150 - HISTORY OF OHIO counties of Paulding, Defiance, and Williams, one district ; the counties of Putnam and Henry, one district ; and the counties of Wood and Ottawa, one district ; each of which districts shall be entitled to one representative, in every session of the decennial period. Done in convention at Cincinnati, the tenth day of March, in the year of our Lord, 1851, and of the independence of the United States, the seventy-fifth. SCHEDULE ADOPTED SEPTEMBER 3, 1912 Sec. 20. The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith shall continue in force until amended or repealed ; provided that all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. Any provision of the amendments passed and submitted by this convention and adopted by the electors, inconsistent with, or in conflict with, any provision of the present constitution, shall be held to prevail. SCHEDULE TO ARTICLE IV SECTIONS 3, 7, 12 AND 15, ADOPTED SEPTEMBER 3, 1912 Sec. 21. If the foregoing amendment shall be adopted by the electors, the judges of the Courts of Common Pleas in office, or elected thereto prior to January 1, 1913, shall hold their offices for the term for which they were elected and the additional judges provided for herein, shall be elected at the general election in the year 1914 ; each county shall continue as a part of its existing common pleas district and subdivision thereof, until one resident judge of the Court of Common Pleas is elected and qualified therein. SCHEDULE TO -ARTICLE XV SECTION 9, ADOPTED NOVEMBER 5, 1918 Sec. 22. If the proposed amendment be adopted, it shall become Section 9 of Article XV of the constitution, and it shall take effect on the 27th day of May of the year following the date of the election at which it is adopted, at which time original sections 9 and 9a of Article XV of the constitution and all statutes inconsistent with the foregoing amendment shall be repealed. ANTI-SLAVERY AND OTHER MOVEMENTS IN OHIO CHAPTER I IN THE ORDINANCE OF 1787 In 1619 the first slaves were introduced into the American colonies at Jamestown, Virginia. At that time, by charter right Virginia included the greater part of what afterward became the Northwest Territory, a portion of which still later was admitted as the state of Ohio. It is true that for a number of years the French claimed this territory, but the claims of Great Britain and her colony of Virginia were confirmed by the treaty of Paris in 1763. When Virginia became one of the states under the articles of confederation, she still claimed the territory north and west of the Ohio River. Prior to the adoption of the Ordinance of 1787, the right to take slaves into this territory and hold them in bondage was generally recognized. When Virginia ceded her western lands to the United States, the right to hold acquired property of all kinds was safeguarded in the deed of session. Property in slaves was not specifically mentioned but by general consent it was implied, and slavery continued without interruption in the French settlements at Vincennes and Kaskaskia. The sixth article of the compact in the Ordinance of 1787, in very definite terms, prohibited slavery in the territory. The language of the inhibitory clause that was to mean so much to the territory, to Ohio and to the United States may well be remembered ; it was prophetic of Fort Sumpter and Appomattox and universal liberty in America : "There shall be neither slavery nor involuntary servitude in said territory otherwise than in punishment of crimes whereof the party shall have been duly convicted." The remaining part of the article provides for the return of slaves to their masters : "Provided, always, that any person escaping into 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 as aforesaid." 1 In these two clauses of this section are seen a lucid declaration for freedom, worthy of the statesmen who framed the Declaration of Independence, and an implied pledge to return slaves to their masters—a compromise—an intimation of a fugitive slave law that in the years to come was to add fuel to the burning anti-slavery issue. Much has been written on the origin of the sixth article of compact in the ordinance and the honor of authorship has been claimed for a number of prominent men, all of whom actually had some part in its formation. Their claims are more fully presented in the chapter entitled "The Ordinance of 1787, Its Origin and Authorship." Thomas Jefferson must be given much credit for the original introduction, March 1, 1784, in a report to the Continental Congress, of an ordinance for the government of the Western Territory, containing a clause prohibiting slavery on both sides of the Ohio River. This initial ordinance reported by Jefferson named five principles which should form 1 - See facsimile of original in handwriting of Nathan Dane in "The Marietta Celebration," October 17-18, 1906, op. p. 80. - 153 - 154 - HISTORY OF OHIO the basis not only of the temporary government of the Western Territory, but also the permanent government of the states formed from that territory. The fifth of these principles or articles of compact read as follows : "That, after the year 1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in the punishment of crimes whereof the party shall have been duly convicted to have been personally guilty." 2 It will be noted that this clause was not to become effective for sixteen years—not until 1801; and that it contained no proviso for the return of slaves escaping from their masters. When it is remembered that it applied to the Western Territory on both sides of the Ohio River, we appreciate more fully what a limitation to the growth of slavery it held in prospect. Thomas Jefferson, though a slaveholder, was opposed to slavery. There can be no doubt of this. Before the Revolution, when he was a member of the House of Burgesses of Virginia,3 he attempted to have it abolished in that colony. At other times he freely and emphatically expressed his opposition to the institution. Especially is this true of his views as expressed in the chapter devoted to the subject in his "Notes on the State of Virginia." 4 He was consistent in his opposition to its extension to the Western Territory. Many writers have drawn attention to the fact that this provision was stricken from the ordinance of 1784, but Jefferson's attitude toward this change has not always been made clear. On April 19, 1784, a motion was made, in effect though not in form, to strike out of the ordinance offered by Jefferson the clause prohibiting slavery after the year 1800. This motion carried and Virginia voted for it. At that time three representatives from Virginia were present in Congress. Under the articles of confederation, the voting was by states, each state in Congress having one vote. Jefferson voted to retain the anti-slavery clause as he had reported it, but his two colleagues voted to strike it out and thus threw the vote of Virginia against the proposal. The record attests the consistency and sincerity of Thomas Jefferson. 5 On April 23, 1784, the amended ordinance reported by the committee of which Jefferson was chairman was passed without any restriction as to slavery. Thus ended his apparently futile effort to exclude it from the Western Territory. That effort, however, was not forgotten. To Jefferson must ever be accorded the honor of first reporting to Congress a proposal to prohibit slavery from the Western Territory. To his statesmanship and foresight is traced the constructive conception of a prohibitory provision made permanent by irrevocable compact. It was this feature originated by him that gave stability to the fundamental principles that were finally included in the great ordinance. The year following, March 16, 1885, Rufus King, delegate from New York, offered the following resolution : "That there shall be neither slavery nor involuntary servitude in any of the states described in the resolve of Congress of the 23d of 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 23d of April, 1784." 6 On a motion "to commit" this resolution the vote by states stood : Aye; New Hampshire, Massachusetts, Rhode Island, Connecticut, New 2 - Smith. The St. Clair Papers, Vol. II, p. 605. 3 - “The Writings of Thomas Jefferson," 1853, Vol. I, p. 4. - Jefferson, Notes on the State of Virginia, 1801, pp. 318-322. 5 - Webster's Reply to Hayne, U. S. Senate, January 26, 1830. 6 - Smith, The St. Clair Papers, Vol. II, p. 606. ANTI-SLAVERY AND OTHER MOVEMENTS - 155 York, New Jersey, Pennsylvania, Maryland. No ; Virginia, North Carolina, South Carolina, Georgia. The motion prevailed and the resolution was committed to the whole House for further consideration. The division here presented is somewhat typical, except that Maryland usually voted with the Southern states on questions relating to slavery. The proposal was promptly referred to a committee of which Mr. King was chairman. He presented the report of this committee April 26. It differed very materially from the article referred. It had been so amended as to permit the continuance of slavery in the Western Territory until after the year 1800, as in the original provision introduced by Jefferson, and was supplemented with the proviso for the return of fugitive slaves. As amended in committee it read as follows : "Resolved, That after the year 1800 of the Christian era there shall be neither slavery nor involuntary servitude in any of the states described in the resolve of Congress of the twenty-third day of April, 1784, otherwise than in the 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 constitution between the thirteen original states and each of the states described in the said resolve of Congress of the twenty-third day of April, 1784, any implication or construction of the said resolve to the contrary notwithstanding. Provided always, upon the escape of any person into any of the states described in the said resolve of Congress of the twenty-third day of April, 1784, from whom labor or service is legally claimed in any one of the thirteen original states, such fugitive may be lawfully reclaimed and carried back to the person claiming his labor or service as a foresaid." 7 Here appears for the first time the provision for the return of fugitive slaves. Who first suggested it is not known. Mr. King's proposal was never further acted upon and the original ordinance of April 23, 1784, remained in force, but ineffective as it attracted little emigration to the Western Territory. Under new and peculiarly favorable conditions an ordinance for the government of the Western Territory was reported April 26, 1787, and referred July 9, of that year, to the following committee : Edward Carrington, of Virginia ; Nathan Dane, of Massachusetts ; Richard Henry Lee, of Virginia ; John Kean, of South Carolina, and Medancthon Smith, of New York. It will be noted that three of the five were from the South. At this time eight states, three northern and five southern, were represented by delegates in Congress. When the ordinance was reported, July 11, by the chairman of the committee, Mr. Carrington, it was in a form radically different from that in which it had been referred. It contained no prohibition of slavery—only the first five articles of compact. The anti-slavery provision was offered on the second reading of the ordinance, July 12, by Mr. Dane and unanimously adopted as the sixth article of the compact. 8 Whether this vital amendment was suggested by someone else or copied from a proposal handed to Mr. Dane is not a matter of official record or material importance. It seems probable that it was made more acceptable to the southern delegates because it included with the prohibition of slavery a supplemental clause providing for the return of fugitive slaves. None of the previous proposals contained this clause. It was evidently offered and accepted as a compromise. But there were other considerations as we shall see that led the delegates from the Southern states to give it their support. A very large measure of the honor of authorship and successful handling of this article, of course, must go to Nathan Dane. The article 7 - Barrett, Evolution of the Ordinance of 1787, pp. 29-30. 8 - Smith, The St. Clair Papers, Vol. II, p. 611. 156 - HISTORY OF OHIO as he proposed it was found many years ago with the papers of the Continental Congress in his own hand writing, and in the absence of any testimony to the contrary his must be the credit of presenting at the psychological moment in acceptable form this provision that had such far reaching results—results unforseen or even dreamed of by the delegates of the old Continental Congress that gave it their unanimous support. The ordinance as amended was adopted without a dissenting vote. 9 Briefly stated, such were the principle preliminary stages in the enactment of the anti-slavery clause of the Ordinance of 1787. Here we might properly leave the subject, but so much has been written in regard to the creating and impelling influences back of the Continental Congress and so many claims have been set up for a share in the authorship of this particular provision that something will be expected by way of supplement to the preceding summary. The anti-slavery clause was the fortunate result of a number of converging causes. It was the aftermath of the Revolution, the Indian wars and the development of new views in regard to the potential industrial and social future of what was then the Great West. At the close of the War for Independence, the United States was deeply in debt. The Continental Congress was hard pressed for money to meet the obligations of the Government, especially those to the soldiers of the Revolution. No money was at hand to meet their claims ; but there was land—vast areas of fertile lands that had been ceded to the government by the original states. The soldiers, whose needs were pressing and who were eager to reap the results of their patriotic service and sacrifice, in lieu of cash, which could not be had, were willing to take land, which the government had in abundance. The plan of Col. Timothy Pickering, 10 entitled "Propositions for settling a new state by such officers of the Federal army as shall associate for that purpose," was the formulation of a project that had undoubtedly been discussed by Revolutionary officers who desired to accept land in payment of their claims against the government and to seek their fortunes in a new state beyond the Alleghany Mountains in the fertile valley of the Ohio. Proposition 11 of this plan read as follows : "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." 11 The plan was drafted almost a year before Jefferson introduced in the Continental Congress his ordinance containing the anti-slavery provision. It is more than probable that it had been brought to the attention of Jefferson. It was circulated among the Revolutionary officers interested in the proposed venture and was probably drafted as an expression of their views as well as the views of the author. Possibly the expression "irrevocable part of the constitution" is the germ of Jefferson's "charter of compact," * * * "unalterable but by joint consent" of the United States and the state formed from the Western Territory. There is no evidence that the Revolutionary officers were especially active in demanding an anti-slavery clause in the fundamental law of the new state. One of their leaders, General Rufus Putnam, an enthusiast in the movement for the settlement of a large tract of land in the Western Territory, does not seem to have mentioned slavery in his letters of this period. It is certain, however, that Pickering continued to favor very strongly the inclusion of an anti-slavery clause in any ordinance enacted  9 - Smith, The St. Clair Papers, Vol. II, p. 611. 10 - Cutler, Life, Journals and Correspondence of Manasseh Cutler, Vol. I, pp. 156-159. 11 - Ibid., p. 158. ANTI-SLAVERY AND OTHER MOVEMENTS - 157 for the government of the territory. In a letter to Rufus King, dated March 8, 1875, he speaks thus of the ordinance reported by Jefferson and passed April 23, 1784: "There is one article in the report of the committee on which that act was made which I am extremely sorry to see was omitted in the act. The committee proposed that after the year 1800 there should be no slavery in the new state. I hardly have the patience to write on a subject in which what is right is so obvious and so just and what is wrong is so derogatory to Americans above all men, so inhuman and iniquitous in itself."12 He emphasized the importance of excluding slavery from the inception of the establishment of a separate government for the Western Territory and urged Mr. King to make one more effort "to prevent so terrible a calamity." Among other things he wrote : "To suffer the continuance of slaves until they can gradually be emancipated in states already over-run with them, may be pardonable, because unavoidable without hazarding greater evils ; but to introduce them into countries where none now exist—countries which have been talked of, which we have boasted of as asylums to the oppressed of the earth—.can never be forgiven."13 It will be noted that on March 16, only eight days after Pickering's letter, Mr. King introduced into Congress the resolution to amend the Act of April 23, 1784, by the addition of a provision to exclude at once slavery from the Western Territory. Though this provision was materially amended and afterward abandoned without action, it kept the subject alive before Congress and doubtless contributed much to the final result. The actual organization of the Revolutionary army officers as the Ohio Company, by delegates who assembled at the Bunch of Grapes Tavern, March 1, 1786, 14 gave added force to the petition of these officers, 288 in number, which was forwarded to Gen. George Washington by Gen. Rufus Putnam June 16, 1783. The year following the organization of the Ohio Company, March 8, 1787, Gen. Samuel H. Parsons, Gen. Rufus Putnam and Rev. Manasseh Cutler were chosen directors of the company. 15 From this time forward Reverend Cutler figures prominently in its activities. At this meeting it appeared that 250 shares in the company had been subscribed. Of these Reverend Cutler had obtained 100 shares and it has been surmised that his election as a director was in recognition of this substantial activity. General Parsons was the authorized agent for the company and he appeared before Congress with a memorial for the purchase of land. On July 5, 1787, Manasseh Cutler appeared in New York 16 as the agent of the Ohio Company, armed with many letters of introduction to members of Congress and authorized to purchase from the Government a large tract of land in the western country. On the thirteenth of that month the ordinance in its final form was enacted, and the result, as already stated, was due to the happy union of a number of influences. Among the most potent were these : 1. The desire of Congress to discharge its obligations to the Revolutionary soldiers who were pressing their claims and willing to take western lands in payment. 2. The insistence of the Ohio Company, composed of Revolutionary officers, upon the inclusion in the ordinance of certain fundamental principles. 12 - Barrett, Evolution of the Ordinance of 1787, p. 29. 13 - Ibid., note, and Pickering, "Life of Pickering," Vol. I, p. 510. 14 - Cutler, Life, Journals and Correspondence of Manasseh Cutler, Vol. I, p. 180. 15 - Ibid., p. 191. 16 - Ibid., p. 229. 158 - HISTORY OF OHIO 3. The assurance that the settlement of the territory northwest of the Ohio would protect the settlements south of that river from the incursions of the Indians. 4. The presence in Congress of new members from the South—especially from Virginia—with new ideas in regard to the industrial and social results of free labor under the ordinance as finally framed. 5. The limitation of the new ordinance to the territory of the United States northwest of the River Ohio. The influence of the Ohio Company is clearly intimated in the letter of Nathan Dane in which he stated, "We found ourselves rather pressed ; the Ohio Company appeared to purchase a large tract of Federal land." Congress wished to sell the land—was pressed to do so, and willing to make concessions in the frame of government to satisfy the purchaser. Delegates from the South, especially those from Virginia, appreciated the importance of white settlements north of the Ohio River, as a protection against the Indians, and were willing to go far in support of a measure that would attract permanent settlers to the proposed new state. In the discussion of the agencies that gave the anti-slavery provision of the ordinance such clear sailing in Congress, sufficient importance has not, perhaps, been given to the views of the new leaders from the South on the economic and moral effect of free labor, northwest of the Ohio, on the industrial and social life of that section. These men seem to have reasoned that instead of being a menace to the industrial welfare of the South, the exclusion of slavery from the Northwest would be to their advantage. Distinct evidence of this has been recorded by William Grayson, delegate from Virginia and temporary president of the Continental Congress when the ordinance was passed. Afterward, August 8, 1787, in a letter to James Monroe, he states some of the reasons that led southern delegates to vote for the anti-slavery clause in the ordinance. He says : "The clause respecting slavery was agreed to by southern members for the purpose of preventing tobacco and indigo being made on the northwest side of the Ohio, as well as for other political reasons."17 No doubt this and "the other political reasons" had been freely discussed among the delegates from the South. It is easy to see how they might conclude that their section would be benefited by a monopoly of cheap labor. Assured of the return of their slaves escaping to the territory and the states to be formed therefrom, the reasoning of Grayson and his associates was logical. The logic of these men, however, long years afterward was forced to give way to the logic of events. In this case, as we shall see, the logic of prophesy was overthrown by the logic of history. The previous proposals applied to all the territory extending west of the original thirteen states to the Mississippi River and from the Great Lakes on the north to the Spanish possessions on the gulf coast to the south. To exclude slavery from this vast territory would prevent its extension to the southwest as well as the northwest and assure its abolition, at an early date, throughout the United States. It was much easier for southern delegates to vote for a clause that would exclude it from only the territory northwest of the Ohio. Any adequate survey of the influences that aided materially in the adoption of the Ordinance of 1787 must assign great credit to Rev. Manasseh Cutler. He entered upon his work as the agent of the Ohio Company with enthusiasm. He was impressed with the worth and magnitude of the enterprise. His "Journals" show that he knew how to approach men and secure consideration for the work he had in hand. Though he came from New England and his antecedents were of the Puritan type, neither sectionalism nor intolerance prevented him from 17 - Barrett, Evolution of the Ordinance of 1787, p. 79. ANTI-SLAVERY AND OTHER MOVEMENTS - 159 at once establishing friendly relations with the members of Congress, especially those from the South. He cultivated them industriously. In our day he might have been called a lobbyist, but he was a lobbyist in a good cause by fair means, and succeeding generations owe him a debt of gratitude for his beneficent service. Cutler's "Life, Journals and Correspondence," in two ample volumes, has been edited and published by friendly hands. The compilation and extended comment are by his grandchildren, William Parker Cutler and Julia Perkins Cutler, the former a delegate to the second constitutional convention of Ohio and a member of Congress from the Marietta district. The work has been done with the ability, industry and devotion that we would naturally expect from cultured kinsmen. While there is a desire, frequently expressed, to be fair and just in describing the part that their great ancestor had in the formation of the ordinance, it is too much to expect, perhaps, that their statements in every instance would be entirely disinterested. Ancestral and filial devotion are praiseworthy, but they do not always shed an unbiased light on historical events. What Manasseh Cutler did in the short period between his appearance before Congress, July 5, and July 10, only five days, in any view of the situation, was a wonderful achievement. He seems to have been just the man to meet the opportunities presented. His strong claims to a prominent part in framing the anti-slavery clause of the ordinance is set forth by his grandchildren as follows : "There is sufficient historic data to satisfy the inquirer that this was the situation when, on the 10th of July, 1787, Doctor Cutler made the following entry in his 'journal' : 'This morning another conference with the committee. As Congress was now engaged in settling the form of government for the Federal Territory, for which a bill has been prepared, and a copy sent to me (with leave to make remarks and propose amendments), which I had taken the liberty to remark upon and propose several amendments, I thought this the most favorable time to go to Philadelphia.' July 19th, after his return from Philadelphia, he says : `Called on members of Congress very early in the morning, and was furnished with the ordinance establishing a government in the Western Federal Territory. It is in a degree new-modeled. The amendments I proposed have all been made, except one, and that is better qualified. It was that we should not be subject to continental taxation unless we were entitled to a full representation in Congress.' "18 What the amendments offered by Doctor Cutler were does not appear in his "Journal" nor in any of his correspondence. The measure for the government of the Western Territory, to which he refers, was very different from the ordinance passed only three days later. He seemed to be satisfied when he left New York that his amendments would be adopted. His faith that this would be done indicates that after all he was not an experienced lobbyist. A person interested as he was in a measure before any legislative body should follow it very closely through all stages of its progress. Previous measures of a similar character had failed before Congress and there was a possibility that something might occur at the last moment to defeat the measure now under consideration. The report finally made to Congress for action and before that body for consideration two days later, July 12, after Cutler had left New York, contained no reference whatever to slavery. It was left to a vigilant member of Congress who had been industriously following every change in the ordinance, at the psychological moment on July 12, 1787, to offer the amendment prohibiting slavery for all time in the Northwest Territory. The congressman who did this, as we have seen, was one of the representatives from Massachusetts, from Doctor Cutler's home town, Nathan Dane. 18 - "Cutler, Life, Journals and Correspondence of Manasseh Cutler, Vol. I, p. 342. 160 - HISTORY OF OHIO But the editors of the "Life, Journals and Correspondence" of Doctor Cutler were not content to let the matter rest there. His son-in-law, Dr. Joseph Torrey, came forward with this statement : "At a recent professional call at Hamilton, Brother Temple produced large files of Ohio documents, but I had time only for a hasty examination. I saw among these documents the Ordinance of 1787 on a printed sheet. On its margin was written that Mr. Dane requested Doctor Cutler to suggest such provisions as he deemed advisable, and that at Doctor Cutler's instance was inserted what relates to religion, education and slavery. These facts have long been known to me as household words."19 This statement is contained in a letter written to Judge Ephraim Cutler, son of Manasseh Cutler, under date of January 30, 1847, almost sixty years after the enactment of the ordinance. Ephraim Cutler, who pursued the quest of authorship of the antislavery provision with much industry and filial devotion, bears strong testimony in his father's favor in the following recollections : "I visited my father at Washington during the last session he attended Congress (1804-1805). In his boarding house he occupied a room with the reverend gentleman who represented the Hampshire and the Connecticut River counties whose name I have forgotten. We were in conversation relative to the political concerns of Ohio, the ruling parties, and the effect of the (Ohio) constitution in the promotion of the general interest when he observed that he was informed that I had prepared the portion of the Ohio constitution which contained the part of the Ordinance of 1787, which prohibited slavery. He wished to know if it was a fact. On my assuring him that it was, he observed that he thought it a singular coincidence, as he himself had prepared that part of the ordinance while he was in New York negotiating the purchase of the lands for the Ohio Company. I had not then seen the 'Journal' he kept while he was in New York at that time."20 Judge Cutler further stated on another occasion that his father, according to his own testimony, succeeded in having the prohibition of slavery and other important principles incorporated in the ordinance because "he was acting for associates, friends and neighbors, who would not embark in the enterprise, unless these principles were unalterably fixed." Assuredly here is strong testimony that Dr. Manasseh Cutler was entitled to chief credit for the authorship of the anti-slavery clause. Not only his grandchildren but also a number of other writers have put forward and defended this claim at different times. Unfortunately for them, however, Nathan Dane wrote to Rufus King a letter dated July 16, 1787, only three days after the adoption of the ordinance, setting forth very clearly and briefly the conditions attending that important event and containing no reference whatever to Doctor Cutler. 21 This letter was written when there was no controversy in regard to the authorship of the ordinance, and its testimony with reference to the anti-slavery clause was direct and final. Here is what he said on this point: "When I drew the ordinance, which passed (a few words excepted) as I originally formed it, I had no idea that the states would agree to the sixth article prohibiting slavery, as only Massachusetts of the Eastern States was present, and therefore omitted it in the draft ; but, finding the House favorably disposed on this subject, after we had completed 19 - Cutler, Life, Journals and Correspondence of Manasseh Cutler, Vol. I, p. 342. 20 - Cutler, Life. Journals and Correspondence of Manasseh Cutler, Vol. I, p. 343. 21 - See Dane's letter in full.   ANTI-SLAVERY AND OTHER MOVEMENTS - 161 the other parts, I moved the article, which was agreed to without opposition."22 The editors of the "Life, Journals and Correspondence" of Doctor Cutler reproduce the letter from Dane to Rufus King, but they reproduce it after they have discussed and apparently attempted to explain away the virtue of certain features of it. They would have the reader believe that Doctor Cutler had settled the whole matter before he started back to Philadelphia ; that Dane had not understood this although he was a member of the committee that had the ordinance in hand, and that when he finally presented the anti-slavery clause the delegates voted for it because of the previous persuasion of Doctor Cutler. Here is their view of the situation : "The important inquiry, therefore, is, whence came this unanimity by a committee, a majority of whom were normally hostile to the sixth article ? In fact, the Congress itself had shown decided hostility to this measure more than once prior to this occasion. Mr. Dane seems to understand the situation for he says : 'I have no idea that the states would agree to the sixth article prohibiting slavery,' and assigns as a reason, 'as only Massachusetts of the Eastern States was present.' The explanation is easily found in the fact that Massachusetts had another agent on the ground, who had exerted such positive influence with the southern members that the whole question was settled quietly, without discussion, without sectional appeal, and was controlled by the paramount interests and considerations that surrounded the whole subject. Doctor Cutler did not go to Massachusetts for anti-slavery action, or for land purchase. He went directly to Virginia and to members from the `southward.' They were men that could and did, listen to an intelligent presentation of a most important national enterprise, and they possessed the patriotism and integrity of character that raised them above a mere sectional view of the matter."23 Upon reflection, this view suggests some pertinent questions : 1. If the committee having the ordinance in charge were fully persuaded that the anti-slavery clause should be included, why did they not report it with the ordinance? 2. If the committee and a majority of the members of Congress had been influenced to this view by Doctor Cutler, how does it happen that Nathan Dane did not know it ? He was not only a member of Congress but a member of the committee to which the whole subject was referred. These questions seem never to have been satisfactorily answered by those who claim for Doctor Cutler the credit of authorship of many of the essential provisions of the ordinance including the clause prohibiting slavery. It is a little singular in this connection that Doctor Cutler's "Journal," so far as we have been able to learn, does not mention the subject of slavery in connection with his mission to Congress in behalf of the Ohio Company. Certainly he has left no record to the effect that he and his associates made this the sine qua non of the conditions upon which they would purchase land for the establishment of a new state in the Ohio country. Mr. Jay A. Barrett, in his very valuable monograph on the "Evolution of the Ordinance of 1787," expresses the opinion that whatever Doctor Cutler did in behalf of the anti-slavery provision was prompted rather by the desires of those whom he represented in the Ohio Company than by his personal interest in the anti-slavery cause. He says among other things: "If, on the other hand, Doctor Cutler consulted his own opinion in the matter, it is not so certain that he would have cared much for an anti-slavery clause. His later history at least does not show that he was 22 - Stone, Pennsylvania Magazine of History and Biography, Vol. XIII, p. 326; Dane's. Letter to King. 23 - Cutler, Life, Journals and Correspondence of Manasseh Cutler, Vol. I, p. 350. 162 - HISTORY OF OHIO a very ardent champion of that cause. He was one of the representatives from Massachusetts in the Eighth Congress ; and when it was moved, on January 18, 1805, to begin on the Fourth of July of that year to emancipate gradually the slaves within the national District, Manasseh Cutler voted against the measure. Twice in the consideration of this question did he oppose an anti-slavery move. He may have had special reasons for thus recording his vote; but, to say the least, it does not show on his part any great anxiety in the cause of anti-slavery."24 There has at times been a disposition to minimize the contribution of Nathan Dane to the Ordinance of 1787. Bancroft, while not denying that he drafted it, speaks of him as the "scribe" of the committee that had it in charge. Doctor Poole, probably quoting from Bancroft, refers to Dane in almost identical language. A careful survey, however, of the leading monographs that have been devoted to this subject and an examination of original correspondence, as far as it is available, of those who participated in the creation and formulation of the ordinance—and especially the anti-slavery provision—leads inevitably to the conclusion that Nathan Dane is entitled to all that he ever claimed in regard to his part in that epoch-making achievement. The principles that entered that great state paper were not original with any one of the actors in the final stages of its adoption. The genius of Nathan Dane was not of the spectacular order. It was a genius for industry and a thorough knowledge of the parliamentary procedure through which results are accomplished in a legislative assemblage. Through the long stretch of years that lead us back to the old Continental Congress, in its final session in the City of New York, we can see the prominent actors through the early days of July, 1787. (Most of the prominent American statesmen of that day were in Philadelphia, participating as members in the convention that was moulding the constitution of the United States. There was James Madison, and Rufus King, and Charles Pinckney, and James Wilson, and Hugh Williamson, and Nathaniel Gorham and other delegates to Congress who were at the same time members of the national constitutional convention. Philadelphia, through those days, was the center of attraction to statesmen interested in the future of the Republic. But in the Continental Congress in New York City still remained men of eminent ability. Only eight of the thirteen states were represented and five of these were southern states. It is indeed remarkable that here, in this comparatively small body of men, a majority from the slave states, should be wrought out the fundamental law that should ultimately overwhelm the institution of slavery and make liberty universal in America. Among these actors in the momentous achievement of that Congress were the eminent statesmen from Virginia, William Grayson, Edward Carrington and Richard Henry Lee. It was Lee who had made the motion shortly before the Declaration of Independence that "these united colonies are, and of right ought to be, free and independent states," and whose name was attached to the Declaration when it was adopted. And there, representing almost alone his section in Congress, was the active and vigilant New Englander, Nathan Dane, watching every movement and every indication favoring the progress of the principles that he personally espoused and striving to accomplish as nearly as possible the things desired by the Ohio Company, their agents and the demands of the future that he and his associates saw but dimly. The ordinance had been prepared and reported in printed form. Five articles of the great compact were there practically as they were finally passed. But the document contained not a word in regard to slavery. Doctor Cutler had gone to Philadelphia. The favorable impression that he had left and the friendly spirit that pervaded Congress doubtless were at 24 - Barrett, Evolution of the Ordinance of 1787, p. 76. ANTI-SLAVERY AND OTHER MOVEMENTS - 163 work. Who was to interpret it and carry it to its beneficent conclusion ? Nathan Dane with his own pen had prepared the sixth article of the compact. If he was not a great originator, he assuredly was an adroit and effective compiler. He took from measures that had previously been before Congress and failed, (1) the resolution offered by Rufus King in 1785, providing immediate prohibition of slavery in the Northwest Territory ; (2) the proviso that had afterward been reported to Congress requiring the return of fugitive slaves. Such was the mood of Congress and the manner in which this article of compact was presented that it became, by unanimous vote, a part of the ordinance. Others had furnished materials and prepared the way. It was left to Nathan Dane to combine these and make them a fundamental principle of our American institutions. UNDER THE ORDINANCE OF 1787 While there was general satisfaction, especially among the officers and members of the Ohio Company, with the articles of compact in the ordinance, including the sixth, which dedicated the territory northwest of the Ohio River to freedom, it was not long until Governor St. Clair found that there was considerable opposition to this inhibition of slavery. Just when this was first manifest is not definitely known. He was apprised of it within a year after he formally entered upon his duties as governor, by Bartholomew Tardiveau in a lengthy communication under date of June 30, 1789 1. Tardiveau viewed with alarm "a resolution passed in the year 1787, concerning the Western Federal Territory, the object of which was to prohibit slavery in that country." He proceeded to give his views of the anti-slavery provision of the ordinance as follows : "I then foresaw the evil consequences to the territory of this act and the consternation it would produce among the inhabitants of the Illinois country, and communicated my fears to the gentlemen in Congress, demonstrating, at the same time, the illegality of an ex post facto law, the operation of which would deprive a considerable number of citizens of their property, acquired and enjoyed long before they were under the domination of the United States. I would have presented a memorial on the subject but was told that it was needless, and that there would not be the least difficulty. * * * Sensible of the justice of my statement, gentlemen remarked that the intention of the obnoxious resolution had been solely to prevent the future introduction of slaves into the Federal country ; that it was not meant to affect rights of the ancient inhabitants ; and promised to have a clause inserted in it explanatory of its real meaning, sufficient to ease the apprehension of the people, but it was not done." Mr. Tardiveau then proceeded to describe the effect of the "obnoxious resolution" on the inhabitants of the western part of the territory : "The wretched inhabitants of Illinois, who had seen themselves for ten years neglected by that power from which alone they could expect protection, now found that the very first act of attention paid to them pronounced their utter ruin. It was not intended, I know ; but it was designedly represented to them and with many aggravating circumstances 'rumored that the very moment your Excellency landed at the Illinois all their slaves would be set free. A panic seized upon their minds and all the wealthiest among them, having but a wreck of once affluent fortunes, have gone to seek from the Spanish government that security which they conceived was refused to them." Under date of October 11, 1793 2, Governor St. Clair in a letter to Luke Decker, of St. Vincennes, declared that he had "again been considering the subject of slavery as it stands * * * according to the Ordinance of Congress for the government of the territory." He 1 - Smith, The St. Clair Papers, v. ii, p. 588. 2 - Smith, The St. Clair Papers, Vol. II, p. 318. 164 - HISTORY OF OHIO then proceeded to explain his view, more fully amplified later, as we shall see, that the declaration of the ordinance against slavery was not retroactive ; that it did not liberate those who were slaves in the territory at the time the ordinance became effective, that it did provide "that property of that kind afterward acquired should not be protected in the future and that slaves imported into the territory after that declaration might reclaim their freedom." "And this," he added, "I take to be the true meaning and import of the clause of the ordinance, and when I was in the Illinois country I gave the people there my sentiments on this subject in the same manner, which made them easy." And why did it make them "easy"? Because they understood that they were to continue to enjoy their "property" in slaves. Possibly St. Clair here refers to his first visit to the Illinois country in the spring of 1790, when he created the County of St. Clair and spent some time in the French town of Kaskaskia and Kahokia where slavery had for many years been an established institution. At all events it is sufficiently clear that the question of slavery claimed serious attention early in his administration. It is worthy of note that in the year 1793 Congress passed its first fugitive slave law. The provision in the Ordinance of 1787 for the return of slaves was general and indefinite. The specific agencies to be employed for their return were to be authorized by legislative enactment. The act of 1793 provided these. The views of St. Clair as to the application of the sixth or antislavery article of the compact are set forth more fully in a letter to Judge George Turner, of the territorial court, dated December 14, 1794 : "The declaration in our constitution, that there shall he no slavery nor involuntary servitude in the territory, applies to, and can be taken advantage of only by those slaves who may have been imported since the establishment of that constitution. Slavery was established in that country when it was under the dominion of France. It was continued when it fell under that of Great Britain ; and, again, under Virginia, a part of the territory of which it was considered by that state until the cession thereof made to Congress ; and whether that construction of the state was ill or well formed, the acceptation of the cession by Congress confirmed it to all intents and purposes ; and there is also a clause in that cession about continuing to the ancient settlers, and those who had settled under Virginia, the benefit of their ancient laws and customs. As I have not the act of cession of that state by me at the present, I can not give you the words. Slaves were then a property acquired by the inhabitants conformably to law, and they were to be protected in the possession of that property. If so, they are still to be protected in it. So far as it respects the past, it can have no operation, and must be construed to intend that, from and after the publication of the said constitution, slaves imported into that territory should immediately become free ; and by this construction no injury is done to any person, because it is a matter of public notoriety, and any person removing into that colony and bringing with him persons who were slaves in another country, does it at the known risk of their claiming their freedom ; whereas, on the other hand, had the constitution the effect to liberate those persons who were slaves by the former laws, as no compensation is provided to their owners, it would be an act of the Government arbitrarily depriving a part of the people of a part of their property—an attempt that has not been made and would not be submitted to, and is not to be drawn from the mere construction of words. I have troubled you with my thoughts upon this subject, because I have heard that there is great agitation among the people respecting it." 3 3 - Smith, The St. Clair Papers, Vol. II, p. 331. In speaking of the constitution, St. Clair, of course, means the Ordinance, which was the constitution for the government of the territory. ANTI-SLAVERY AND OTHER MOVEMENTS - 165 Judging from the concluding sentence quoted, the "agitation" over slavery was becoming more serious—"agitation," a word peculiarly descriptive of the long controversy over that institution ; a controversy that closed with the Civil war. Governor St. Clair naturally desired to quiet this agitation. This doubtless led him to adopt the somewhat specious argument that "There shall be neither slavery nor involuntary servitude in said territory" meant that slavery should not exist there except where it already existed. The logic of St. Clair, long recognized, was finally reversed by the courts. It was shattered when the Thirteenth Amendment to the Constitution of the United States, in language essentially identical, brought slavery to an end under the flag, without reservation or equivocation. On September 9, 1793, in the Town of Cincinnati, appeared the first issue of William Maxwell's "Centinel of the Northwestern Territory," an event more fully detailed elsewhere in this work. Its columns contained no intimation of an anti-slavery controversy and advertisements for runaway slaves are few and far between. The first that has attracted our attention occurs in the issue of April 5, 1794. It reads in part as follows : "TEN DOLLARS REWARD "Ran away from the subscriber Feb. 21, last, living in Kentucky in Lincoln County, a Negro man by the name of Sam, about 26 years old and about 5 ft. 6 inches high, and well made to that height, and has a very large beard for a Negro of that age and a very large mouth. * * *" "William Bryant." In the issue of this pioneer paper for May 31, of the same year, one George G. Taylor offers a reward of $10 for the recovery of "a Negro man named Aaron." In the issue for October 18, 1794, Nicholas Hawkins and William Robinson jointly offer "sixty dollars reward" for two negroes about twenty-one years old who had escaped from "Madison Court House." These slaves had probably all escaped across the Ohio River in an effort to gain their freedom. From the rewards offered we readily infer that slaves were not then considered as valuable as they became in later years. It appears that the territorial laws, adopted by the governor and judges and the Legislature, contained no direct reference to slavery. The act of Congress, already cited, covered that subject fully. After the defeat of the Indians by Anthony Wayne at the battle of Fallen Timbers in 1794 and the treaty at Greenville in the year following, the territory increased rapidly in population. Its fertile lands attracted immigrants from all the seaboard states—from the South as well as the North. Land owners, south and east of the Ohio River, looked longingly across it. They wished to come over into this "land of promise" and bring their slaves with them. It was largely from this class of prospective immigrants that the demand came for a modification or suspension of the anti-slavery article in the ordinance. As early as 1796 a petition was presented to Congress asking the suspension of the sixth article of compact, but the committee to which it was referred reported it adversely. In 1799, Revolutionary Veterans of the Virginia line petitioned the Territorial Legislature for the privilege of establishing themselves on the military bounty lands between the Scioto and Little Miami rivers. This petition was promptly rejected, (1) because it was prohibited by the ordinance ; and (2) because public opinion, especially in the Eastern or more populous part of the territory was strongly opposed to slavery. The people and their representatives were opposed to it not only "on 166 - HISTORY OF OHIO the ground of its being a moral evil, in violation of personal rights, but were of the opinion that, whatever might be its immediate advantages, it would ultimately retard the settlement and check the prosperity of the territory by making labor less reputable and creating feelings and habits unfriendly to the simplicity and industry they desired to encourage and perpetuate."4 The wisdom of this attitude is attested by 125 years of subsequent history. The wise and beneficent policy of the pioneer forefathers attracted to the Northwest a sturdy, industrious, self reliant population that dignified labor, developed the resources of this favored land, espoused and advanced the principles of civil and religious liberty, instituted a Government based upon equality before the law and by the gravitation of merit made itself the dominant power of the republic. When the territory had grown in population and the struggle for the Statehood of Ohio was under way, the slavery question was an incidental issue in the campaign for the choice of delegates to the convention that framed the first constitution of Ohio. The people of the territory, as stated by Judge Burnet, were opposed to slavery. If, therefore, it could be made apparent that any candidate favored its introduction, that would lose him votes. The pioneers from Virginia, a slave state, some of whom had been slave holders before coming to the territory, would naturally be more friendly to the institution than those who came from New England. There were, as we shall see later, some conspicuous exceptions; some of the Virginians had come into the territory to get away from the institution ; but it is still generally true that those who came from the South viewed it with more tolerance. In the neighboring territory of Indiana where New England immigrants were relatively fewer and where public opinion was less disposed to accord freedom to the negro, the Virginians, under the leadership of William Henry Harrison, at a later date in convention assembled, petitioned Congress to suspend the anti-slavery clause of the Ordinance of 1787. The presumptive pro-slavery sentiment of the Virginians was sufficiently strong to afford the radical New England Federalists, hard pressed as they were for an issue, a basis for political attack. Under the leadership of Ephraim Cutler, Rufus Putnam and Arthur St. Clair, they openly charged their opponents with entertaining pro-slavery sentiments and planning to introduce into the constitution of Ohio some modification of article sixth of the ordinance. If the "Journals and Correspondence" which he has left do not prove conclusively that Manasseh Cutler was especially interested in the abolition of slavery, the record left by his son, Ephraim Cutler, abundantly proves that he more than made good any lack of interest on the part of his father, and that his descendants may justly claim for him constant, consistent, sincere and effective opposition to the slave power. Like his father, he was a staunch Federalist and by ancestry, faith and practice a sturdy Puritan. His enthusiastic opposition to the Jeffersonian anti-federalist perhaps at times biased his judgment, but the services that he performed for the anti-slavery cause at this period of our history was very great. Upon apparently very slight provocation, he accused the anti-federalist candidates for delegates to the convention of seeking an opportunity to bring slavery into the new state. His accusation was pressed with such vigor that a number of the prominent opposing delegates had to come out publicly in a denial of any such intention. Mr. Cutler, by the vigorous campaign that he waged, aroused public opinion and in this way doubtless helped to preserve intact the fundamental principles of the great ordinance. Governor Arthur St. Clair was active and in the course of the campaign made very clear his hostility to slavery. In a speech delivered at 4 - Burnet, Notes on the Northwestern Territory, pp. 306, 307. ANTI-SLAVERY AND OTHER MOVEMENTS - 167 Cincinnati he denounced the formation of secret clubs to control the election, and said in part : "They tell you, indeed, that their design is to keep the people that are not republicans out of the convention ; but it looks more like a formed design to get themselves in whether they are capable or not. Republicans! 5 What is a republican ? Is there a single man in all the country that is not a republican, both in principle and practice, except, perhaps, a few people who wish to introduce negro slavery amongst us, and those chiefly residing in the County of Ross ? Let them say what they will about republicanism, a man who is willing to entail slavery upon any part of God's creation is no friend to the rational happiness of any, and had he the power would as readily enslave his neighbor as the poor black that has been torn from his country and friends." The federalists, however, were not able to make slavery the leading issue of the campaign. With no candidate willing to favor its introduction openly and with a large majority fully persuaded that the great issue was the early admission of Ohio, the result of the selection of delegates was in no sense a test of public opinion on the question of slavery. Less than one-third of the delegates elected were federalists, but of this minority some were leading citizens of the territory. A little later we shall see how the discussion of the slavery question entered the constitutional convention and continued to attract public attention. 5 - Smith, The St. Clair Papers, Vol. II, p. 588. CHAPTER II ANTI-SLAVERY IN OHIO IN THE CONSTITUTIONAL CONVENTION OF 1802 In continuing the history of the anti-slavery movement in Ohio, it is not necessary at this point to repeat in detail the events incident to the struggle for the admission of the state into the Union. It may be observed, however, that the enabling act passed by Congress required that the new constitution should provide a Government republican in form "and repugnant to the ordinance of the thirteenth of July, 1787, between the original states and the people and states of the territory northwest of the River Ohio." President Thomas W. Jefferson approved this enabling act. In so doing he was consistent with his attitude while a member of the Continental Congress in 1784, where he had favored the prohibition of slavery in the Western Territory after the year 1800. It would seem that under these conditions there was small opportunity for a contest over the admission of slavery or the status of the negro in the constitutional convention, when the delegates assembled in Chillicothe, November 1, 1802. The meager Journal of the convention, which was in session only one month, and the contemporary and subsequent testimony of delegates and interested observers, however, indicate clearly that there were wide differences of opinion and warm discussion at times over the rights and privileges to be accorded to the negroes living within the proposed limits of the new state. The publication in 1890, of "The Life and Times of Ephraim Cutler," by his daughter, Julia Perkins Cutler, threw a flood of light on the subject now under consideration and made a strong presentation of the federalist view, which was strengthened and sustained by the almost simultaneous appearance of the scholarly work by B. A. Hinsdale, entitled, "The Old Northwest." Ephraim Cutler was the author of the second section of the eighth article of the first constitution of Ohio. It is a clear-cut prohibition of slavery in language much like that of the sixth article of the Ordinance of 1787, omitting the provision for the return of fugitive slaves. Judge Cutler's account of the stages through which this section passed and his successful work in its support is summarized in the following paragraph. 1 The second section of the eighth article of the constitution of 1802, forbidding slavery in the state, was considered at the home of Edward Tiffin by the following committee of the convention : John W. Browne, Michael Baldwin, Ephraim Cutler, Israel Donalson, Francis Dunlavy, William Goforth, James Grubb, Nathan Updegraff and Elijah Woods. The chairman, Mr. Browne, proposed the following: "No person shall be held in slavery, if a male, after he is thirty-five years of age; or a female after twenty-five years of age." Mr. Cutler declares that the handwriting of this proposal was Thomas Jefferson's and adds that in a conversation with Thomas Worthington in Washington City he was informed that Jefferson had expressed himself as favorable to such a provision for the new constitution. 2 1 - Cutler, Life and Times of Ephraim Cutler, p. 74. 2 - Cutler, Life and Times of Ephraim Cutler, p. 75. It must be remembered that Ephraim Cutler was a radical Federalist and politically strongly opposed to Jefferson. - 168 - ANTI-SLAVERY AND OTHER MOVEMENTS - 169 On motion of Mr. Cutler the proposed section was laid on the table until the next meeting of the committee. He then suggested, "to avoid any warmth of feeling," that each member of the committee prepare in writing a wording of the section expressing his views, for consideration at the coming meeting. The committee met the next morning and Judge Cutler was asked to present his draft of the section which he did. There was a somewhat extended discussion on the comparative merits of this proposal and the one previously presented by Mr. Browne, who declared that what he had introduced "was thought by the greatest men of the Nation to be, if established in our constitution, obtaining a great step toward a general emancipation of slavery" and was much to be preferred to what Mr. Cutler had offered. In his argument Mr. Cutler dwelt upon the binding force of the Ordinance of 1787 and insisted that they had no right to deviate from it. A vote was then taken and Mr. Cutler's provision was adopted by the close margin of five to four. The wording of this proposal, with a slight strengthening modification approved by himself, became a part of Ohio's first constitution. It reads as follows : "There shall be neither slavery nor involuntary servitude in the state, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted ; nor shall any male person, arrived at the age of twenty-one years, or a female person, arrived at the age of eighteen years, be held to serve any person as servant, under pretense of indenture or otherwise, unless such person shall enter into such indenture while in a state of perfect freedom, and on condition of a bona fide consideration, received or to be received for their service, except as before excepted. Nor shall any indenture of any negro or mulatto hereafter be made and executed out of the state, or, if made in the state where the term of service exceeds one year be of the least validity, except those given in the case of apprenticeships." 3 Judge Cutler states that after the section had been agreed upon in the committee, a material and damaging change was made in the committee of the whole ; that he rose from a sick bed, went to the convention, succeeded in winning over one vote from the opposition, had the "obnoxious matter" stricken out and the section restored to its original form. It is worthy of note that Judge Cutler claims to have prepared all of that part of article eight "which relates to slavery, religion and schools or education." Mr. Baldwin, he tells us, prepared the section relating to "proceedings at law." 4 The publication of the "Life and Times of Ephraim Cutler" soon called forth rejoinders from the descendants of prominent anti-federalists of the convention. Controversies frequently exhibit remarkable longevity. They are handed down to succeeding generations. In 1897 appeared the "Life of Edward Tiffin," a compact and excellent biography that should be read by every one interested in "Ohio's first governor" and the history of his time. In this appreciative sketch of his kinsman, Col. William E. Gilmore takes serious exception to some things published in the memoir of Judge Cutler. The following paragraph illustrates his attitude : "How the convention handled the subject of negro slavery and dealt with the colored race has, in my opinion, been most grossly misstated in the 'Life and Times of Ephraim Cutler.' It is therein stated, with emphasis, that a large number of delegates—it is more than estimated a majority of them—were eagerly desirous of establishing slavery in Ohio by the constitution. And this misstatement has been followed in that very excellent and learned work, 'The Old Northwest,' by Professor 3 - The last sentence was added, with Judge Cutler's approval, to the original section presented by him and carried through the committee. 4 - Cutler, Life and Times of Ephraim Cutler, p. 77. 170 - HISTORY OF OHIO Hinsdale, and indeed by nearly every volume, pamphlet and speech of a date subsequent to 1890, when the 'Life and Times of Ephraim Cutler' was published by his son and daughter." 5 Colonel Gilmore quotes the statement of Judge Cutler relative to what occurred when the second section of article eight, or the Bill of Rights, was under consideration, and enters this spirited rejoinder : "What passed in the meetings of the sub-committee was not recorded by the secretary of the convention, of course ; but the transaction of the committee of the whole convention and the convention itself were fully recorded, and the official record fails utterly to support the pretense of Mr. Cutler that there was any struggle over the second section of the Bill of Rights; or that Mr. Cutler by his efforts and one vote—first in the sub-committee, then in the committee of the whole, and finally in the convention—saved the State of Ohio from having the curse of negro slavery fastened upon it through the constitution ! If Secretary Scott had, extraordinarily, failed to make record of such momentous proceedings, is it likely, or possible even, that the committee who were charged with the duty of examining and correcting the records each day before they reached the printer, would have failed to notice the omission." 6 Accepting the foregoing statements as true, the conclusion inevitably follows that Mr. Cutler was badly and inexcusably mistaken—not intentionally so, perhaps, but the victim of partisan bias. Before convicting him, however, we must determine if possible some basic facts : 1. Judge Cutler's charge that the anti-federalists or the Virginians wished to authorize slavery in the constitution seems to apply only to those who had opposed him and his friends in the contest for delegates in the Marietta district. "Our opponents," said he, in speaking of the contest there, "openly advocated the admission of slavery." There is evidence that Judge Cutler publicly made this charge in the campaign ; what was said in refutation does not seem to be recorded. 2. The statement of Colonel Gilmore that "the transactions of the • committee of the whole convention and the convention itself were fully recorded," is refuted by almost every page of the printed Journal of that convention. Almost every one who has read this Journal with a degree of care must have been impressed with its meagerness and obscurity. What became of the manuscript Journal is not known. The only Journal that we have to consider is the printed one, and it is a copy of this to which Colonel Gilmore has referred. No definite record whatever occurs in the printed Journal to show what was done in "the committee of the whole convention." The Bill of Rights, in regard to which Judge Cutler has left the testimony quoted and to which Colonel Gilmore has entered his sweeping rejoinder, was considered November 12, 1802. Here is the record : "The convention, according to the order of the day, resolved itself into a committee of the whole convention, on the Bill of Rights, Mr. Worthington in the chair ; and after some time spent therein, Mr. President resumed the chair, and Mr. Worthington reported that the committee had, according to order, had the said Bill of Rights under consideration, and made several amendments thereto, which he delivered at the secretary's table. "Ordered, That the said Bill of Rights, with the amendments, do lie on the table." 7 Here we have no intimation of the character of the "several amend- 5 - Gilmore, Life of Edward Tiffin, pp. 70-71. 6 - Ibid., pp. 72-73. 7 - Journal of the Convention, November 12, 1802. Original copies of the Journal of the Constitutional Convention of 1802 are now very rare. It has been reprinted in full at least three times. It is found in the House Journal of the Ohio General Assembly, Vol. XXV, 1826-27; in the report of the Ohio secretary of state for 1876, pp. 35-74; in the Ohio Archaeological and Historical Society publications, Vol. V, pp. 89-153. ANTI-SLAVERY AND OTHER MOVEMENTS - 171 ments" or the attitude of the delegates in regard to them. Sometimes the action in the convention itself is equally indefinite. We have an instance in the next stage of the consideration of this same Bill of Rights. We read from the. Journal of November 20 : "The convention proceeded to consider the amendments reported on the twelfth instant, from the committee of the whole convention, to the Bill of Rights, and the same being read, some were agreed to and the others disagreed to." Here again we have no intimation whatever as to the character of these amendments. We only know that "some were agreed to and others disagreed to." True it is that amendments in the "convention itself," are sometimes recorded and the yea and nay votes are given. This seems to have been the order when a roll call was had in the "convention itself," but never in "the committee of the whole convention." The Journal was evidently published at the same time as the constitution—after the close of the convention—and the "committee charged with the duty of examining and correcting the records" was probably a perfunctory affair, like similar committees in constitutional conventions and other legislative bodies of recent date. The printed Journal of the constitutional convention of 1802 reported definitely some of the things that were done in that deliberative body ; it did not report all and its meagerness has left much to doubt, conjecture and the reminiscences of delegates and interested contemporaries. Certain historians in recent years have declared that there is nothing in the proceedings of the convention to suggest a desire on the part of any delegate, party or faction to sanction the inclusion of a provision for slavery in the constitution and have left the impression that agitation of the question was due to the partisan bias of the Federalists in the Marietta District. While political influences were back of the charge made by Judge Cutler and his political associates, it may with equal truth be said that there is nothing in the journal of the convention to prove that the statements made and published in the memoir left by him are not essentially true. Certain it is that the status of the negro was up frequently for consideration in the convention. The brief and inadequate journal bears ample evidence of that fact. Judge Burnet has been quoted to the effect that one or two hundred resolutions were introduced relating to this subject. Hon. David Meade Massie, grandson of Nathaniel Massie, in the sketch of the life of his ancestor, bears testimony to the fact that the rights to be accorded to the negro was a disturbing question in the convention. He declares that "the most interesting contest was over he question of negro suffrage." In three brief paragraphs he describes very accurately the attitude of the delegates. Here is what he says of those with southern antecedents : "This convention was controlled by men from the slave-holding states of Virginia and Kentucky, yet we find them badly divided on this question ; Charles Willing Byrd, a Virginian of the Virginians, standing solidly for the right of the negro to vote. On the other hand Messrs. Huntington of Trumbull County and McIntire of Washington County, scions of New England stock, were with Massie and Worthington against negro suffrage. 8 The proceedings of the convention for the single day of November 22d indicate clearly the attitude of the delegates. The section of the fourth article of the constitution, prescribing the qualifications of electors, was reported for consideration. It limited the right to vote to "white male inhabitants." A motion was made to strike out the word "white," and thus extend, without discriminating restrictions, the right 8 - Massie, Nathaniel Massie, a Pioneer of Ohio, p. 87. 172 - HISTORY OF OHIO to vote to negroes and mulattoes. The following delegates voted for this amendment : Messrs. Browne, Cutler, Dunlavy; Gatch, Gilman, Goforth, Grubb, Kitchel, Paul, Putnam, Sargent, Updegraff, Wells and Wilson-14. The following delegates voted against the amendment : Messrs. Abrams, Baldwin, Bair, Byrd, Caldwell, Carpenter, Darlinton, Donalson, Humphrey, Huntington, Kirker, McIntire, Massie, Milligan, Morrow, Reily, Smith, Woods and Worthington.-19. On the same day a motion was made to amend the same section by the addition of the proviso "that all male negroes and mulattoes now residing in this territory shall be entitled to the right of suffrage if they shall within — months make a record of their citizenship." This amendment carried. Those voting for it were : Messrs. Abbott, Byrd, Cutler, Darlinton, Dunlavy, Gatch, Gilman, Goforth, Grubb, Kitchel, Morrow, Paul, Putnam, Reily, Sargent, Smith, Updegraff, Wells and Wilson.-19. Those voting against it were : Messrs. Abrams, Baldwin, Bair, Browne, Caldwell, Carpenter, Don' alson, Humphrey, Huntington, Kirker, McIntire, Massie, Milligan, Woods and Worthington.-15. Having won on this vote the friends of the negro residents of the territory offered as an amendment an additional proviso : That the male descendants of such negroes and mulattoes as shall be recorded shall be entitled to the same privilege. This amendment was lost. The following delegates voted in the affirmative : Messrs. Browne, Byrd, Cutler, Darlinton, Dunlavy, Gilman, Gofdrth, Grubb, Kitchel, Morrow, Paul, Putnam, Sargent, Updegraff, Wells and Wilson.-16. The following delegates voted in the negative : Messrs. Abbott, Abrams, Baldwin, Bair, Caldwell, Carpenter, Donalson, Humphrey, Huntington, Kirker, McIntire, Massie, Milligan, Reily, Smith, Woods and Worthington.-17. On November 26th, a motion was made to strike out the proviso adopted November 22d, granting to negroes and mulattoes, residing in the territory and having made a record of their citizenship, the right of suffrage. On this motion the following delegates voted in the affirmative, against the negro : Messrs. Abrams, Baldwin, Bair, Caldwell, Carpenter, Darlinton, Donalson, Grubb, Humphrey, Huntington, Kirker, McIntire, Massie, Milligan, Smith, Woods and Worthington.-17. Those who voted in the negative, or favoring the granting of suffrage to the negro inhabitants of the territory, were : Messrs. Abbott, Browne, Byrd, Cutler, Dunlavy, Gatch, Gilman, Goforth, Kitchel, Morrow, Paul, Putnam, Reily, Sargent, Updegraff, Wells and Wilson.-17. The vote thus stood seventeen to seventeen. The president of the convention, Edward Tiffin, cast his vote in the affirmative, against granting suffrage to the negro, and the proviso was stricken out. It is said that he did so because he feared that to grant the negro the right of suffrage would encourage free negroes to come into the new state. A comparison of the vote .for and against this proviso on November 22d and 26th shows the following changes : Browne changed his vote and on the latter date supported suffrage for resident negroes and mulattoes ; Darlinton, Grubb and Smith changed their votes and went on record against this extension of suffrage. The former vote of nineteen to fifteen in favor of the proviso was thus changed to the tie vote of seventeen to seventeen. Why the delegates thus changed their attitudes on this question is not a matter of record. David Meade Massie is right in his statement that the Virginians were badly divided on the question of negro suffrage. The delegates ANTI-SLAVERY AND OTHER MOVEMENTS - 173 with New England antecedents were likewise divided. If Huntington and McIntire had followed the leadership of Cutler and Putnam their votes would have materially changed the status of the negro in the first constitution of Ohio. While there is nothing in the journal of the convention to disprove the statements left by Judge Cutler in regard to the attitude of delegates toward the negro, his persistent effort to establish the impression that, after all, Thomas Jefferson was in favor of slavery and its extension to the Northwest Territory is not well founded. What Jefferson thought of slavery in the Western Territory is perhaps fairly expressed in the article of compact in his resolutions of 1784, which provided for abolition after 1800 ; and while he may have still clung to the belief in 1802 that a further postponement should be made until a more general plan of emancipation could be put into force, there is no evidence that at the time of the adoption of Ohio's first constitution he had changed his attitude toward the "peculiar institution" of the South. In 1801 he republished his Notes on the State of Virginia, including the chapter on slavery. As an early abolition document from an American slave-holder it has no parallel. It is to be compared only with the later declarations of Abraham Lincoln and some of the letters of John Brown from the jail at Charlestown before his execution. It is suggestive of the spirit of the times that this public arraignment of slavery by Jefferson was made without any loss of his prestige and popularity in the commonwealth of Virginia. It would seem that the citizens of the Old Dominion, or a goodly portion of them, then looked forward to the gradual extinction of a system so out of harmony with the Declaration of Independence. If further evidence of Jefferson's attitude toward that institution and its extension to the states formed out of the Northwest Territory, is desired, it may be found in the published correspondence and the diary of Rev. James Lemen, Sr., a pioneer of Illinois, who received financial aid and encouragement from Jefferson to organize anti-slavery societies in Illinois to keep that territory free until it should be admitted as a state into the Union. 9 But to return for a moment to the work of the convention that framed the first constitution for Ohio: On the whole the colored race received encouraging consideration. It fared better than in the convention held almost half a century later. Cutler and his friends preserved and safeguarded the freedom vouchsafed by the Ordinance of 1787, but they did not secure for the negro the right of suffrage or immunity against future discrimination. Before the two terms for which Edward Tiffin was elected governor had expired, the General Assembly had commenced the enactment of the so-called "Black Laws," still further depriving the colored race of the rights of citizenship. "FIRST FUGITIVE SLAVE CASE OF RECORD IN OHIO" This is the carefully worded title of a paper by William Henry Smith, published in the Report of the American Historical Association for the year 1893. We have seen that the sixth article of compact in the Ordinance of 1787, in rather mild language, but adequate to its purpose, contained a proviso that any person escaping into the Northwest Territory, "from whom labor or service is lawfully claimed * * * may be lawfully reclaimed and conveyed to the person claiming his or her labor or service." The Constitution of the United States, framed a little later, in the clause relating to such persons, declared in stronger terms that they "shall be delivered, upon claim of the party to whom such service or labor may be due." The Fugitive Slave Law of 1793, for the enforcement of the con- 9 - MacNaul, Williard C., The Jefferson-Lemen Compact, p. 26. 174 - HISTORY OF OHIO stitutional mandate, authorized a simple and summary procedure for the return of escaping servants. It provided that the person to whom the service was due, his agent or attorney, might seize the fugitive and take him before any United States judge or any magistrate of any city, town or county in which the arrest was made ; and the magistrate was authorized without the form of a trial to remand the fugitive back to slavery. The Fugitive Slave Law, embraced in the compromise measures of 1850, as we shall see later, was even more specific and rigorous. Slavery, as frequently noted by writers, in the early history of the republic, was not so much a sectional question as it became later. There was much sentiment in the South, as attested by the testimony against it even by eminent slave holders, who expressed themselves not so publicly-, perhaps, as Thomas Jefferson in his Notes on the State of Virginia, but to the same effect. The fact that Jefferson could so publicly and emphatically express his views in favor of abolition without loss of popularity in the South at the beginning of the last century is significant, as is the widely different but related fact that a few years later Tennessee contested with Ohio for the honor of having published the first antislavery newspaper in America. When Ohio was admitted into the Union, slave property was less valuable than it afterward became and the domestic traffic in it had not been plied with the shameless avidity and effrontery of succeeding years. The attitude of the Government toward the "peculiar institution" was apologetic. Slavery was generally admitted to be out of harmony with the "universal liberty" proclaimed by the Revolutionary fathers. It is rather singular, however, that there should have been no fugitive slave case of record in Ohio prior to the year 1808. Mr. Smith's subject limits his paper to the State of Ohio, but inasmuch as he says nothing about cases under the Ordinance of 1787, we may assume that he knew of no such case, at least of none in that portion of the territory now embraced within the State of Ohio. With frequent advertisement in the early newspapers of the state for the return of fugitive slaves and the less frequent offer of reward for their return in the Centinel of the Northwestern Territory one is surprised that there should have been so little litigation of record. The case presented by Mr. Smith developed when Samuel Huntington was governor of Ohio. Jane, a slave of Joseph Tomlinson, of Charlestown (now Wellsburg), Brooke County, Virginia, was tried in court on the charge of stealing goods "exceeding in value $4" and found guilty. For this offense she was sentenced under the laws of Virginia to "be hanged by the neck until she is dead." The court in rendering this verdict fixed the value of the slave at $350, which by law was paid to the owner and disposed, of course, of any further claim that he might have on this human chattel. The papers in the case were then sent to the governor of Virginia, who reviewed them returned them to the court in which the case was tried and "advised that John Connell, clerk of said court, be appointed agent to dispose of the said slave for the best price he can obtain and take bonds from the purchaser for the amount of sale and for carrying her out of the United States agreeable to law." According to the laws of Virginia then in force, the governor with the advice of his council could contract with any person for the sale or purchase of slaves under sentence of death. To afford time for this thirty days must intervene before executing the decree of the court. The sympathy of the people of Charlestown seems to have been with the slave Jane, who was lodged in jail awaiting execution or sale under the order of the governor, "such sale amounting to a reprieve from the sentence of death." Before word was received from the governor in this particular case, the doors of the jail were left open November 9, 1808, and the