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in 1788, and was never afterwards a member of the national Legislature. In 1795 and in 1812 he served as commissioner to revise the statutes of Massachusetts. Late in life he prepared an elaborate work, entitled “A Moral and Political Survey of America,” which was never printed. His affectionate biographer says of it: “ The Survey' evinces unquestionably great research, and comprehends a vast amount of information; but it is marked with the same neglect of style which is so obvious in Mr. Dane's other writings.'
The Ordinance of 1787 is a condensed abstract of the Massachusetts Constitution of 1780. Every principle contained in the former, either in a germinal or developed form, except that relating to the obligation of contracts, and some temporary provisions relating to the organization of the territorial government, is found in the latter, and often in the same phraseology. The Ohio Company, organized in Massachusetts, and mainly composed of Massachusetts men, was the party proposing to purchase these lands. That these prospective emigrants should desire and claim the privilege of living under the laws and with the institutions they had cherished and helped to frame, was as natural and reasonable as that this boon should have been granted to them by Congress. There was no intention on the part of Congress, or of any member, of forming an ordinance on this basis, until after Dr. Cutler had arrived in New York on the 5th of July. The idea was as new to Mr. Dane as to any member. His previous efforts at ordinance-making had been in another direction. The new point of procedure having been fixed, the drafting of the Ordinance was much a matter of clerical routine. The work was evidently turned over to Mr. Dane, he being the only member of the committee who was familiar with the Massachusetts Constitution. It is singular that in the several letters and statements on the subject which Mr. Dane has left behind him, no mention is made of Dr. Cutler, or of his presence in New York at that time. In his letter to Mr. King, written three days after the passage of the Ordinance, he did say that “the Ohio Company appeared to purchase a large tract of Federal lands" ; but in his letters to Mr. Webster and to the Indiana Historical Society, written from forty to fifty years later, he
forgot to mention even the presence of the Ohio Company, and claimed the whole credit of the Ordinance for himself. In his letter of March 26, 1830, to Mr. Webster, he says: “In pages 389, 390, Sect. 3, Vol. VII. [of General Abridgment and Digest], 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, etc.) was framed,' etc. . . . . 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, etc.” *
His claim in Appendix to the ninth volume of his “General Abridgment and Digest, Note A, published in 1830, is, owing to the obscurity of his style, difficult to understand. He quoted this note in his letter of May 12, 1831, to the Indiana Historical Society. He says: “It will be observed that 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 consists of two descriptions, one original, as the provisions to prevent legislatures enacting laws to impair contracts previously made, to secure 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, '87. 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 1787, as : 1. Titles to property by will, by deed, by descent, and by delivery. 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 four hundred thousand square miles of territory, and took root, as was intended. 2. All the fundamental, perpetual articles of compact, except as below, as, first, securing forever religious liberty ; second, the essential parts of a bill of rights
* Mass. Hist. Soc. Proceedings, 1867 – 69, p. 479.
declaring that religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and 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." *
Some persons reading this note will understand him to say that the clause relating to religion, morality, and education was taken from the Code of Massachusetts ; but such was evidently not his intention, as it would contradict the claim he made about the same time in his letter to Mr. Webster. These extracts illustrate Mr. Dane's style of writing, and the claims he has made as to the authorship of the Ordinance. None of these claims were made during the lifetime of Dr. Cutler or of any person immediately concerned in its formation.
There is nothing in the Ordinance of 1787 concerning religion, morality, knowledge, and schools which had not been practically exemplified in the laws and customs of Massachusetts, and which were not embodied in her Constitution of 1780. These principles were happily condensed in the Ordinance into a single sentence as follows: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” No part of the Ordinance the antislavery clause alone excepted — has been more noted than this sentence, and it has a place in the constitutions of several of the Western States. There is evidence tending to show that Dr. Cutler was the author of this clause ; that it was one of the amendments or suggestions which he made in writing at the request of the committee. Its style, and the efforts he subsequently made for the establishment of the institutions of religion and education in the territory, to be presently noticed, render the inference highly probable. Accepted by the committee and incorporated in the draft by Mr. Dane, he (Mr. Dane) after the lapse of more than forty years may have forgotten its origin. There have been traditions and positive evidence in the family of Dr. Cutler, since his death,
* New York Tribune, July 18, 1875.
that he caused the insertion, in the Ordinance of 1787, of the clause quoted above, and also of the one relating to the prohibition of slavery. Several autograph letters are in the possession of the writer which are evidence on this point.
Dr. Joseph Torrey, an eminent physician of Salem, Mass., who married a daughter of Dr. Cutler, wrote January 30, 1847, to Judge Ephraim Cutler of Ohio as follows: “At a recent professional call at Hamilton,* Brother Temple (Cutler] produced large files of Ohio documents, but I had only time 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 Dr. Cutler to suggest such provisions as he deemed advisable, and that at Dr. Cutler's instance was inserted what relates to religion, education, and slavery. These facts have long been known to me as household words." The letter further states that Hon. Caleb Cushing and Hon. Daniel Webster had inquired what agency Dr. Cutler had in framing the famous Ordinance, and as to the authorship of an anonymous pamphlet of twenty-four pages which Dr. Cutler wrote and had printed at Salem in 1787, describing the Northwestern Territory, and entitled “ An Explanation of the Map which delineates that part of the Federal Lands comprehended between Pennsylvania West Line, the Ohio and Scioto Rivers, and Lake Erie.” †
Temple Cutler, of Hamilton, Mass., writing September 29, 1849, to Judge Cutler of Ohio (both sons of Dr. Cutler), and speaking of the interest in New England on the subject of the Ordinance, says: “Hon. Daniel Webster is now convinced that the man whose foresight suggested some of its articles was our father."
Judge Ephraim Cutler, November 24, 1849, wrote to a gentleman making inquiries on the subject, as follows: “I visited my father at Washington during the last session he attended Congress (1804). In his boarding-house he occupied a room with
* The town of Ipswich was divided in 1793, and the part of the town where Dr. Cutler resided was set off, and incorporated as the town of Hamilton.
† This pamphlet, now very rare, was reprinted in Nahum Ward's “ Brief Sketch of the State of Ohio,” Glasgow, 1822, and London, 1823; and a French transla tion was issued in Paris in 1789. A copy of the original pamphlet was sold at the recent auction sale of Mr. Fields's Library, in New York, for iwenty-one dollars.
VOL. CXXIII. - NO. 251. 18
the reverend gentleman who represented 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 effects 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 July, 1787, which prohibited slavery. He wished to know if it was a fact. On my assuring him 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 then not seen the journal he kept while he was in New York at that time. The journal came into my possession during a visit of Dr. Torrey and my sister, Mrs. Torrey, in 1837.”*
Dr. Cutler's interest in the promotion of religion and education in the Northwestern Territory appears in his negotiations with Congress for the Ohio purchase. The general law for the survey and sale of Western lands, passed by Congress May 20, 1785, provided that one section (No. 16) in every township should be reserved for the support of common schools. Dr. Cutler was not satisfied with this provision, and demanded that Congress should donate in addition one section in every township for the support of an educated ministry, and two entire townships for the establishment and support of a university. This new claim was resisted by members of Congress. One bill passed authorizing the Ohio Company's purchase, but without these additional reservations; and Dr. Cutler would not accept it. He packed his trunk, made his parting calls, said he should leave the town immediately, and make his purchase of some of the States. This was somewhat of a ruse on his part, and it turned out as he expected. Members flocked to his room and entreated him to remain, and they would try to get more favorable terms. He wrote out these conditions as a sine qua non on which he would make the contract, and brought Congress to vote precisely the terms he
* Judge Cutler, from the time he was three years old till his emigration to Ohio, resided with his grandparents in Connecticut, and hence had lived with his father only on occasional visits.