AS PART OF THE NORTHWEST TERRITORY - 175 shall be made on the other states." 4th. "The Legislatures of those districts, or new states, shall never interfere with the primary disposal of the soil, by the United States in Congress assembled ; nor with any regulations Congress may find necessary, for securing the title to such soil to the bona fide purchasers." 5th. "No tax shall be imposed on lands the property of the United States." 6th. "And in no case shall non-resident proprietors be taxed higher than residents." It will be observed the provisions 4, 5 and 6, some now view as oppressive to the West, were taken from Mr. Jefferson's plan—the residue of the Ordinance of '87 consists of two descriptions, one original as the provisions to prevent Legislatures enacting laws to impair contracts previously made—to secure to the Indians their rights and property—part of the titles to property made more purely republican and more completely divested of feudality than any other titles in the Union were in July, 1787—the temporary organization was new—no part of it was in the plan of '84. The other description was selected mainly from the constitution and laws of Massachusetts, as any one may see who knows what American law was in '87—as 1st. Titles to property, by will, by deed, by descent and by delivery, cited verbatim in the seventh volume of this Abridgment, pages 389-390. Here it may be observed that titles to lands once taking root are important, as they are usually permanent. In this case they were planted in 400,000 square miles o f territory, and took root as was intended. 2d. All the fundamental, perpetual articles of compact, except as below, as 1st. Securing forever religious liberty. 2d. The essential parts of a bill of rights declaring that religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. These selections from the code of Massachusetts, as also the titles to property have created for her an extensive and lasting influence in the West, and of the most republican, liberal and beneficial kind. The organization, providing officers to select or make, to decide on and execute laws, being temporary, was not deemed an important part of the Ordinance of '87. Charles Pinckney assisted in striking out a part of this in 1786. The sixth article on compact, the slave article, is imperfectly understood—its history is—in 1784 a committee, consisting of Mr. Jefferson, Mr. Chase and Mr. Howell, reported it, as a part of the plan of 1784. This Congress struck out ; only two members south of Pennsylvania supported it—all north of Maryland, present, voted to preserve it, so to exclude slavery. It was imperfect, First, as it admitted slavery till the year 1800. Second, it admitted slavery in very considerable parts of the territory forever, as will appear on a critical examination, especially in the parts owned for ages by French, Canadian and other inhabitants, as their property, provided for only in the Ordinance of '87. In this Ordinance of '87 slavery is excluded from its date, and forever from every part of the whole "territory of the United States, northwest of the River Ohio," over all of which the ordinance established government. The amended slave article, as it is in the Ordinance of '87 was added on the author's motion, and, as the Journals show, was not reported. In the said seventh volume published in 1824 full credit is given to Mr. Jefferson and Mr. King, on account of their slave article, too limited—amended in July, 1887, by extending the ordinance of that date, so the slave article in it, over the whole territory and to take effect from the date. In 1802 the Indian article was made a fundamental part of the Southern compact—the provision as to impairing contracts was afterwards adopted into the Constitution of the United States, also into the several state constitutions, and after forty years' experience into that of Virginia. 176 - HISTORY OF OHIO In the great Missouri debate in 1820, etc., one Southern member, at least, viewed this ordinance as a Northern usurpation ; especially, as to the six articles of compact. Mr. B. in 1830 claims it an honor to Virginia and Mr. Jefferson. Colonel Carrington, of Virginia, as chairman of the committee pro forma, reported the ordinance, but f ormed no part of it. Of late years this ordinance has been made a subject of particular importance, as proving the authors of it have afforded essential means in promoting the prosperity and rapid growth of the West—it was found in the great Missouri debate the Southern attempt to run it down would not do. As a Western senator said, in that debate, in Congress, it had been the cloud by day and a pillar of fire by night in settling the country—others, to the same purpose. On this and some other discoveries, this Northern usurpation, as Charles Pinckney viewed it, is now claimed as a Southern production to prove Southern friendship to the West—also to prove even in '87 the East did nothing in building up the West. In this point of view the East will not readily yield its just claim in that business—a claim not denied for forty years and more. On the whole, if there be any praise or any blame in this ordinance ; especially in the titles to property and in the permanent parts ; so the most important, it belongs to Massachusetts, as one of her members formed it and furnished the matter with the exceptions, following. First, he was assisted in the committee of '86 in the temporary organization, almost solely by Mr. C. Pinckney, who did so little he felt himself at liberty to condemn this ordinance in that debate. Secondly, the author took from Mr. Jefferson's resolve of '84 in substance the said six provisions in the fourth article of compact as above stated. Thirdly, he took the words of the slave article from Mr. King's motion made in 1785, and extended its operation, as to time, and extent of territory, as is above mentioned—as to matter his invention furnishing the provisions respecting impairing contracts and the Indian security, and some other smaller matters, the residue, no doubt, he selected from existing laws, etc. In regard to the matter of this note, it is a portion of American law properly and conveniently placed in this appendix.—The particular form of this note is in answer to many requests, lately made, by members of Congress and others to be informed respecting the formation, the detail and authorship of this ordinance, which in forty years has so often restrained insolvent acts, stop laws, and other improper legislation impairing contracts. 12 The debate in which Webster, Benton and Hayne participated and the discussion throughout the country that followed in regard to the authorship of the Ordinance of 1787 and other matters involved in this famous forensic battle led the Pennsylvania Historical Society to extend an invitation to Edward Coles, governor of Illinois, 1822-1826, to deliver before that body an address that was expected to definitely and finally settle all questions raised in regard to the ordinance. Mr. Coles had been elected governor of Illinois in an exciting contest by a plurality of only fifty votes. He ran on a platform which pledged him to maintain the provision of the ordinance which excluded slavery from the Northwest Territory. He was thoroughly familiar with the efforts that had been made to introduce slavery into Illinois and Indiana. His interesting address is a valuable contribution to the history of the stirring times through which he lived and administered the office of chief executive in the state of Illinois. It is a succinct and authoritative statement of the efforts to introduce slavery in that state and the State of Indiana in violation of the sixth article of compact in the ordinance. Mr. Coles' effort, however, to prove that Thomas Jefferson deserved the credit for authorship of that ordinance is not so fortunate. It shows 12 - Dane, Abridgment of American Law, Vol. IX, Appendix Notes, pp. 74-76. 178 - HISTORY OF OHIO that he was not familiar with the successive steps in the evolution of that great charter which superseded the Ordinance of 1784 which was drawn and introduced by Jefferson. Governor Coles stated at the outset that he had not been able, because of advanced age and physical infirmaties, to make the thorough research for information on this subject that he desired. His investigation, however, seems to have led. him to the conclusion that there could be no question in regard to Jefferson's title to the honor of authorship. In support of this view he said in the course of this address :13 "A comparison of the plan of government, as drawn by Mr. Jefferson, and that finally adopted by Congress, both of which I have endeavored briefly to sketch, will show : First, that with Mr. Jefferson, originated the idea of a compact 'between the original states and the new states to be formed out of the territories, unalterable but by their joint consent. Second, that his plan of government or ordinance was intended to apply to all territory, ceded or to be ceded by individual states to the United States ; while the ordinance passed by Congress confined it to territory previously acquired—that is to the territory northwest of the River Ohio. Third, that by Mr. Jefferson's plan or ordinance the territory was to be formed into distinct states, whose names and boundaries were designated ; with the provision that they might form a temporary government ; adopt the constitution and laws of any one of the original states, such laws being, however, subject to alteration by themselves ; have a representation in Congress, though without a vote ; and when they should have 20,000 inhabitants, form a permanent state government, and be admitted into the Union, on an equal footing with the original states—all which provisions were those which formed substantially the ordinance as finally adopted by Congress, though it was so far qualified, that a state could not claim a right of admission into the Union until it had 60,000 inhabitants ; to which were added in more detail the form of territorial government and some specific regulations in regard to the inheritance and conveyance of property. Fourth, that to the provisions which Mr. Jefferson originated and inserted in his plan, making it a matter of compact that the new states should forever remain a part of the United States ; be subject to the government of Congress, and the articles of confederation ; bear their share of the federal debts ; adhere to a republican form of government, and admit no one to citizenship who should hold an hereditary title—to these the ordinance as adopted by Congress added provisions to protect the public lands from interference and taxation ; to preserve as highways some of the great rivers ; and to enlarge the enumeration of the personal rights of the citizen. Fifth, that the most important clause in Mr. Jefferson's plan—that which provided that after the year 1800 of the Christian era there should be neither slavery, nor involuntary servitude, in any of the said states, otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty—was adopted by Congress with no change, except the ommission of the postponement of its operation until 1800, and the introduction of the clause for the restoration of fugitive slaves. "Some of the above particulars would not have been stated so fully but for a claim which has been made to the authorship of the ordinance on behalf of Nathan Dane, of Massachusetts. To show a misconception somewhere, and in a word, the groundless character of this claim, it is only necessary to state that Mr. Dane took his seat in Congress for the first time, on the 17th of November, 1785, more than eighteen months after the ordinance had been conceived and brought forth by its great author, and been adopted by Congress, with certain alterations, the principal one of which, on motion of Mr. King, had been in effect cancelled and the original provision restored nearly in the words of Mr. 13 - Delivered June 9, 1836. AS PART OF THE NORTHWEST TERRITORY - 179 Jefferson, eight months bef ore Mr. Dane took his seat in Congress. The Journals of Congress do not show that Mr. Dane had any particular part in forming the ordinance, beyond serving on two of the several committees to which it was referred. What he did on those committees, I have no means of knowing. He may have been active and instrumental in working into the ordinance his favorite provisions about titles to property ; and thus his phrase may be rendered intelligible, where he says that he had 'formed it mainly from the laws of Massachusetts.' "14 In his "Thirty Years' View" Senator Benton draws attention to the argument of Edward Coles supporting Jefferson's claim to authorship of the Ordinance of 1787. In regard to the debate in the Senate and the view of Mr. Coles he says : "Mr. Webster was present when I read these extracts, and said nothing. He neither reaffirmed his previous statement, that Mr. Dane was the author of the ordinance, and that 'this great measure was carried by the North, and by the North alone.' He said nothing; nor did he afterwards correct the errors of his speech ; and now they remain in it, and have given occasion to a very authentic newspaper contradiction of his statement, copies, like my statement to the Senate, from the Journals of the old Congress. It was by Edward Coles, Esq., formerly of Virginia and private secretary to President Madison, afterwards governor of the State of Illinois and now a citizen of Pennsylvania, resident of Philadelphia. He made his correction through the National Intelligencer of Washington City ; and being drawn from the same sources it agrees entirely with my own. And thus the South is entitled to the credit of originating and passing this great measure—a circumstance to be remembered and quoted, as showing the South at that time in taking the lead in curtailing and restricting the existence of slavery." 15 Senator Benton and Governor Coles base their arguments on the assumption that the ordinance was before Congress from the time Jefferson introduced his resolutions for the government of the Western Territory to July 13, 1787. After a thorough examination of the manuscript journals and accompanying documents of the Continental Congress, Peter Force prepared a paper on the history of the ordinance which is published as an appendix to Vol. 2 of the St. Clair papers. At the conclusion of his painstaking review he says : "It appears, then, that, instead of having this ordinance under deliberation and revision for three years and six months,' in five days it was passed through all the forms of legislation—the reference, the action of the committee, the report, the three several readings, the discussion and amendment by Congress, and its final passage." In his survey Mr. Force elsewhere says : "This committee did not 'merely revise the ordinance ;' they prepared and reported the great bill of rights for the territory northwest of the Ohio." The conclusive arguments and claims successively submitted, however, did not settle the question of authorship to the satisfaction of William Frederick Poole, a reputable research authority, who has left his series of indexes to periodical literature that have placed students and librarians under a perpetual obligation to him. Mr. Poole thought he had discovered new light on this controversial subject and in his contribution to the North American Review for April, 1876, he gave the public the benefit of his research and conclusions. He finds inaccuracies all along the line of previous discussions and summarizes a few of them in the following paragraph : "Several ordinances for the government of the Northwestern Territory were before Congress from 1784 to 1787, and the first authentic information concerning them appeared in a paper prepared by Mr. Peter 14 - Coles, History of the Ordinance of 1787, pp. 13-15. 15 - Benton, Thirty Years View, Vol. I, p. 135. 180 - HISTORY OF OHIO Force of Washington, and printed in the National Intelligencer of August 26, 1847. Mr. Force, when searching for materials for his 'American Archives,' found a parcel of manuscripts containing the original reports relating to these several ordinances, with the changes and amendments attached, their precise condition at different times, and memoranda of the disposition made of them. His paper embodied a statement of these facts. Governor Coles, writing nine years later, was not even aware of the existence of Mr. Force's paper, and hence his statements and his conclusions were strangely inaccurate. Mr. Force's statement, valuable as it is, falls far short of being a complete account of the ordinance. It, however, developed the fact, for the first time, that, instead of being under consideration for three years and six months, as Governor Coles and some other writers have asserted, it was, in the brief space of four successive days, drafted de novo, reported to Congress, took its first, second and third reading, and was enacted by the unanimous vote of all the states present. Mr. Force was amazed at this sudden action, and confesses his inability to explain it. It is the good fortune of the writer to have in his possession original and contemporary manuscripts, and other authentic evidence, which will show how this sudden action was brought about, and who was the person that inspired and controlled this action. Mr. Poole dwells upon the plan of government that was submitted on July 9, 1787, and finds it not at all like the ordinance adopted five days later. This is what he says of it : "Among the papers found by Mr. Force was the original draft of this ordinance as it stood on the 10th of May, and as it came down without amendment to the 9th of July, only five days before the real Ordinance of 1787 was passed. Mr. Force has printed its full text. That Mr. Dane or any other Northern man should have served on a committee which drafted such an ordinance, and called for its third reading on the 10th of May, 1787, is evidence that there were very crude ideas in Congress at that time as to what an ordinance defining the fundamental laws of the Northwestern Territory should be. It had no resemblance to the ordinance which passed on the 13th of July. It had no restriction of slavery, none of those sublime principles as to personal and civil rights, education, religion, and morality, and the obligation of contracts, which appeared in the later ordinance. It had no articles of compact ; in short, it had none of those provisions which have made the Ordinance of 1787 so beneficial and renowned." 16 Mr. Poole has much to say about the style of the ordinance and points to that as evidence that Dane could not have been its author. Among other things he says : "What Doctor Cutler, Mr. Dane, Colonel Carrington, or any other member of the committee contributed to the ordinance, the public records of the time are silent concerning. Mr. Dane doubtless wrote the draft and performed the clerical duties of the committee. Its style, however, which is smooth, compact and elegant, is not the style of Mr. Dane, which was loose, ragged and inelegant. * * * Some other hand than Mr. Dane's must have been concerned in its formation and revision."17 Somebody, however, must have written the ordinance. We can not assume that like Topsy "it just happened." Doctor Poole would not have us think so. He has in reservation information' which, in his opinion, clears up all obscurities and irrefutably establishes the authorship for a new claimant. With what satisfaction he must have viewed the surprise that he had in store. f or those interested in historical research and disputed authorship. He approaches the point of interest thus: "It is evident from the investigation we have followed that some 16 - Poole, The Ordinance of 1787 and. Dr. Manasseh Cutler, in North American Review for April, 1876. 17 - Ibid. AS PART OF THE NORTHWEST TERRITORY - 181 sudden and potent influence was brought to bear upon Congress in the early days of July, 1787, which changed the whole current of action respecting the organic law for the government of the Northwestern Territory, which inspired new ideas and suddenly crystallized in the matchless specimen of legislation which we are considering. What was that influence ? To this inquiry we will now direct our attention." 18 He then proceeds to describe the sudden appearance on July 5, 1787, of his claimant in New York City. The reverend gentleman drove up "In his one-horse. sulky to the 'Plow and Harrow,' a tavern in the Bowery, and sent his horse for entertainment to the Bowery barns." He had business with Congress. He wished to purchase a large tract of land for the Ohio Company. "His name was Manasseh Cutler." Dr. Poole then proceeds to tell what happened : "While the good Doctor was in New York transacting this business, the Ordinance of 1787 was drafted and passed. The writer has in his possession the manuscript journal Doctor Cutler kept during this period, and only extracts from it have ever been printed. This journal supplements the material which Mr. Force discovered, and shedding light upon those few days in July, enables us to see why, how and by whom, that sudden action of Congress was inspired." 19 A peculiar difficulty that those who have essayed to prove that Mr. Dane is entitled to little or no credit for the authorship of the ordinance is found in the fact that the report of the committee which was made by the chairman, Col. Edward Carrington, contained no mention whatever of slavery. The last section of the compact embraces this important provision and there is no dispute as to how it was placed there. Upon that question all are agreed. On July 12, when the ordinance was before Congress, Nathan Dane offered this article of the compact. In his letter to Rufus King he gives a very good reason for offering it as he did. Not only has he stated this at different times, but his statement is corroborated by the Journal of Congress and the testimony of contemporaries. More than that, the identical article in his own hand writing as he offered it has been found with the manuscript Journals of Congress. The importance of this article, too, has been generally conceded. Mr. Poole admits its supreme importance. The question naturally arises, if 'Mr. Dane had little or nothing to do With the authorship of the ordinance, how does it happen that he had the sagacity to offer this important provision at the opportune moment and secure its adoption ? Doctor Poole has tried to answer this question. This is what he says : "Mr. Dane assumed, however, the responsibility, under an entire misapprehension of the sentiments of Congress, of withholding the anti-slavery clause till the second reading. What would the ordinance have been for the purpose for which it was intended without that clause ?"20 Yes, indeed. What would . the ordinance have been without that clause? It would have been more unfortunate than "Hamlet with Hamlet left out." And what would it have been without that clause in just the form in which it was presented by Nathan Dane? He took the original proposal offered by Thomas Jefferson in 1784; but he cut from it the postponement to the year 1801—fourteen years hence when slavery would 'probably have been 'established throughout the Northwest Territory. The form in which he offered the article made the antislavery clause immediately operative. He added, it is true, the provision for the return of fugitive slaves, a provision that in any event would have been made by Congress under the constitution. By virtue of this 18 - Poole, The Ordinance of 1787 and Dr. Manasseh Cutler, in North American Review for April, 1876. 19 - Ibid. 20 - Poole, The Ordinance of 1787 and Dr. Manasseh Cutler, in North American Review for. April, 1876. 182 - HISTORY OF OHIO article as it was added to the ordinance the inhabitants of all the states formed from the Northwest Territory may proudly and truly say that their home-land was from the very beginning dedicated to universal liberty. But in this digression as to the importance of the sixth article of the compact, we shall not forget Doctor Poole's statement that Nathan Dane who was little more than a clerk of the committee had the audacity to withhold from the report this article, which is assumed to have been agreed upon, and that the statesman, Edward Carrington, in offering the report had not discovered that Dane had withheld this important provision. This statement made by Doctor Poole and others of a similar character in his carefully prepared contribution to the North American Review in 1876 seems to have been accepted without much question. So well was he satisfied that he had made an important contribution to the early history of the Northwest Territory and so generally had his views on this subject been approved, that as president of the American Historical Association he made it the subject of his annual address before that body in Washington, December 26, 1888. In this address he speaks as follows of the authorship of the ordinance : "In view of its sagacity and foresight, its adaptation for the purpose it was to accomplish and the rapidity with which it was carried through Congress, the most reasonable explanation as it seems to me, of the origin of the ordinance is, that it was brought from Massachusetts by Doctor Cutler, with its principal and main features developed; that it was laid before the land committee of Congress on July 9 as a sine qua non in the proposed land purchase, and that the only work of the ordinance committee was to put it in a form suitable for enactment. AS PART OF THE NORTHWEST TERRITORY - 183 The original draft may have been made by either of the eminent men who were the directors of the Ohio Company—Rufus Putnam, Manasseh Cutler or Samuel Holden Parsons, but more likely was their joint production." And thus Doctor Poole finally disposes of Nathan Dane and with a sweep of the pen consigns him to oblivion as the mere "scribe of the committee." It must be admitted, however, that Doctor Poole's later surmise is more reasonable than his former one. Doctor Cutler was without doubt a very able man. But he could not be so busy as represented in his "Journal," visiting congressmen and dining with friends in the five days spent in New York City and at the same time dash off with apparent ease the Ordinance of 1787 and the act authorizing the land purchase for the Ohio Company. But while the latter surmise is more plausible it has nothing to sustain it in the contemporaneous records of Congress or the journal and correspondence of Doctor Cutler and his associates. Doctor Poole's views, however, in the annual address before the American Historical Association went far toward confirming, in the popular mind, the claim of Doctor Cutler. In the year 1889, the conclusions of writers of American History seem very generally to have trended toward agreement in regard to the origin of the ordinance. A writer in the Pennsylvania Magazine thus describes the concensus of opinion : "It has been the theme of a number of essays and addresses called forth by the celebration in 1888 of the centennial anniversary of the settlement at Marietta under the auspices of the Ohio Company. These investigations have been so numerous that any further consideration of the matter may look like a work of supererogation ; but in all that has appeared, that we have met with, the same conclusion has been reached, that when Doctor Cutler visited New York in July, 1787, to negotiate for the purchase of a tract of land for the Ohio Company, he shaped the ordinance adopted by Congress on July 13, 1787, for the government of the Northwest Territory. Some indeed go so far as to argue that Doctor Cutler brought the ordinance with him from New England and made the adoption of certain provisions found in it a sine qua non in the purchase of land." 21 The authors of monographs and addresses to this effect are so numerous that they can not be quoted here. Among them are Senator George F. Hoar and Dr. Edward Everett Hale, both of whom delivered addresses at the Marietta celebration April 7, 1888. An address before the American Antiquarian Society by John M. Merriam, frequently quoted, contains this statement : "The precise articles in the final ordinance which were due to the foresight and wisdom of Putnam and Cutler can not now be precisely pointed out. It seems probable, however, in view of the earlier stand taken by Putnam and Pickering and their associates, that provisions for the support of religion and education and the prohibition of slavery were among the terms of the negotiation. It is only upon this supposition that the readiness of Congress to agree upon the sixth article (that prohibiting slavery) can be explained."22 Dr. B. A. Hinsdale in his volume entitled "The Old Northwest" throws his support to the claims of Doctor Cutler and cites Doctor Poole's contribution to the North American Review and the journals of Manasseh Cutler as the authoritative sources for information on this subject. He also quotes with approval Bancroft's distribution of the honors of authorship which reads as follows : "Thomas Jefferson first summoned Congress to prohibit slavery in 21 - Stone, The Ordinance of 1787, in The Pennsylvania Magazine, Vol. XIII, p. 309. 22 - Ibid, p. 310 (quoted). 184 - HISTORY OF OHIO all the territory of the United States ; Rufus King lifted up the measure when it lay almost lifeless on the ground and suggested the immediate instead of the prospective prohibition ; a Congress composed of five Southern states to one from New England and two from the Middle states, headed by William Grayson, supported by Richard Henry Lee, and using Nathan Dane as scribe, carried the measure to the goal in the amended form in which King had caused it to be referred to a committee; and as Jefferson had proposed, placed it under the sanction of an irrevocable compact." 23 This testimony from Bancroft contains no reference to Doctor Cutler. It was first published before his name was prominently connected with the probable authorship. It serves the purpose, however, of disposing of Dane "as scribe" and thus aids in removing a troublesome obstruction to those claiming the chief honor for Doctor Cutler. In the meantime the "Life, Journals and Correspondence of Manasseh Cutler" by his grandchildren, William Parker Cutler and Julia Perkins Cutler, was published in two ample volumes in 1888 and two years later appeared the "Life and Times of Ehpraim Cutler," by Julia Perkins Cutler. This gave a large circle of readers whose interest had been aroused by frequent references to these unpublished volumes an opportunity to read and carefully consider the value information that they contained. Quotations are here given from these works setting forth the claims of Doctor Cutler to the authorship of the Ordinance of 1787: "Early in July, 1787, Congress was called upon to consider an application such as had never before been made. It was a proposition to undertake the permanent occupation of that distant wilderness in a systematic manner of settlement, upon a large scale, embracing distinctly the idea of a 'new state,' as cherished by the projectors of the scheme. When Doctor Cutler placed this scheme before Congress he could appeal honestly and urgently for the establishment there of such civil and social institutions as would meet his own wants and those of his neighbors as pioneer settlers. He could say with propriety : 'If we venture our all, with our families, in this enterprise, we must know beforehand what kind of foundations we are to build on.' Hence, his first effort was to attend to the organic law. "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 on 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. This could not be fully obtained, for it was considered in Congress as offering a premium to emigrants. They have granted us representation with the right of debating, but not voting, upon our being first subject to taxation.' "The next inquiry is, what influence did he exert at that time and under these circumstances in the formation of the ordinance ? It had evidently been a subject of discussion after he had reached New York. and before he went to Philadelphia, or it would not have been submitted 23 - Quoted from Hinsdale, in The Old Northwest, p. 274. AS PART OF THE NORTHWEST TERRITORY - 185 to him. There is no record of the precise amendments that he suggested ; and it is quite probable that his advice extended to and covered the whole subject, as his journal shows constant intercourse with the members before his visit to Philadelphia. It was during this first portion of his time that the governmental ordinance was under discussion, and he did not enter fully upon his negotiation for a purchase of land until his return from Philadelphia, after the passage of the governmental ordinance. The following traditional testimony is presented as worthy of acceptance in establishing his claims to the authorship of some of its most important principals : "Dr. Joseph Torrey, of Salem, Massachusetts, wrote to Judge Ephraim Cutler, January 30, 1847, as follows : 'At a recent professional call at Hamilton (Doctor Cutler's home) 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.' "Hon. Daniel Webster solicited and obtained the examination of Doctor Cutler's journal. Subsequently, Temple Cutler wrote to his brother Ephraim : 'Webster is now convinced that the man whose fore-sight suggested some of these articles was our father.' "Ephraim Cutler has left the following written statement of his 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 that 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. In another written memoranda Judge Cutler refers to this conversation with his father, and states as the reason why his prohibition of slavery, as well as the recognition of religion, morality, and knowledge, as foundations of civil government, were incorporated into the ordinance, and provision made in the land purchase for their support, arose from the fact that `he was acting for associates, friends and neighbors, who would not embark in the enterprise, unless these principles were unalterably fixed.' "24 The publication of the works from which quotation has been made gave opportunities for a more careful and deliberate consideration of the testimony, that they bear in regard to the authorship of the Ordinance of 1787. It soon became apparent that the claims of Dr. Manasseh Cutler to this honor were not as well sustained as many had at first concluded. In a discriminating, impartial and carefully prepared contribution by Frederick D. Stone to the Pennsylvania Magazine of History and Biography for the year 1889 we find a distinct descent from the views advanced by Doctor Poole and the numerous writers who followed his lead. After carefully reviewing everything that occurred in the Continental 24 - Cutler, Life, Journals and Correspondence of Manasseh Cutler, Vol. I. pp. 342-344. 186 - HISTORY OF OHIO Congress from the introduction of the resolutions by Jefferson in 1874 up to the adoption of the ordinance Mr. Stone says : "This in brief is all the contemporaneous evidence there is, and the reader has before him an epitome of everything of that character on which the conclusion is based that Doctor Cutler and his colleagues were virtually the authors of the Ordinance of 1787. In reviewing it, we wish it distinctly understood that we would gladly accord to Doctor Cutler all the honor that has been claimed for him were it not that we consider such a verdict at variance with the truth of history and unjust to many others who did much to create the ordinance."25 In controverting the assumption of Doctor Poole set forth in his address before the American Historical Association Mr. Stone says : "There is nothing but argument to support the assertion that the government of the territory was the subject of conversation between Cutler and Putnam and Cutler and Parsons when the good doctor was on his way to seek an interview with Congress."26 Continuing the writer adds : "The interviews, it will be noted, were brief. With Putnam, Cutler spent but the portion of a day ; with Parsons he remained longer, but the greater part of the time being Sunday was occupied in preaching for and visiting Mr. Huntington. And here let us ask, Which is the most probable, that this instrument, so admirably suited for the work it was to perform, whose wisdom has called forth such unstinted praise, and which exercised so powerful an influence in shaping the destinies of the country,—which is the most probable, that this should have been the result of the hasty visits that Cutler paid to Putnam and Parsons, or the work of a deliberative body, appointed for the purpose, composed of men some of whom had already given the matter serious attention, and all more or less familiar with the character of the work required, having at their command the archives of Congress containing the record of all that Congress, or the committees of Congress, had ever done in the matter ? "There is not a scintilla of evidence that Doctor Cutler ever made the adoption of what are claimed as his views in the Ordinance of 1787 a sine qua non in the purchase of land."27 In considering the reported interview of Judge Ephraim Cutler with his father in Washington relative to the anti-slavery clause of the ordinance Mr. Stone declares : "This is not good historical evidence ; but suppose it all true, does it show anything but that he suggested what had been again and again before Congress for consideration ?"28 Further on in regard to the same subject he adds : "So far from Doctor Cutler's considering the prohibition of slavery in the territory an essential matter that would influence him in purchasing land of Congress, it does not appear to us that it had any weight with him whatever. If it had been otherwise we do not believe he would have chosen the very time the question was coming up before Congress for consideration to have left New York and visited Philadelphia." 29 The writer proceeds at length with his unanswerable logic to thoroughly discredit the argument that Doctor Cutler was entitled to the national credit for the authorship of the ordinance. He then draws attention to the work of Nathan Dane : "To Nathan Dane we would accord a much higher place than that of a scribe. He appears to us to have been rather the intelligent com- 25 - Stone, The Ordinance of 1787, in The Pennsylvania Magazine, Vol. XIII, p. 322. 26 - Ibid, p. 323. 27 - Stone, The Ordinance of 1787, in The Pennsylvania Magazine, Vol. XIII, p. 323. 28 - Ibid, p. 324. 29 - Ibid, pp. 325-326. AS PART OF THE NORTHWEST TERRITORY - 187 piler. He was familiar with the action of Congress on territorial affairs. It was on his motion that the committee appointed in 1786, of which Monroe was chairman, for reporting a government for the Western states, and in September he was made a member of that committee. He was also a member of Johnson's Committee, and while on it, with the assistance of Pinckney, drafted the report .presented on May 9, 1787. In his letter to King, written three days after the passage of the ordinance, he says he drew it, and that it passed, a few words excepted, as he ,originally formed it. This would be conclusive regarding authorship Were it not for his subsequent statements and the proof we have that much of it was the work of others, which leads to the supposition that he did not intend to claim originality, but construction." 30 In 1891 was published with many citations of authority and an exhaustive bibliography a very interesting monograph by Jay A. Barrett entitled "Evolution of the Ordinance of 1787." In the concluding chapter he considers very briefly the part that Doctor Cutler may have had in the creation of this ordinance. After a reference to the plan of Timothy Pickering and others in 1783 containing a positive slavery prohibition and the sentiment of the officers of the army who were 30 - Stone, The Ordinance of 1787, in The Pennsylvania Magazine, Vol. XIII, p. 336, 188 - HISTORY OF OHIO interested in the West in favor of the inclusion of such a provision, Mr. Barrett observes : "Doctor Cutler must have been aware of this sentiment, and if it was his endeavor to suit the associators of the company, he would have mentioned this, along with other things, as desirable amendments. 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 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." It is a rather remarkable fact, in view of all that has been written on the subject, that the "Life, Journals and Correspondence of Manasseh Cutler" in two volumes aggregating 1,019 pages does not contain a single reference from the manuscripts that he left in regard to his views of slavery or its exclusion from the Northwest Territory. The index has five distinct references to this subject but not to any written opinion that Doctor Cutler left in regard to it. There are reminiscences of the views that he entertained, but it is still occasion for surprise that he passed through the period of the controversy without leaving any statement of his own attitude toward it. It is not necessary, however, to depend upon hypotheses, analogies, inferences and learned speculation for light on this interesting and important subject. The document, which it would seem should have settled all questions in regard to the source and drafting of the ordinance, is the letter from Nathan Dane to Rufus King, written only three days after the passage of the ordinance and before any question had been raised in regard to its authorship. It is a modest, straightforward statement without any effort to magnify the work that he had done in the preparation of this great state paper. Here it is in full : "New York, July 16, 1787. "To the Hon. Rufus King, Esq., Philadelphia. "Dear Sir—I am obliged to you for yours of the 11th inst. ; with pleasure I communicate to you what we are doing in Congress, not so much from a consciousness that what we do is well done, as from a -desire that you may be acquainted with our proceedings. We have been much engaged in business for ten or twelve days, for a part of which we have had eight states. There seems to be a disposition to do business and the arrival of R. H. Lee is of considerable importance. I think he serves, at least in some degree, to check the effects of the feeble habits and lax mode of thinking of some of his countrymen. We have been employed about several objects—the principal of which have been the government inclosed 31 and the Ohio purchase ; the former you will see is completed and the latter will probably be completed tomorrow. We tried one day to patch up 32 M___'s p. system of W. Government—started new ideas and 33 committed the whole to Carrington, Dane, R. H. Lee, Smith and Kean. We met several times, and at last agreed on some principles—at least Lee, Smith and myself. We found ourselves rather pressed. The Ohio Company appeared to purchase a large tract of Federal lands—about six or seven millions of acres—and we wanted to abolish the old system and get a better one for the government of the country, and we finally found it necessary to adopt the best system we 31 - The Ordinance of 1787, adopted on 13th July. 32 - The initials refer possibly to the plan proposed by Mr. Monroe. [33 - This quotation is not closed.] AS PART OF THE NORTHWEST TERRITORY - 189 could get. All agreed finally to the inclosed plan except A. Yates. He appeared in this case, as in most others, not to understand the subject at all. I think the number of free inhabitants, 60,000, which are requisite for the admission of a new state into the Confederacy, is too small ; but, having divided the whole territory into three states, this number appears to me to be less important. Each state in the common course of things must become important soon after it shall have that number of inhabitants. The Eastern state of the three will probably be the first, and more important than the rest, and will no doubt be settled chiefly by Eastern people ; and there is, I think, full an equal chance of its adopting eastern politics. When I drew the ordinance (which passed, a few words excepted, as I originally formed it) I had no idea 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 the subject, after we had completed the other parts, I moved the article, which was agreed to without opposition. We are in a fair way to fix the terms of our Ohio sale, etc. We have been upon it three days steadily. The magnitude of the purchase makes us very cautious about the terms of it and the security necessary to insure the performance of it. "We have directed the board to examine and report on Holkar's affair. "Massachusetts Legislature was prorogued on the 7th inst., having continued the Tender Act, as it is called, to January, 1788 ; and having passed no other act of importance, except what I presume you have seen respecting the raising of troops and the power of the governor to pursue the rebels. 34 You ask me how I like my new colleagues. Sedge-wick, you know, we all esteem ; but I fear he will not make his attendance an object. Thacher I am not acquainted with. I do not know whether Mr. Otis, at his period of life, and under his misfortunes, will enter with vigor into Federal politics. I wish his accounts with the Union had been settled, etc. "Nothing more worth particular notice. "Your affectionate friend, "Hon. R. King." - "N. Dane." "P. S. States present, Massachusetts, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina, and Georgia. Brother Holten is rather an invalid; is not able to take an active part in business, but I think supports pretty. good Eastern politics." 35 The following comment by Charles R. King, grandson of Rufus King, is appropriate and just. It was evidently written long before the publication of the "Life and Correspondence of Rufus King." This work we learn was in course of preparation many years. The letter to Rufus King, which is the subject of this comment, had previously been published at different times. The editor is therefore mistaken in saying that it is "now for the first time made public." This statement was probably true at the time it was written but not at the time of publication. The inference drawn that Mr. Carrington "probably declined to report the ordinance" is not warranted in view of the published statement of Mr., Dane himself in his "Note" in the Appendix to Vol. 9 of his "Abridgment of American Law," which appears on a previous page of this contribution. The language of Dane in that note is, "Colonel Carrington, of Virginia, as chairman of the committee, pro forma, reported the ordinance, but formed no part of it." Otherwise the following comment of Charles Rufus King seems to us to be conclusive : "This letter, now for the first time made public, was written, it will be seen, three days only after the passing of the famous ordinance, 34 - Refers to Shay's Rebellion. 35 - Pages 289-291, Vol. I, The Life and Correspondence of Rufus King, Comprising His Letters, Private and Official, His Public Documents and Speeches, edited by his grandson, Charles R. King, M. D. (New York, 1894). 190 - HISTORY OF OHIO before there was any controversy about it, and without consciousness, so far as the modest tenor of the whole letter can witness, of the priceless value of the act thus perfected. The course of the preparation, discussion, and final adoption of the ordinance is related with entire simplicity. No doubt, therefore, can now be entertained that Mr. Dane did frame the ordinance throughout ; that it was he who directed the mode of presenting it to the House and carrying it through all its stages. "Mr. Carrington of Virginia, named first on the committee, and, therefore, by usage its chairman, did not, as appears by this letter, agree with the majority of the committee, and, therefore probably declined to report the ordinance, devolving that duty on Mr. Dane, who stood next on the list, and who was in the majority. This explains what heretofore has not been understood, how Mr. Dane, the second on the committee, came to be its reporter ; and the almost literal accuracy is hereby established of the account given by Daniel Webster, in his oration against Rayne, on the Foot resolutions, in the United States Senate, in 18—, that this ordinance 'was drawn by Nathan Dane, and adopted by Congress without the slightest alteration.' A few words excepted,' says Mr. Dane, 'and the ordinance passed as I originally formed it.' "Having thus established the conclusiveness of the claim of authorship of the Ordinance of '87 for Nathan Dane, and shown that to Rufus King, and indirectly to Timothy Pickering, belongs the suggestion of the provisos contained in it against slavery and for aids to religion and knowledge, and for assuring forever the common use, without charge, of the great national highways, of the Mississippi, the Saint Lawrence, and their tributaries and their carrying-places, to all citizens of the United States ; and having, at the same time, by spreading in extenso, before the readers of this chapter, both the resolution of Mr. Jefferson, of April, '84, and the Ordinance of '87, put it within their reach to compare these instruments, and thus ascertain how much of one is borrowed from, or is suggested by, the other, it may be said in conclusion that, in endeavoring to assign to each of the prominent actors in this great scene his due merit and responsibility, no desire has been felt, nor, it is hoped, manifested even unconsciously, of magnifying any one at the expense of others. Enough of enduring reputation for each and all must forever honor the names of Dane and Jefferson, of Pickering and King, for the part taken by each in the long, laborious, and eventful struggle, which had so glorious a consummation in the ordinance consecrating forever, by one imprescriptible and unchangeable muniment, the very heart of our land to Freedom, Knowledge, and Union."36 After a survey of the numerous arguments on the subject, Mr. Frederick D. Stone very properly, it seems to us, reaches the conclusion expressed in the following sentences : "The fact is, the ordinance was a political growth. Step by step its development can be traced in the proceedings of Congress. Monroe's plan, imperfect as It was in form when reported, provided for a more advanced state of civilization than Jefferson's and in some respects was an improvement on it. Johnson's ordinance was an elaboration of Monroe's plan. The Ordinance of 1787 contained the most important features of each, together with suggestions that had been made from time to time, and what could be found in the constitutions and laws of the states. There is no necessity of going outside of Congressional circles to account for its production or passage." Gratification and surprise has frequently been expressed that the ordinance should have unanimously passed the Continental Congress at a time when there were represented in that body only three Northern states and five Southern states. Elsewhere we have presented some of the leading considerations 36 - King, Charles R., Life and correspondence of Rufus King, Vol. I, pp. 291-292. AS PART OF THE NORTHWEST TERRITORY - 191 that were influential with Southern members of Congress in bringing them to the support of the ordinance with the anti-slavery clause and they need not be repeated here. The delegates from the South ceased to oppose it when its operation was limited to the territory northwest of the Ohio River and a provision was added authorizing the return of fugitive slaves. The Southern delegates had finally concluded that it would be advantageous for them to have a monopoly of cheap labor south of the River Ohio. The literary style of the ordinance has been praised by many writers. Some of them have it seems to us justly observed that in this respect it does not measure up to the standard of the Constitution of the United States which was in process of evolution at the same time. There is certainly not the striking difference in mere style that Dr. Poole intimates between the report made March 16, 1787 and the corresponding part of the ordinance as finally adopted. It would seem in view of the many features that were undoubtedly discussed at' different times in the Continental Congress that it is clearly within the range not only of possibility but of probability that Nathan Dane was equal to the task of arranging the principles agreed upon in the form of an ordinance. The sixth article of compact bears at least one mark of haste in preparation—a sentence which could be much improved by a strict application of grammatical rules. The first sentence of 'the third article, so often quoted with approval, on its face suggests what was not evidently intended ; namely, that schools and the means of education should be forever encouraged for the purpose, not only of promoting morality and imparting knowledge but also to teach religion. Dr. Poole is probably in error when he declares that the authorship of the ordinance was never assigned to Nathan Dane in the lifetime of Dr. Manasseh Cutler. There Is an intimation that this was probably not true in the letter written to' Dane April 12, 1831, by John H. Farnham of Salem, Indiana, to which reference has already been made. Mr. Farnham says, "We have been accustomed in Indiana to regard you as -the author and supporter of the Ordinance of 1787; that was the opinion until a senator from Missouri (Colonel Benton) in the Senate, session '29-'30, denied your agency." The implication here is that Dane had generally been regarded as the author. In his letter to Rufus King his authorship is freely stated without thought that it would be contradicted by anyone familiar with the facts at the time. Of course there is all sort of room for quibbling as to what constitutes authorship and there has been a disposition to point out Mr. Dane's inconsistency in stating in one place that he did not claim originality for his contribution to the ordinance and in another place pointing out that certain provisions had originated with him. He evidently in one instance was referring to -originality of the matter in the various clauses and sections and in the other simply referring to the fact that he had been the first since the measure had been up for final consideration to propose the portions of the ordinance that he specifically names. Strictly speaking, much of the ordinance can be traced back to the Magna Charta wrested from King John if essential essence is considered. The same thing is true of other state papers of this period, the Declaration of Independence and the Constitution of the United States. Daniel Webster very appropriately observes : "It is no derogation from the credit, whatever that may be, of the drawing of the ordinance, that its principles had before been prepared and discussed, in the form of resolutions. If one should reason in that way, what would become of the distinguished honor of the author of the Declaration of Independence. There is not a sentiment in that paper which had not been voted and resolved in the assemblies, and other popular bodies in the country over and over again." Truly it may be said in conclusion that in the sense in which Thomas Jefferson was the author of the Declaration of Independence, in that 192 - HISTORY OF OHIO sense Nathan Dane was the author of the Ordinance of 1787. The provision prohibiting slavery at the last moment had not been included. Thomas Jefferson was in Paris. Doctor Cutler was visiting friends in Philadelphia but this plucky young statesman and indefatigable worker was in the Continental Congress in the City of New York with his antislavery provision prepared and waiting for the psychological moment in which to present it. That moment came and Nathan Dane included in the provision just what could be enacted under the favorable circumstances that had developed and was thus the decisive influence in making the great ordinance what some of its admirers have proudly claimed for it, the Magna Charta of American Freedom. CHAPTER II THE NORTHWEST TERRITORY UNDER GOVERNOR ARTHUR ST. CLAIR For the administration of the government of Northwest Territory under the ordinance, Congress on October 5, 1787, elected the following officers : Arthur St. Clair, governor ; James M. Varnum, Samuel Holden Parsons and John Armstrong, judges ; and Winthrop Sargent, secretary. Armstrong declined and John Cleves Symmes was appointed instead. Judge Varnum died January 10, 1789. The ten laws passed in 1788 had the approval of all the judges, except Symmes, who participated in the passage of only two, the third and fourth. The first Congress, by act approved in August, 1789, adapted the provisions of the Ordinance to the new federal constitution. Under this act, the governor, judges and secretary of the territory were appointed by the president, with confirmation by the senate. "In case of the death, removal, resignation or necessary absence of the governor," the secretary of the territory became acting governor 1. Under this act the president appointed, August 20, 1789, Judges Parsons and Symmes. On the same date he also appointed William Barton who declined. On September 12, 1789, George Turner was appointed the third judge. March 31, 1790, Rufus Putnam became judge in place of S. H. Parsons, deceased. December 22, 1796, Joseph Gilman succeeded Judge Putnam, who had resigned to become surveyor general. In the same year Turner removed from the territory and resigned, but his place was not filled until February 12, 1798, by the appointment of Return Jonathan Meigs, Jr. These were the men who directed the government of the Northwest Territory during the first stage of territorial development as outlined in the Ordinance. A governor and three judges were competent to make the laws and also administer them. Thus for ten years all the functions of territorial government were performed by four men, though they delegated some measure of home rule to counties through local courts and other officials. Governor St. Clair arrived at Fort Harmar at the mouth of the Muskingum July 9, 1788. On July 15 the governor, with Judges Parsons and Varnum, "made public entry at the bower in the City of Marietta, where he was received by General Rufus Putnam and all of the citizens," this ceremony marking the formal establishment of civil government in the Northwest Territory. After "a concise and dignified speech," the governor directed the reading by Secretary Sargent of the Ordinance as the "Constitution for the government of the territory." "The governor and the judges, or a majority of them, shall adopt, and publish in the district, such laws of the original states, criminal or civil, as may be necessary." Under this authority from the Ordinance, the governor and the judges at once took up their task as law-makers. The two judges, Parsons and Varnum, drafted a law for the organization of the militia. The governor was not sparing of his criticism, and though a militia law was framed and became the first chapter 2 of 1 - Act of Congress, approved, August 7, 1789. 2 - The chapter numbers used on this and succeeding pages refer to the chapters of the territorial laws as arranged in Chases's Statutes of Ohio and the Northwestern Territory. - 193 - 194 - HISTORY OF OHIO "laws of the governor and judges under the Ordinance of 1787," St. Clair then and afterwards regarded it and others similarly passed as of. "doubtful obligation." This law was "published at Marietta July 25, 1788." 3 A second law proposed by the judges, having to do with division of real estate 'held in common, met a still more effective veto from the governor, and was not passed, but the veto marked the beginning of an antagonism that persisted in all the subsequent relations of the governor and other members of his administration. July 31, 1788, the judges, referring to the sentence from the Ordinance above quoted, declared it was within the right and power of a majority of the judges to enact laws without the consent of the governor, claiming that the phrase "a majority of them" applied to the governor and judges sitting as a legislative body. It was their contention evidently that when the governor and judges sat as a legislative body, the governor had only the rights of a chairman, could cast a deciding vote, but could not veto a decision 3 - “The first ten laws purport, in their titles to have been 'published' merely; the laws following, to chapter 36 inclusive, purport to have been `passed'; all the other laws of the governor and the judges purport to have been 'adopted and passed.'"—Chase. AS PART OF THE NORTHWEST TERRITORY - 195 made by two or more votes. His answer to this was : "It is true, the punctuation would favor the construction you seem inclined to put upon it ; but I believe it is not the true sense, and that Congress intended that the assent of the governor should be necessary to all laws adopted during this stage of the temporary government, as well as to all laws formed by the general assembly, after it shall have been organized." From this he went on to discuss the question whether he and the judges, within the intention of the Ordinance, had any power at all to "enact" laws. He insisted that they were authorized only to select laws already tested by the experience of the original states. While his contention may have seemed academic and "too fine a point," it was not an opinion asserted to serve his immediate ends. In his address at the opening- of the government on July 15, St. Clair said : "During that period (of temporary government) the judges, with my assistance, are to select from the laws o f the mother states, such laws as may be thought proper for you." Again on the 29th of the same month—"they (the present legislature) have power to adopt laws only." In his address to the judges at the opening of their legislative session May 29, 1795, Governor St. Clair reiterated his views : "It has always been my opinion, gentlemen, that whenever the laws of the territory were considered by the Legislature of the United States, in a constitutional point of view, they would be annulled. And, although I gave way to the mode that has been pursued in forming them, and have assented to many of them, it was not till after long altercation with the first judges, Mr. Parsons and Mr. Varnum, that it was gone into. I found myself, in some measure, forced to it ; for I was not happy enough to be able to convince them of its impropriety, and unless the one or the other receded, society must have been in a state of anarchy, and I preferred submitting to what my mind disapproved of rather than that the community should be left in such a situation, not doubting that Congress would soon correct it." The laws of 1788, ten in number, provided for the organization of the militia ; for the establishment of inferior courts ; for the punishment of crimes, and the limitation of actions ; prescribed the duties of ministerial officers, regulated marriages, and appointed oaths of office. Says Salmon P. Chase in his historical introduction to "The Statutes of Ohio" : "That the governor and the judges in the enactment of these laws exceeded their authority, without the slightest disposition to abuse it, may be inferred from the fact that, except two, which had been previously repealed, they were all confirmed by the first territorial legislature." Besides assisting in the making of laws and appointing military and civil officials, the governor on July 26 created the county of Washington, comprising nearly half the present State of Ohio. The supreme court of the territory consisted of the three judges appointed by the president.. The second law of the territory, published August 23, provided for a county court of quarter sessions and a county court of common pleas, while the third law, August 30, provided for a court of probate. In Washington County, Rufus Putnam, Benjamin Tupper and Winthrop Sargent were appointed justices of the peace, with Return J. Meigs clerk of the quarter sessions court, and on September 2 came the formal inauguration of the judiciary with the opening session of the court of common pleas in Campus Martius. The first acts of territorial government were performed at Marietta, then the only white settlement within the present state of Ohio. The advance guard of the Ohio Associates had arrived there May 7, 1788, just two months before Governor St. Clair. In the same year John Cleves Symmes had made his purchase on the Ohio between the Miami rivers, and on a tract sold by him Patterson and Ludlow with a small party located December 26, 1788, and in the course of the winter a town was surveyed and laid out by Colonel Ludlow. The first name given it 196 - HISTORY OF OHIO was Losantiville. On June 1, 1789, a party of soldiers arrived and began the building of Fort Washington, and a few months later General Harmar took command. Governor St. Clair moved his headquarters to this post, and in 1790 he created the County of Hamilton, embracing a large area between the two Miami rivers. About the same time he changed the name Losantiville to Cincinnati, in honor of the military society of Cincinnati. At this period there was no seat of government, properly so called. The governor resided at Cincinnati, but laws were passed whenever they seemed to be needed, and promulgated at any place where the territorial legislators happened to be assembled. Before the year 1795, says Chase, "No laws were, strictly speaking, adopted. Most of them were framed by the governor and judges to answer particular public ends ; while in the enactment of others, including all the laws of 1792, the secretary of the territory discharged, under the authority of an act of Congress, the functions of the governor." In 1792 Congress passed an act giving to the governor and judges authority to repeal, at their discretion, the laws made by them. The same act permitted a single supreme or superior judge to hold court "in the absence of the other judges." In July and August, 1790, Winthrop Sargent, secretary, acting as governor, with Judges Symmes and Turner, formulated the eleventh, twelfth and thirteenth laws of the territory, "passed at Vincennes." Three other laws were "passed" by Governor St. Clair, Symmes and Turner at Cincinnati in November, 1790, and seven in June and July, 1791. Secretary Sargent, acting as governor, with Judges Symmes and Putnam, in 1792, formulated thirteen laws, all "passed August 1, 1792." These thirty-six laws in all comprised the body of territorial law up to the year 1795. Wayne's victories in the meantime had brought security to the frontier. Accordingly, "in 1795 the governor and the judge undertook to revise the territorial laws and establish a complete code of statutory jurisprudence, by adoptions from the laws of the original states, in strict conformity to the provisions of the Ordinance." 4 St. Clair had issued a proclamation for a meeting of the legislature (himself and the judges) as early as July 25, 1793, but it was not until May 29, 1795, that the first formal session was held in Cincinnati. "This is the first recorded meeting of a legislative body within the present limits of Ohio and the territory northwest of the Ohio river. This legislature chose its officers and assembled in regular session until it concluded its labors and provided for the publication of the laws it adopted in the Maxwell Code, the very first book printed in the `Northwestern Territory.' " "This Legislature, in the modern terminology, was unicameral ; it consisted of a single body. Governor Arthur St. Clair by virtue of his office presided. Judges John Cleves Symmes and George Turner were the floor members. All told there were just enough present to conduct in a formal way the legislative proceedings ; one member to make a motion, another to second it and the presiding governor to put it to a vote. The fourth member, Judge Rufus Putnam, did not attend any of the sessions. * * * The proceedings were conducted with dignity and decorum. The sessions were open to the public. The address of Governor St. Clair, when we consider that it was delivered in the presence of a legislative body consisting of only two members besides himself, certainly rises to the dignity of the occasion. Its tone is elevated and patriotic. It reveals the things that claimed the attention of those charged with the government of this new territory, then the western frontier of civilization on this continent. The reply to the address of the governor presented by Judges Symmes and Turner was worthy of the men who wore the judicial ermine and exercised legisla- 4 - Salmon P. Chase, Preliminary Sketch of the History of Ohio. AS PART OF THE NORTHWEST TERRITORY - 197 tive authority in this formative period of the history of the region over which they presided."5 The session continued until August 15, and in that time thirty-eight laws were adopted, comprising chapters 37-74 in the laws of the territory. In formulating these laws the governor and the judges adhered more strictly to the letter of the Ordinance. The source of each law was indicated in its title, for example : "A law subjecting real estate to execution for debt. Adopted from the Pennsylvania code, and published at Cincinnati," etc. Twenty-five of the laws were taken from the Pennsylvania statutes, six from Massachusetts, three from Virginia. Chase's comment on the Maxwell Code was as follows : "The judiciary underwent some changes. The general court was fixed at Cincinnati and Marietta, and a circuit court was established with power to try, in the several counties, issues in fact depending before the superior tribunal, where alone causes could be finally decided. Orphans' courts, too, were established, with jurisdiction analogous to but more extensive than that of a judge of probate. Laws were also adopted to regulate judgments and executions, for the limitation of actions, for the distribution of intestate estates, and for many other general purposes. Finally, as if with a view to create some great reservoir, from which whatever principles and powers had been omitted in the particular acts might be drawn according to the exigency of circumstances, the governor and judges adopted a law providing that the common law of England, and all general statutes in aid of the common law, prior to the fourth year of James I, should be in full force within the territory. * * * The other laws of 1795 were principally derived from the statute book of Pennsylvania. The system thus adopted was not without many imperfections and blemishes ; but it may be doubted whether any colony, at so early a period after its first establishment, ever had one so good." In the period of the governor and judges as legislators, no further legislation was enacted until 1798 when the laws designated .as chapters 75-85 were adopted and published May 1, 1798, by Winthrop Sargent, acting as governor, and. Judges Symmes, Gilman and Meigs. Four of these laws were adopted from the statutes of Kentucky, which was not one of the original states. The laws therefore were never constitutionally in force within the territory. In 1798,. Sargent having been appointed governor of Mississippi Territory, resigned. His successor as secretary of the territory was William Henry Harrison, a representative of the rising tide of Jeffersonian democracy in the West. THE SECOND STAGE OF TERRITORIAL GOVERNMENT "Before the end of the year 1798 the Northwestern Territory contained a population of 5,000 free male inhabitants of full age, and eight organized counties. The people were now entitled under the Ordinance to a change in the form of their government. That instrument provided that, upon giving proof to the government that there were five thousand free males, of full age, in the territory, the people should be authorized to elect representatives to a territorial legislature. This privilege was however confined to freeholders, in fee simple, of fifty acres within the district. No others were entitled to vote, and only freeholders in fee simple of two hundred acres, within the district, were eligible as representatives. When chosen, the house of representatives were to assemble in convention and nominate ten freeholders of 500 acres, of whom the president, under the constitution, was to appoint five, who were to constitute the legislative council. Representatives were to serve two and councilmen five years. The 5 - C. B. Galbreath, in Ohio Archaeological and Historical Quarterly, January, 1921. 198 - HISTORY OF OHIO two houses were to constitute a territorial legislature, with power to make any laws not repugnant to the national constitution or to the Ordinance of 1787. The judges were thenceforth to. be confined to purely judicial functions. The governor was to retain his appointing power, his general executive authority, and to have an absolute negative upon all legislative acts. It is difficult to preceive any very strong reasons for preferring this form of government to that originally instituted. It is true, the people elected persons of their own choice to make laws, and were now to be represented by a delegate in the National Congress, and, so far, there was something gained. But the governor now had an absolute negative, which he had not before, and here was something lost. The power of the governor, under the new order, was more absolute than under the old. Dependent on the people for nothing, and responsible to them in no respect, he was subject to no control but that, of a public opinion, which might be disregarded with impunity."6 An election for choosing the representatives was ordered by Governor St. Clair in December, 1798. The representatives met at Cincinnati February 4, 1799, and made the nominations for members of the council. FIRST GENERAL ASSEMBLY OF THE NORTHWEST TERRITORY FIRST SESSION, SEPTEMBER 16 TO DECEMBER 19, 1799 Only one member of the council and four representatives appeared on the day set for the legislature to convene, and it was not until September 24 that the two houses were organized and ready to proceed to business. Edward Tiffin was elected speaker of the house of representatives. Henry Vander Burgh was elected president protempore of the council, and on November 25 chosen president. Governor St. Clair in his address called attention to the laws which had been enacted by the governor and judges ; observed that doubts had been expressed from the bench as to their validity, and advised that they should be repealed and their place supplied by others, or confirmed by a law for that purpose. The first law of the general assembly, approved October 28, was entitled "an act to confirm and give force to certain laws enacted by the governor and judges of the territory." These laws, thus confirmed, were those, except such as had been previously repealed, that had been passed prior to the Maxwell Code of 1795. The laws passed at this session were designated as chapters 86-122 in the laws of the territory. In reviewing the work of the legislature, Chase said : "This act (the one confirming the early laws), as well as every other which originated in the council, was prepared and brought forward by Jacob Burnet, afterwards a distinguished judge and senator, to whose labors at this session the territory was indebted for some of its most beneficial laws. The whole number of acts passed and approved by the governor was thirty-seven. Of these, the most important related to the militia, to the administration of justice, and to taxation. * * * The tax for territorial purposes was levied upon lands ; that for county purposes, upon persons, personal property, and houses and lots. During this session a bill authorizing a lottery for a public purpose, passed by the council, was rejected by the representatives. Thus early was the policy adopted of interdicting this demoralizing and ruinous mode of gambling and taxation." The governor, under the Ordinance, had power to "prorogue or dissolve the general assembly" and this power he exercised on December 19, 1799. In his speech on that occasion he enumerated eleven acts to which he had seen fit to give his absolute veto. These acts he had not returned to the legislature, he explained, because the two houses 6 - Chase, Preliminary Sketch of the History of Ohio. AS PART OF THE NORTHWEST TERRITORY - 199 were under no obligation to consider the reasons on which his veto was founded ; and, at any rate as his negative was unqualified, the only effect of such a return would be to bring on a vexatious and probably fruitless altercation between the legislative body and the executive. Of the eleven acts six related to the erection of new counties. The power to establish new counties the governor claimed to be vested, by the Ordinance, in him and not in the legislature. "As soon as a legislature shall be formed in the district, the council and house, assembled in one room, shall have authority by joint ballot to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating, but not of voting, during this temporary government."7 One of the first acts of the general assembly at this session was the election of a delegate to Congress. St. Clair desired the post for his son, Arthur St. Clair Jr., the attorney general of the territory. But by a vote of eleven to ten the honor was given to William Henry Harrison. The vacancy thus made in the office of secretary of the territory was filled December 30, 1799, by appointment of Charles Willing Byrd, who likewise represented the faction opposed to Governor St. Clair. William Henry Harrison represented Ohio in the last session of Congress held at Philadelphia. Two important acts affecting the interests of the Northwest Territory were credited to Harrison in that session. The first was the act of May 7, 1800, dividing the territory and creating the territory of Indiana from the western part ; of this ter. ritory Harrison became, the following year, the first governor. The boundary line between the two territories, as proposed in this act, ignored the Ordinance line, a line "due north from the mouth of the 7 - Ordinance of 1787.