The Middle Period 1817-1858 Part 6

[Sidenote: The first pet.i.tion 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, pet.i.tions {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 lat.i.tude on the south, the line of longitude pa.s.sing 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 pet.i.tions 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 pet.i.tion, 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 pet.i.tions presented at the preceding session. This memorial was immediately referred to a committee for report, but the bill which grew out of the pet.i.tions 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 partic.i.p.ated, and during the course of which the whole country hung with painful anxiety upon the outcome. It was the first great trial of the Const.i.tution 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 const.i.tutional questions involved. The discussion proceeded from the two points of view of const.i.tutional powers and public policy. Of course the first point for the restrictionists, as those who favored the amendment were termed, to establish was the const.i.tutionality 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 Const.i.tution, "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 Const.i.tution certainly confers the whole of this cla.s.s 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 const.i.tutional power to impose restrictions upon the new Commonwealths thus created, which the Const.i.tution did not impose upon the original Commonwealths. The restrictionists, led by Mr. Tallmadge and Mr.

Taylor, of New York, and Mr. Fuller, of Ma.s.sachusetts, contended that Congress possessed this power. Their argument, reduced to a pair of propositions, was, that the Const.i.tution 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 a.s.sumption of Commonwealth powers and government as "States of the Union," the requirement that their const.i.tutions 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 a.s.sent to their a.s.sumption 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 a.s.sert that the Const.i.tution 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 const.i.tutional 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 Const.i.tution 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} const.i.tutional 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 const.i.tutional 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 Const.i.tution of the United States, exclusive power over this matter, each for itself; that the Const.i.tution had not withdrawn this power from them, nor prohibited it to them; and that the Const.i.tution 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 Const.i.tution 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 Const.i.tution itself.

They disputed outright the const.i.tutionality 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 Const.i.tution.

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 Const.i.tution 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 const.i.tutional 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 Const.i.tution 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 const.i.tutional 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.i.tutional 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 Const.i.tution 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 const.i.tutional law, although they a.s.serted that the Const.i.tution also was upon their side.

[Sidenote: Pa.s.sage 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 emanc.i.p.ation 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 Ma.s.sachusetts, 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 const.i.tutional lawyers, and they felt that it was better to stand by the Const.i.tution 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 pa.s.sed 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 pa.s.s 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 Ma.s.sachusetts, and Lac.o.c.k, 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: Pa.s.sage of the original bill by the Senate.]

The bill admitting Missouri, without the Tallmadge amendment, pa.s.sed 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 pa.s.sions, 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 const.i.tution 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 Const.i.tution, it had been a.s.serted 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 a.s.sume Commonwealth government. This seems to have been considered by nearly all, if not quite all, as a fair interpretation of that provision of the Const.i.tution 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 emanc.i.p.ate 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 Const.i.tution would permit it. There certainly seemed to be a fair chance for the pa.s.sage 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 pa.s.sing hope was dashed by a conjunction of events, the elements of which had already presented themselves.

[Sidenote: The pet.i.tion from the convention in Maine for the admission of Maine.]

[Sidenote: The bill for the admission of Maine reported and pa.s.sed by the House of Representatives.]

The people resident in that part of Ma.s.sachusetts known as the district of Maine had, through delegates in convention a.s.sembled, framed a Commonwealth const.i.tution and government. The a.s.sent of Ma.s.sachusetts {77} had been regularly given to the division of the old Commonwealth. And on December 8th, 1819, Mr. Holmes, of Ma.s.sachusetts, presented to the House of Representatives a pet.i.tion from the const.i.tutional 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 const.i.tution and government, for the reason afterwards alleged that they were already in the enjoyment of this status as a part of Ma.s.sachusetts. 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 a.s.sumption of powers. The pet.i.tion 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 pa.s.sed 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 Const.i.tution of the United States placed upon those of the original Commonwealths. Mr.