The Middle Period, 1817-1858

nment 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 t

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

wth of

iously

prohi

he f

e-tr

o 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, Lou

eral Go

less

in the

onwe

ad abolished slavery and six had retained it. To these had now been added four-Vermont, Ohio, Indiana, and Illinois-in 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 n

owers

l Gove

ect to

Terri

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 Terr

powe

ess i

sion

es" i

io

ose. 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 f

ver it was inhabited, during the periods when it belonged to Spain and France, and had been permitted to continue after its acquisition by the Un

ver

Miss

rit

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 b

st peti

ri Ter

permis

Commo

ives 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

nd petit

bill in Co

ssion of

ich contained substantially the same prayer as the petitions presented at the preceding session. This memorial was immediately referred to a committee for report

Tall

dmen

bi

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 t

troduction of slavery or involuntary servitude be prohibited, except for the punishment of crimes, whereof the party shall have been duly convic

bate u

dge am

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

act qu

sue i

debate

ri que

ot 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 di

eceden

pport

dge am

ld 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 Commonw

that the new Commonwealth should use the English language as its official language, should guarantee the writ of habeas corpus and tri

or the ame

f the Unit

a republic

to every Co

gress 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

ment

and p

ty of every human being to be a self-evident principle of ethics, specifically recognized in the Declaration of Independence, and therefore a principle o

friends had taken strong ground, and that it wou

ies

ents

ictio

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 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 prohibi

nwealths of Ohio, Indiana, and Illinois, and held that these Commonwealths might, at any time, so amend their organic law as to

ratio to the white population in the older Commonwealths, and enabling their masters 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 p

dge to

perty in

reaty of

es 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 p

er 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 const

y in the minds of the Northern members than the arguments from constitutiona

of the T

nt by t

resent

uri, by a majority of eleven votes, and the second part, the provision for the emancipation of all slaves born in Missouri, a

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 const

issou

he S

y the House and sent to the Senate. It was immediately read twice in the Sen

mittee, reported the bill to the Senate, with the recom

ass 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 seco

age

inal

he S

ly 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 Misso

issou

the s

181

o 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 Terri

of the rest

y the a

ew Commo

ther tack. They developed the plan of delaying the formation of any more Commonwealt

n 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 De

Tayl

osit

ggested 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 per

ition f

ion in

ission

for the

e repor

by th

resent

ss 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 i

re of Mr.

or pre

y exte

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 th

issou

efore t

resent

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 a

Tayl

ndm

he b

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 constitution

Tayl

ume

por

amen

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 anot

lie

Tayl

son

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

Ho

gu

ins

ndm

. 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 gen

McLa

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ins

ndm

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 Con

ndepe

ouri

he S

at 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,

nection

bill a

ith the

itting M

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 g

e, 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

any contrary appearance was caused by the unwarranted action of the people of Maine in proceeding so far as they had done without ask

fusal

to di

wo me

majority of seven votes in forty-three. A number of the Senators from the Northern

a provision prohibiting the further introduction of slavery into Missouri. The arguments upon this motion were substantially a repetition of w

Th

dmen

int me

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 bi

ey's grea

he power

estricti

alths no

onstitut

l Commo

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 what it means by a State by reference to the parties to it. It must be such a State as Massac

ption 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 shoul

kne

gu

ces

reported from the Judiciary committee contained no further restrictions upon the Commonwealth powers of Missouri, but ha

option

s' am

Senat

ssage

Missou

ame

e boundaries of the proposed Commonwealth of Missouri. After an attempt, on the 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 C

Hous

senta

al to

combi

ference

, and t

ri com

s, 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 minutes. That is, the House should gai

ent Mo

rov

ompro

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

ew o

s inv

e con

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

h 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

at the Constitution vests exclusively in the general 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 admi

rials 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 w

m 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

trated 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

souri controversy. Further, it can hardly be denied that the Constitution contained recognition and guarantees of slave property. 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 reg

i 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 intro

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

of the Misso

. In less than twelve months the battle was

alth, inserted a paragraph therein which made it the duty of the legislature, proposed to be established by that law,

Miss

titu

ongr

hese 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,

ownde

he ad

ssour

inst

han

her 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 Unite

s oppo

Lownd

ates; 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 r

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 attai

onality 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 p

tection

f citize

wealth

itory of

United

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,

nd 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 to

of the

n the

acrimonious debate, the Lowndes measure for the admission of

age

ate

a p

he S

fested 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 assen

enate

by th

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

y and t

ri Com

ssouri upon a future day, provided the obnoxious clause should be expunged from her orga

reed 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 m

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 Monday of November next, an authentic copy of the said act: upon the reception whereof, the President, by proclama

ilure

first a

uld not bind the makers of the organic law of the Commonwealth, and that, therefore, any obligation which the legislature of Missouri mi

's secon

re a co

inal 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 con

se

ss

pro

n 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,

age

d Mis

omise

ture 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 le

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 rev

neral

e dec

hed

ri que

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 lead

holding 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 finall

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 stric

d 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 co

h 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 Commonweal

onwealths 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 de

le 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 misunderstandin

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 peaceable emancipation of the slaves, or for the substantial amelioration of their condition. It is not very likely, however, that any such movement would ha