Chapter IV: The Creation of the Commonwealth of Missouri (1)

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.]