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}