CHAPTER IV.

THE CREATION OF THE COMMONWEALTH OF MISSOURI

The Growth of Slavery not Seriously Checked by the Prohibition of the

Foreign Slave-trade--The General Government Powerless Against Slavery

in the Existing Commonwealths--The Powers of the General Government in

Respect to Slavery in the Territories--The Powers of Congress in the

Admission of new "States" into the Union--Slavery in the Missouri

Territory--The First Petition from Missouri Territory for the

Permission to form a Commonwealth--The Second Petition, and the First

Bill in Congress, for the Admission of Missouri--The Tallmadge

Amendment to the Bill--Passage of the Amendment by the House of

Representatives--Passage of the Original Bill by the Senate--The

Missouri Bill during the Session of 1819-20--Mr. Taylor's

Proposition--The Bill for the Admission of Maine Reported and Passed

by the House of Representatives--The Failure of Mr. Taylor's Plan--The

Missouri Bill again before the House of Representatives--Mr. Taylor's

Amendment to the Bill--The Independent Missouri Bill of the

Senate--The Refusal of the Senate to Disconnect the two Measures--The

Conference on the Subject, and the First Missouri

Compromise--President Monroe's Approval of the Compromise--Review of

the Points Involved in the Contest--The Revival of the Missouri

Struggle--The Missouri Constitution in Congress--Mr. Lowndes' Bill for

the Admission of Missouri with the Instrument Unchanged--Defeat of the

Lowndes Bill in the House--Passage of the Senate Bill with a Proviso

by the Senate--The Senate Bill Tabled by the House--Mr. Clay and the

Second Missouri Compromise--Passage of the Second Missouri Compromise

Act--The General Effects of the Decisions Reached in the Missouri

Question.

[Sidenote: The growth of slavery not seriously checked by the

prohibition of the foreign slave-trade.]

Already before the year 1819, as we have seen in the preceding

chapter, had it become manifest that the {62} influences and measures

relied upon by the forefathers for the ultimate extirpation of negro

slavery were not effecting the desired result in the Commonwealths

south of the line of Pennsylvania and of the Ohio. It was evident that

the revolutionary enthusiasm for universal liberty and the rights of

man was not so strongly felt by the generation which grew up after

"'76" as by the generation of "'76," that the laws against the

importation of slaves were being evaded, and that the slaves were

increasing by birth many times more rapidly than they were decreasing

by emancipation and removal to the colonies of the American Society

for Emancipation. Moreover, four new Commonwealths had been

established--Kentucky, Tennessee, Louisiana, and Mississippi--in which

slavery was legalized, and a fifth--Alabama--was even then in process

of creation. It was manifest from all sides to the friends of

universal freedom that other means than those hitherto relied upon

must be found, if any progress was to be made in the advancement of

liberty, yea if the evident retrogression in respect to this prime

element of political civilization was to be checked.

[Sidenote: The general Government powerless against slavery in the

existing Commonwealths.]

All had been done by the United States Government, however, against

slavery within the existing Commonwealths that the Constitution

allowed. Before anything more could be undertaken, the Constitution

itself would have to be so amended as to authorize it. The

extraordinary majorities required for the initiation and adoption of

amendments made it practically impossible to effect anything by such

means. Of the thirteen original Commonwealths, seven had abolished

slavery and six had retained it. To these had now been added

four--Vermont, Ohio, Indiana, and Illinois--in {63} which slavery was

forbidden, and five in which it was permitted--Kentucky, Tennessee,

Louisiana, Mississippi, and Alabama--making thus the number upon each

side the same. And although the population in the Commonwealths north

of the line of Pennsylvania and the Ohio had outstripped, in increase,

that in those south of this line by near half a million of souls in

thirty years, and the representation in the national House of

Representatives stood consequently in favor of the former section in

the ratio of 104 to 79, still the method of representation in the

Senate, and the equality in the number of the Commonwealths

permitting, with those prohibiting, slavery, stood firmly in the way

of any amendment of the Constitution, either favorable or unfavorable

to the slavery interest.

[Sidenote: The powers of the general Government in respect to slavery

in the Territories.]

The Constitution furnished, however, an indirect way of reaching the

desired result. It gave the Congress general powers within the

Territories and did not restrict these powers in behalf of slavery.

Congress might thus prohibit slavery in the Territories, and the

Territories would thus become settled by a free population, an

anti-slavery population, which would form Commonwealths at the proper

time, in which the free status would be perpetuated by Commonwealth

law. And when a sufficient number of free Commonwealths had been thus

created to give the necessary majorities to amend the Constitution in

the direction of abolition, slavery might be extinguished in the

Commonwealths which had already legalized it. But the first difficulty

in the way of the effectiveness of this line of action was the fact

that Congress had already forfeited, in part, the opportunity, by

failing to keep the southern portion of Louisiana Territory under a

Territorial organization until slavery could have been eradicated in

it. And it was probably, in {64} 1819, already too late to attempt to

keep the remaining parts of this vast region, so far as it had been

settled at all, under Territorial organization until this result could

have been effected. At least, the advocates of freedom in 1819

evidently thought so, for they searched the Constitution to find some

other power in the general Government by which to deal with the

question.

[Sidenote: The powers of Congress in the admission of new "States"

into the Union.]

There was another provision which had been already several times

applied to this very subject and to other subjects. It was the

provision which conferred upon Congress the power to create, or

co-operate in creating, new Commonwealths out of the Territories of

the United States. This power is expressed in general terms, and in

its employment Congress had imposed a number of limitations upon the

powers of the new Commonwealths which the Constitution did not impose

upon those of the original Commonwealths. Here, then, was a possible

way for those seeking the advancement of liberty to effect their

purpose. If their interpretation of the Constitution, in regard to the

extent of this power, was correct, and they could only command the

President and a simple majority in both branches of Congress, they

could abolish slavery in every new Commonwealth at the time of its

creation, and make the continuance of the free status the perpetual

condition of its continued existence as a Commonwealth. It would then

be only a question of time when sufficient majorities would be secured

for so amending the Constitution of the United States as to expel

slavery from the old Commonwealths through the regular forms for

constitutional development. It was an attractive scheme, and appeared

to provide the means for ridding the country peaceably of its great

evil at no very far distant day. It was the last possible means which

the Constitution afforded. It was {65} tried in the creation of the

Commonwealth of Missouri and it failed. It is this which constitutes

the significance of the great movement. The result attained made the

abolition of slavery by the United States Government, through legal

and peaceable means, an utter impossibility. It contributed, at least,

toward making the War of 1861 an historical necessity.

As we have seen in the preceding chapter, slaveholding had become

established by custom in the vast region known as the Louisiana

province, wherever it was inhabited, during the periods when it

belonged to Spain and France, and had been permitted to continue after

its acquisition by the United States; and that in 1812 this province

was divided into one slave-holding Commonwealth, Louisiana, and one

slave-holding Territory, Missouri.

[Sidenote: Slavery in the Missouri Territory.]

From 1812 to 1818 Congress did nothing toward the extinction of

slavery in the Missouri Territory, or preventing the free immigration

of masters with their slaves into the Territory. Neither had the

legislature of the Territory done anything touching these subjects. It

may, therefore, be assumed that in the year 1818, the holding of

negroes as slaves was legal by custom, if not by positive law, in the

whole of the Missouri Territory, so far as it had been settled, and

that unless something should thereafter be done, either by the United

States Government or by the Territorial government, forbidding it,

slavery would be likewise legal wherever the Territory might become

settled.

[Sidenote: The first petition from Missouri Territory for the

permission to form a Commonwealth.]

Before the beginning of the year 1818, the population in the Territory

which looked to the town of St. Louis as its centre had begun to

agitate the question of the establishment of Commonwealth government.

During the Congressional session of 1817-18, petitions {66} appeared

in the House of Representatives from this population, praying for the

erection of that part of Missouri Territory, bounded roughly by the

thirty-sixth parallel of latitude on the south, the line of longitude

passing through the point of confluence of the Kansas River and the

Missouri River on the west, the Falls of the Des Moines River and the

course of that river on the north, and the Mississippi on the east,

into a Commonwealth of the Union. The petitions were referred and

reported on, and the bill presented reached the stage for debate in

the committee of the Whole House, but was not taken up during the

session.

[Sidenote: The second petition, and the first bill in Congress, for

the admission of Missouri.]

Early in the following session, that of 1818-19, the Speaker of the

House of Representatives presented a memorial from the Territorial

legislature of Missouri which contained substantially the same prayer

as the petitions presented at the preceding session. This memorial was

immediately referred to a committee for report, but the bill which

grew out of the petitions and the memorial was not brought forward for

debate in the committee of the Whole House until February 13th, 1819.

[Sidenote: The Tallmadge amendment to the bill.]

It was upon this day, and during this first debate, that Mr. James

Tallmadge, of New York, offered the famous amendment to the bill,

which precipitated a discussion, that lasted for more than a year,

upon the great subject of the distribution of powers between the

United States Government and the Commonwealths, a discussion in which

all the great legal lights of both Houses of Congress participated,

and during the course of which the whole country hung with painful

anxiety upon the outcome. It was the first great trial of the

Constitution under the issue of a domestic question, a question which

threatened to {67} divide the country upon geographic lines, a

question which, therefore, threatened the dissolution of the Union.

The exact words of this amendment are essential to a correct

comprehension of the question involved. It reads: "And provided that

the further introduction of slavery or involuntary servitude be

prohibited, except for the punishment of crimes, whereof the party

shall have been duly convicted; and that all children born within the

said State, after the admission thereof into the Union, shall be free

at the age of twenty-five years."

[Sidenote: The debate upon the Tallmadge amendment.]

The debate upon this motion is not fully reported in the annals of

Congress, but it is sufficiently reported to give a correct idea of

the constitutional questions involved. The discussion proceeded from

the two points of view of constitutional powers and public policy. Of

course the first point for the restrictionists, as those who favored

the amendment were termed, to establish was the constitutionality of

the power of Congress to impose this restriction in erecting a

Territory into a Commonwealth. If Congress has, or had, no such power,

the question of policy need not have been considered. They claimed the

power, and based it upon that paragraph of Article IV. section three,

which reads: "New States may be admitted by the Congress into this

Union." It will be readily seen that this is a very loose statement

concerning the powers of Congress in establishing this most

fundamental relation. Taken apart from all connections, its most

natural meaning is that foreign states may become politically joined

with the United States by an Act of Congress, in so far as this

country is concerned. On the other hand, taken with the context, it

appears to mean that Congress may establish Commonwealth governments,

or, in the language {68} of the Constitution, "States," upon the

territory belonging to the United States, or to some "State" or

"States" already within the Union. This is, without any reasonable

doubt, its only meaning. For if it had any reference to the connection

of foreign states with the United States, it would confer the most

important diplomatic power of the United States Government upon the

Congress, while the Constitution certainly confers the whole of this

class of powers upon the President and the Senate.

[Sidenote: The exact question at issue in the first debate on the

Missouri question.]

This was not, however, the point at issue in the Missouri question.

That point was, whether, in the creation of new Commonwealths by

Congress upon territory already within the Union, and subject to the

exclusive jurisdiction of the general Government, Congress had the

constitutional power to impose restrictions upon the new Commonwealths

thus created, which the Constitution did not impose upon the original

Commonwealths. The restrictionists, led by Mr. Tallmadge and Mr.

Taylor, of New York, and Mr. Fuller, of Massachusetts, contended that

Congress possessed this power. Their argument, reduced to a pair of

propositions, was, that the Constitution did not _require_ Congress to

"admit new States into this Union," but only _empowered_ Congress to

do so at its discretion; that therefore Congress could _refuse_ to

admit at its discretion, and that if Congress could admit or refuse to

admit at its own discretion, it could admit upon conditions, upon such

conditions as it might deem wise to impose, and could make the

continued existence of the new Commonwealth, as a Commonwealth, depend

upon the continued observance by it of these conditions.

[Sidenote: The precedents cited in support of the Tallmadge

amendment.]

They pointed to the precedents of Ohio, Indiana, and Illinois, upon

all of which Congress had imposed, as a {69} condition of their

assumption of Commonwealth powers and government as "States of the

Union," the requirement that their constitutions should not be

repugnant to the "Ordinance of the Northwest Territory of 1787," the

sixth article of which provided that there should be neither slavery

nor involuntary servitude, except as a criminal penalty, in the

Territory, from which these Commonwealths were carved out. They

contended that Congress thus prohibited slavery in these new

Commonwealths as the condition of its assent to their assumption of

the status of Commonwealths of the Union and of their continued

existence with that status.

They further pointed to the precedent of Louisiana, upon whose

"admission into the Union as a State," Congress imposed the conditions

that the new Commonwealth should use the English language as its

official language, should guarantee the writ of _habeas corpus_ and

trial by jury in all criminal cases, and should incorporate in its

organic law the fundamental principles of civil and religious liberty.

[Sidenote: Argument for the amendment from the duty of the United

States to guarantee a republican form of government to every

Commonwealth.]

They went so far as to assert that the Constitution not only permitted

Congress to lay the prohibition of slavery upon every new Commonwealth

which it might "admit into the Union," but obligated Congress to do so

by the constitutional provision which makes it the duty of the United

States Government to guarantee a republican form of government to

every Commonwealth of the Union. That is, they claimed that slavery

was incompatible with the republican form of government, and that

Congress was therefore bound by the Constitution to prohibit slavery

whenever called upon to act in regard to it.

[Sidenote: Argument from morals and policy.]

Having thus, from their point of view, vindicated the {70}

constitutional power and duty of Congress to enact the restriction,

they claimed the personal liberty of every human being to be a

self-evident principle of ethics, specifically recognized in the

Declaration of Independence, and therefore a principle of the

political system of the United States. And, finally, they demonstrated

the ruinous policy of the system of slave labor in the economy of the

country.

There is no question that Mr. Tallmadge and his friends had taken

strong ground, and that it would require extraordinary efforts to

dislodge them.

[Sidenote: Replies to the arguments of the restrictionists.]

During the first debate upon the subject, the opponents of the

restriction do not seem to have been so clear in their own minds in

reference to the principles involved as they became later, and their

arguments do not appear so convincing. Nevertheless, they touched the

point which was the real gist of the contention, and dealt with it

ably from the first. Mr. Scott, the delegate from Missouri Territory,

and Mr. P. P. Barbour, of Virginia, made a vigorous attack upon the

claim of a power in Congress to enact the restriction, as a condition

of admitting Missouri, "as a State," into the Union. They demonstrated

quite clearly that the interpretation which the restrictionists placed

upon the constitutional provision empowering Congress "to admit new

States into the Union" would enable Congress to establish inequalities

_ad libitum_ between the original Commonwealths and the new ones;

would, in principle, enable Congress to make mere provinces of the new

Commonwealths. They showed conclusively that the real question of the

controversy was not whether slavery should exist in Missouri or not,

but was whether the Commonwealth of Missouri should be allowed to

determine that matter for herself or should have it determined for her

by the {71} Congress of the United States. They pointed to the facts

that the original Commonwealths exercised, before the formation of the

existing Constitution of the United States, exclusive power over this

matter, each for itself; that the Constitution had not withdrawn this

power from them, nor prohibited it to them; and that the Constitution

declared all powers not delegated to the United States Government, nor

prohibited to the "States," to be reserved to the "States"

respectively or to the people. They, therefore, claimed that the

determination of the question whether slavery should exist in any

Commonwealth or not was a power reserved by the Constitution to each

Commonwealth for itself, and that the attempt to introduce a

distinction between the old Commonwealths and the new, in regard to

the possession of this power, was an attack upon the first principle

of federal liberty, the principle of equality in powers and duties

between the members of the Union, an attack which could be justified

legally only by an express warrant from the Constitution itself.

They disputed outright the constitutionality of the restrictions in

regard to slavery which Congress had imposed upon the Commonwealths of

Ohio, Indiana, and Illinois, and held that these Commonwealths might,

at any time, so amend their organic law as to introduce slavery; and

they justified the restrictions imposed upon Louisiana as having

express warrant from the Constitution.

They did not deny the claims of the restrictionists that slavery was

ethically wrong and economically destructive, but they contended that

the evil and the impolicy of it would be mitigated by allowing the

slaves to be spread over a larger extent of territory, reducing thus

their numerical ratio to the white population in the older

Commonwealths, and enabling their masters {72} to emigrate with them

from poor and exhausted lands to rich virgin soil, instead of being

obliged to keep them in want, or sell them to new and, therefore, less

considerate masters. They argued, upon this point, that all

importation of slaves from foreign countries having been strictly

prohibited, not one slave could be added to the number already

existing by allowing their movement into new territory, but that their

condition would be vastly improved by the increased products of their

labor.

[Sidenote: The pledge to maintain slave property in Louisiana in the

Treaty of cession.]

They contended, finally, that the treaty with France by which

Louisiana was ceded to the United States contained an express

provision pledging the United States Government to protect all the

existing property rights of the inhabitants of the province, and to

admit these inhabitants, so soon as consistent with the principles of

the Constitution of the United States, to the enjoyment of

Commonwealth powers on an equality with those of the other

Commonwealths of the Union.

There is no question that hostility to slavery colored the views of

the restrictionists in regard to the constitutional powers of

Congress, and there is also no question that the anxiety of the

slaveholders to maintain the security of their property led them to

exaggerate all of the defences of the Constitution in its behalf. It

must, however, be conceded that the opponents of the restriction had,

from the outset, the better of the argument in the question of

constitutional law, and maintained it throughout the debate. They did

not express themselves as clearly and as exactly as the political

scientist of this age would do, but they demonstrated quite

convincingly that the questions of political ethics and public policy

were, at the moment, entirely impertinent, unless it could be

satisfactorily established that Congress possessed the constitutional

power to act in the {73} premises. And they showed that no federal

system of government could exist, as to the new Commonwealths, if

Congress had the unlimited authority to distribute powers between the

general Government and these Commonwealths, which the interpretation

that the restrictionists placed upon the clause of the Constitution

vesting Congress with the authority to "admit new States into this

Union" involved.

The ethical and economical influences and considerations weighed more

heavily in the minds of the Northern members than the arguments from

constitutional law, although they asserted that the Constitution also

was upon their side.

[Sidenote: Passage of the Tallmadge amendment by the House of

Representatives.]

They carried the first part of Mr. Tallmadge's amendment, the

prohibition upon the further introduction of slavery into Missouri, by

a majority of eleven votes, and the second part, the provision for the

emancipation of all slaves born in Missouri, after its admission as a

Commonwealth, when they should have reached the age of twenty-five

years, by a majority of four votes.

The leading men from the North who voted against the amendment were

Parrot, of New Hampshire, Holmes, Mason, and Shaw, of Massachusetts,

Storrs, of New York, Bloomfield, of New Jersey, Harrison, of Ohio, and

McLean, of Illinois. They were strong and fearless men and no friends

to slavery, but they were good constitutional lawyers, and they felt

that it was better to stand by the Constitution with slavery than to

expose it to the strain of exaggerated interpretations.

[Sidenote: The Missouri bill in the Senate.]

It was upon February 17th, 1819, that the Missouri bill was finally

passed by the House and sent to the Senate. It was immediately read

twice in the Senate and referred to the committee in charge of the

bill for admitting Alabama.

{74} On the 22nd, Mr. Tait, of Georgia, in behalf of the committee,

reported the bill to the Senate, with the recommendation that the

Tallmadge amendment be stricken out.

The annals of Congress state that "a long and animated debate" took

place upon this recommendation, but the speeches are not reported. It

may be safely concluded, however, that the argument against the power

of Congress to pass the amendment prevailed very decidedly in the

minds of the members of this more calm and judicial body. They voted,

twenty-two to sixteen, against the first part of the amendment, and

thirty-one to seven against the second part. Such men as Otis, of

Massachusetts, and Lacock, of Pennsylvania, voted against the entire

amendment, and Daggett, of Connecticut, and even Rufus King, of New

York, recorded their voices against the second part of it.

[Sidenote: Passage of the original bill by the Senate.]

The bill admitting Missouri, without the Tallmadge amendment, passed

the Senate on March 2nd, and was returned to the House substantially

in this form. The House immediately refused to agree to the striking

out of the amendment, and the Senate resolved thereupon to adhere to

its own act. The bill was thus lost for the session, and the Missouri

question became the firebrand with which to light up fanatical and

incendiary passions, both at the North and at the South, during the

following recess of the Congress.

[Sidenote: The Missouri bill during the session of 1819-20.]

At the beginning of the session of 1819-20, Mr. Scott secured the

reference of the memorials concerning the admission of Missouri,

presented at the preceding session, to a select committee. On the

following day, December 9th, Mr. Scott reported a bill from this

committee, which authorized the inhabitants of that part of Missouri

Territory already described to form a constitution and Commonwealth

{75} government. This new bill was read twice and referred to the

committee of the Whole House for discussion.

[Sidenote: The policy of the restrictionists to delay the admission of

any new Commonwealths.]

Warned by the experiences of the preceding session, the

restrictionists now took another tack. They developed the plan of

delaying the formation of any more Commonwealths in the Missouri

Territory until Congress could abolish slavery in the whole of it.

During the debate of the preceding session upon the power of Congress

to impose upon new Commonwealths, at the time of their creation,

limitations not prescribed by the Constitution, it had been asserted

by the restrictionists, and not denied by their opponents, that

Congress could control the status of the Territories, and keep slavery

out of them or abolish it in them, at its own discretion, during the

period before the Territories should be permitted to assume

Commonwealth government. This seems to have been considered by nearly

all, if not quite all, as a fair interpretation of that provision of

the Constitution which vests in Congress the power to make all needful

rules and regulations respecting the Territories of the United States.

The friends of slavery restriction now determined to take advantage of

this possibility, even at this late day, and go back to the work of

clearing all the Territories west of the Mississippi of slavery by a

Congressional Act; after which the formation of new Commonwealths in

these Territories might be delayed until they could be settled by a

population, which would, by local law, maintain the free status. Mr.

John W. Taylor, of New York, seems to have formulated the plan. On the

14th of December he moved the appointment of a committee to consider

the question of prohibiting the further introduction of slavery into

the Territories of the United States west of the Mississippi. The

proposition was voted, and Mr. Taylor himself was {76} appointed the

chairman of the committee. Mr. Taylor then moved that the

consideration of the Missouri bill be postponed to the first Monday of

the following February. The friends of this bill objected most

strenuously to this proposition, and Mr. Taylor's party compromised

with them by agreeing to shorten the period of the proposed

postponement to the second Monday of January.

[Sidenote: Mr. Taylor's proposition.]

Mr. Taylor's plan was moderate in its character. He did not propose to

emancipate slaves already held within these Territories or their issue

born therein, but simply to prevent any further increase by

immigration or importation. It is difficult to see how the

slaveholders themselves could have opposed this proposition with much

vigor. They had, nearly all of them, professed to regard slavery as an

evil, though they had suggested that the evil would be mitigated by

the spreading of the slaves over more territory. It was at any rate to

be expected that those Representatives and Senators from the North,

who had voted against the Tallmadge amendment from legal scruples

only, would join with the restrictionists in the support of Mr.

Taylor's measure, since they all regarded slavery restriction as sound

policy wherever the Constitution would permit it. There certainly

seemed to be a fair chance for the passage of a law which would

protect the Territories from, at least, any considerable increase of

the slave population which might already be within them, and give

white immigration a chance to occupy and fill them, and form free

Commonwealths in them. But this passing hope was dashed by a

conjunction of events, the elements of which had already presented

themselves.

[Sidenote: The petition from the convention in Maine for the admission

of Maine.]

[Sidenote: The bill for the admission of Maine reported and passed by

the House of Representatives.]

The people resident in that part of Massachusetts known as the

district of Maine had, through delegates in convention assembled,

framed a Commonwealth constitution and government. The assent of

Massachusetts {77} had been regularly given to the division of the old

Commonwealth. And on December 8th, 1819, Mr. Holmes, of Massachusetts,

presented to the House of Representatives a petition from the

constitutional convention in the district of Maine, praying for the

admission of Maine, as a Commonwealth, into the Union, on an equality

with the Commonwealths already existing. The people of this district

had not asked the permission of Congress to form a constitution and

government, for the reason afterwards alleged that they were already

in the enjoyment of this status as a part of Massachusetts. The reason

offered was not, however, entirely satisfactory, and the people of the

district were hardly able to clear themselves from the charge of an

undue assumption of powers. The petition was, however, immediately

referred to a committee, with Mr. Holmes as chairman. On the 21st, Mr.

Holmes reported a bill to the House providing for the admission of the

district as a Commonwealth. On the 30th, the House, in committee of

the Whole, took up the bill for consideration, and in the course of

the debate upon it Mr. Clay suggested the connection of the Missouri

bill with the Maine bill. Mr. Clay did not, however, put his

suggestion into the form of a motion, and therefore the House came to

no vote upon the point at this juncture. The bill for the admission of

Maine was passed on January 3rd, 1820, without any connection with the

Missouri bill, and without any restrictions or limitations upon the

powers of the new Commonwealth beyond what the Constitution of the

United States placed upon those of the original Commonwealths. Mr.

Clay's suggestion was not, however, lost upon the Senate, as will be

seen later.

{78} [Sidenote: The failure of Mr. Taylor's plan for preventing

slavery extension.]

Meanwhile Mr. Taylor's committee had not been able to come to any

agreement. On December 28th, 1819, before the final passage of the

Maine bill, Mr. Taylor stated to the House that the committee had

instructed him to ask for its discharge. The House agreed to his

request, and he immediately moved that a new committee be appointed,

and "instructed to report a bill" prohibiting the further admission of

slaves into the Territories of the United States west of the

Mississippi River. This motion evidently appeared to the House to be a

prejudgment of the whole question, since it postponed the

consideration of it indefinitely.

[Sidenote: The Missouri bill again before the House of

Representatives.]

The Missouri bill was, however, also allowed to rest until January

24th, 1820, and when, upon that day, the Speaker announced the bill as

the first order, Mr. Taylor moved for another week's delay, and the

motion was lost by only a single vote. On the next day the House, in

committee of the Whole, proceeded to consider the bill. On the 26th,

Mr. Storrs, of New York, undertook to connect the prohibition of

slavery in the region north of the thirty-eighth parallel of latitude

and west of the Mississippi River and the proposed Missouri boundary

with the grant of the permission to form a Commonwealth in Missouri.

The opponents of slavery extension did not, however, regard this as

sufficient compensation for their support of the bill, and Mr. Storrs'

motion was lost.

[Sidenote: Mr. Taylor's amendment to the bill.]

Whereupon Mr. Taylor moved that the people of Missouri should be

required to ordain and establish in their constitution the prohibition

of slavery and involuntary servitude, except as a punishment for

crime, in the proposed Commonwealth. Conceding, as the result of the

discussions, and {79} the action of the Congress during the preceding

session, that Congress had no constitutional authority to impose

restrictions upon new Commonwealths, as the condition of their

admission into the Union, which the Constitution did not impose upon

the original Commonwealths, the new question involved in Mr. Taylor's

motion, from the point of view of constitutional law, now was, whether

Congress could require of a new Commonwealth, as the condition of its

admission to the Union, that it should impose any limitations upon

itself which the Constitution of the United States did not impose upon

the original Commonwealths. Could Congress effect indirectly what it

could not do directly?

[Sidenote: Mr. Taylor's argument in support of his amendment.]

Mr. Taylor's argument rested substantially upon the proposition,

upheld by the restrictionists during the preceding session, that if

Congress could admit, it could refuse to admit, and if it could admit

or refuse to admit, it could admit upon conditions. He, however,

advanced other propositions and suggestions. He held that the

admission of a new Commonwealth into the Union was a procedure in the

nature of a contract between the United States Government and the

people of the new Commonwealth, and, therefore, admitted of any terms

accepted by both parties. He further held that the provision of the

Constitution, which impliedly vested in Congress the power to

prohibit, after 1808, the importation or migration of slaves, covered

the case, in that the word migration meant passage from one

Commonwealth into another, in distinction from importation, which

meant the bringing of slaves into the United States from foreign

countries. And he suggested that territory acquired by the United

States subsequent to the formation of the Constitution need not be

treated with the same consideration, as to the rights of its

inhabitants, as that which {80} belonged to the United States at the

time of the formation of the Constitution.

[Sidenote: Replies to Mr. Taylor's reasoning.]

Of course the members from the South resisted Mr. Taylor's

conclusions. But they were not alone in their position. Some of the

strongest opponents of slavery from the North stood up with them in

resisting what they considered to be an attack upon the principle of

federal government. Mr. Holmes, of Massachusetts, was again chief

among them, and it is to his argument that one must look for the most

scientific and unprejudiced view of the subject.

[Sidenote: Mr. Holmes' argument against the amendment.]

After demonstrating most convincingly that the clauses of the

Constitution which vested in Congress the power to prohibit the

migration of persons into the United States after 1808 and to regulate

commerce between the Commonwealths could not be interpreted as giving

Congress the power to prevent the transportation of slaves from one

Commonwealth into another, Mr. Holmes attacked the fundamental

proposition upon which Mr. Taylor relied, the proposition that if

Congress could admit, it could refuse to admit, and if it could admit

or refuse to admit at pleasure, it could admit upon conditions. Mr.

Holmes contended that the power to determine whether slavery should

exist or not in any community was possessed by each Colony before the

Revolution, and by each "State" after the Revolution, and that the

Constitution of 1787 had not deprived the "States" of it, but had

recognized it as belonging to each of them exclusively; that new

"States" admitted by Congress into the Union must have all the rights,

and be subject to all the duties, which the original "States"

possessed, on the one side, and were obligated to discharge, on the

other; that Congress could not increase the powers of the general {81}

Government within the new Commonwealths by selling the Territories a

license to the Commonwealth status, and taking the pay for it in

powers to be exercised by the general Government in the new

Commonwealths, which that Government could not, by the Constitution,

exercise within the original Commonwealths; and that if Congress

assumed to exercise such power, and the people of the Territory

seeking the Commonwealth status should even accept the imposed

condition, the new Commonwealth had the right and the power to free

itself from the condition, and the Congress was powerless to prevent

it.

[Sidenote: Mr. McLane's argument against the amendment.]

Mr. McLane, of Delaware, a Commonwealth whose legislature had

instructed the representatives from the Commonwealth in Congress to

support all measures for preventing the spread of slavery in the

Territories of the Union west of the Mississippi, presented the

question with even greater clearness and conciseness. He simply

analyzed the words of the Constitution which make up the clause

conferring power on Congress "to admit new States into this Union." He

said that the power to admit was not the power to create; that the

very use of the word presupposed that the power to create the "State"

resided elsewhere than in Congress; that Congress must admit a

_"State,"_ not a Territory or a province or anything but a _"State;"_

that a "State," in the system of federal government of the United

States, was an organization whose powers and duties had been

determined by the Constitution of the United States itself, and could

not be altered by Congressional definitions and limitations; that

Congress must admit the "State" into _this Union_, not into some other

union; and that _this Union_ was a system of federal government, in

which the relations between the general Government {82} and the

"States" had been fixed by the Constitution of the United States, and

could not be altered by a mere Congressional act. This was strong

reasoning, and it had a powerful effect upon the minds of all who

heard it and of all who read it.

[Sidenote: The independent Missouri bill of the Senate.]

Meanwhile events were occurring in the Senate which were to exercise a

controlling influence over the fate of the bill in the House. On

December 29th, 1819, a memorial from the Territorial legislature of

Missouri, praying for the admission of that part of the Territory

already described in the memorial to the House, had been presented in

the Senate, and referred to the Judiciary committee. On January 3rd,

1820, the House bill admitting Maine was sent into the Senate. Mr.

James Barbour, of Virginia, immediately gave notice of his intention

to move the connection of the two subjects in the same bill, and on

the same terms. As we have seen, Mr. Clay had already made this

suggestion in the House, but had not formally proposed it.

[Sidenote: The connection of the House bill admitting Maine with the

Senate's bill admitting Missouri.]

The House bill admitting Maine was immediately referred to the

Judiciary committee, which committee already had the Missouri bill in

its charge, and on January 6th, Mr. Smith, of South Carolina, the

chairman of this committee, reported from it to the Senate the House

bill admitting Maine, with an amendment authorizing the people of

Missouri, within the general geographical boundaries already

described, to form a constitution and Commonwealth government. The

amendment contained no restrictions or conditions with regard to

slavery.

On January 13th, the day fixed for considering the report of the

committee, Mr. Roberts, of Pennsylvania, moved the recommitment of the

Maine bill to the {83} Judiciary committee, with the instruction that

the bill should be divested of the amendment in regard to Missouri.

The vote upon this motion would, therefore, reveal the attitude of the

Senate upon the question of tacking the two subjects together. Such

men as Mr. Roberts, Mr. Mellen, Mr. Burrill, and Mr. Otis argued that

they should be disconnected, on the ground of the discordance of the

two provisions. The people of Maine, they said, had already formed

their constitution and government, and were simply asking for

admission, while the Missouri bill was a measure for enabling the

people of a part of the Missouri Territory to form a constitution and

government, under which they might be admitted later, provided that

constitution should prove satisfactory to Congress.

On the other hand, such men as Mr. Barbour, Mr. Smith, and Mr. Macon

contended that the two subjects were entirely germane, and that any

contrary appearance was caused by the unwarranted action of the people

of Maine in proceeding so far as they had done without asking the

consent of Congress, for which wrongful procedure presumptuous Maine

should not be rewarded and respectful Missouri punished.

[Sidenote: The refusal of the Senate to disconnect the two measures.]

On the 14th, the vote was taken upon the motion to recommit, and it

was lost by a majority of seven votes in forty-three. A number of the

Senators from the Northern Commonwealths voted with the Southerners in

refusing to separate the two subjects.

The question then came upon the contents of the bill as reported by

the Judiciary committee. Mr. Roberts immediately moved to amend the

bill by a provision prohibiting the further introduction of slavery

into Missouri. The arguments upon this motion were substantially a

repetition of what had already been said {84} upon the subject in the

House of Representatives. The amendment was voted down, on February

1st, by a large majority.

[Sidenote: Mr. Thomas' amendment to the joint measure.]

On the 3rd, Mr. Thomas, of Illinois, offered an amendment, which was

destined to play a very important part in the further development of

the subject. It was the proposition to exclude slavery from the

Louisiana territory above thirty-six degrees and thirty minutes,

except within the limits of the proposed Commonwealth of Missouri. The

Senate was not yet prepared, however, to consider this, the question

before it, at the moment, being the question of procedure, the

question whether the two subjects should be united in one bill. The

Senate had only voted not to recommit the bill to the Judiciary

committee with instructions, and it was thought necessary to take a

formal vote upon the question of the connection of the two subjects as

proposed by the committee before considering any further amendments to

it. Mr. Thomas, therefore, withdrew his motion for the moment.

[Sidenote: Mr. Pinkney's great argument against the power of Congress

to lay restrictions on new Commonwealths not imposed by the

Constitution on the original Commonwealths.]

It was at this stage of the proceedings, when apparently there was

nothing before the Senate but the question of the union of the two

subjects, that Mr. Pinkney of Maryland made his brilliant and

unanswerable argument upon the question of the powers of Congress in

the premises. It differed logically very little from Mr. McLane's

powerful analysis of the subject in the House, but it was elaborated

and embellished as only Mr. Pinkney's beautiful diction could do it.

The gist of the reasoning was, however, contained in a few sentences

which ran as follows: "What, then, is the professed result? To admit a

State into this Union. What is this Union? A confederation of States,

equal {85} in sovereignty, capable of everything which the

Constitution does not forbid, or authorize Congress to forbid. It is

an equal union between parties equally sovereign. They were sovereign,

independent of the Union. The object of the Union was common

protection for the exercise of already existing sovereignty. The

parties gave up a portion of that sovereignty to insure the remainder.

As far as they gave it up by the common compact, they have ceased to

be sovereign. The Union provides the means for securing the residue;

and it is into _that_ Union that a new State is to come. By acceding

to it, the new State is placed on the same footing with the original

States. It accedes for the same purpose, that is, protection for its

unsurrendered sovereignty. If it comes in shorn of its beams, crippled

and disparaged beyond the original States, it is not into the original

Union that it comes. For it is a different sort of Union. The first

was a Union _inter pares_. This is a Union _inter disparates_, between

giants and a dwarf, between power and feebleness, between full

proportioned sovereignties and a miserable image of power--a thing

which that very Union has shrunk and shrivelled from its just size

instead of preserving it in its true dimensions. It is into _this_

Union, that is the Union of the Federal Constitution, that you are to

admit or refuse to admit. You can admit into no other. You cannot make

the Union, as to the new States, what it is not as to the old; for

then it is not _this_ Union that you open for the entrance of a new

party. If you make it enter into a new and additional compact is it

any longer the same Union?... But it is a State which you are to

admit. What is a _State_ in the sense of the Constitution? It is not a

State in general, but a State as you find it in the Constitution....

Ask the Constitution. It shows you {86} what it means by a State by

reference to the parties to it. It must be such a State as

Massachusetts, Virginia, and the other members of the American

Confederacy--a State with full sovereignty except as the Constitution

restricts it. The whole amount of the argument on the other side is,

that you may refuse to admit a new State, and that, therefore, if you

admit, you may prescribe the terms. The answer to that argument is,

that even if you can refuse, you can prescribe no terms which are

inconsistent with the act you are to do. You can prescribe no

conditions which, if carried into effect, would make the new State

less a sovereign State than, under the Union as it stands, it would

be. You can prescribe no terms which will make the compact of Union

between it and the original States essentially different from that

compact among the original States. You may admit or refuse to admit,

but if you admit, you must admit a State in the sense of the

Constitution--a State with all such sovereignty as belongs to the

original parties; and it must be into _this_ Union that you are to

admit it, not into a Union of your own dictating, formed out of the

existing Union by qualifications and new compacts, altering its

character and effect, and making it fall short of its protecting

energy in reference to the new State, whilst it requires an energy of

another sort--the energy of restraint and destruction."

This is the old-fashioned political and rhetorical way of saying what

the modern publicist would state in such language as this: In a

federal system of government, all powers are distributed by the state,

the nation, the ultimate sovereignty, through the Constitution,

between the central Government and the Commonwealths. The assumption

by the central Government of the authority to redistribute these

powers in a different manner, in any {87} given case, is an assumption

of sovereignty, the Constitution-making power, and the possession of

any such power by the central Government makes a federal system of

government impossible. It makes the Commonwealths only creatures and

agencies of the central Government. It changes the whole system from

federal government to centralized government. In the federal system of

government as it existed, in 1820, in the United States, the

determination of the question whether slavery should exist or not in

any Commonwealth was reserved through the Constitution to each

Commonwealth for itself, since this power was neither vested in the

central Government nor denied to the Commonwealths. If Congress could

assume this power, it could assume any and every other power and right

which the Commonwealths possessed. Such authority in the central

Government would destroy in principle the federal system, at once, and

make the government a centralized form.

[Sidenote: Pinkney's argument successful.]

There was nobody in the Senate who did, or could, answer this

argument. The amendments proposed after this to the bill as reported

from the Judiciary committee contained no further restrictions upon

the Commonwealth powers of Missouri, but had reference only to what

remained of the Louisiana territory north and west of the boundaries

of the proposed Commonwealth.

[Sidenote: The adoption of Mr. Thomas' amendment by the Senate, and

the passage of the Maine-Missouri bill thus amended.]

The formal vote connecting the two subjects of Maine and Missouri was

taken in the Senate on February 16th, and after this was resolved

upon, Mr. Thomas immediately renewed his motion to amend the bill by

the addition of a clause prohibiting slavery in the Louisiana

territory above thirty-six degrees and thirty minutes, outside of the

boundaries of the proposed Commonwealth of Missouri. After an attempt,

on the {88} one side, to carry this line up to the fortieth parallel,

and a counter attempt on the other to make the prohibition extend to

all the territory west of the Mississippi, except that already under

Commonwealth government, or in process of being put under Commonwealth

government by the existing bill--the result of which would have been

the prohibition of slavery in the just organized Territory of

Arkansas--Mr. Thomas' amendment was adopted as the fair compromise.

The bill, as thus amended, passed the Senate on February 18th, 1820,

and was sent immediately to the House of Representatives.

[Sidenote: The House of Representatives' refusal to agree to the

combination.]

[Sidenote: The conference on the subject, and the first Missouri

compromise.]

The form of the bill was now the House bill in regard to Maine, with

the Missouri bill and the Thomas proposition attached to it as

amendments. The House voted to disagree to these amendments, and sent

the bill, stripped of them, back to the Senate. The Senate voted

immediately to insist upon its amendments, and the House answered with

a vote insisting upon its position. Thereupon, the Senate requested a

conference with the House upon the subject, and appointed Mr. Pinkney,

Mr. Barbour, and Mr. Thomas as its representatives. The House acceded

to the request and appointed Mr. Holmes, Mr. Taylor, Mr. Lowndes, Mr.

Parker, and Mr. Kinsey as its representatives. These gentlemen met and

agreed without much difficulty to the following points: That the

Senate should withdraw its amendments to the House bill for the

admission of Maine; that both the Senate and the House should pass the

Missouri bill, without the condition in reference to the restriction

of slavery in the proposed Commonwealth; and that both the Senate and

the House should add a provision to the Missouri bill prohibiting

slavery in the remainder of the Louisiana territory north of

thirty-six degrees and thirty {89} minutes. That is, the House should

gain its point of order in the separation of the two subjects; the

Senate should gain its point of constitutional law in defending the

new Commonwealth against restrictions not imposed by the Constitution

upon the original Commonwealths; and the two should compromise upon a

fair division of the remaining parts of the Louisiana territory

between the interests of the North and those of the South. The Senate

accepted the recommendations of the committee without much difficulty,

and voted the measures contained in them. The House also accepted the

recommendations and voted the necessary provisions upon its part.

[Sidenote: President Monroe's approval of the Compromise.]

When the measures were placed before President Monroe for his

approval, he called a meeting of the Cabinet to consider the subject.

There was no difficulty except upon a single point, the prohibition of

slavery in the remainder of the Louisiana territory above thirty-six

degrees and thirty minutes north latitude. Was this to be taken as

prohibiting slavery in the Commonwealths which might be formed upon

this territory in the future, or did the Congress only intend to lay

this restriction upon this territory merely for the period during

which it might continue subject to the exclusive jurisdiction of the

general Government, the period of Territorial organization? If the

former, the Missouri question would have to be fought over again

whenever a new Commonwealth should be formed in this territory. The

Cabinet interpreted the prohibition as applying only during the period

before the Commonwealth organization should be established, and upon

the basis of this interpretation advised the President that the

measure was constitutional. The President signed the Maine bill on the

3rd of March and the Missouri bill on the 6th (1820).

{90} [Sidenote: Review of the points involved in the contest.]

So far as the questions of constitutional and parliamentary law were

concerned, the settlement reached was in accordance with right

principles. It was right that the two subjects, which the Senate

united in one bill, should be separated. The only justification for

this act of the Senate was the manifest determination on the part of

the House to impose an unconstitutional restriction as the condition

upon which the people of Missouri should be allowed to assume the

status and the powers of a Commonwealth of the Union. It was the only

weapon left to the more conservative Senate, by which to defend the

Constitution against the rashness of the more radical House. It need

astonish no impartial student of our history that the Senate used it.

No such momentous question was involved in this point of parliamentary

procedure as there was in the exaggerated interpretation of the powers

of Congress by the House. The Senate showed its willingness to yield

its position upon this point so soon as the House would return to

sound constitutional principle in the Missouri question. It was

fortunate for the development of the parliamentary practice of

Congress that the House so changed its position in reference to the

greater question of constitutional law as to enable the Senate to

return to the true parliamentary principle of the separation of

subjects which differ in essence or in circumstances in the slightest

degree. While, therefore, the Senate should not be too strongly

criticised for using its power over its own rules of procedure, as a

means of retaliation, it is a matter of great satisfaction that

expedients were at last found for maintaining right principle and

sound parliamentary custom in the case. And it was surely right that

the attempt to make Congress the distributor of powers between the

general Government and the Commonwealths {91} was abandoned. The power

which _made_ the Constitution can alone set up the metes and bounds

between the realm of authority of the general Government and that of

the Commonwealths. This is the indispensable condition of federal

government. If the general Government possesses such power, the system

is centralized in theory, and may become so in fact at the pleasure of

the general Government. If, on the other hand, the Commonwealths

possess such power, the system is the loosest form of confederation,

an international league.

It is true that the Constitution may authorize the general Government

to limit the powers of the Commonwealths in regard to certain

specified points and the federal system be still preserved, but a

general authority in the general Government to do so, such as was

claimed by the restrictionists from the vague provision vesting in

Congress the power to "admit new States into this Union," amounts to

nothing less than a claim of sovereignty by Congress over the new

Commonwealths. Such was not the system which those who framed and

ratified the Constitution intended to establish. Such is not the

system which comports with the vast territorial extent and the

climatic differences of the United States, and with the ethnical

variety of the population of the country.

It is also true that those who resisted the restriction upon Missouri

used terms and propositions, in reference to the genesis of the Union

and the relation of the general Government to the Commonwealths, which

will hardly bear the test of correct history and exact political

science, but they had the true principle in respect to the point at

issue, when they held that "the State," in the sense of the

Constitution, is defined in the Constitution; that its powers are the

residue after what the Constitution vests exclusively in the general

{92} Government and denies to the "States" shall have been subtracted

from sovereignty; and that Congress cannot vary these relations under

an interpretation of a general provision. They conceded that Congress

might, as the general principle, admit or not admit, as it might judge

proper, with all that this involved in reference to geographical

boundaries and ripeness of the population for self-government, but

they held that the thing admitted was created by the Constitution,

through the people inhabiting the district to be formed into a

Commonwealth, and not by Congress. And they repudiated the idea that

the Declaration of Independence is any part of the constitutional law

of the country, or that Congress can define the republican form of

government which the United States is obligated by the Constitution to

guarantee to every Commonwealth, in any other sense than that

concretely expressed in the original Commonwealths.

They held this ground under enormous strain and pressure brought from

without. Cross-roads assemblies, town and city meetings, and

Commonwealth legislatures poured petitions and memorials in upon them

in behalf of slavery restriction. The excitement, throughout the

Northeast especially, was intense. They had to fight their battle

under an ignoble issue. But it will not be denied by any impartial

constitutional lawyer that they were, for this time, the upholders of

the Constitution against an unwarranted attempt to stretch

Congressional power.

Finally, the compromise provision, drawing the line of thirty-six

degrees and thirty minutes through the Louisiana territory, and

securing all north of it, which was by far the greater part, against

the introduction of slavery during the period that it might remain

under the exclusive jurisdiction of the general Government, was {93}

tantamount to a surrender, forever, of this vast domain to immigration

from the North almost exclusively, and to the creation therein of new

Commonwealths into which slaveholders could not take their slave

property. Many American historians treat the express exclusion of

slavery north of this line as no concession to the North, but as a

mask under which the real concession, the concession to the South, was

hidden. This they claim to have been the implied concession to hold

slaves south of that line. But slavery was legal by custom in the

whole of the province of Louisiana, when the United States received it

from France. That is, a master might have taken slaves into any part

of it, into which he might have gone himself, and would not thereby

have violated any law, and the United States Government had not, down

to 1820, changed this state of things by any act of its own.

The compromise upon the line of thirty-six degrees and thirty minutes

was, therefore, a very decided limitation upon the existing rights of

slave-masters. And even if slavery had not already penetrated into

this region, it can hardly be claimed that the balance of advantage

created by the compromise provision lay with the South, except upon

the principle that the South ought not to have had anything, and the

North ought to have had everything. Ethically, perhaps, this is the

correct principle from which to judge the question, but politically

and legally it was not, at that moment.

The Union consisted of Commonwealths, in all of which slavery existed

at the time of and during the War for Independence, in almost all of

which it existed when the Constitution of 1787 was framed and adopted,

and in about half of which it existed, as the most important

institution, at the period of the Missouri controversy. Further, it

can hardly be denied that the Constitution contained recognition and

guarantees of slave property. {94} The vague phrases of the

Declaration of Independence, even if intended to touch the relation of

master and slave within the country, were not law. It is true that

slavery was regarded both in the North and in the South as an evil,

but men differed in opinion as to whether confining the slaves to a

particular section was a better means for its mitigation than

spreading them over a larger area, and reducing thus their number

relative to the white population in any particular section.

Surrounded in thought with the ideas and conditions of 1820, it is

difficult to see why the balance of advantage contained in the

compromise provision of the Missouri bill did not lie with the North.

Compromise or no compromise about the remainder of the Louisiana

territory, Missouri was bound to be admitted without restriction as to

slavery. The customary law of the region seeking to become a

Commonwealth permitted slaveholding. The population was sufficient to

warrant the assumption of Commonwealth powers. The Constitution did

not authorize Congress to impose the slavery restriction, and the

people of the region had protested against it. The admission of

Missouri was, therefore, no legitimate element in the compromise.

Neither was the agreement on the part of the Senate to separate Maine

from Missouri any proper element in the compromise. The restriction

placed by the House on Missouri rested on a false interpretation of

constitutional law, and the connection of the two subjects in the same

bill rested on a false interpretation of parliamentary law. In

principle both had to be abandoned. The compromise was in reality only

about the remainder of the Louisiana territory after the admission of

Missouri, in no part of which had slavery, to that moment, been

prohibited. How much of it should continue open to the further

introduction of slavery by the immigration of {95} masters with their

slaves, and how much should be given over to practically exclusive

immigration from the North--these were the only proper terms of the

compromise. What the South finally obtained out of it was one

Commonwealth, while the vast region from which slavery was excluded

has produced eight or nine Commonwealths. In the light of these

considerations it certainly appears that the cause of free labor won a

substantial triumph in the Missouri compromise, and that, in place of

that shameful surrender of freedom to slavery, so emphasized by

certain historians, a mighty step forward in the progress of liberty

was taken.

It was confidently hoped and believed that the compromise had solved

the slavery problem, in so far as Congress could solve it. The whole

country breathed more easily and the thoughts of men were turned to

other subjects.

[Sidenote: The revival of the Missouri struggle.]

But the peace proved to be only an armistice. In less than twelve

months the battle was raging again with more than its former fury.

The Missouri convention, which drew up and voted, in the middle of the

year 1820, the organic law for the new Commonwealth, inserted a

paragraph therein which made it the duty of the legislature, proposed

to be established by that law, to enact measures for preventing

mulattoes and free negroes from immigrating into and settling within

the Commonwealth.

[Sidenote: The Missouri constitution in Congress.]

On November 14th, 1820, this instrument was presented to the Senate of

the United States, and on the 16th to the House of Representatives,

for the purpose of moving these bodies to pass an act admitting

Missouri into the Union as a Commonwealth. The instrument was

immediately referred by each House to a committee; and on the 23rd,

Mr. Lowndes, the chairman of the House Committee, {96} reported a bill

for effecting this result, and, on the 29th, Mr. Smith reported a bill

of like tenor to the Senate.

[Sidenote: Mr. Lowndes' bill for the admission of Missouri with the

instrument unchanged.]

Mr. Lowndes' bill was prefaced by a statement of views, which

presented the questions of constitutional interpretation to which the

provision referred to in the Missouri instrument gave rise. He alluded

to the possible repugnance of the provision to that clause in the

Constitution of the United States which guarantees to the citizens of

each Commonwealth all the privileges and immunities of citizens in

every other Commonwealth; but said that the provision in the Missouri

instrument could be interpreted to mean only such mulattoes and free

negroes as were not citizens in any Commonwealth. And he held that,

whether this be the true interpretation or not, the judiciary of the

United States, and not the Congress, should determine the question of

repugnance between the Missouri instrument and the Constitution of the

United States. He finally took the ground that Missouri was now

already a Commonwealth by virtue of the Act of Congress giving her

people permission to form Commonwealth government, and by virtue of

the act of her people in forming a Commonwealth constitution, and he

declared that the refusal or failure of Congress, at this time, to

pass a formal act of admission could not reduce her again to the

Territorial status.

[Sidenote: Serious opposition to the Lowndes bill.]

Mr. Sergeant, the spokesman of the opposition to Mr. Lowndes' report,

met these propositions with the counter-propositions, that a Territory

becomes a Commonwealth of the Union only by a Congressional Act

admitting it to that status; that no other kind of a Commonwealth than

a Commonwealth in the Union is known to the political {97} system of

the United States; that all the acts done by Congress and by the

people resident within a Territory before the Congressional Act of

admission are nothing more than preliminaries, and that a Territory

remains a Territory until the passage of this latter act; that the

provision in the Missouri instrument in regard to the exclusion of

mulattoes and free negroes was repugnant to that clause in the

Constitution of the United States which guarantees to the citizens of

any Commonwealth the privileges and immunities of citizens in every

other Commonwealth of the Union into which they may go; and that

Congress, not the Judiciary, is the body which should determine

whether such repugnance exists, and, if so, correct it.

There is no doubt that, from the point of view of a correct political

logic, the opponents of Mr. Lowndes' propositions in regard to the

making of a Commonwealth of the Union stood upon the firmer ground,

despite the fact that the precedents did not sustain fully their

claims. As a fact, Congress had been guilty of such irregularities in

the admission of some of the Commonwealths as to give much support to

the notion that there could be a Commonwealth in the political system

of the United States before its formal admission into the Union. But

the argument is unanswerable, that a Commonwealth not in the Union is

a foreign state; that in order that a Territory shall attain this

latter position and status its constitutional right to secede from the

United States must be recognized, which is absurd; and that,

therefore, the Congressional Act of admission is what makes a

Territory of the Union into a Commonwealth of the Union, the only kind

of a Commonwealth known to the political system of the United States.

They also stood upon the firmer ground in holding {98} that it is the

duty of Congress to scrutinize closely the measures proposed for

enactment by it from the point of view of their constitutionality, and

to pass no act, of the constitutionality of which it is not reasonably

convinced, under the pretext that the Judiciary is the proper body to

correct the usurpation. The members of Congress take the same oath to

uphold the Constitution as the judges do. The revisory powers of the

Judiciary over the acts of Congress were not given in order to excuse

the Congress from exercising its preliminary judgment upon the

constitutionality of its own acts. They were given simply to correct

errors in judgment.

[Sidenote: The protection of the rights of citizens of one

Commonwealth within the territory of another by the United States.]

On the other hand, when a citizen of one Commonwealth immigrated into

and settled in another, it was a question whether he did not lose the

right to be treated as a citizen in the latter Commonwealth, in so far

as the Constitution of the United States, as it was in 1820, was

concerned, and become subject to the laws of the latter Commonwealth

as to his status. If he were only passing through, or sojourning

temporarily in, the latter Commonwealth, it was clear that the

Constitution of the United States protected him as a citizen of

another Commonwealth, but when he changed his residence and

citizenship to the latter Commonwealth, the question became much more

complicated. It was now whether the laws of one Commonwealth were, by

virtue of the Constitution of the United States, valid in another

Commonwealth for the protection of persons against the laws of the

latter Commonwealth, who had become citizens and residents of the

latter Commonwealth.

It must be remembered, however, that the immediate question involved

in the provision of the Missouri instrument was whether a Commonwealth

could prohibit the citizens of other Commonwealths from immigrating

{99} into, and gaining residence and citizenship within, itself. How

it might treat such persons after these things had been accomplished

was a subsequent matter. But even limiting the question to this point,

it was certainly a startling thing to the Southerners to be told that,

by virtue of the Constitution of the United States, a negro citizen of

Massachusetts had the right to immigrate into, and become a citizen

of, South Carolina, when the laws of South Carolina did not admit

negroes to citizenship.

[Sidenote: Defeat of the Lowndes bill in the House.]

On December 13th (1820), after a long, earnest, and, at times,

acrimonious debate, the Lowndes measure for the admission of Missouri

was defeated by a vote of ninety-three to seventy-nine.

[Sidenote: Passage of the Senate bill with a proviso by the Senate.]

The bill presented by Mr. Smith in the Senate was taken up for

consideration on December 4th. The arguments pro and con were about

the same as those offered in the House, but the bitterness of feeling

which seemed to animate the members of the opposition to the measure

in the House was not manifested by those adverse to it in the Senate.

Nevertheless, there was a majority in the Senate against passing a

simple measure for admission without any limitations. They finally

voted the bill, with the proviso attached: "That nothing herein

contained shall be so construed as to give the assent of Congress to

any provision in the constitution of Missouri, if any such there be,

which contravenes that clause in the Constitution of the United States

which declares that 'the citizens of each State shall be entitled to

all the privileges and immunities of citizens in the several States.'"

[Sidenote: The Senate bill tabled by the House.]

The House tabled this bill on the same day that it rejected the

measure offered by its own committee. But what now was the status of

Missouri? Her people had {100} elected a governor and members of the

legislature under the organic law formed in July, and it was

considered doubtful whether there still existed any Territorial

officials exercising governmental powers. The House, however, would

not even inquire into this fact. They said the question before them

was one of law and not of fact at all.

[Sidenote: Mr. Clay and the second Missouri Compromise.]

After some futile attempts made by Mr. Eustis, of Massachusetts, for

the admission of Missouri upon a future day, provided the obnoxious

clause should be expunged from her organic law before that day, Mr.

Clay came forward and assumed the management of the question.

On January 29th, 1821, he asked the House to go into committee of the

Whole to consider the Senate bill admitting Missouri. This proposition

was naturally agreed to, and, after several unsuccessful attempts made

by others at an immediate amendment of the Senate bill in the

committee of the Whole House, Mr. Clay moved the reference of the bill

to a select committee of thirteen persons. This motion was passed, and

the committee was chosen, with Mr. Clay as its chairman.

On February 10th, 1821, Mr. Clay reported the recommendations of the

committee. They were expressed in the proposition: That Missouri

should be "admitted into this Union on an equal footing with the

original States, in all respects whatever, upon the fundamental

condition that the said State shall never pass any law preventing any

description of persons from coming to and settling in the said State,

who may now be or hereafter become citizens of any of the States of

this Union; _and provided also_, that the legislature of the said

State, by a solemn public act, shall declare the assent of the said

State to the said fundamental condition, and shall transmit to the

President of the United States, on or before the fourth {101} Monday

of November next, an authentic copy of the said act: upon the

reception whereof, the President, by proclamation, shall announce the

fact: whereupon, and without any further proceedings on the part of

Congress, the admission of the said State shall be considered as

complete: _and provided_ further, that nothing herein contained shall

be construed to take from the said State of Missouri, when admitted

into this Union, the exercise of any right or power, which can now be

constitutionally exercised by any of the original States."

[Sidenote: The failure of Mr. Clay's first attempt.]

Mr. Tomlinson, of the committee, took the floor against the report,

and showed so conclusively that the legislature of a Commonwealth

could not bind the makers of the organic law of the Commonwealth, and

that, therefore, any obligation which the legislature of Missouri

might assume toward Congress might prove nugatory, that the Senate

bill, with the amendment offered by Mr. Clay's committee, was voted

down.

[Sidenote: Mr. Clay's second attempt to secure a compromise.]

Mr. Clay waited ten days after this in order to let the feelings of

the members become mollified, and on February 22nd, one of the most

significant days in American history, made his final attempt to secure

a compromise. He moved that members to a conference committee be

appointed by the House. The motion was carried, and on the next day

the members of the House contingent of the committee, consisting of

twenty-three persons, under the lead of Mr. Clay, were appointed. The

Senate met the advance promptly and appointed seven members to

represent it.

[Sidenote: The second Missouri Compromise.]

On the 26th, Mr. Clay reported the results of the conference, in the

form of a resolution of the following tenor: "Resolved, by the Senate

and House of Representatives of the United States, in Congress {102}

assembled, that Missouri shall be admitted into this Union on an equal

footing with the original States in all respects whatever, upon the

fundamental condition, that the fourth clause of the twenty-sixth

section of the third article of the constitution submitted on the part

of said State to Congress shall never be construed to authorize the

passage of any law, and that no law shall be passed in conformity

thereto, by which any citizen of either of the States of this Union

shall be excluded from the enjoyment of any of the privileges and

immunities to which such citizen is entitled under the Constitution of

the United States: Provided that the legislature of the said State, by

a solemn public act, shall declare the assent of the said State to the

said fundamental condition, and shall transmit to the President of the

United States, on or before the fourth Monday in November next, an

authentic copy of the said act; upon the receipt whereof the

President, by proclamation, shall announce the fact; whereupon, and

without any further proceeding on the part of Congress, the admission

of the said State into this Union shall be considered as complete."

[Sidenote: Passage of the second Missouri Compromise Act.]

It will be seen that this recommendation contained the same

objectionable feature as did that of the committee of Thirteen of the

House, that is, the proposition to rely upon the Missouri legislature

to enter into an obligation to Congress, which should bind all future

legislatures and also the constituent power of the Commonwealth. It

was, therefore, attacked upon the same ground, but the supporters

urged so strongly that Congress should put a reasonable faith in the

honor of Missouri to keep the pledge made by her first legislature,

that the resolution was finally adopted by the House, by a very small

majority, on the same day that it was reported. It was immediately

sent to the {103} Senate for concurrence, and, after a brief debate,

was voted by that body on the 28th, by a large majority.

The great struggle was at last over, and it was sincerely hoped that

the "era of good feeling," so suddenly interrupted by it, had been

restored. Apparently it was so, but while the decision finally reached

saved the country from one great danger, it sowed the seeds of

another. A brief review of the effects of that decision upon the

constitutional law, political science, and social conditions of the

Republic will make this apparent.

[Sidenote: The general effects of the decisions reached in the

Missouri question.]

In the first place, the decision involved the constitutional and

political principle that, in the federal system of government

generally, and in the system of the United States in particular, the

powers of government are, and must be, distributed by the sovereignty

behind, and supreme over, both the general Government and the

Commonwealths, and not by either of the two governments, unless

expressly empowered to do so, in specific cases, by the sovereignty

through the Constitution. This is undoubtedly a sound principle, both

of political science and constitutional law, but it taught the

Southerners that protection of their property in slaves would depend

upon strict construction of the Constitution. It caused their leaders

to desert the broad national ground in the interpretation of the

Constitution which they had occupied since 1812, and to seek more and

more to limit and restrict the powers of Congress, in which the

majority of the members of one House, at least, must always come from

the North, and in the other House of which no more than an exact

balance could be maintained.

It introduced, therefore, the principle which led necessarily to a

division of the all-comprehending Republican party into two branches,

the one branch holding {104} to the latitudinarian and national views

of the party from 1812 to 1819, and the other to the earlier creed of

1798 to 1812. The former finally coalesced with the remnants of the

Federal party and formed the National Republican or Whig party, while

the latter called itself the Democratic party.

It is necessary to keep clearly in mind the cause of the division of

the Republican party into its two branches in order to understand the

principles which distinguished them, for their names are somewhat

misleading. For example, it is quite difficult to understand, upon

general principles, why the slaveholders of the South should be called

Democrats, while many of the little farmers and the artisans of the

North should be called Whigs. The element of democracy which was to be

found in the political creed of the Southern masters was strict

construction of governmental powers, the least possible interference

of government in private affairs, and the largest possible individual

autonomy--in a word, individual immunity against government. The

master could take care of himself, if left free to rule his slaves.

In the second place, the Missouri decision involved the principle of

constitutional law that the Congress has general powers of legislation

in the Territories, and may do anything therein not forbidden by the

Constitution. This is also a sound and valuable principle. It was this

which won the great Northwest for free labor, so far as government

could affect the question, and gave the Union the strength to meet the

crisis of 1861-65. The Southerners eventually saw what they had lost

in conceding this interpretation of the powers of Congress, and, as

will be seen further on, sought to repudiate it; but their long

acquiescence in it had allowed it to gain the power of constitutional

precedent, too strong to be successfully overcome.

{105} In the third place, the Missouri decision involved the principle

that there was, before the Fourteenth Amendment was adopted, an United

States citizenship which carried with it immunities and privileges

which no Commonwealth could lawfully deny or abridge, and which the

United States Government was bound to protect and defend against any

Commonwealth seeking to impair them. It demonstrated the difficulties

which could arise by allowing a Commonwealth to confer United States

citizenship, and thereby bind the United States Government to sustain

the acts of one Commonwealth within the jurisdiction of another

Commonwealth, whose laws might be directly contradictory to those of

the first Commonwealth upon the subject in point. It did not undertake

to solve the difficulty. It only held firmly to the principle, while

it made many of the best minds aware that this most national provision

of the Constitution would, sooner or later, certainly require an

advance all along the line in the further development of the

governmental system of the country.

In the fourth place, the Missouri decision taught the inhabitants of

the older Commonwealths that the West could not be held in a

provincial or quasi-provincial status; that it must be carved up and

formed into Commonwealths having the same powers and privileges as the

older Commonwealths; and that, therefore, the political centre of the

United States was bound to move westward, and the East was ultimately

to come, in large degree, under the influence of the West. It was this

which has helped powerfully to carry the brain and the money of the

East to the West, and is making in the West a new, and, in some

respects, more enterprising, East.

Finally, the Missouri decision taught the South that there was a

provision in the Constitution of the United {106} States which

probably made it possible for the Northern Commonwealths to force,

through the power of the general Government, a class of persons upon

the Southern Commonwealths, in the enjoyment of the full rights of

citizenship, whom these Commonwealths did not and would not recognize

as citizens in any respect; and that there was a growing disposition

at the North to make an advance against slavery at every possible

point. The effect of this conviction was most baleful both upon the

spirit of the masters and the status of the slaves. It created that

resentment in the minds of the Southerners against interference in

their domestic affairs, which closed their ears to all arguments

against slavery, and it moved them to the enactment of measures in

their several Commonwealths for the purpose of keeping the slaves

under stricter discipline and in denser ignorance. It increased

vastly, if it did not introduce, that utter misunderstanding of each

other's feelings and motives between the people of the two sections,

which made it possible for the people of the North to believe,

finally, that the story of "Uncle Tom's Cabin" was the sober truth,

and the general rule of conduct of master toward slave in the South,

and for the people of the South to believe that jealousy of riches and

comfort was the sole spirit which prompted the attacks of the North

upon slavery--a misunderstanding, therefore, which proved

irreconcilable so long as the subject of it remained.

The Missouri decision made thus both for good and for evil--for good,

surely, in that it produced clearer ideas upon the character of

federal government, and preserved the East from an illiberal political

policy toward the West; and in that it secured the great Northwest for

free labor;--for evil, possibly, in that it estranged the two sections

of the Union, and put a stop to any movement in the South for the

gradual and {107} peaceable emancipation of the slaves, or for the

substantial amelioration of their condition. It is not very likely,

however, that any such movement would have proved successful, and it

is, therefore, probable that what appears on the outside to have been

an evil was in reality a good, in that it drove the disease in the

body politic of the South onward toward the crisis, which must be

passed in order that the permanent cure might be effected.

{108}

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