AUTHORSHIP OF THE ORDINANCE OF 1787. have been duly convicted: Provided always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid. Be it ordained by the authority aforesaid, That 405 the resolutions of the 23d of April, 1784, relative to the subject of this ordinance, be, and the same are hereby, repealed, and declared null and void. Done by the United States, in Congress assembled, the 13th day of July, in the year of our Lord 1787, and of their sovereignty and independence the twelfth. II. LETTERS OF DANE AND KING REGARDING AUTHORSHIPS OF ORDINANCE OF 1787. ON the 15th of April, 1785, the day after the Grand Committee, of which Mr. King was a member, had reported to Congress the Ordinance locating and disposing of the public lands, which became a law on the 20th of May following:Mr. King thus acknowledges Mr. Pickering's letter: "NEW YORK, April 15, 1785. "The best return in my power to make you for your ingenious communications on the mode of disposing of the Western Territory, is to inclose, for your examination, the form of an Ordinance, reported to Congress on the subject. I likewise inclose you the report on a motion for the exclusion of slavery from the new states. Your ideas on this subject are so just, that it would be impossible to differ from them." Of the report on the exclusion of slavery, here mentioned, no trace is to be found. It must refer, one would suppose, to the resolution submitted by Mr. King himself, on the 16th of March, and committed on that day; but no allusion in the journal, nor any other than thus casually in Mr. King's letter to Mr. Pickering, has been found. But it is certain, that Mr. King did not abate of his zeal on the subject, and when, in November, 1785, Nathan Dane became one of his colleagues from Massachusetts, and a new Ordinance for governing the Western Territory came under the consideration of Congress, as has already been related, in September, 1786, and in varying shapes, occupied its attention, at times, through the residue of that year, and through the year 1787, until its final adoption, in July, of the last year, it is on the record of the journal, that Mr. King took constant and earnest part in its discussion. If, then, in the Ordinance, as finally adopted, shall be found embodied specific propositions made by Mr. King, and by him only; and if it shall appear, as now I am about to make it appear, that the authorship of the Ordinance was Mr. Dane's, and not Mr. Jefferson's, as has been so long claimed, and recently with emphatic and confident argument by Governor Coles, formerly of Illinois; the deduction would seem le gitimate and conclusive, that Mr. Dane, acting with his colleague, had accepted and embodied his suggestions in the Ordinance. Let the chief of these suggestions be briefly set forth: First, the most important, is that prohibiting slavery. Mr. Jefferson's proviso was prospective; that of Mr. King, immediate; the proviso of the Ordinance of 1787 was immediate, and in the identical words offered by Mr. King, 16th March, 1785, except that his proviso reached to all the territory embraced in Mr. Jefferson's resolutions of April, 1784, while that of the Ordinance was restricted, necessarily, perhaps, to the precise territory which that Ordinance was framed to govern. In other respects, the language is identical, changing only the words, "shall have been personally guilty," as used by Mr. King, to shall have been duly convicted," in the Ordinance. Mr. Dane nowhere appears on the record to have made any motion himself in Congress, on the subject of slavery, and, therefore, finding that of Mr. King in the journals, and having it urged upon his attention, doubtless, by Mr. King himself, he adopted it as his own. Article III. of the fundamental articles, thus stipulated: "Religion, morality, and knowledge, being necessary to good government, and the happiness of mankind, schools, and the means of education, shall forever be encouraged." Of this there is nothing in the Jefferson resolutions of April, 1784, but the extracts given from Mr. Pickering's letters, and the journals of Congress, during 1785-6, when the land ordinances were under discussion, show how perseveringly, and to a certain extent successfully, Mr. King labored to obtain, for the purposes of education and of religion, reserved townships in every range. And last, and hardly perhaps second in importance to the first the Proviso of Freedom — of a kin, indeed, with it, is that proviso, incalculable in its value as a bond of union; incalculable in its value to commercial intercourse, and to good neighborhood, which stipulates "that the navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the 406 AUTHORSHIP OF THE ORDINANCE OF 1787. same shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the Confederacy, without any tax, impost, or duty therefor." This, in the first instance, was due to the farreaching and statesmanlike suggestions of Timothy Pickering, and was introduced into Congress by the joint agency of Virginia and Massachusetts; states which then stood, as, during the war, they had stood, shoulder to shoulder, on so many trying occasions. Mr. Pickering, in a letter to Rufus King, of 8th March, 1785, discussing the Ordinance then under the consideration of Congress, for regulating the Western Territory, thus sagaciously writes: "Water communications in that country will always be in the highest degree interesting to the inhabitants. It seems very necessary to secure the freedom of navigating these, to all the inhabitants of all the states. I hope we shall have no Scheldts in this country." So wise a suggestion was not lost upon his correspondent, and, accordingly, on the 12th of March, 1786, while the Ordinance "for ascertaining the mode of locating and disposing of the public lands in the Western Territory, was under consideration, Mr. Grayson, of Virginia, who, as the journals show, acted very frequently in concert with Mr. King, and who separated from his colleagues, and voted aye on Mr. King's AntiSlavery proviso, on 16th March, of the same year, less than two months before, moved this resolution, which was seconded by Mr. King, and adopted: 66 Resolved, That the navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same be, and are hereby declared to be, common highways, and to be forever free, as well to the inhabitants of said Territory, as to the citizens of the United States, and those of any other state that may be admitted into the Confederation, without any tax, duty, or impost therefor." This resolution without the change of a letter, is embodied in the Ordinance of 1787; and thus we see that the two important provisos; the one against slavery extension, and the other for the inviolable freedom to all American citizens, in all time, and exempt from all impost or taxation, of the great navigable waters of the Union, designed by God Himself as the highway of nations, originally proposed or promoted by Mr. King; were taken by Mr. Dane from the records of Congress, and introduced into his immortal Ordinance. And now for the conclusive proof that this Ordinance was his-prepared and drafted by him, and accepted unanimously by Congress, almost without alteration. This proof is in the letter of which the annexed is a full, literal, and exact copy from the original, in my hands: 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 past, for a part of which we have had eight states. There appears to be a disposition to do business, and the arrival of R. H. Lee is of considerable importance. I think his character serves, at least, in some degree, to check the effects of the evil 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, and the Ohio purchasse; the former, you will see, is completed, and the latter will probably be completed to-morrow. We tried one day to patch up M. 's t system of W. government, started new ideas, and 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 the 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 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, sixty thousand, 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 * The Ordinance of 1787, adopted on 13th July. These initials refer, possibly, to the plan proposed by Mr. Monroe. AUTHORSHIP OF THE ORDINANCE OF 1787. 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 origi nally 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 this 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 upon Holkar's affair. Massachusetts Legislature was prorogued the 7th instant, 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, etc.* You ask me how I like my new colleagues. Sedgewick, you know, we all esteem; but I fear he will not make his attendance an object. Thatcher, I am quite unacquainted with. I do not know whether Mr. Otis, at this 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. 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, 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 Refers to Shays's rebellion. 407 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 Hayne, on the Foot resolutions, in the United States Senate, in 1830, 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 1787, 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 St. Lawrence, and their tributaries, and their carrying places, to all the 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. Jeffer son, of April, 1784, and the Ordinance of 1787, 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, and 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. CHAPTER V. 1783-1787. THE WEAKNESS OF THE CONFEDERATION, The powers of Congress - Its recommendations treated with contempt - Small attendance of membersWashington's interest Suggestions for amending Articles of Confederation - Boundary dispute between Virginia and Maryland - The Alexandria convention - The Annapolis convention - Federal Convention suggested — Delegates appointed by various States The resolution of Congress for a convention-Shays' Rebellion hastens action. Appendix to Chapter V.-I. Hannis Taylor on Peletiah Webster's Plan of Government. II. Webster's Dissertation on the Political Union and Constitution of the Thirteen United States of North America. Such in brief and in general were the conditions when America became independent of the mother country. Washington and the other statesmen of the period, however, were anxiously looking forward into the future, and many a dark foreboding filled their minds. They regarded the unhappy state of affairs as of the greatest concern to the entire country,* for at the time there was practically no government, and what little survived was totally inefficient. Nationality was practically unknown; disputes between the States and jealousies between the members of Congress were prevalent. Jefferson says: "Our body was little numerous, but very contentious. Day after day was wasted on the most unimportant questions." The small States were very suspicious and jealous of the power of the larger States, while on the other hand the larger States were not disposed to allow the small States any advantages which might accrue because of proximity to and commercial relations with them. The jealousies between the large and small States were not calculated to arouse any feeling of nationality in the country, for the larger States had no desire to witness a condition of affairs where the small States would have the same influence in the councils of the nation as they themselves.* It had become a question whether there was to be any country at all; whether the colonies were to be one nation or thirteen separate municipalities; * In the early days of the Constitutional Convention, however, Madison said that "the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the United States. It did not lie between the large and small States. It lay between the Northern and Southern."- Gay, Life of Madison, p. 79. POWERS AND DEFECTS OF THE CONFEDERATION. 409 whether there was to be union, efficiency, and energy at home, which in turn would bring respect and confidence abroad,* and whether there was to be a national government, a national character, and national integrity Adams says: and honor. John Quincy "A Confederation is not a country. There is no magnet of attraction in any league of Sovereign and Independent States which causes the heartstrings of the individual man to vibrate in unison with those of his neighbor. Confederates are not Countrymen, as the tie of affinity by convention can never be so close as the tie of kindred by blood. The Confederation of the North American States was an experiment of inestimable value, even by its failure. It taught our fathers the lesson, that they had more, infinitely more to do than merely achieve their Independence by war. That they must form their social compact upon principles never before attempted upon earth. The Confederation was perhaps as closely knit together as it was possible that such a form of polity could be grappled; but it was matured by the State Legislatures without consultation with the People, and the jealousy of sectional collisions, and the distrust of all delegation of power, stamped every feature of the work with inefficiency." † This state of affairs was to a great extent due to the fact that while the Articles of Confederation professed to be articles of perpetual union, Congress had no power to effect or maintain the union. Exclusive power was given to Congress for certain purposes, but that body possessed no ability to execute any of these powers. "They may make and con Regarding this aspect of the matter see John Adams' letter of May 8, 1785, to Secretary Jay, in his Works, vol. viii., pp. 242-246. Lives of James Madison and James Monroe, pp. 19-20. clude treaties, but can only recommend the observance of them. They may appoint ambassadors, but cannot even defray the expenses of their tables; they may borrow money in their own name, on the faith of the Union, but cannot pay a dollar. They may coin money; but they cannot purchase an ounce of bullion. They may make war, and determine what number of troops are necessary, but cannot raise a single soldier. In short, they may declare every thing, but do nothing.* Justice Story, in his Commentaries on the Constitution of the United States, points out the inherent defects of the Confederation in all those particulars which had reference to its answering the design and necessities of a national government, and Curtis in his Constitutional History, also sets forth both the advantages and defects of the Confederation. Undoubtedly much had been accomplished. Nationality had been given an impulse, and good work had been done in obtaining the cession of lands by the States to the general government, but Congress possessed no authority to compel obedience. It had been totally in Story, Commentaries on the Constitution, vol. i., p. 175. See also Pellew, John Jay, pp. 245246; Schouler, United States, vol. i., p. 17; McLaughlin, The Confederation and the Constitution, p. 47 et seq.; Fiske, Critical Period of American History, p. 90 et seq. See also Jay's Works, vol. iii., p 294; Ford's ed. of Jefferson's Writings, vol. i., pp. 108, 114. † Vol. i., p. 174 et seq. (5th ed. 1891). ‡ Vol. i., p. 221 et seq. Writing to Monroe August 7, 1785, Madison said: "I conceive it to be of great importance |