by Judge
Yates, of New York, when it appeared _that his was the only vote in the
negative_.
The ordinance of April 23, 1784, was a brief outline of that of '87. It
was reported by a Committee, of which Mr. Jefferson was chairman, and
the report contained a slavery prohibition intended to take effect in
1800. This was stricken out of the report, six States voting to retain
it--three voting to strike out--one being divided (N.C.), and the others
not being represented. (The assent of nine States was necessary to
retain any provision.) And this is the vote alluded to by Mr. Lincoln.
But subsequently, March 16, 1785, a motion was made by Rufus King to
commit a proposition "that there be neither slavery nor involuntary
servitude" in any of the Territories; which was carried by the vote of
eight States, including Maryland.--_Journal Am. Congress,_ vol. 4, pp.
373, 380, 481, 752.
When, therefore, the ordinance of '87 came before Congress, on its final
passage, the subject of slavery prohibition had been "_agitated_" for
nearly three years; and the deliberate and almost unanimous vote of that
body upon that question leaves no room to doubt what the fathers
believed, and how, in that belief, they acted.]
[Footnote 11:--It singularly and fortunately happens that one of the
"thirty-nine," "while engaged on that instrument," viz., while
advocating its ratification before the Pennsylvania Convention, did
express an opinion upon this "precise question," which opinion was
_never_ disputed or doubted, in that or any other Convention, and was
accepted by the opponents of the Constitution, as an indisputable fact.
This was the celebrated James Wilson, of Pennsylvania. The opinion is as
follows:--
MONDAY, _Dec._ 3, 1787.
"With respect to the clause restricting Congress from prohibiting the
migration or importation of such persons as any of the States now
existing shall think proper to admit, prior to the year 1808: The Hon.
gentleman says that this clause is not only dark, but intended to grant
to Congress, for that time, the power to admit the importation of
slaves. No such thing was intended; but I will tell you what was done,
and it gives me high pleasure that so much was done. Under the present
Confederation, the States may admit the importation of slaves as long as
they please; but by this article, after the year 1808, the Congress will
have power to prohibit such importation, notwithstanding the disposition
of any State to the contrary. I consider this as laying the foundation
for banishing slavery out of this country; and though the period is more
distant than I could wish, yet it will produce the same kind, gradual
change which was pursued in Pennsylvania. It is with much satisfaction
that I view this power in the general government, whereby they may lay
an interdiction on this reproachful trade. But an immediate advantage is
also obtained; for a tax or duty may be imposed on such importation, not
exceeding $10 for each person; and this, sir, operates as a partial
prohibition; it was all that could be obtained. I am sorry it was no
more; but from this I think there is reason to hope that yet a few
years, and it will be prohibited altogether. _And in the meantime, the
new States which are to be formed will be under the control of Congress
in this particular, and slaves will never be introduced amongst
them_."--2 _Elliott's Debates_, 423.
It was argued by Patrick Henry in the Convention in Virginia, as
follows:
"May not Congress enact that every black man must fight? Did we not see
a little of this in the last war? We were not so hard pushed as to make
emancipation general. But acts of Assembly passed, that every slave who
would go to the army should be free. Another thing will contribute to
bring this event about. Slavery is detested. We feel its fatal effects.
We deplore it with all the pity of humanity. Let all these
considerations press with full force on the minds of Congress. Let that
urbanity which, I trust, will distinguish America, and the necessity of
national defence--let all these things operate on their minds, they will
search that paper, and see if they have power of manumission. And have
they not, sir? Have they not power to provide for the general defence
and welfare? May they not think that these call for the abolition of
slavery? May they not pronounce all slaves free, and will they not be
warranted by that power? There is no ambiguous implication, no logical
deduction. The paper speaks to the point; they have the power in clear,
unequivocal terms, and will clearly and certainly exercise it."--3
_Elliott's Debates_, 534.
Edmund Randolph, one of the framers of the Constitution, replied to Mr.
Henry, admitting the general force of the argument, but claiming that,
because of other provisions, it had no application to the _States_ where
slavery _then_ existed; thus conceding that power to exist in Congress
as to all territory belonging to the United States.
Dr. Ramsay, a member of the Convention of South Carolina, in his history
of the United States, vol. 3, pages 36, 37, says: "Under these liberal
principles, Congress, in organizing _colonies_, bound themselves to
impart to their inhabitants all the privileges of coequal States, as
soon as they were capable of enjoying them. In their infancy,
_government was administered for them_ without any expense. As soon as
they should have 60,000 inhabitants, they were authorized to call a
convention, and, by common consent, to form their own constitution. This
being done, they were entitled to representation in Congress, and every
right attached to the original States. These privileges are not confined
to any particular country or _complexion_. They are communicable to the
emancipated slave (for in the new State of Ohio, slavery is altogether
prohibited), to the copper-colored native, and all other human beings
who, after a competent residence and degree of civilization, are capable
of enjoying the blessings of regular government."]
[Footnote 12:--The Act of 1789, as reported by the Committee, was
received and read Thursday, July 16th. The second reading was on Friday,
the 17th, when it was committed to the Committee of the whole house, "on
Monday next." On Monday, July 20th, it was considered in Committee of
the whole, and ordered to a third reading on the following day; on the
21st, it passed the House, and was sent to the Senate. In the Senate it
had its first reading on the same day, and was ordered to a second
reading on the following day (July 22d), and on the 4th of August it
passed, and on the 7th was approved by the President.]
[Footnote 13:--The "sixteen" represented these States: Langdon and
Oilman, New Hampshire; Sherman and Johnson, Connecticut; Morris,
Fitzsimmons, and Clymer, Pennsylvania; King, Massachusetts; Paterson,
New Jersey; Few and Baldwin, Georgia; Bassett and Read, Delaware;
Butler, South Carolina; Carroll, Maryland; and Madison, Virginia]
[Footnote 14:--_Vide_ note 3, _ante_.]
[Footnote 15:--Chap. 28, § 7, U.S. Statutes, 5th Congress, 2d Session.]
[Footnote 16:--Langdon was from New Hampshire, Read from Delaware, and
Baldwin from Georgia.]
[Footnote 17:--Chap. 38, § 10, U.S. Statutes, 8th Congress, 1st
Session.]
[Footnote 18:--Baldwin was from Georgia, and Dayton from New Jersey.]
[Footnote 19:--Rufus King, who sat in the old Congress, and also in the
Convention, as the representative of Massachusetts, removed to New York
and was sent by that State to the U.S. Senate of the first Congress.
Charles Pinckney was hi the House, as a representative of South
Carolina.]
[Footnote 20:--Although Mr. Pinckney opposed "slavery prohibition" in
1820, yet his views, with regard to the _powers_ of the general
government, may be better judged by his actions in the Convention:
FRIDAY, _June 8th,_ 1787.--"Mr. Pinckney moved 'that the National
Legislature shall have the power of negativing all laws to be passed by
the State Legislatures, which they may judge improper,' in the room of
the clause as it stood reported.
"He grounds his motion on the necessity of one supreme controlling
power, and he considers this as the _corner-stone_ of the present
system; and hence the necessity of retrenching the State authorities, in
order to preserve the good government of the national council."--T. 400,
_Elliott's Debates_.
And again, THURSDAY, _August 23d,_ 1787, Mr. Pinckney renewed the motion
with some modifications.--T. 1409. _Madison Papers_.
And although Mr. Pinckney, as correctly stated by Mr. Lincoln, "steadily
voted against slavery prohibition, and against all compromises," he
still regarded the passage of the Missouri Compromise as a great triumph
of the South, which is apparent from the following letter:
CONGRESS HALL, _March 2d_, 1820, 3 _o'clock at night_.
DEAR SIR:---I hasten to inform you, that this moment we have carried
the question to admit Missouri, and all Louisiana to the southward of
36° 30', free from the restriction of slavery, and give the South, in a
short time, an addition of six, perhaps eight, members to the Senate of
the United States. It is considered here by the slaveholding States as a
great triumph.
The votes were close--ninety to eighty-six--produced by the seceding and
absence of a few moderate men from the North. To the north of 36° 30,'
there is to be, by the present law, restriction; which you will see by
the votes, I voted against. But it is at present of no moment; it is a
vast tract, uninhabited, only by savages and wild beasts, in which not a
foot of the Indian claims to soil is extinguished, and in which,
according to the ideas prevalent, no land office will be opened for a
great length of time.
With respect, your obedient servant,
CHARLES PINCKNEY.
But conclusive evidence of Mr. Pinckney's views is furnished in the fact
that _he was himself a member of the Committee which reported the
Ordinance of_ '87, and that _on every occasion, when it was under the
consideration of Congress, he voted against all amendments_.--_Jour. Am.
Congress_, Sept. 29th, 1786. Oct. 4th. When the ordinance came up for
its final passage, Mr. Pinckney was sitting in the Convention, and did
not take any part in the proceedings of Congress.]
[Footnote 21:--By reference to notes 4, 6, 10, 13, 15, and 16 it will be
seen that, of the twenty-three who acted upon the question of
prohibition, twelve were from the present slaveholding States.]
[Footnote 22:--_Vide_ notes 5 and 17, _ante_.]
[Footnote 23:--"The remaining sixteen" were Nathaniel Gorham,
Massachusetts; Alex. Hamilton, New York; William Livingston and David
Brearly, New Jersey; Benjamin Franklin, Jared Ingersoll, James Wilson,
and Gouverneur Morris, Pennsylvania; Gunning Bedford, John Dickinson,
and Jacob Broom, Delaware; Daniel, of St. Thomas, Jenifer, Maryland;
John Blair, Virginia; Richard Dobbs Spaight, North Carolina; and John
Rutledge and Charles Cotesworth Pinckney, South Carolina.]
[Footnote 24:--"The only distinction between freedom and slavery
consists in this: in the former state, a man is governed by the laws to
which he has given his consent, either in person or by his
representative; in the latter, he is governed by the will of another. In
the one case, his life and property are his own; in the other, they
depend upon the pleasure of a master. It is easy to discern which of the
two states is preferable. No man in his senses can hesitate in choosing
to be free rather than slave.... Were not the disadvantages of slavery
too obvious to stand in need of it, I might enumerate and describe the
tedious train of calamities inseparable from it. I might show that it is
fatal to religion and morality; that it tends to debase the mind, and
corrupt its noblest springs of action. I might show that it relaxes the
sinews of industry and clips the wings of commerce, and works misery and
indigence in every shape."--HAMILTON, _Works_, vol. 2, pp. 3, 9.
"That you will be pleased to countenance the restoration of _liberty_ to
those unhappy _men_, who, alone in this land of freedom, are degraded
into perpetual bondage, and who, amidst the general joy of surrounding
freemen, are groaning in servile subjection; that you will devise means
for removing this inconsistency from the character of the American
people; that you will promote mercy and _justice_ toward this distressed
race; and that you will step to the _very verge_ of the power vested in
you for discouraging every species of traffic in the persons of our
fellow-men."--Philadelphia, Feb. 3rd, 1790. _Franklin's Petition to
Congress for the Abolition of Slavery._
Mr. Gouverneur Morris said: "He never would concur in upholding domestic
slavery. It was a notorious institution. It was the curse of heaven on
the States where it prevailed.... The admission of slavery into the
representation, when fairly explained, comes to this--that the
inhabitant of South Carolina or Georgia, who goes to the coast of
Africa, and, in defiance of the most sacred laws of humanity, tears away
his fellow-creatures from their dearest connections, and damns them to
the most cruel bondage, shall have more votes, in a government
instituted for the protection of the rights of mankind, than the citizen
of Pennsylvania or New Jersey, who views with a laudable horror so
notorious a practice.... He would sooner submit himself to a tax for
paying for all the negroes in the United States than saddle posterity
with such a constitution."--_Debate on Slave Representation in the
Convention. Madison Papers_.]
[Footnote 25:--An eminent jurist (Chancellor Walworth) has said that
"The preamble which was prefixed to these amendments, as adopted by
Congress, is important to show in what light that body considered them."
(8 _Wend. R.,_ p. 100.) It declares that a number of the State
Conventions "having at the time of their adopting the Constitution
_expressed_ a _desire_, in order to prevent _misconstruction or abuse of
its powers_, that further _declaratory_ and restrictive clauses should
be added," resolved, etc.
This preamble is in substance the preamble affixed to the "Conciliatory
Resolutions" of Massachusetts, which were drawn by Chief Justice
Parsons, and offered in the Convention as a compromise by John Hancock.
(_Life Ch. J. Parsons,_ p. 67.) They were afterward copied and adopted
with some additions by New Hampshire.
The fifth amendment, on which the Supreme Court relies, is taken almost
literally from the declaration of rights put forth by the Convention of
New York, and the clause referred to forms the ninth paragraph of the
declaration. The tenth amendment, on which Senator Douglas relies, is
taken from the Conciliatory Resolutions, and is the first of those
resolutions somewhat modified. Thus, these two amendments, sought to be
used for slavery, originated in the two great anti-slavery States, New
York and Massachusetts.]
[Footnote 26:--The amendments were proposed by Mr. Madison in the House
of Representatives, June 8, 1789. They were adopted by the House, August
24, and some further amendments seem to have been transmitted by the
Senate, September 9. The printed journals of the Senate do not state the
time of the final passage, and the message transmitting them to the
State Legislatures speaks of them as adopted at the first session, begun
on the fourth day of March, 1789. The date of the introduction and
passage of the act enforcing the Ordinance of '87 will be found at note
9, _ante_.]
[Footnote 27:--It is singular that while two of the "thirty-nine" were
in that Congress of 1819, there was but one (besides Mr. King) of the
"seventy-six." The one was William Smith, of South Carolina. He was then
a Senator, and, like Mr. Pinckney, occupied extreme Southern ground.]
[Footnote 28:--The following is an extract from the letter referred to:
"I agree with you cordially in your views in regard to negro slavery. I
have long considered it a most serious evil, both socially and
politically, and I should rejoice in any feasible scheme to rid our
States of such a burden. The Congress of 1787 adopted an ordinance which
prohibits the existence of involuntary servitude in our Northwestern
Territory forever. I consider it a wise measure. It meets with the
approval and assent of nearly every member from the States more
immediately interested in slave labor. The prevailing opinion in
Virginia is against the spread of slavery in our new Territories, and I
trust we shall have a confederation of free States."
The following extract from a letter of Washington to Robert Morris,
April, 12th, 1786, shows how strong were his views, and how clearly he
deemed emancipation a subject for legislative enactment: "I can only say
that there is no man living who wishes more sincerely than I do to see a
plan adopted for the abolition of it; but there is but one proper and
effective mode by which it can be accomplished, and that is, BY
LEGISLATIVE AUTHORITY, and that, as far as _my suffrage will go, shall
never be wanting_."]
[Footnote 29:--A Committee of five, consisting of Messrs. Mason, Davis,
and Fitch (Democrats), and Collamer and Doolittle (Republicans), was
appointed Dec. 14, 1859, by the U.S. Senate, to investigate the Harper's
Ferry affair. That Committee was directed, among other things, to
inquire: (1) "Whether such invasion and seizure was made under color of
any organization intended to subvert the government of any of the States
of the Union." (2) "What was the character and extent of such
organisation." (3) "And whether any citizens of the United States, not
present, were implicated therein, or accessory thereto, by contributions
of money, arms, munitions, or otherwise."
The majority of the Committee, Messrs. Mason, Davis, and Fitch, reply to
the inquiries as follows:
1. "There will be found in the Appendix a copy of the proceedings of a
Convention held at Chatham, Canada, of the Provisional Form of
Government there pretended to have been instituted, the object of which
clearly was to subvert the government of one or more States, and of
course, to that extent, the government of the United States." By
reference to the copy of Proceedings it appears that _nineteen_ persons
were present at that Convention, _eight_ of whom were either killed or
executed at Charlestown, and one examined before the Committee.
2. "The character of the military organization appears, by the
commissions issued to certain of the armed party as captains,
lieutenants, etc., a specimen of which will be found in the Appendix."
(These Commissions are signed by John Brown as Commander-in-Chief, under
the Provisional Government, and by J.H. Kagi as Secretary.)
"It clearly appeared that the scheme of Brown was to take with him
comparatively but few men; but those had been carefully trained by
military instruction previously, and were to act as officers. For his
military force he relied, very clearly, on inciting insurrection amongst
the Slaves."
3. "It does not appear that the contributions were made with actual
knowledge of the use for which they were designed by Brown, although it
does appear that money was freely contributed by those styling
themselves the friends of this man Brown, and friends alike of what they
styled the cause of freedom (of which they claimed him to be an especial
apostle), without inquiring as to the way in which the money would be
used by him to advance such pretended cause."
In concluding the report the majority of the Committee thus characterize
the "invasion": "It was simply the act of lawless ruffians, under the
sanction of no public or political authority--distinguishable only from
ordinary felonies by the ulterior ends in contemplation by them," etc.]
[Footnote 30:--The Southampton insurrection, August, 1831, was induced
by the remarkable ability of a slave calling himself General Nat Turner.
He led his fellow bondsmen to believe that he was acting under the order
of Heaven. In proof of this he alleged that the singular appearance of
the sun at that time was a divine signal for the commencement of the
struggle which would result in the recovery of their freedom. This
insurrection resulted in the death of sixty-four white persons, and more
than one hundred slaves. The Southampton was the eleventh large
insurrection in the Southern States, besides numerous attempts and
revolts.]