meaning can not be misunderstood. It constitutes a stipulation by which
the United States engage that the inhabitants of Louisiana should be
formed into a State or States, and as soon as the provisions of the
Constitution permit, that they should be admitted as new States into the
Union on the footing of the other States; and before such admission, and
during their territorial government, that they should be maintained and
protected by Congress in the enjoyment of their liberty, property, and
religion. The first clause of this stipulation will be executed by the
admission of Missouri as a new State into the Union, as such admission
will impart to the inhabitants of Missouri "all the rights, advantages,
and immunities" which citizens of the United States derive from the
Constitution thereof; these rights may be denominated Federal rights,
are uniform throughout the Union, and are common to all its citizens:
but the rights derived from the Constitution and laws of the States,
which may be denominated State rights, in many particulars differ
from each other. Thus, while the Federal rights of the citizens
of Massachusetts and Virginia are the same, their State rights are
dissimilar and different, slavery being forbidden in one, and permitted
in the other State. This difference arises out of the Constitutions
and laws of the two States, in the same manner as the difference in the
rights of the citizens of these States to vote for representatives
in Congress arises out of the State laws and Constitution. In
Massachusetts, every person of lawful age, and possessing property
of any sort, of the value of two hundred dollars, may vote for
representatives to Congress. In Virginia, no person can vote for
representatives to Congress, unless he be a freeholder. As the admission
of a new State into the Union confers upon its citizens only the rights
denominated Federal, and as these are common to the citizens of all the
States, as well of those in which slavery is prohibited, as of those
in which it is allowed, it follows that the prohibition of slavery in
Missouri will not impair the Federal rights of its citizens, and that
such prohibition is not sustained by the clause of the treaty which has
been cited.
As all nations do not permit slavery, the term property, in its common
and universal meaning, does not include or describe slaves. In treaties,
therefore, between nations, and especially in those of the United
States, whenever stipulations respecting slaves were to be made, the
word "negroes," or "slaves," have been employed, and the omission of
these words in this clause, increases the uncertainty whether, by the
term property, slaves were intended to be included. But admitting that
such was the intention of the parties, the stipulation is not only
temporary, but extends no further than to the property actually
possessed by the inhabitants of Missouri, when it was first occupied
by the United States. Property since acquired by them, and property
acquired or possessed by the new inhabitants of Missouri, has in each
case been acquired under the laws of the United States, and not during
and under the laws of the province of Louisiana. Should, therefore, the
future introduction of slaves into Missouri be forbidden, the feelings
of the citizens would soon become reconciled to their exclusion, and the
inconsiderable number of slaves owned by the inhabitants at the date
of the cession of Louisiana, would be emancipated or sent for sale into
States where slavery exists.
It is further objected, that the article of the act of admission into
the Union, by which slavery should be excluded from Missouri, would
be nugatory, as the new State in virtue of its sovereignty would be at
liberty to revoke its consent, and annul the article by which slavery is
excluded.
Such revocation would be contrary to the obligations of good faith,
which enjoins the observance of our engagements; it would be repugnant
to the principles on which government itself is founded; sovereignty in
every lawful government is a limited power, and can do only what it
is lawful to do. Sovereigns, like individuals, are bound by their
engagements, and have no moral power to break them. Treaties between
nations repose on this principle. If the new State can revoke and annul
an article concluded between itself and the United States, by which
slavery is excluded from it, it may revoke and annul any other article
of the compact; it may, for example, annul the article respecting public
lands, and in virtue of its sovereignty, assume the right to tax and to
sell the lands of the United States. There is yet a more satisfactory
answer to this objection. The judicial power of the United States is
co-extensive with their legislative power, and every question arising
under the Constitution or laws of the United States, is recognizable by
the judiciary thereof. Should the new State rescind any of the articles
of compact contained in the act of admission into the Union, that, for
example, by which slavery is excluded, and should pass a law authorizing
slavery, the judiciary of the United States on proper application, would
immediately deliver from bondage, any person retained as a slave in said
State. And, in like manner, in all instances affecting individuals,
the judiciary might be employed to defeat every attempt to violate the
Constitution and laws of the United States.
If Congress possess the power to exclude slavery from Missouri, it still
remains to be shown that they ought to do so. The examination of this
branch of the subject, for obvious reasons, is attended with peculiar
difficulty, and cannot be made without passing over arguments which, to
some of us, might appear to be decisive, but the use of which, in this
place, would call up feelings, the influence of which would disturb, if
not defeat, the impartial consideration of the subject.
Slavery, unhappily, exists within the United States. Enlightened men, in
the States where it is permitted, and everywhere out of them, regret its
existence among us, and seek for the means of limiting and of mitigating
it. The first introduction of slaves is not imputable to the present
generation, nor even to their ancestors. Before the year 1642, the trade
and ports of the colonies were open to foreigners equally as those of
the mother country; and as early as 1620, a few years only after the
planting of the colony of Virginia, and the same year in which the first
settlement was made in the old colony of Plymouth, a cargo of negroes
was brought into and sold as slaves in Virginia by a foreign ship. From
this beginning, the importation of slaves was continued for nearly
two centuries. To her honor, Virginia, while a colony, opposed the
importation of slaves, and was the first State to prohibit the same, by
a law passed for this purpose in 1778, thirty years before the general
prohibition enacted by Congress in 1808. The laws and customs of the
States in which slavery has existed for so long a period, must have had
their influence on the opinions and habits of the citizens, which ought
not to be disregarded on the present occasion.
* * * * *
When the general convention that formed the Constitution took this
subject into their consideration, the whole question was once more
examined; and while it was agreed that all contributions to the common
treasury should be made according to the ability of the several States
to furnish the same, the old difficulty recurred in agreeing upon a
rule whereby such ability should be ascertained, there being no simple
standard by which the ability of individuals to pay taxes can be
ascertained. A diversity in the selection of taxes has been deemed
requisite to their equalization. Between communities this difficulty is
less considerable, and although the rule of relative numbers would not
accurately measure the relative wealth of nations, in States in the
circumstances of the United States, whose institutions, laws, and
employments are so much alike, the rule of numbers is probably as near
equal as any other simple and practical rule can be expected to be
(though between the old and new States its equity is defective),--these
considerations, added to the approbation which had already been given to
the rule, by a majority of the States, induced the convention to agree
that direct taxes should be apportioned among the States, according to
the whole number of free persons, and three-fifths of the slaves which
they might respectively contain.
The rule for apportionment of taxes is not necessarily the most
equitable rule for the apportionment of representatives among the
States; property must not be disregarded in the composition of the first
rule, but frequently is overlooked in the establishment of the second.
A rule which might be approved in respect to taxes, would be disapproved
in respect to representatives; one individual possessing twice as much
property as another, might be required to pay double the taxes of such
other; but no man has two votes to another's one; rich or poor, each has
but a single vote in the choice of representatives.
In the dispute between England and the colonies, the latter denied the
right of the former to tax them, because they were not represented in
the English Parliament. They contended that, according to the law of the
land, taxation and representation were inseparable. The rule of taxation
being agreed upon by the convention, it is possible that the maxim
with which we successfully opposed the claim of England may have had
an influence in procuring the adoption of the same rule for the
apportionment of representatives; the true meaning, however, of this
principle of the English constitution is, that a colony or district
is not to be taxed which is not represented; not that its number
of representatives shall be ascertained by its quota of taxes. If
three-fifths of the slaves are virtually represented, or their owners
obtain a disproportionate power in legislation, and in the appointment
of the President of the United States, why should not other property
be virtually represented, and its owners obtain a like power in
legislation, and in the choice of the President? Property is not
confined in slaves, but exists in houses, stores, ships, capital in
trade, and manufactures. To secure to the owners of property in slaves
greater political power than is allowed to the owners of other and
equivalent property, seems to be contrary to our theory of the equality
of personal rights, inasmuch as the citizens of some States thereby
become entitled to other and greater political power than the citizens
of other States. The present House of Representatives consist of one
hundred and eighty-one members, which are apportioned among the States
in a ratio of one representative for every thirty-five thousand federal
members, which are ascertained by adding to the whole number of free
persons, three-fifths of the slaves. According to the last census, the
whole number of slaves within the United was 1,191,364, which entitles
the States possessing the same to twenty representatives, and twenty
presidential electors more than they would be entitled to, were the
slaves excluded. By the last census, Virginia contained 582,104 free
persons, and 392,518 slaves. In any of the States where slavery is
excluded, 582,104 free persons would be entitled to elect only sixteen
representatives, while in Virginia, 582,104 free persons, by the
addition of three-fifths of her slaves, become entitled to elect, and do
in fact elect, twenty-three representatives, being seven additional ones
on account of her slaves. Thus, while 35,000 free persons are requisite
to elect one representative in a State where slavery is prohibited,
25,559 free persons in Virginia may and do elect a representative: so
that five free persons in Virginia have as much power in the choice
of Representatives to Congress, and in the appointment of presidential
electors, as seven free persons in any of the States in which slavery
does not exist.
This inequality in the apportionment of representatives was not
misunderstood at the adoption of the Constitution, but no one
anticipated the fact that the whole of the revenue of the United States
would be derived from indirect taxes (which cannot be supposed to
spread themselves over the several States according to the rule for the
apportionment of direct taxes), but it was believed that a part of
the contribution to the common treasury would be apportioned among the
States by the rule for the apportionment of representatives. The States
in which slavery is prohibited, ultimately, though with reluctance,
acquiesced in the disproportionate number of representatives and
electors that was secured to the slaveholding States. The concession
was, at the time, believed to be a great one, and has proved to
have been the greatest which was made to secure the adoption of the
Constitution.
Great, however, as this concession was, it was definite, and its full
extent was comprehended. It was a settlement between the original
thirteen States. The considerations arising out of their actual
condition, their past connection, and the obligation which all felt to
promote a reformation in the Federal Government, were peculiar to the
time and to the parties, and are not applicable to the new States, which
Congress may now be willing to admit into the Union.
The equality of rights, which includes an equality of burdens, is
a vital principle in our theory of government, and its jealous
preservation is the best security of public and individual freedom;
the departure from this principle in the disproportionate power and
influence, allowed to the slaveholding States, was a necessary sacrifice
to the establishment of the Constitution. The effect of this concession
has been obvious in the preponderance which it has given to the
slaveholding States over the other States. Nevertheless, it is an
ancient settlement, and faith and honor stand pledged not to disturb it.
But the extension of this disproportionate power to the new States would
be unjust and odious. The States whose power would be abridged, and
whose burdens would be increased by the measure, cannot be expected to
consent to it, and we may hope that the other States are too magnanimous
to insist on it.
* * * * *
It ought not to be forgotten that the first and main object of the
negotiation which led to the acquisition of Louisiana, was the free
navigation of the Mississippi, a river that forms the sole passage from
the western States to the ocean. This navigation, although of general
benefit, has been always valued and desired, as of peculiar advantage
to the Western States, whose demands to obtain it were neither equivocal
nor unreasonable. But with the river Mississippi, by a sort of coercion,
we acquired, by good or ill fortune, as our future measures shall
determine, the whole province of Louisiana. As this acquisition was made
at the common expense, it is very fairly urged that the advantages to be
derived from it should also be common. This, it is said, will not happen
if slavery be excluded from Missouri, as the citizens of the States
where slavery is permitted will be shut out, and none but citizens of
States where slavery is prohibited, can become inhabitants of Missouri.
But this consequence will not arise from the proposed exclusion of
slavery. The citizens of States in which slavery is allowed, like all
other citizens, will be free to become inhabitants of Missouri, in like
manner as they have become inhabitants of Ohio, Indiana, and Illinois,
in which slavery is forbidden. The exclusion of slaves from Missouri
will not, therefore, operate unequally among the citizens of the United
States. The Constitution provides, "that the citizens of each State
shall be entitled to enjoy all the rights and immunities of citizens of
the several States"; every citizen may, therefore, remove from one
to another State, and there enjoy the rights and immunities of its
citizens. The proposed provision excludes slaves, not citizens, whose
rights it will not, and cannot impair.
Besides there is nothing new or peculiar in a provision for the
exclusion of slavery; it has been established in the States north-west
of the river Ohio, and has existed from the beginning in the old States
where slavery is forbidden. The citizens of States where slavery is
allowed, may become inhabitants of Missouri, but cannot hold slaves
there, nor in any other State where slavery is prohibited. As well might
the laws prohibiting slavery in the old States become the subject of
complaint, as the proposed exclusion of slavery in Missouri; but there
is no foundation for such complaint in either case. It is further urged,
that the admission of slaves into Missouri would be limited to the
slaves who are already within the United States; that their health and
comfort would be promoted by their dispersion, and that their numbers
would be the same whether they remain confined to the States where
slavery exists, or are dispersed over the new States that may be
admitted into the Union.
That none but domestic slaves would be introduced into Missouri, and the
other new and frontier States, is most fully disproved by the thousands
of fresh slaves, which, in violation of our laws, are annually imported
into Alabama, Louisiana, and Mississippi.
We may renew our efforts, and enact new laws with heavier penalties
against the importation of slaves: the revenue cutters may more
diligently watch our shores, and the naval force may be employed on
the coast of Africa, and on the ocean, to break up the slave trade--but
these means will not put an end to it; so long as markets are open for
the purchase of slaves, so long they will be supplied;--and so long as
we permit the existence of slavery in our new and frontier States,
so long slave markets will exist. The plea of humanity is equally
inadmissible, since no one who has ever witnessed the experiment will
believe that the condition of slaves is made better by the breaking
up, and separation of their families, nor by their removal from the old
States to the new ones; and the objection to the provision of the bill,
excluding slavery from Missouri, is equally applicable to the like
prohibitions of the old States: these should be revoked, in order that
the slaves now confined to certain States, may, for their health and
comfort, and multiplication, be spread over the whole Union.
Slavery cannot exist in Missouri without the consent of Congress; the
question may therefore be considered, in certain lights, as a new one,
it being the first instance in which an inquiry respecting slavery, in a
case so free from the influence of the ancient laws, usages, and manners
of the country, has come before the Senate.
The territory of Missouri is beyond our ancient limits, and the inquiry
whether slavery shall exist there, is open to many of the arguments that
might be employed, had slavery never existed within the United States.
It is a question of no ordinary importance. Freedom and slavery are the
parties which stand this day before the Senate; and upon its decision
the empire of the one or the other will be established in the new State
which we are about to admit into the Union.
If slavery be permitted in Missouri with the climate, and soil, and in
the circumstances of this territory, what hope can be entertained that
it will ever be prohibited in any of the new States that will be formed
in the immense region west of the Mississippi? Will the co-extensive
establishment of slavery and of the new States throughout this region,
lessen the dangers of domestic insurrection, or of foreign aggression?
Will this manner of executing the great trust of admitting new States
into the Union, contribute to assimilate our manners and usages, to
increase our mutual affection and confidence, and to establish that
equality of benefits and burdens which constitutes the true basis of our
strength and union? Will the militia of the nation, which must furnish
our soldiers and seamen, increase as slaves increase? Will the
actual disproportion in the military service of the nation be thereby
diminished?--a disproportion that will be, as it has been, readily
borne, as between the original States, because it arises out of their
compact of Union, but which may become a badge of inferiority, if
required for the protection of those who, being free to choose, persist
in the establishment of maxims, the inevitable effect of which will
deprive them of the power to contribute to the common defence, and even
of the ability to protect themselves. There are limits within which
our federal system must stop; no one has supposed that it could be
indefinitely extended--we are now about to pass our original boundary;
if this can be done without affecting the principles of our free
governments, it can be accomplished only by the most vigilant attention
to plant, cherish, and sustain the principles of liberty in the new
States, that may be formed beyond our ancient limits; with our utmost
caution in this respect, it may still be justly apprehended that the
General Government must be made stronger as we become more extended.
But if, instead of freedom, slavery is to prevail and spread, as we
extend our dominion, can any reflecting man fail to see the necessity of
giving to the General Government greater powers, to enable it to
afford the protection that will be demanded of it? powers that will be
difficult to control, and which may prove fatal to the public liberties.
WILLIAM PINKNEY,
OF MARYLAND. (BORN 1764, DIED 1822.)
ON THE MISSOURI QUESTION'--UNITED STATES
SENATE, FEBRUARY 15, 1820.
As I am not a very frequent speaker in this assembly, and have shown a
desire, I trust, rather to listen to the wisdom of others than to lay
claim to superior knowledge by undertaking to advise, even when advice,
by being seasonable in point of time, might have some chance of being
profitable, you will, perhaps, bear with me if I venture to trouble you
once more on that eternal subject which has lingered here, until all
its natural interest is exhausted, and every topic connected with it
is literally worn to tatters. I shall, I assure you, sir, speak with
laudable brevity--not merely on account of the feeble state of my
health, and from some reverence for the laws of good taste which forbid
me to speak otherwise, but also from a sense of justice to those
who honor me with their attention. My single purpose, as I suggested
yesterday, is to subject to a friendly, yet close examination,
some portions of a speech, imposing, certainly, on account of the
distinguished quarter from whence it came--not very imposing (if I may
so say, without departing from that respect which I sincerely feel and
intend to manifest for eminent abilities and long experience) for any
other reason.
* * * * *
I confess to you, nevertheless, that some of the principles announced
by the honorable gentleman from New York, with an explicitness that
reflected the highest credit on his candor, did, when they were first
presented, startle me not a little. They were not perhaps entirely new.
Perhaps I had seen them before in some shadowy and doubtful shape,
"If shape it might be called, that shape had none,
Distinguishable in member, joint, or limb?"