Laying the Foundation
The sixth article of the Northwest Ordinance (1787) specifically forbade slavery northwest of the Ohio River.1 Yet nearly as soon as American settlers migrated to this western country, debate began over the pernicious slavery issue. Many settlers formerly lived in Virginia and Kentucky, both slaveholding states, and for some of them slavery was an accustomed way of life. Those who held slaves defied the federal edict and brought them into the territory. As John Badollet observed, "they have all brought from the Souther[n] States their prejudices & fondness for that nefarious system."2
Petition of the Vincennes Convention, December 28, 1802.
Courtesy Indiana Historical Society Library
The Committee to whom the memorial of the Indiana Convention,
Govr Harrisons letter, & (were _______) reported,
"That the rapid population of the State of Ohio sufficiently evinces in the opinion of your committee, that the labor of slaves is not necessary to promote the growth and settlement of colonies in that region. That this labor, demonstrable the dearest of any, can only be employed to advantage in the cultivation of products more valuable than any known to that quarter of the United States: that the committee deem it highly dangerous and inexpedient to impair a provision wisely calculated to promote the happiness and prosperity of the Northwestern country, and to give strength and security to that extensive frontier. In the salutary operation of this sagacious and benevolent restraint, it is believed that the inhabitants of Indiana will, at no very distant day, find ample remuneration for a temporary privation of labor and of emigration.
On the various objects of the memorial, your committee beg leave to observe:
That, an appropriation having been made, empowering the Executive to extinguish Indian titles to lands within the limits of the United States, the particular direction of that power rests entirely with that department of the Government; that, to permit the location of the claims under the resolve of Congress of the 29th of August, 1788, and the act of the 3d of March, 1791, (of whose number and extent the committee are entirely ignorant) in the mode pointed out in the memorial, would be an infringement upon that regular mode
* Logan Esarey, ed., Harrison's Messages and Letters, vol. 1, 1800-1811, (Indianapolis, 1922) 73-74.
Other settlers, however, though not strangers to the institution, opposed slavery in the Northwest Territory. The exclusion article in the Ordinance appealed to them, and the thought of slavery in the territory repelled them. "I will I suppose," wrote Badollet, "end my days here, provided the inhabitants . . . do not admitt [sic] the odious system of slavery.''3 Still others, though not directly exposed to the manholding system, deplored slavery and its ramifications. As the slavery inclusion/exclusion argument developed, two men came to represent the opposing sides: William Henry Harrison, Indiana's first territorial governor and a slaveholder, encouraged slavery in lndiana; John Badollet, a Swiss immigrant and register of public lands in Vincennes, discouraged it.
In December, 1802, two and one half years after lndiana became a territory, delegates from the various counties assembled at Vincennes and discussed the Ordinance's slavery prohibition. A majority of the convention, which Harrison headed, believed slavery a necessary presence in the territory and asked Congress to modify the prohibitive article. The petition began: "the memorial and Petition of the Inhabitants of the Indiana Territory respectfully Sheweth: That nine-tenths of your memorialists being of opinion, that the sixth article of Compact contained in the ordinance for the Government of the Territory has been extremely prejudicial to their Interest and welfare.''4
William Henry Harrison, Indiana Territory governor, May 13, 1800 - December 28, 1812. Portrait by Barlon Stone Hays. Courtesy Indiana Historical Bureau; photography by Robert Wallace
The delegates, alleging that they represented the will of a majority of the people, did not ask that the article be repealed "but that it may be suspended for the Term of Ten Years and then to be again in force." They requested, however, "that the slaves brought into the Territory during the Continuance of this Suspension and their progeny, may be considered and continued in the same state of Servitude, as if they had remained in those parts of the United States where Slavery is permitted and from whence they may have been removed." The delegates argued that the prohibition against slavery deterred settlers from migrating to Indiana Territory, and had "been the reason of driving many valuable Citizens possessing Slaves to the Spanish side of the Mississippi, most of whom but for the prohibition contained in the ordinance would have settled in this Territory.''5
Those opposed to slavery, like Badollet, argued that the convention's delegates served their own interests, not those of the people. "The introduction of Slavery into this territory," Badollet complained in 1805, "continues to be the Hobby horse of the influential men here." As to the question of whether the prohibition of slavery adversely affected settlement, Badollet in 1806 observed that "the rapid population and prosperity of the State of Ohio . . . sufficiently evinces which of the two slavery or no slavery most effectually invite new settlers.''6
Congress subsequently reasserted its previous stance and denied the petition to permit slavery in lndiana. The territorial legislature, however, quickly contrived a plan to circumvent the Ordinance's slavery exclusion article. In 1805 the Legislative Council and the House of Representatives passed "An Act concerning the introduction of Negroes and Mulattoes into this Territory.''7Art. 6th. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
From The Northwest Ordinance July 13, 1787
The body had proceeded as if it represented the view of the majority of the residents. This stance and action amazed opponents of slavery. "I have often admired," Badollet wrote sarcastically in 1808, "the ingenuity or Stupidity . . .with which our first Legislature (with many lawyers too) have trampled on the Ordinance of Congress, in that part of it which relates to Slavery.''8
The legislative act was a divisive scheme of coerced voluntary servitude. The strategem, approved by Harrison on August 26, 1805, provided that anyone who held or purchased slaves anywhere in the United States could lawfully bring them into the territory and indenture them. It permitted slaveholders of persons of color over fifteen to determine the number of years of the indenture. For persons under fifteen, it set age limits for the indenture—males until age thirty-five and females until age thirty-two. The act also made indentured servitude, like slavery, hereditary, since it was mandatory that children of indentured servants serve their parents' householder—males until age thirty and females until age twenty-eight.
Those opposed to slavery in the territory saw through the flimsy ruse. A House of Representatives committee report in 1808 astutely argued that the act's "indentured servitude" clause was abusive and unconstitutional: "the law permitting such proceedings is contrary both to the spirit and letter of the ordinance and . . . therefore it is unconstitutional—your committee might add that the most flagitous abuse is made of that law; that negroes brought here are commonly forced to bind them- selves for a number of years reaching or extending the natural term of their lives, so that the condition of those unfortunate persons is not only involuntary servitude but downright slavery.''9
Blacks either agreed to serve and signed the indenture, or they could be removed from the territory and sold as slaves. For this reason, persons over fifteen usually lived out their lives in legalized slavery. This law and its practice stunned and insulted antislavery advocates. The slave, Badollet observed, "is at liberty forsooth to bind himself for a term of years (the favourite term is 99 years) or to be remanded to the state he was brought from & there to be sold.''10
By this act, the legislature enacted the modifications of the 1802 Vincennes petition, which had been refused by the federal government. Rather than a suspension of slavery for only ten years, however, the legislature assured the continuance of slavery in the territory. Harrison, as the territorial governor, could have vetoed the act, since he had the power of absolute veto. In 1807 when the legislature reenacted all laws that resulted from the 1805 session, Harrison again signed the indenture law.11 Harrison's actions astonished opponents of slavery. "The executive," Badolle derided, "gave his sanction to the laudable Act!!!!''12
In early 1807, Harrison sent another legislative resolution to Congress asking for suspension of article six. This time the resolution pointed out "That the abstract question of liberty and slavery" was not "involved in a suspension of the said article" since it would not increase the number of slaves in the United States; it would only redistribute slaves over a wider territory. It reiterated the position that slavery existed in that country prior to passage of the Ordinance of 1787.13
Furthermore, the resolution argued that the suspension would benefit the citizens in states "overburdened" with Negroes and that Negroes also would benefit from the suspension: they would be removed "to a country abounding with all the necessaries of life; and . . . would exchange a scanty pittance of the coarsest food for a plentiful and nourishing diet." The resolution closed with the assurance that the number of slaves in the territory would never "bear such proportion to the white population, as to endanger the internal peace and prosperity of the country.''14
Clark County citizens led the antislavery opposition with another petition to counter certain claims: "in no case has the voice of the citizens been unanimous . . . And although it is contended by some, that, at this day, there is a great majority in favor of slavery, whilst the opposite opinion is held by others, the fact is certainly doubtful." The petitioners also inveighed against the immorality of slavery: "As to the propriety of holding those in slavery whom it hath pleased the Divine Creator to create free, [it] seems to us to be repugnant to the inestimable principles of a republican Government."15
Antislavery supporters in the territorial House argued economic points and noted that it would be politically disadvantageous and create enmity between "negro holders" and non-slaveholders: "With respect to its political effects, it may be worthy of enquiry how long the political institutions of a people admitting slavery may be expected to remain uninjured, how proper a school for the acquirement of republican virtues is a state of things wherein usurpation is sanctioned by law, wherein the commands of justice are trampled under foot, wherein those claiming the right of free men are themselves the most execrable of tyrants."16 Moreover, the report asserted that slavery in any form would break down the moral fabric of the territory. Listing in emotional detail the flagrant abuses of human morality the point is strongly made: "when such things can take place, can it be expected that the milk of human kindness will ever moisten the eyes o[f] men in the daily practice of such enormities, and that they will respect the moral obligations or the laws of justice which they are constantly outraging with the wretched negro."17
While the Harrisonians persistently worked to introduce slavery into the territory, Badollet, Nathaniel Ewing, and others maneuvered to exclude it. Badollet drew up an antislavery petition, which was introduced in the legislature in the fall of 1808. The petition denounced slavery and commended Congress' "enlightened, humane and consistent policy" provided in the Northwest Ordinance's slavery exclusion article. Badollet argued, effectively, that by passing the acts which allowed "a qualified Species of Slavery" the territory evaded, if not manifestly violated, the law.18. . . I am sorry you are so much opposed to [the introduction of slavery] . . . —but more so on account of the opinion you have given that the consent of the State of Ohio is necessary before we can have slaves in this Territory—-You certainly did not consider this subject sufficiently or you would not have given such an opinion. The Articles of Compact (so called) are made between the U.S. & each particular State to be formed out of the then North Western Territory & the words "mutual Consent" mean nothing more, certainly, than the consent of the Contracting parties—it is true that by Construction & by construction only & not by the plain & obvious meaning of the words—they are construed so as to make it necessary to have the consent of all the several states which may be formed as above to any alteration in the Articles which directly affect the interests of all—but on a question like the present in which the state of Ohio has no more interest or concern than the state of Kentucky, Vermont or any other state in the Union a reference to either of those states would be as proper as to the state of Ohio. . . .
William Henry Harrison to Thomas Worthington, October 26, 1803
For easy access, see "Letters of William H. Harrison to Thomas Worthington. 1799-1813," ed. by John D. Barnhart, Indiana Magazine of History, 47: 53-84.
Soon, however, changes occurred, and the opponents of slavery gained a strong voice in the General Assembly. In 1813, when President James Madison appointed Thomas Posey as Indiana's second territorial governor, John Gibson, territorial secretary and acting governor, led those who objected to Posey's appointment on the grounds that the appointee came from a slaveholding state.19
Posey, a former Virginian and a former slaveholder, defended his position. "I am," Posey swore, "as much opposed to slavery as any person whatsoever." Indeed, as a manifestation of his opposition to slavery, the new governor reminded Gibson that he no longer held slaves. "I have," Posey admonished, "disposed of what few I had sometime since to my children and by emancipation." Posey then averred that he would uphold the prohibitive article in the 1787 Ordinance. "I am sure," he promised, "I shall never sanction a law for slavery or any modification of it.''20
Three years later, while the territory's residents awaited congressional approval for statehood, the "qualified species" of slavery still existed in Indiana. At least one resident was determined to hold on to his servant. In February, 1816, two months before Congress approved Indiana's petition for statehood, Peter Jones, a Knox County resident, demanded that abolitionist Elihu Stout return his indentured servant, Phebe. "You had better send her back," Jones warned the editor of the Vincennes Western Sun, "for I will not be baffled.''21
. . . But, as the holding any part of the human Creation in slavery, or involuntary servitude, can only originate in usurpation and tyranny, no alteration of this constitution shall ever take place so as to introduce slavery or involuntary servitude in this State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted.
Sec. 7th. There shall be neither slavery nor involuntary servitude in this state, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted. Nor shall any indenture of any negro or mulatto hereafter made, and executed out of the bounds of this state be of any validity within the state.
The Constitution of 1816
When the state's founding fathers met in Corydon in June, 1816, to write a Constitution, they incorporated the sixth article of the Northwest Ordinance in it. Dennis Pennington, representing Harrison County, led the antislavery forces at the constitutional convention, and the antislavery component dominated the meeting. Noting that such evils "can only originate in usurpation and tyranny," delegates mandated that "no alteration of this constitution shall ever take place so as to introduce slavery or involuntary servitude in this State.''22 Moreover, the convention decreed that, "There shall be neither slavery nor involuntary servitude in this state . . . . Nor shall any indenture of any negro or mulatto hereafter made, and executed out of the bounds of this state be of any validity within the state.''23
The Constitution, however, made no provision for black people already indentured, and the "qualified" form of slavery still persisted. One influential man, John Johnson, in his 1817 will bequeathed his "black boy named Nero the . . . sum of eighty dollars." But Johnson made the gift collectible only after Nero served his indenture and "upon the express condition that he continues with my wife Peggy Johnson and shall be to her a true faithfull and obedient servant.''24 Johnson was a Supreme Court judge, a member of the 1816 Constitutional Convention, and a trustee of Vincennes University.
In 1820, the same year Congress passed the Missouri Compromise forbidding slavery north of the 36 degree 30 minute latitude, the Indiana Supreme Court overturned a decision of a circuit court which should have changed the course of events in the state. This test case, Polly v. Hyacinthe Lasselle, involved a twenty-four year old woman whom Lasselle held as a slave. On January 27, 1820, Judge Jonathan Doty, of the Knox County Circuit Court at Vincennes, issued a writ of habeas corpus commanding Lasselle to produce Polly at 10 a.m. the next day and to show the cause of Polly's "caption and detention."25 Subsequently, Lasselle agreed to have Polly before the court at the February term.
The defense contended that Polly's mother was purchased from the Indians prior to the 1795 Treaty of Greenville and Virginia's cession of its western territory to the United States. Therefore, according to the defense, Polly's condition followed that of her mother. Amory Kinney, Polly's attorney and the institutor of the case, argued that Polly's mother lived in the territory prior to 1784 when Virginia ceded the area and that the Indians captured her and sold her as a slave. Therefore, Polly's mother might be liable to be held as a slave, but Polly, born nine years after the 1787 Ordinance, could not be so considered. Judge Doty, not being advised fully on the juridical procedures, bound the cause over to the May term; at that time he, along with Associate Judges Henry Ruble and Mark Barnett, decided in Lasselle's favor. 26
Polly entered an appeal, which the Indiana Supreme Court heard at its July term. Kinney, who acted as one of three attorneys for the state, filed a motion with three objections: the decision of the lower court was contrary to the law of the land; it was a manifest error that Polly was a slave and could be held as such; Polly was free and should have been discharged and set at liberty.27
On July 22, 1820, the Indiana Supreme Court rendered an unusually antislavery/equal rights decision. Judge James Scott read the decision in the courthouse at Corydon. The first section of the state Constitution, the court observed, declared "That all men are born equally free and independent; and have certain natural, inherent, and unalienable rights." Judge Scott applied to black people the principles and rights stated in both the national and state constitutions. The judge then reiterated the 1787 non slavery article, subsequently incorporated in the state Constitution. Moreover, the court implicitly conferred the rights of citizenship upon black people in the state: "It cannot be presumed," Scott observed, "that the constitution, which is the collected voice of the citizens of lndiana, declaring their united will, would guaranty to one part of the community such privileges as would totally defeat and destroy the privileges and rights guaranteed to another.''28
The Supreme Court thus reversed the decision of the lower court and set Polly free. "From these premises it follows, as an irresistible conclusion," Scott pronounced, "that, under our present form of government, slavery can have no existence in the state of Indiana; and, of course, the claim of the said Lasselle cannot be supported.''29 By this decision the court abolished slavery in Indiana, declared it illegal, and used the state Constitution as an abolition tool. Yet, more than ten years later, covert and overt slavery still persisted in the state.
The 1820 Supreme Court decision implied, if it did not explicitly state, that involuntary servitude was not permissible. The Court expressly referred to Article XI, section 7 of the 1816 Constitution, which prohibits also involuntary servitude. In 1821 Mary Clark, a black woman, sued General Washington Johnston for her release from a twenty-year indenture. Mary, formerly a slave of Benjamin I. Harrison in Kentucky, was brought into Indiana Territory in 1815, emancipated, and then indentured. It appears that in 1816 Harrison released her from her indenture, but she then indentured herself to Johnston. The Knox County Circuit Court found that Mary voluntarily bound herself to Johnston and remanded her back to him. Amory Kinney filed an appeal in the state Supreme Court which was heard on November 6, 1821. The Supreme Court found that no adult could be held as an indentured servant against his or her will, even if he or she had entered the indenture voluntarily, and ordered Mary Clark released.30
Even with such clear legal precedents indentured servitude, the "qualified species of slavery," still existed. Some Hoosiers, like lsaac Dunn, a judge in Dearborn County, purchased blacks from out of state; others did as John Tipton, who apparently brought his "Black Buoy," Bill, with him from Tennessee.31 Some slaveholders inquired in advance about the expedience of bringing slaves to lndiana, and about the state's statutes of indenture. Daniel Brown, a Virginian, wrote John Tipton to ascertain the practicality of bringing two slaves, a twelve year old girl and a twenty-five year old man, to Indiana and inquired about the legal strictures. Brown explained that his family had "been so long accustomed to negroes, that I should hardly know how to dispense with them." But he was willing to leave them behind "if you think it best. 32
While Brown might hesitantly leave his slaves behind, other slaveholders brought theirs to Indiana and indentured them. Still others brought their slaves to Indiana and freed them. Antislavery advocates opposed indentured servitude in the state; other Hoosiers of an anti-Negro, and in some cases a pro slavery, persuasion objected when slaveholders freed their slaves and brought them to the state. Many opposed slavery within the state, but they were neither antislavery nor abolitionist.
Dennis Pennington, the speaker of the House of Representatives, was numbered among the most vocal opponents of slavery in the state. Yet Pennington, two years before Indiana became a state, signed a memorial, addressed to Thomas Posey, which complained of the introduction of freed Negroes in Harrison County. Pennington and fifty-three other Harrison County residents signed the decidedly anti-Negro document. The petition alleged that William Vincent, a Kentucky slaveholder, brought forty slaves into the county and emancipated them. The alarmed townspeople also heard that seventy more liberated blacks would settle in their community in a few days and "let loose among [them]."33
"There is no law of this Territory," Pennington and the other signers protested, "to prohibit the emigration of free negroes among us. . . . Neither is there a law . . . to compel the persons liberating them or the negroes themselves to give security for their good behavior or becoming a Township or County charge." They expressed no doubt that they would be robbed, their property damaged, and their wives and daughters insulted and abused by "those Africans." While the petitioners prayed for relief from the "disagreeable situation," they described in no uncertain terms their attitude towards Negro people. "We do not," the fifty-four emphatically averred, "wish to be saddled with them in any way." "We are," they dissented further, "opposed to the introduction of Slaves or free negroes in any shape.''34
This anti-Negro fervor was not peculiar to Harrison County residents. Historian Emma Lou Thornbrough described "the dominant attitude in Indiana as neither pro slavery nor antislavery but as anti-Negro.''35 While the first part of that statement is debatable, the latter appears positively accurate.
New Albany residents also complained when slaveholders from Kentucky and Tennessee brought their slaves to the city and freed them. "These are the very refuse," complained Harv Scribner, a founder of New Albany; "Ought they not . . . give security for their good behavior . . . to save the county . . . from their support." Indeed, Scribner asserted further, "if it could be[,] they ought not to be permitted to be introduced into this state.''36 While it is not asserted that Scribner's recommendation prompted the General Assembly to invoke a measure which required blacks o post bond as security, it is suggested that Scribner's attitude reflected that of a majority of Indiana's citizens.
Bill of Sale for Molly to Isaac Dunn, October 24, 1836.
Courtesy Indiana Historical Society Library
Know all men by these ________ that I Abraham S. Piatt of Boon County, State of Kentucky, have this day sold to Isaac Dunn, a black woman named Molly – age about forty years, a slave for life – for the sum of two hundred dollars, which amt is now to me in hand paid by the sd Dunn, & the receipt there hereby acknowledged – which Negro woman, I warrant sound & healthy to the best of my knowledge - & will forever defend her against the lawfull claim of any person what ever in witness where of I have here unto set my hand, & seal this 24th day of Oct. 1836
Indenture of Martha Ann, a girl of color, to Elihu Stout, March 4, 1844.
Courtesy Indiana Historical Society Library
This Indenture made and entered into this fourth day of March in the year of our Lord one thousand eight hundred and forty four witnesseth that John Colins and Martin Robinson Two of the Justices of the peace for Vincennes Township Knox County with State of Indiana and Ex Officio overseers of the poor for said Township hath put and placed and by those present do put and place Martha Ann a girl of color to Elihu Stout of the County and State aforesaid with him to dwell and serve from the date hereof until to the full end and term of sixteen years and six months, at which time if she be then living she will have attained the age of eighteen years, and the said Elihu Stout on his faith agrees to now the said Martha raised to habits of Industry and virtue and to cause her to be well intended in the duties of a house wife and to teach her as have her thought and instructed to read and write and to cipher as far as the double ______ of _________ in cursive(?) and the said Elihu further agrees to find and allow to the said Martha Ann good and sufficient meat drink clothing washing and lodging and also other things necessary for such an apprentice during the term aforesaid and on the expiration of said Term to give her one new suit of wearing apparel complete in addition to her ordinary wearing apparel and also give her one feather bed, bedstead and bedding and one spinning wheel
In witness whereof the said parties have hereunto set their hands & seals the date above
Invested(?) in presence of
Hoosier abolitionists rejected statements such as Scribner's. They asserted that the state taxed Negroes who owned property "for the exclusive benefit of whites, who, it would therefore seem, are not able to take care of themselves!" Abolitionists challenged, "Let us no longer taunt the colored people with their inability [to] support themselves." They maintained that "If we must be the paupers of that class of citizens, let us, at least have the magnanimity to thank them for our maintenance.''37 Even Scribner admitted, "It is true so far as I have known in this county none have become a county charge." He added, however, that "they are a troublesome part of [the] community."38
Scribner reflected the prevalent attitude of whites in the state. On December 8, 1829, Governor James Brown Ray, in his message to the General Assembly, expressed his official position about Negro emigration into the state: "Duty to the State of Indiana, requires me to remark, that the scourge of the oppressed is not confined, as it should be, exclusively to the land of the oppressor. But, that this State . . . is not exempt from the lash of our crying national sin." He then blamed the victims for the injustices done to them:
A non-productive . . . super-annuated population, is pouring in upon us possessing all the affirmative bad qualities of the uneducated, immoralised bondman, without affording any of his advantages, living without visible means, or labor--most of whom are paupers on society. This, being the consequence of expulsion laws of other States, less humane than ours, renders corresponding measures on our part necessary and inevitable. Whilst our laws and institutions proclaim the State an asylum for the good, virtuous, and useful of all nations and colors, it is due to ourselves and to the rights of posterity, that we should not tamely submit to any imposition, which is the direct effect of foreign [other states] legislation. Though it might savour somewhat of injustice to interfere with any that are already here, it will still become your province as it is your right, to regulate for the future, by prompt correctives, the emigration into the State. 39
Ray had assumed the office of acting governor in 1825, and during the same year Indiana counties submitted to the secretary of state an enumeration of Negro and free white males. Only four counties-- Clark, Marion, Vigo, and Washington--reported a Negro population, 54 of a total of 36,977. This enumeration was almost certainly incomplete, but if it is any indication, the state was obviously not overrun with Negroes. By 1830 the black population numbered just over 1 per cent of the total population in the state: 339,399 whites, 3,629 free blacks, and 3 slaves.40 Between 1825 and 1830 the free black population did increase. The General Assembly took immediate action to curtail Negro emigration into the state, passing in 1831 a law which required that free blacks and mulattoes post a bond of five hundred dollars as security for their good behavior and against their becoming a public charge--a law to which the state never subjected poor and destitute white emigrants. 41