The Northwest Ordinance (1787)

BY NATHAN DANE

BEVERLY, March 26th, 1830.

. . . YOU recollect you ascribed to me the formation of the Ordinance of the Old Congress, of July 13th_, 1787. Since writing you last, I have seen Mr. Benton’s speech on the subject, in the National Intelligencer, of March 6th, 1830, in which, I find, on no authority, he ascribes its formation in substance to Mr. Jefferson; that is, that Mr. Jefferson formed an ordinance in 1784, and he seems to infer from that the Ordinance of ’87 was taken or copied. This inference of Benton’s has not the least foundation, as thus appears: Mr. Jefferson’s resolve, or plan (not ordinance), of April 23d_, 1784, is contained in two pages and a half; is a mere incipient plan, in no manner matured for practice, as may be seen. The Ordinance of July, 1787, contains eight pages; is in itself a complete system, and finished for practice; and, what is very material, there cannot be found in it more than twenty lines taken from Jefferson’s plan, and these worded differently. In fact, his plan and this Ordinance are totally different, in size, in style, in form, and in principle. . . . Mr. Benton’s assertion, so groundless, extorts from me the above, and the following exposition, in defence of those who have long ascribed to me the formation. . . .

1. As I am the only member of Congress living who had any concern in forming or in passing this Ordinance, no living testimony is to be expected.

2. In the North-American Review, of July, 1826, pages 1 to 41, is a review of my "General Abridgment," &c., of American Law. In page 40, it is said, I "was the framer of the celebrated Ordinance of Congress, of 1787." At present, it is enough to add this fact, stated in the Inaugural Discourse of Judge Story, page 58. . . .

Generally, when persons have asked me questions respecting the Ordinance, I have referred to the Ordinance itself, as evidently being the work of a Massachusetts lawyer on the face of it. I now make the same reference, and to its style, found in my "Abridgment," &c.

3. When I mention the formation of this Ordinance, it is proper to explain. It consists of three parts. 1st, The titles to estates, real and personal, by deed, by will, and by descent; also personal, by delivery. These titles occupy the first part of the Ordinance, not a page, evidently selected from the laws of Massachusetts, except it omits the double share of the oldest son. These titles were made to take root in the first and early settlements, in 400,000 square miles. Such titles so taking root, we well know, are, in their nature, in no small degree permanent; so, vastly important. I believe these were the first titles to property, completely republican, in Federal America; being in no part whatever feudal or monarchical. . . . 2d, It consists of the temporary parts that ceased with the territorial condition; which, in the age of a nation, soon pass away, and hence are not important. These parts occupy about four pages. They designate the officers, their qualifications, appointments, duties, oaths, &c., and a temporary legislature. Neither those parts, nor the titles, were in Jefferson’s plan, as you will see. The 3d part, about three pages, consists of the six fundamental articles of compact, expressly made permanent, and to endure for ever; so, the most important and valuable Dart of the Ordinance. These, and the titles to estates, I have ever considered the parts of the Ordinance that give it its peculiar character and value; and never the temporary parts, of short duration. Hence, whenever I have written or spoken of its formation, I have mainly referred to these titles and articles; not to the temporary parts, in the forming of which, in part, in 1786, Mr. Pinckney, myself, and, I think, Smith, took a part. So little was done with the Report of 1786, that only a few lines of it were entered in the Journals. I think the files, if to be found, will show that Report was re-formed, and temporary parts added to it, by the Committee of ’87; and that I then added the titles and six articles; five of them before the Report of 1787 was printed, and the sixth article after, as below.

4. As the slave article has ever principally attracted the public attention, I have, as you will see, ever been careful to give Mr. Jefferson and Mr. King their full credit in regard to it. I find in the Missouri contest, ten years ago, the slave-owners in Congress condemned the six articles generally; and Mr. Pinckney, one of the Committee of 1786, added, they were an attempt to establish a compact, where none could exist, for want of proper parties. This objection, and also the one stating the Ordinance was an usurpation, led me to add pages 442, beginning remarks, to page 450, in which I labored much to prove it was no usurpation, and that the articles of compact were valid. They may be referred to, as in them may be seen the style of the Ordinance, though written thirty-four years after that was. Slave-owners will not claim as Mr. Pinckney’s work what he condemned. Careful to give Mr. J. and Mr. K. full credit in pages 443, 446, Vol. 7th, I noticed Mr. Jefferson’s plan of ’84, and gave him credit for his attempt to exclude slavery after the year 1800. I may now add, he left it to take root about seventeen years; so his exclusion was far short of the sixth article in the Ordinance. Page 446, I noticed the motion (Mr. King’s) of March 16, 1785, and admitted it to be a motion to exclude slavery, as fully as in the sixth article. I now think I admitted too much. He moved to exclude slavery only from the States described in the Resolve of Congress, of April 23, 1784, Jefferson’s Resolve, and to be added to it. It was very doubtful whether the word States, in that Resolve, included any more territory than the individual States ceded; and whether the word States included preceding territorial condition. Some thought his motion meant only future exclusion, as did Mr. Jefferson’s plan clearly: therefore, in forming the Ordinance of ’87, all about States in his plan was excluded, as was nearly all his plan, as inspection will prove, and that Ordinance made, in a few plain words, to include "the territory of the United States north-west of the river Ohio,"— all made, for the purposes of temporary government, one district; and the sixth article excludes slavery for ever from "the said territory." One part of my claim to the slave article I now, for the first time, state. In April, 1820 (Missouri contest), search was made for the original manuscript of the Ordinance of ’87. Daniel Bent’s answer was, "that no written draft could be found;" but there was found, attached to the printed Ordinance, in my handwriting, the sixth article, as it now is,—that is, the slave article.

So this article was made a part of the Ordinance solely by the care of him, who says Mr. Benton no more formed the Ordinance of ’87 than he did. I have Bent’s certificate, &c.

5. In pages 389, 390, Sect. 3, Vol. 7th, I mention the Ordinance of ’87 was framed, mainly, from the laws of Massachusetts. This appears on the face of it; meaning the titles to estates, and nearly all the six articles, the permanent and important parts of it, and some other parts; and, in order to take the credit of it to Massachusetts, I added, "this Ordinance (formed by the author, &c.) was framed," &c. I then had no idea it was ever claimed as the draft of any other person. Mr. Jefferson I never thought of. In the Missouri contest, Mr. Grayson was mentioned as the author; but, as he never was on any committee in the case, nor wrote a word of it, the mention of him was deemed an idle affair. We say, and properly, Mr. Jefferson was the author of the Declaration of Independence (or formed it, as you observe); yet he no more than collected the important parts, and put them together. If any lawyer will critically examine the laws and constitutions of the several States, as they were in 1787, he will find the titles, six articles, &c., were not to be found anywhere else so well as in Massachusetts, and by one who, in ’87, had been engaged several years in revising her laws. See N. A. Review, July, 1826, pages 40, 41. I have never claimed originality, except in regard to the clause against impairing contracts, and perhaps the Indian article, part of the third article, including, also, religion, morality, knowledge, schools, &c.

6. The style of the Ordinance. Since the year 1782, books and records show my writings, especially in the forms of statutes. My law-writings have been extensively published; and often, on important subjects, the first draft has been reduced half, or more. This process naturally ends in a studied, compressed style, rather hard. Had I room, I could refer to numerous parts of my writings, published and not published, to show this style; and this is the style of the Ordinance, courteously denominated, in the discourse mentioned, "a sententious skilfulness of expression.". . .

I am surprised Senators Benton and Hayne attempt to place Mr. Jefferson’s fame, in any part, on his meagre, inadequate plan of ’84. If his exalted reputation rests on no better foundation than this, will it be immortal? I can account for their bold assertions, only on the supposition they had never read his plan. . . .

I will only add that, in the years 1784, ’85, ’86, and ’87, the Eastern members in the Old Congress really thought they were preparing the North-Western Territory principally for New-England settlers, and to them the third and sixth articles of compact more especially had reference; therefore, when North Carolina ceded her western territory, and requested this Ordinance to be extended to it, except the slave article, that exception had my full assent, because slavery had taken root in it, and it was then probable it would be settled principally by slave-owners.

Massachusetts Historical Society, 1867–1869 (Boston, 1869), 475–480 passim.