The Middle Period 1817-1858 Part 7

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 pa.s.sage 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 lat.i.tude 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 const.i.tution 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 const.i.tutional authority to impose restrictions upon new Commonwealths, as the condition of their admission into the Union, which the Const.i.tution did not impose upon the original Commonwealths, the new question involved in Mr. Taylor's motion, from the point of view of const.i.tutional 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 Const.i.tution 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 Const.i.tution, 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 pa.s.sage 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 Const.i.tution 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 Const.i.tution.

[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 Ma.s.sachusetts, 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution, exercise within the original Commonwealths; and that if Congress a.s.sumed 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 a.n.a.lyzed the words of the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 const.i.tution 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 att.i.tude 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 const.i.tution 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 const.i.tution and government, under which they might be admitted later, provided that const.i.tution 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 repet.i.tion 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 Const.i.tution 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 a.n.a.lysis 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution? It is not a State in general, but a State as you find it in the Const.i.tution....

Ask the Const.i.tution. It shows you {86} what it means by a State by reference to the parties to it. It must be such a State as Ma.s.sachusetts, Virginia, and the other members of the American Confederacy--a State with full sovereignty except as the Const.i.tution 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 Const.i.tution--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-fas.h.i.+oned 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 Const.i.tution, between the central Government and the Commonwealths. The a.s.sumption by the central Government of the authority to redistribute these powers in a different manner, in any {87} given case, is an a.s.sumption of sovereignty, the Const.i.tution-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 Const.i.tution to each Commonwealth for itself, since this power was neither vested in the central Government nor denied to the Commonwealths. If Congress could a.s.sume this power, it could a.s.sume 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 n.o.body 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 pa.s.sage 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, pa.s.sed 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 pa.s.s 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 const.i.tutional law in defending the new Commonwealth against restrictions not imposed by the Const.i.tution 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 lat.i.tude. 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 const.i.tutional. 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 const.i.tutional 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 unconst.i.tutional restriction as the condition upon which the people of Missouri should be allowed to a.s.sume 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 Const.i.tution 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 const.i.tutional 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 const.i.tutional law as to enable the Senate to return to the true parliamentary principle of the separation of subjects which differ in essence or in circ.u.mstances 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution, is defined in the Const.i.tution; that its powers are the residue after what the Const.i.tution 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 Const.i.tution, 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 const.i.tutional law of the country, or that Congress can define the republican form of government which the United States is obligated by the Const.i.tution 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 a.s.semblies, town and city meetings, and Commonwealth legislatures poured pet.i.tions 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 ign.o.ble issue. But it will not be denied by any impartial const.i.tutional lawyer that they were, for this time, the upholders of the Const.i.tution against an unwarranted attempt to stretch Congressional power.