Following the American Civil War Sesquicentennial with day by day writings of the time, currently 1863.

A. Penfield to Abraham Lincoln on Ordinance of 1787 and Dred Scott

October 17, 2010

The Abraham Lincoln Papers at the Library of Congress

Cleveland O. Oct. 17, 1860

Honble Abraham Lincoln


Dr. Sir

I send you the Cleveland Leader of Sep. 28 1859 containing a letter over my signature addressed to S. A Douglas and Judge Ranney, the latter of whom of this city was the Dem. candidate for our Governorship last fall. I considered their quotations made in public speeches from the Constitution that it and the laws passed in pursuance thereof by Congress shall be the Supreme law of the land, in the application of both the Constitution and the act of Congress, relative to the ordinance of 1787. The proprietor and Editor of the Cleveland Plain Dealer a warm advocate of Douglas remarked to a friend of mine soon after reading this letter that Douglas was “demolished.”

I have taken a deep interest in the Ordinance and last winter prepared a lengthy memorial of myself to our Legislature to get laws passed in accordance with that great instrument. In that memorial of 35 pages I recited chronologically and numerically the acts of Congress from 1789 to 1859, thirty five instances, approved by the several administrations, where the ordinance is quoted in organising new Territories, and passing enabling acts and admission of new States. I urged to have the Petition printed that the historical facts touching the ordinance and the Acts of Congress might have wider dissemination, but the committee reported adverse to printing. I recited from the Dred Scott decision some passages of Taney’s opinion fully endorsing the obligations of the ordinance, and in which he recited from the Constitution that “all debts, contracts, and engagements entered into before the adoption of this Constitution shall be as valid” &c I quoted also from Justice Catron in the same decision as to the binding ” engagement” of the Ordinance unter the 6th Art. of the Constitution and the act of Congress Augt. 7. 1789.–

In my investigations I found that the Ordinance by virtue of Acts of Congress is as binding in Dacotah as it ever was here — and this by an unbroken chain of title. In the act annexing to Michigan Territory the country west of the Mississippi embracing Iowa, Minnesota and Dacotah, the remainder of Minnesota Territory, the same rights and laws are granted and imposed as had always prevailed from the beginning in the N. W. Territory. This fact was entirely new to our ablest jurists and leading republicans. When early last session a bill originated in the Senate to organise the Ty. of Dacotah I related these things to some members in my communications in which I suggested to have inserted in the bill the same rights and laws to continue in Dacotah as had prevailed there at the erection of of the State of Minnesota — then would we still continue the force of the ordinance there. Douglas evaded any recitations from the Ordinance in the act admitting Minnesota — yet the chain of title is perfect as to Dacotah. But congressional action as to Territories was blocked–

There is another point of great force to my mind which this investigation developed and that was, that Dred Scott should have been declared free by the operation of the Ordinance at Ft. Snelling under several Acts of Congress. This was a point not raised by counsel and not referred to by the court save a short sentence of Justice Curtis in the last paragraph but two of his opinion. The U. S. Supreme Court say that the Supreme Court of Missouri was not bound in comity to regard slave prohibition of Illinois constitution and so Dred’s residence at Rock Island availed nothing — but at Ft. Snelling he was in a Territory of the U. S. where by act of Congress slavery was prohibited — as above detailed, independent of the restrictions in the Louisiana Purchase–

Do I presume too much in presenting these matters to your discriminating mind?

Things are becoming more hopeful– The Republicans in unison with a Wide Awake demonstration here last night were very enthusiastic in a time of rejoicing, speeches, bonfires and illuminations.

May a kind Providence long spare your life.

With great respect

Yr Ob Svt

A. Penfield

P. S. I send also a copy of the Cleveland Herald of Oct. 4th containing “Wm. H. Seward’s tour in the old N. W. Territory”. You see I am full of the ordinance, and I am pleased to observe that the Republican Central Committee of Ohio in their late congratulatory address refer to the ordinance.

A. P.

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