The Middle Period, 1817-1858
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Title: The Middle Period, 1817-1858
Author: John William Burgess
Release date: March 12, 2011 [eBook #35558]
Language: English
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THE MIDDLE PERIOD
_THE AMERICAN HISTORY SERIES_
THE MIDDLE PERIOD
1817-1858
BY
JOHN W. BURGESS, PH.D., LL.D.
PROFESSOR OF POLITICAL SCIENCE AND CONSTITUTIONAL LAW, AND DEAN OF THE
FACULTY OF POLITICAL SCIENCE, IN COLUMBIA UNIVERSITY IN THE CITY OF
NEW YORK
_WITH MAPS_
NEW YORK
CHARLES SCRIBNER'S SONS
1910
COPYRIGHT, 1897, BY CHARLES SCRIBNER'S SONS
To the memory of my former teacher, colleague, and friend,
JULIUS HAWLEY SEELYE,
philosopher, theologian, statesman, and educator, this volume is
reverently and affectionately inscribed.
PREFACE
There is no more serious and delicate task in literature and morals
than that of writing the history of the United States from 1816 to
1860. The periods which precede this may be treated without fear of
arousing passion, prejudice, and resentment, and with little danger of
being misunderstood. Even the immaculateness of Washington may be
attacked without exciting anything worse than a sort of uncomfortable
admiration for the reckless courage of the assailant. But when we pass
the year 1820, and especially when we approach the year 1860, we find
ourselves in a different world. We find ourselves in the midst of the
ideas, the motives, and the occurrences which, and of the men who,
have, in large degree, produced the animosities, the friendships, and
the relations between parties and sections which prevail to-day.
Serious and delicate as the task is, however, the time has arrived
when it should be undertaken in a thoroughly impartial spirit. The
continued misunderstanding between the North and the South is an ever
present menace to the welfare of both sections and of the entire
nation. It makes it almost impossible to decide any question of our
politics upon its merits. It offers an almost insuperable obstacle to
the development of a national opinion upon the fundamental principles
of our polity. If we would clear up this confusion in the common
consciousness, we must do something to dispel this misunderstanding;
and I know of no means of accomplishing this, save the rewriting of
our history from 1816 to 1860, with an open mind and a willing spirit
to see and to represent truth and error, and right and wrong, without
regard to the men or the sections in whom or where they may appear.
I am by no means certain that I am able to do this. I am old enough to
have been a witness of the great struggle of 1861-65, and to have
participated, in a small way, in it. My early years were embittered by
the political hatreds which then prevailed. I learned before my
majority to regard secession as an abomination, and its chief cause,
slavery, as a great evil; and I cannot say that these feelings have
been much modified, if any at all, by longer experiences and maturer
thought. I have, therefore, undertaken this work with many misgivings.
Keenly conscious of my own prejudices, I have exerted my imagination
to the utmost to create a picture in my own mind of the environment of
those who held the opposite opinion upon these fundamental subjects,
and to appreciate the processes of their reasoning under the
influences of their own particular situation. And I have with sedulous
care avoided all the histories written immediately after the close of
the great contest of arms, and all rehashes of them of later date. In
fact I have made it an invariable rule to use no secondary material;
that is, no material in which original matter is mingled with
somebody's interpretation of its meaning. If, therefore, the facts in
my narration are twisted by prejudices and preconceptions, I think I
can assure my readers that they have suffered only one twist. I have
also endeavored to approach my subject in a reverent spirit, and to
deal with the characters who made our history, in this almost tragic
period, as serious and sincere men having a most perplexing and
momentous problem to solve, a problem not of their own making, but a
fatal inheritance from their predecessors.
I have been especially repelled by the flippant superficiality of the
foreign critics of this period of our history, and their evident
delight in representing the professions and teachings of the "Free
Republic" as canting hypocrisy. It has seemed to me a great misfortune
that the present generation and future generations should be taught to
regard so lightly the earnest efforts of wise, true, and honorable men
to rescue the country from the great catastrophe which, for so long,
impended over it. The passionate onesidedness of our own writers is
hardly more harmful, and is certainly less repulsive.
I recently heard a distinguished professor of history and politics say
that he thought the history of the United States, in this period,
could be truthfully written only by a Scotch-Irishman. I suppose he
meant that the Scotch element in this ideal historian would take the
Northern point of view, and the Irish element the Southern; but I
could not see how this would produce anything more than another pair
of narratives from the old contradictory points of view; and he did
not explain how it would.
My opinion is, on the contrary, that this history must be written by
an American and a Northerner, and from the Northern point of
view--because an American best understands Americans, after all;
because the victorious party can be and will be more liberal,
generous, and sympathetic than the vanquished; and because the
Northern view is, in the main, the correct view. It will not improve
matters to concede that the South had right and the North might, or,
even, that both were equally right and equally wrong. Such a doctrine
can only work injury to both, and more injury to the South than to the
North. Chewing the bitter cud of fancied wrong produces both spiritual
misery and material adversity, and tempts to foolish and reckless
action for righting the imagined injustice. Moreover, any such
doctrine is false, and acquiescence in it, however kindly meant, is
weak, and can have no other effect than the perpetuation of error and
misunderstanding. The time has come when the men of the South should
acknowledge that they were in error in their attempt to destroy the
Union, and it is unmanly in them not to do so. When they appealed the
great question from the decision at the ballot-box to the "trial by
battle," their leaders declared, over and over again, in calling their
followers to arms, that the "God of battles" would surely give the
victory to the right. In the great movements of the world's history
this is certainly a sound philosophy, and they should have held to it
after their defeat. Their recourse to the crude notion that they had
succumbed only to might was thus not only a bitter, false, and
dangerous consolation, but it was a stultification of themselves when
at their best as men and heroes.
While, therefore, great care has been taken, in the following pages,
to attribute to the Southern leaders and the Southern people sincerity
of purpose in their views and their acts, while their ideas and their
reasoning have been, I think, duly appreciated, and patiently
explained, while the right has been willingly acknowledged to them and
honor accorded them whenever and wherever they have had the right and
have merited honor, and while unbounded sympathy for personal
suffering and misfortune has been expressed, still not one scintilla
of justification for secession and rebellion must be expected. The
South must acknowledge its error as well as its defeat in regard to
these things, and that, too, not with lip service, but from the brain
and the heart and the manly will, before any real concord in thought
and feeling, any real national brotherhood, can be established. This
is not too much to demand, simply because it is right, and nothing can
be settled, as Mr. Lincoln said, until it is settled right. Any
interpretation of this period of American history which does not
demonstrate to the South its error will be worthless, simply because
it will not be true; and unless we are men enough to hear and accept
and stand upon the truth, it is useless to endeavor to find a bond of
real union between us. In a word, the conviction of the South of its
error in secession and rebellion is absolutely indispensable to the
establishment of national cordiality; and the history of this period
which fails to do this will fail in accomplishing one of the highest
works of history, the reconciliation of men to the plans of Providence
for their perfection.
I have not, in the following pages, undertaken to treat _all_ of the
events of our experience from 1816 to 1860. The space allowed me would
not admit of that. And even if it had, I still would have selected
only those events which, in my opinion, are significant of our
progress in civilization, and, as I am writing a political history,
only those which are significant of our progress in political
civilization. The truthful record, connection, and interpretation of
such events is what I call history in the highest sense, as
distinguished from chronology, narrative, and romance. Both necessity
and philosophy have confined me to these.
I cannot close these prefatory sentences without a word of grateful
acknowledgment to my friend and colleague, Dr. Harry A. Cushing, for
the important services which he has rendered me in the preparation of
this work.
JOHN W. BURGESS.
323 WEST FIFTY-SEVENTH STREET, NEW YORK CITY.
JANUARY 22, 1897.
CONTENTS
PAGE
CHAPTER I.
THE NATIONALIZATION OF THE OLD REPUBLICAN PARTY, . . . . . . . 1
CHAPTER II.
THE ACQUISITION OF FLORIDA, . . . . . . . . . . . . . . . . . 19
CHAPTER III.
SLAVERY IN THE UNITED STATES BEFORE 1820, . . . . . . . . . . 39
CHAPTER IV.
THE CREATION OF THE COMMONWEALTH OF MISSOURI, . . . . . . . . 61
CHAPTER V.
THE BEGINNING OF THE PARTICULARISTIC REACTION, . . . . . . . . 108
CHAPTER VI.
THE PRESIDENTIAL ELECTION OF 1824, . . . . . . . . . . . . . . 131
CHAPTER VII.
THE DIVISION OF THE REPUBLICAN PARTY, . . . . . . . . . . . . 145
CHAPTER VIII.
DEMOCRATIC OPPOSITION TO INTERNAL IMPROVEMENTS AND PROTECTION, 166
CHAPTER IX.
THE UNITED STATES BANK AND THE PRESIDENTIAL CONTEST OF 1832, . 190
CHAPTER X.
NULLIFICATION, . . . . . . . . . . . . . . . . . . . . . . . . 210
CHAPTER XI.
ABOLITION, . . . . . . . . . . . . . . . . . . . . . . . . . . 242
CHAPTER XII.
THE BANK, THE SUB-TREASURY, AND PARTY DEVELOPMENT BETWEEN 1832
AND 1842, . . . . . . . . . . . . . . . . . . . . . . . . . . 278
CHAPTER XIII.
TEXAS, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
CHAPTER XIV.
OREGON, . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
CHAPTER XV.
THE "RE-ANNEXATION OF TEXAS AND THE RE-OCCUPATION OF OREGON," 318
CHAPTER XVI.
THE WAR WITH MEXICO, . . . . . . . . . . . . . . . . . . . . . 327
CHAPTER XVII.
THE ORGANIZATION OF OREGON TERRITORY AND THE COMPROMISE OF
1850, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
CHAPTER XVIII.
THE EXECUTION OF THE FUGITIVE SLAVE LAW, AND THE ELECTION OF
1852, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
CHAPTER XIX.
THE REPEAL OF THE MISSOURI COMPROMISE, . . . . . . . . . . . . 380
CHAPTER XX.
THE STRUGGLE FOR KANSAS, . . . . . . . . . . . . . . . . . . . 407
CHAPTER XXI.
THE DRED SCOTT CASE, . . . . . . . . . . . . . . . . . . . . . 449
CHAPTER XXII.
THE STRUGGLE FOR KANSAS CONCLUDED, . . . . . . . . . . . . . . 460
APPENDIX I.
THE ELECTORAL VOTE IN DETAIL, 1820-1856, . . . . . . . . . . . 475
APPENDIX II.
THE CABINETS OF MONROE, ADAMS, JACKSON, VAN BUREN, HARRISON,
TYLER, POLK, TAYLOR, FILLMORE, PIERCE, AND
BUCHANAN--1816-1858, . . . . . . . . . . . . . . . . . . . . . 485
CHRONOLOGY, . . . . . . . . . . . . . . . . . . . . . . . . . . 491
BIBLIOGRAPHY, . . . . . . . . . . . . . . . . . . . . . . . . . 497
INDEX, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
LIST OF MAPS.
FACING
PAGE
FLORIDA AT THE TIME OF ACQUISITION, . . . . . . . . . . . . . . 32
TEXAS AT THE TIME OF ANNEXATION, . . . . . . . . . . . . . . . . 296
OREGON AS DETERMINED BY THE TREATY OF 1846, . . . . . . . . . . 312
CALIFORNIA AND NEW MEXICO IN 1850, . . . . . . . . . . . . . . . 336
NEBRASKA AND KANSAS, 1854-1861, . . . . . . . . . . . . . . . . 468
THE MIDDLE PERIOD
{1}
CHAPTER I.
THE NATIONALIZATION OF THE OLD REPUBLICAN PARTY
General Character of the Acts of the Fourteenth Congress--Madison's
Message of December 5th, 1815--Change in the Principles of the
Republican Party--The United States Bank Act of 1816--Report of the
Bank Bill by Mr. Calhoun--Mr. Calhoun's Argument in Favor of the
Bill--Webster's Objections to the Bank Bill--Mr. Clay's Support of the
Bank Bill--Passage of the Bank Bill by the House of
Representatives--The Passage of the Bank Bill by the Senate--The
United States Bank of 1816 a Southern Measure--The Tariff Bill Framed
by the Committee on Ways and Means--The Tariff Bill Reported--The
Character of the Tariff Bill--Mr. Calhoun's Speech upon the Tariff
Bill--The Passage of the Tariff Bill--The Army and Navy Bills--The
Bill for National Improvements--Mr. Calhoun's Advocacy of this
Bill--The Opposition to the Internal Improvements Bill--Passage of the
Bill by Congress--Veto of the Bill by the President--The Failure of
Congress to Override the Veto.
It is no part of my task to relate the events of the War of 1812-15.
That has already been sufficiently done in the preceding volume of
this series. I take up the threads of the narrative at the beginning
of the year 1816, and my problem in this chapter will be to expound
the acts and policies of the Fourteenth Congress in the light of the
experiences of that War.
{2} [Sidenote: General character of the acts of the Fourteenth
Congress.]
Those acts and policies were shaped and adopted under the influence of
those experiences, and this influence was so predominant, at the
moment, in the minds of the leading men in the Government and
throughout the country as to exclude, or at least to overbalance, all
other influences. This is especially manifest in the attitude of the
statesmen of the slave-holding Commonwealths, and most especially in
the attitude of their great leader, Mr. Calhoun, who was the chief
champion of some of the most national measures voted by that Congress.
A clear appreciation of his views and his acts at that period of his
career will enable us far better than anything else to understand the
terrible seriousness of the slavery question, which subsequently drove
him into lines of thought and action so widely divergent from those
upon which he set out in early life.
[Sidenote: Madison's message of December 5th, 1815.]
It was the President himself, however, one of the chief founders of
the "States' rights" party, Mr. Madison, who set the direction toward
centralization in the Congressional legislation of 1815-17. In his
annual message of December 5th, 1815, he recommended the increase and
better organization of the army and the navy, the enlargement of the
existing Military Academy and the founding of such academies in the
different sections of the country, the creation of a national
currency, the protection of manufactures, the construction of roads
and canals, and the establishment of a national university.
This is a very different political creed from that promulgated by
President Jefferson when the Republican party first gained possession
of the Government at Washington. Then, decrease in all the elements of
power in the hands of the central Government, and careful maintenance
of all the rights and powers of the {3} "States," were recommended and
urged upon the attention of the national lawgivers.
[Sidenote: Change in the principles of the Republican party.]
From a "States'-sovereignty" party in 1801, the Republican party had
manifestly become a strong national party in 1816; that is, if we are
to take the two Presidential messages, to which we have referred, as
containing the political principles of that party at these two periods
of its existence.
As the Congress of 1801 showed itself, in its legislation, to be in
substantial accord with President Jefferson's views and sentiments, so
did the Congress of 1815 manifest, in its legislation, the same
general harmony with the views and sentiments of President Madison. In
order that the latter part of this statement may be set down as an
established fact of history, we will review with some particularity
the two cardinal acts of this Congress--the United States Bank Act and
the Tariff Act.
[Sidenote: The United States Bank Act of 1816.]
So soon as the reading of President Madison's message before the House
of Representatives was completed, that body resolved to refer that
part of the message which related to the establishment of an uniform
national currency to a select committee. The committee chosen was
composed of Mr. Calhoun, Mr. Macon, Mr. Pleasants, Mr. Tucker, Mr.
Robertson, Mr. Hopkinson, and Mr. Pickering. The first five of these
gentlemen were from Commonwealths south of the Pennsylvania line, and
only two, therefore, from what began now to be called the
"non-slave-holding States." In other words, it was a Southern
committee, and the great South Carolinian was its chairman. It is,
therefore, just to regard the bill which this committee brought in,
and the arguments with which they supported it, as containing the
views and the sentiments of the leading Southern Republicans in the
House.
{4} [Sidenote: Report of the Bank Bill by Mr. Calhoun.]
This committee came speedily to the conclusion that the
nationalization of the monetary system was the most pressing need of
the country, and within a month from the date of the appointment of
its members the chairman of the committee reported a bill for the
creation of an United States Bank, a mammoth national banking
corporation, which should have a capital of thirty-five millions of
dollars; in which the central Government should own one-fifth of the
stock and be represented by one-fifth of the directors; the president
of which should always be selected from among the Government's
directors; the demand notes and bills of which should be received in
all payments to the United States; and the chartered privileges of
which should be made a monopoly for twenty years.
[Sidenote: Mr. Calhoun's argument in favor of the Bill.]
In his great argument in support of the bill, delivered on February
26th, Mr. Calhoun dismissed at the outset any consideration of the
constitutionality of the bill. That is, he simply assumed that
Congress had the power to pass the bill, and declared that the public
mind was entirely made up and settled upon that point.
Only five years before this, even the national-minded Clay had
pronounced the dictum that Congress had no power to grant a national
bank charter, and the fact that Congress then declined to grant such a
charter is good evidence that the majority of the people of the
country held the same view. There can be little question that the
Republican party, down to 1812, regarded the establishment of an
United States bank by Congress as an usurpation of power not granted
by the Constitution.
Five years constitute a short period of time for the accomplishment of
so important a change in the public {5} opinion. Five years of
ordinary experience would not have produced it. It was, without doubt,
the strain brought upon the finances of the country by the necessities
of the War that had developed a powerful national opinion upon the
subject of the financial system of the country.
Mr. Calhoun also declined to discuss the question whether banks were
favorable or unfavorable to "public liberty and prosperity." He
assumed, here again, that public experience had settled that question,
and said that such an inquiry was now purely metaphysical. This
statement is certainly prime evidence that the practical experiences,
made in conducting the Government under the pressure of war, had about
knocked the metaphysics of the year 1800 out of the Republican party,
and had led the party on to a much more positive stage of political
opinion.
Mr. Calhoun furthermore dismissed the question whether a "national
bank would be favorable to the administration of the finances of the
Government," since there was not enough doubt, he said, in the public
mind upon that point to warrant a discussion of it.
He declared, finally, that the only questions which demanded
consideration were those relative to the existing disorders of the
currency, and the efficiency of a national bank in working their cure.
Upon these two points he was distinct, decided, and thoroughly
national. He said that the Constitution had without doubt placed the
monetary system of the country entirely within the control of
Congress; that the "States" had usurped the power of making money by
chartering banks of issue in the face of the constitutional provision
forbidding the "States" to emit bills of credit; that the two hundred
millions of dollars of irredeemable bank-notes, paper, and credits,
issued by these banks, were the cause of the {6} financial disorders
of the country; and that the remedy for this condition of things was,
in his opinion, to be found in a great specie-paying national bank,
sustained by the power of the general Government in the work of
bringing such a pressure upon these "State" banks as would force them
either to pay specie or go into liquidation. This was clear, generous,
and patriotic. No one made a fairer statement of the case, and no one
advocated a more national remedy in its treatment.
[Sidenote: Webster's objections to the Bank Bill.]
On the other hand, it was Webster who, at this time, appeared narrow
and particularistic. He objected to the large amount of the capital,
and to the stock feature of the proposed bank, and expressed alarm at
the proposition to place it under such strong governmental control. He
thought that the bills and paper of the "State" banks would be good
enough, if the general Government would only force them to redeem
their currency in specie by refusing to accept for Government dues the
bills of banks which did not pay specie on demand.
Whatever may be thought of Webster's attitude from the point of view
of political economy, it was certainly, from the point of view of
political science, the attitude of a "States'-rights" man rather than
that of a nationalist. Webster did not, however, call the
constitutionality of the bill in question. That was conceded upon all
sides.
The friends of the measure felt more anxiety in regard to Mr. Clay. He
had, only five years before, as we have seen, pronounced a similar
bill unconstitutional in his opinion, and he was now the Speaker of
the House, with all the power over the procedure in the House which
that position involved. It was generally felt that the fate of the
measure would be largely determined by his attitude toward it.
[Sidenote: Mr. Clay's support of the Bank Bill.]
Mr. Clay did not leave the House long in doubt {7} concerning his
views. He quickly revealed and avowed that noted change of opinion
upon this subject, which has been commonly accounted one of his
greatest inconsistencies, but which may be very properly considered as
simply manifesting that growth in patriotism and national spirit
experienced by almost all the leading men of the country, outside of
New England, in consequence of the vicissitudes of the period of war
under which the nation suffered between the dates of Mr. Clay's two
utterances. He frankly confessed that he had changed his opinion, and
explained the change by saying that the power of Congress in respect
to the matter was contained in the clause of the Constitution which
conferred upon Congress the authority to make all laws necessary and
proper for carrying the powers of the Government into operation; that,
in the interpretation of the words "necessary and proper," reference
must always be had to existing circumstances; that, when conditions
change, the interpretation must be so modified as to meet and satisfy
such change; and that the conditions obtaining in the country in 1816
were so changed from those obtaining in 1811 as to require the
enlarged interpretation of the powers of Congress under this clause
upon the subject of the monetary system of the country.
[Sidenote: Passage of the Bank Bill by the House of Representatives.]
The eloquence and the influence of Mr. Clay counted heavily in favor
of the measure, and it was passed by a substantial majority of votes.
In fact, the privileges of the proposed Bank had been increased by
amendment during the progress of the bill through the House. The Bank
and its branches were made the depositories of the funds of the
Government. This great advantage was, at least, a substantial offset
to the other modifications of the original bill, whereby the clauses
requiring that the president of {8} the Bank should always be chosen
from among the Government directors, and reserving to Congress the
power to permit a temporary suspension of specie payment by the Bank,
were stricken out.
[Sidenote: The passage of the Bank Bill through the Senate.]
During the passage of the bill through the Senate only a single
Senator expressed any doubts of its constitutionality, Mr. Wells, of
Delaware. Mr. Wells did not deny the power of Congress to charter a
national bank, but simply contended that the particular Bank proposed
in the bill exceeded what was "necessary and proper" for carrying into
effect the powers of Congress, and was therefore unconstitutional. On
the other hand, Senators Barbour, of Virginia, Taylor, of South
Carolina, and Bibb, of Georgia, supported the measure, both in
principle and in details, and carried it with a larger relative
majority through the Senate than it had received in the House.
[Sidenote: The United States Bank of 1816 a Southern measure.]
The United States Bank of 1816 was thus a Southern measure, and
Calhoun was its chief author. It was in principle a great national
measure, and its creation by Congress is strong evidence of the great
growth in national opinion and sentiment throughout the country, away
from the national indifference of the Jeffersonian metapolitics of
1800.
[Sidenote: The Tariff of 1816.]
A review of the Tariff Act of 1816 will bring us to the same
conclusions concerning the great nationalizing influence of the War.
The rate of duty upon the principal articles of imported goods was,
before the War, twelve and one-half per centum ad valorem. From a rate
of five per centum upon these articles, imposed by the first Customs
Act, that of July, 1789, the duty had been increased by about a dozen
acts, passed by both Federal and Republican Congresses, until, in
1812, it had reached the {9} above-mentioned per centum. Twelve and
one-half per centum was, as a fact, nothing more than a revenue duty,
and was intended for nothing more by the party in power at that date.
At the outbreak of the War double duties were imposed by the Act of
July 1st, 1812, as a war measure, that is, as a measure for obtaining
additional revenue for the prosecution of the War. It was not intended
as a measure for the protection of manufacturers. This Act was to
expire in one year, at the farthest, after the conclusion of peace
with England.
The ratifications of the Treaty of Ghent were exchanged on February
17th, 1815. At the meeting of Congress, in December, 1815, the war
duties were, therefore, still in force, but the Act establishing them
would expire by its own limitation in less than three months. This
Congress was obliged, therefore, to deal with the tariff anew.
[Sidenote: The Bill framed by the Committee on Ways and Means.]
The recommendations of the President in regard to the matter were
referred to the committee of the House on Ways and Means, the regular
revenue committee. At that moment this committee was composed of seven
members, four from Commonwealths south of Maryland, and three from
those north of Maryland. Mr. Lowndes, of South Carolina, was its
chairman. It is fair, therefore, to call it a Southern committee, and
to regard the bill which it produced as a Southern measure.
[Sidenote: The Tariff Bill reported.]
The committee first asked for a continuation of the existing duties
until the thirtieth day of the following June, in order to give proper
time to mature the bill, which request was voted by both houses of
Congress; and on March 20th, Mr. Lowndes announced that he was
prepared to report the draft of the new Act. The measure contained
virtually the continuation of the war {10} tariff as the permanent
rule and policy in time of peace. It was now manifestly a protective
tariff, and it was intended to be such. Mr. Ingham of the committee
said, at the beginning of the debate upon it, that "its great primary
object was to make such a modification of duties upon the various
articles of importation as would give the necessary and proper
protection and support to the agriculture, manufactures, and commerce
of the country." He went so far as to say that revenue considerations
ought not to have any influence in the decision of the House upon the
committee's propositions.
[Sidenote: The character of the Tariff Bill.]
It is entirely evident, however, that the committee did not regard the
bill as proposing advantages for the manufacturers only, or as having
for its principal aim the increase of the wages of the employees in
the manufacturing establishments, but considered it a great national
measure, a measure necessary to the industrial independence of the
country. It is also evident that the bill was not thought by anybody
to rest upon a perfect and permanent principle. Mr. Clay himself said
of it, "that the object of protecting manufacturers was, that we might
eventually get articles of necessity made as cheap at home as they
could be imported, and thereby to produce an independence of foreign
countries;" that "in three years we could judge of the ability of our
establishments to furnish those articles as cheap as they were
obtained from abroad, and could then legislate with the lights of
experience;" and that "he believed that three years would be
sufficient to place our manufacturers on this desirable footing."
[Sidenote: Mr. Calhoun's speech upon the Tariff Bill.]
It was Calhoun again, however, who surpassed them all in broadness of
view and in patriotic devotion to the interests of the nation. The
immediate occasion of {11} his speech was a motion made by John
Randolph, which seemed to Mr. Calhoun to attack the principle of the
bill. He said, that so long as the debate had been confined to
questions of detail he had refrained from joining in it; but now that
the general policy of the measure had been attacked he felt obliged to
come forward in support of that policy, which he could do with all the
more grace and sincerity since his own private interests were
primarily subserved by the advancement of agriculture, as were those
of his section. He began his argument with the assertions that
commerce and agriculture were the chief sources of the wealth of the
country at the moment, almost the only sources, and that manufactures
must be added to these in order to accomplish industrial independence.
In proof of this latter proposition he referred to the well known
effect of war between a maritime power and the United States upon the
prosperity of the latter. He simply pointed to the historic facts that
such a war destroyed the commerce of the country with foreign powers,
and that the destruction of commerce caused the products of
agriculture, usually exported to pay for manufactured goods imported
from foreign countries, to perish in the hands of the producers.
Domestic manufactures, he contended, would not only relieve us from
dependence upon foreign countries for manufactured goods, but would
create home markets for agricultural products. Encouragement to
manufactures was, therefore, a sound national, a truly American,
policy. As Mr. Calhoun proceeded in his speech, his strong patriotism
became more manifest. He affirmed that the policy of protection to
manufactures was calculated to bind more closely together the
different parts of our widely extended country, since it would
increase the mutual dependence of these different sections on each
{12} other in proportion as it decreased their dependence on foreign
markets. And he declared that he considered the production of this
result to be the most fundamental of all our policies, for the reason
that the absence of such mutual dependence would tend toward disunion,
and disunion comprehended almost the sum and substance of our
political dangers, against which, therefore, we ought to be
perpetually guarded.
[Sidenote: The passage of the Tariff Bill.]
Calhoun was in his thirty-fifth year when he advanced these views. The
sentiments which they revealed cannot, therefore, be ascribed to the
enthusiasm of youth and inexperience. They rested upon the settled
convictions of a mature man. They stand in need of no comment. They
speak for themselves. We shall search the reports of the debate in
vain for anything wiser, nobler, or more patriotic. In comparison with
them the views pronounced by the New Englanders upon the subject
appear narrow and selfish. They were willing to sacrifice the
industrial independence of the nation to their own interests in the
carrying trade upon the sea. Even the name of Webster is not to be
found among those who voted for the final passage of the bill. The
majority in its favor was, however, nearly two to one. In the Senate,
the vote was nearly four to one for it. Though Southern in its
immediate origin, it certainly had the support of the nation, and was
regarded as a great measure of national independence. The opposition
made to it by Randolph and Telfair, and by the remnant of the New
England Federalists, was regarded as unnational and unpatriotic. It
contributed to the complete disappearance of the Federal party from
the arena of national politics.
[Sidenote: The Army and Navy Bills.]
This Congress gave, however, an even surer test of the growth of the
national spirit among the people than either the Bank Act or the
Tariff Act. It was the {13} series of acts for the increase of the
Army and the Navy, and for their thorough reorganization. The
Republican doctrine of 1800 was, that there was no need of a national
army; that the militias of the Commonwealths were a sufficient
military force; and that a standing army was dangerous to liberty. By
the Act of March 16th, 1802, Congress fixed the peace establishment at
two regiments of infantry, and one regiment of artillerists, not more
than thirty-five hundred men. No increase of this force had been
permitted between 1802 and 1812.
During the War of 1812-15, the Commonwealths of Massachusetts, Rhode
Island, and Connecticut taught the nation how much, or rather how
little, reliance was to be placed upon the militias of the
Commonwealths in the defence of the country against foreign attack. In
spite of the plain provision of the Constitution, and the Act of
Congress in accordance therewith, empowering the President to call the
militias of the Commonwealths into the service of the United States,
the Governors of Massachusetts and Connecticut disputed the
President's authority in this respect and refused compliance with his
orders. Well might the President complain that, even upon this most
essential point, the military organization, the United States was not
a nation. With such an experience as this, Congress and the people
were thoroughly converted from the particularistic doctrinism of 1800,
and now manifested their strong national spirit in the willingness to
place a large standing military force in the hands of the central
Government in times of peace.
By the Act of March 3rd, 1816, Congress fixed the peace footing of the
Army at ten thousand men, excluding the corps of engineers; and by the
Act of April 24th, of the same year, it reorganized, or rather {14}
re-created, the general staff, upon the principle that the staff
should be as complete in time of peace as in time of war.
The Navy received similar attention and favor. By the Act of April
29th, 1816, Congress appropriated eight millions of dollars for the
construction of nine seventy-four-gun ships, twelve forty-four-gun
ships, and three steam batteries.
Evidently the fear that the President would, by virtue of his power as
commander-in-chief of a large standing army and navy, declare himself
emperor, and make the military and naval officers his dukes and
counts, had vanished in the smoke of the burned Capitol, and, in place
of this silly terror of crowns and diadems, a thoroughgoing confidence
in the national Government had established itself in the brain and
heart of the people and of their leaders.
These great national measures occupied the attention of Congress to
such a degree, during the session of 1815-16, as to delay the
consideration of the question of a system of national internal
improvements to the second session, that of 1816-17.
[Sidenote: The Bill for National Improvements.]
At the opening of this session, Mr. Calhoun, again, came forward with
a motion for the appointment of a committee, which should consider the
question of setting aside the bonus to be paid by the United States
Bank to the Government for its charter, and the net annual proceeds
received by the Government upon its shares in the Bank, as a permanent
fund for internal improvements. The motion was quickly carried, and
the committee, consisting of two members from the North and two from
the South, with Mr. Calhoun for chairman, was appointed. This was
December 16th, 1816. In a week from this date the committee presented
a bill providing for the setting {15} apart of the funds above
indicated for the construction of roads and canals.
[Sidenote: Mr. Calhoun's advocacy of this Bill.]
Mr. Calhoun opened the debate upon the bill, and his speech abounded
with the same national ideas and patriotic sentiments which
characterized his arguments in support of the Bank and Tariff
measures. After asserting that the moment was most opportune for the
consideration of the question, on account of the fact that all party
and sectional feelings had given way to "a liberal and an enlightened
regard for the general concerns of the nation," Mr. Calhoun again
pronounced his warning concerning the greatest danger to which the
country was exposed, namely, disunion, and declared it to be the
highest duty of American statesmen so to form the policies of the
Government as to counteract all tendencies toward sectionalism and
disunion. He contended that from this point of view nothing could be
more necessary or more advantageous than a large national system of
internal improvements, establishing the great lines of commerce and
intercourse for binding together all the parts of the country in
interests, ideas, and sentiments.
No part of his argument, however, is so instructive to the student of
American constitutional history as the observations upon the question
of the constitutionality of the bill. He said that he was no advocate
of refined reasoning upon the Constitution; that "the instrument was
not intended as a thesis for the logician to exercise his ingenuity
on; that it ought to be construed with plain good sense; and that when
so construed nothing could be more express than the Constitution upon
this very point." The clause to which he referred was that which
confers upon Congress the power "to levy and collect taxes, duties,
imposts, and excises; to pay the {16} debts and provide for the common
defence and general welfare of the United States." Mr. Calhoun claimed
that these words were to be interpreted as vesting in Congress the
power to appropriate money for the common defence and general welfare
of the country at its own discretion, both as to object and amount. He
insisted that a generous interpretation of the power to raise and
appropriate money was absolutely required, in order to avoid the
necessity of placing a forced construction upon other powers. It was
all in his best strain, and showed Mr. Calhoun still as the chief
advocate of national union and national development. No other person
seemed to equal him in breadth of view and purity of patriotism.
[Sidenote: The opposition to the Internal Improvements Bill.]
The measure met, however, with more opposition than the Bank Bill or
the Tariff Bill had experienced. Two years of peace had cooled the
ardor of the national spirit somewhat, and the people were dropping
back into the narrow spheres of ordinary life and business routine.
Moreover, the great hue and cry raised by the demagogues and the press
over the bill, passed at the previous session, changing the pay of the
members of Congress from a per diem of six dollars during attendance
to an annual salary of fifteen hundred dollars, had made the members
timid about the appropriation of money, and disinclined to obligate
the Treasury to anything beyond absolutely necessary expenses.
[Sidenote: Passage of the Bill by Congress.]
Nevertheless, the great power and earnestness with which Mr. Calhoun
addressed himself to the task of carrying the bill through its
different stages were crowned with success. It finally passed both
Houses, in a slightly modified form, during the last week of the
Fourteenth Congress and of President Madison's second term.
{17} [Sidenote: Veto of the Bill by the President.]
To the great surprise of the friends of the measure, the President
returned the bill to Congress on March 3rd, with his objections. These
were, summed up in a single sentence, that there was no warrant in the
Constitution for the exercise of the power by Congress to pass such a
bill. The President held that Congress could appropriate money only to
such objects as were placed by the Constitution under the jurisdiction
of the general Government. He, therefore, repudiated Calhoun's
latitudinarian view that Congress was referred to its own discretion
merely in the appropriation of money for the advancement of the
general welfare. He acknowledged the desirability of attaining the
object contemplated by the bill, and indicated that an amendment to
the Constitution, expressly conferring upon Congress the power in
question, was the proper way to deal with the subject. He had, as we
have seen, recommended the consideration of the question of internal
improvements in both of his annual messages to the Fourteenth
Congress, and it was chiefly for this reason that the veto was so
unexpected. It is true that, in both of these messages, he had
expressed some doubt in regard to the power of Congress over the
subject, but it was supposed that this was only his cautious way of
approaching a new thing, and that he would certainly defer to the
views of the Congressional majority.
It must be remembered, however, that Mr. Madison belonged to the first
generation of the Republicans, and that the principle of the party, in
the period of its origin, was strict construction of the Constitution
in regard to the powers of the general Government. He had been driven
by the younger men into the War, and into the national policies which
it occasioned and produced, and it is at least intelligible that he
returned to his earlier {18} creed as the country settled down again
into the humdrum of ordinary life.
[Sidenote: The failure of Congress to override the veto.]
The national Republicans looked upon his act, however, as an apostasy,
and the House of Representatives repassed the bill by an increased
majority and with considerable feeling. The majority was still,
however, not sufficient to overcome the veto, and thus the first
earnest attempt to commit the nation to a general system of internal
improvements failed, failed through the resurrection of a spirit in
the retiring President, which was destined soon to take possession of
many who denounced it then as mean and narrow, and to lead the whole
country back into those cramping tenets of particularism from which
war and bloodshed alone could deliver it.
{19}
CHAPTER II.
THE ACQUISITION OF FLORIDA
The Influence of Physical Geography upon Political Development--Defect
in the Southern Boundary of the United States before 1819--The Treaty
of Paris of 1763--The Boundary between Louisiana and
Florida--Occupation of Florida by the United States Forces during the
War of 1812--The Hold of the Spaniards on Florida Weakened by the War
of 1812--The British Troops in Florida during and after the War of
1812--Nicholls and his Buccaneer State in Florida--The British
Government's Repulse of Nicholls' Advances--Destruction of the
Nicholls Fort by the United States Forces--The Seminole War--The Fight
at Fowltown--The Seminole War Defensive--McGregor on Amelia
Island--General Gaines sent to Amelia Island--General Jackson placed
in Command in Florida--His Orders--Jackson's Letter to President
Monroe--Jackson's Operations in Florida--The First Treaty for the
Cession of Florida to the United States--Jackson's Popularity in
consequence of the Seminole War--The Attempt in Congress to Censure
Jackson--The same Attempt in the Cabinet--The Failure of the Attempt
to Censure Jackson in Congress--Assumption of the Responsibility for
Jackson's Acts by the Administration--Jackson Triumphant--The Treaty
of Cession Attacked in Congress, but Ratified by the Senate--Rejection
of the Treaty by the Spanish Government--Resumption of
Negotiations--The New Treaty Ratified by the Senate and by the Spanish
Government--Political Results of the Seminole War.
It was entirely natural that the quickening of the national spirit and
the growth of the national consciousness throughout the United States,
in the decade between 1810 and 1820, had, for one of their results,
the {20} extension of the territory of the United States, at some
point or other, to its natural limits.
[Sidenote: The influence of physical geography upon political
development.]
The element of physical geography always plays a large part in
national political development. The natural territorial basis of a
national state is a geographical unity. That is, it is a territory
separated by broad bodies of water, or high mountain ranges, or broad
belts of uninhabitable country, or climatic extremes, from other
territory, and possessing a fair degree of coherence within. If a
national state develops itself on any part of such a territory, it
will inevitably tend to spread to the natural limits of the same. It
will not become a completely national state until it shall have
attained such boundaries, for a completely national state is the
sovereign organization of a people having an ethnic unity upon a
territory which is a geographic unity.
[Sidenote: Defect in the southern boundary of the United States before
1819.]
In the second decade of this century, and down to the latter part of
it, the United States had not acquired the territory of the country as
far as to the natural southern boundary east of Louisiana. This
boundary was, of course, the Gulf of Mexico; but Spain held in quasi
possession a broad strip, and then a long peninsula, of land along and
within this boundary. In other words, the territory called Florida, or
the Floridas, was, politically, a colony of Spain, but geographically
a part of the United States. It was inhabited chiefly by Indian
tribes. Spanish rule in this territory was, therefore, foreign rule,
both from the geographical point of view and the ethnical. Indian rule
was not to be thought of in the nineteenth century. There was but one
natural solution of the question. It was that the United States should
annex this territory and extend the jurisdiction of the general
Government over it.
[Sidenote: The Treaty of Paris of 1763.]
The Treaty of Paris of 1763 was the first great {21} international
agreement which gave a fair degree of definiteness to the claims of
England, France, and Spain, upon the North American continent. In this
Treaty, France surrendered Canada, Cape Breton, and all claims to
territory east of the Mississippi River, from the source of the river
to the point of confluence of the Iberville with it, to Great Britain.
From this latter point, the boundary between the two powers was
declared to be the middle line of the Iberville, and of the Lakes
Maurepas and Pontchartrain, to the Gulf of Mexico. It is also
expressly stated in this Treaty that France cedes the river and port
of Mobile to Great Britain.
In this same instrument, Spain surrendered to Great Britain Florida
and every claim to territory east and southeast of the Mississippi.
[Sidenote: The boundary between Louisiana and Florida.]
The boundary between Louisiana and Florida had, to that time, been the
River Perdido. After the cessions above mentioned to Great Britain,
the British Government united the part of Louisiana received from
France with Florida, and then divided Florida into two districts by
the line of the River Appalachicola. That part lying to the west of
this river was named West Florida, and the part east of it was called
East Florida.
By a secret Treaty of the year 1762, which became known to the world
some eighteen months later, but whose terms were not executed until
1769, France ceded Louisiana to Spain. After this, therefore, the
North American continent was divided between Great Britain and Spain,
and the line of division was, so far as it was fixed, the Mississippi
River to the confluence of the Iberville with it, then the Iberville
and the middle line of the Lakes Maurepas and Pontchartrain to the
Gulf of Mexico.
{22} The Treaty of 1762 between France and Spain, having been
concluded before the Treaty of 1763 between France and Great Britain,
gave Spain a certain show of title to the territory between the
Mississippi and the Perdido; but the Treaty of 1763, in which France
ceded this same territory to Great Britain, was, as we have just seen,
known first, and was the Treaty which France executed in respect to
this territory. The conflict of claims between Great Britain and
Spain, which was thus engendered, continued to be waged for twenty
years, and was settled in the year 1783, in so far as these two powers
were concerned, by the recession of Florida to Spain.
In this same year, Great Britain recognized the independence of the
United States, with a southern boundary extending from the point where
the Mississippi River is intersected by the thirty-first parallel of
latitude, along this parallel to the River Appalachicola, thence down
the Appalachicola to its confluence with Flint River, thence on the
line of shortest distance to the source of the River St. Mary, and
thence by the course of this stream to the Atlantic. Spain thus held,
as the result of these several treaties, all of the territory south of
this line, unless England reserved in her recession of Florida that
portion of Louisiana lying between the Iberville and the Perdido,
ceded by France to Great Britain in the Treaty of 1763, and united by
Great Britain with Florida. There is no evidence in the text of the
Treaty of 1783 that Great Britain made any such reservation, or in the
subsequent actions of the British Government.
By the Treaty of St. Ildefonso, of October 1st, 1800, also a secret
treaty, Spain receded Louisiana to France. The description of the
territory thus receded was very vague. It reads in the official
translation of the treaty, {23} "His Catholic Majesty promises and
engages, on his part, to cede to the French Republic, six months after
the full and entire execution of the conditions and stipulations
herein relative to his Royal Highness the Duke of Parma, the Colony or
Province of Louisiana, with the same extent that it now has in the
hands of Spain, and that it had when France possessed it; and such as
it should be after the treaties subsequently entered into between
Spain and other states."
There was here certainly opportunity for a dispute between Spain and
France as to the correct boundary between Louisiana and Florida.
France could claim with some reason the Perdido as the eastern
boundary of Louisiana, and Spain could meet this with a counterclaim
that, after the cession in 1763 of all Louisiana east of the Iberville
and the Lakes to Great Britain, and its union by Great Britain with
Florida, the line of the Iberville and the Lakes Maurepas and
Pontchartrain was the eastern boundary of Louisiana.
Before, however, any actual contest arose over the question, France
sold Louisiana to the United States, with the same vague description
of boundary contained in the cession of the territory from Spain to
France by the Treaty of St. Ildefonso. The question of boundary became
now one which must be settled between Spain and the United States.
The United States claimed at once that Louisiana reached to the
Perdido. Spain disputed the claim, and held that Florida extended to
the Iberville and the Lakes. Spain could make out the better abstract
of title. Spain certainly did not intend to recede to France in 1800
anything more as Louisiana than France had ceded to her in 1762. But
the United States had a show of legal title. It could be held that the
ancient boundary of Louisiana was the one intended both in the Treaty
{24} of St. Ildefonso and in that of 1803, in which France passed the
possession of Louisiana to the United States. The reasons of physical
geography and of national development certainly favored the annexation
of the whole of Florida to the United States; and with such forces to
back the apparent legal claim to a large part of it, the result of the
dispute could not well have been otherwise than it was.
The United States enforced its claim by military occupation of the
disputed district before the close of the War of 1812.
[Sidenote: Occupation of Florida by the United States forces during
the War of 1812.]
During the course of the war, the British forces had occupied
Pensacola. The Spanish governor either could not, or would not,
prevent them from doing so. Florida became thus, in spite of its
nominal neutral status, a base of operations for the enemy of the
United States. No more convincing evidence of the necessity for its
annexation to the United States could have been offered. It was thus
seen that not only the geography and the national growth of the Union
demanded it, but that the safety of the Union, in case of war with any
power, required it. The sea is the natural boundary of the United
States on the south, and it was the "manifest destiny" of the Union to
reach it.
The occupation of Florida would have been a sound and justifiable
policy for the United States, had the Government commanded a
sufficient military force for the purpose, when the British troops
took possession of Pensacola. General Jackson did expel the British
from Pensacola, but restored the place to the Spanish authorities, in
order to avoid a conflict with Spain while engaged in war with Great
Britain. We know now that the Congress of the United States had, by
secret acts passed before the beginning of the War, authorized the
{25} President to occupy Florida _east_ of the Perdido temporarily.
The President did not deem it wise, under the circumstances which
prevailed, to make use of this power; but the readiness of the
Congress to intrust the President with the authority to take
possession of the territory of a friendly power certainly shows that a
strong feeling existed among the representatives of the people that
Florida must be acquired by the United States upon the first fair
opportunity.
[Sidenote: The hold of the Spaniards on Florida weakened by the War of
1812.]
The occasion was destined soon to appear. The power of Spain upon the
American continents was everywhere in rapid decline. At the close of
the War of 1812, the Spanish occupation in Florida was confined
substantially to three points--Pensacola, St. Mark's, and St.
Augustine. The remainder of the province, by far the greater part of
it, was a free zone, in which desperate adventurers of every race and
land might congregate, from which they might make their raids for
murder and pillage into the United States, and into which they might
escape again with their prisoners and plunder.
[Sidenote: The British troops in Florida during and after the War of
1812.]
We have noticed the occupation of Pensacola by the British troops
during the War of 1812, and their expulsion by General Jackson from
this position in November of 1814. After this, they concentrated upon
the Appalachicola and established a fort some fifteen miles above the
mouth of this stream for their head-quarters and base of operations.
The British commander, one Colonel Nicholls, pursued from this point
the policy which he had already inaugurated at Pensacola. This policy
was the collection and organization of fugitive negroes, Indians, and
adventurers of every character, and their employment in raids into the
territory, and attacks upon the inhabitants, of the United States.
{26} It appears that Colonel Nicholls did not regard the Treaty
between the United States and Great Britain concluding the War as
putting an end necessarily to his hostile movements. He remained in
command at his fort on the Appalachicola for several months after the
ratification of the Treaty, and then went to London, taking with him
the Indian priest Francis, for the purpose of securing a treaty of
alliance between the British Government and his band of outlaws in
Florida.
[Sidenote: Nicholls and his buccaneer state in Florida.]
Before leaving the Appalachicola, he had incited the Indians and their
negro auxiliaries to continue hostilities against the United States,
by representing to them that the ninth article of the Treaty of Ghent
contained a pledge on the part of the United States to reinstate the
Indians in all lands held by them in the year 1811. He represented to
them that this provision restored to the Creeks the lands in southern
Georgia surrendered by them to the United States in the Treaty between
the Creeks and the United States made at Fort Jackson in August of
1814, although it was well understood by both of the high contracting
parties to the Treaty of Ghent that only those lands were intended
under this provision whose seizure by the United States had not been
confirmed by an agreement with the Indians; and the pledge as to these
only was conditioned upon the immediate cessation of hostilities on
the part of the Indians when the Treaty of Ghent should be announced
to them. This announcement had been made, and the actual continuation
of hostilities, therefore, after the announcement, made this whole
article nugatory.
Nicholls left the fort, with all its munitions, in the hands of the
negroes and Indians. The garrison {27} consisted of some three hundred
negroes and about twenty Indians.
[Sidenote: The British Government's repulse of Nicholls' advances.]
The British Government would not listen to Nicholls' proposition for
an alliance between Great Britain and the buccaneering state which he
was endeavoring to establish upon territory belonging politically to
Spain.
[Sidenote: Destruction of the Nicholls Fort by the United States
forces.]
The United States Government waited a year and a half for the
disbanding of this hostile force, or for its dispersion by the Spanish
authorities, and then, when forbearance had ceased to be a virtue, did
the work itself. The fort was destroyed by the explosion of its
magazine, which was pierced by a red-hot shot from the batteries of
the assailants, and almost the whole garrison perished. It was claimed
that the attack was made by the United States forces with the consent
of the Spanish authorities, whatever the significance of that may have
been.
Professor von Holst, in his great work, has designated the expedition
against the Nicholls Fort as a hunt by the United States army for
fugitive slaves. He does not seem to have recognized the danger to the
peace and civilization of the United States of the growth of a
community of pirates and buccaneers upon its borders. It does not
appear to have occurred to him that the most humane attitude toward
the slaves of Georgia may have been to prevent them from being drawn
into any such connection. He does not seem to have comprehended that
any public interest was subserved by disposing of the negroes captured
in this expedition in such a way as to prevent any future attempts on
their part at co-operation with the Indians in their barbarous warfare
upon the frontiers of the United States. In a sentence, he seems to
have regarded the entire incident as a prostitution of the military
power of the United States to the private greed of {28} slave-hunters,
and to have discovered in it a most convincing proof of the canting
hypocrisy of the free Republic. In view of all the facts of the case,
this certainly appears to be a very crude appreciation of the subject.
[Sidenote: The Seminole War.]
This same historian calls the attack upon the Nicholls Fort the
beginning of the Seminole War. It appears, however, more like the
termination of the War of 1812, so far as the negro outlaws of Florida
were participant in that War, than like the beginning of a new war.
Generals Gaines and Jackson and the War Department of the Government
seem to have so comprehended the event.
After the destruction of the Nicholls Fort, or the Negro Fort, as it
was then called, there was comparative peace, for a few months, on the
frontier. With the beginning of the year 1817, however, hostilities
were renewed. It is not known which party gave the first offence.
Ex-Governor Mitchell of Georgia, then holding the office of Indian
agent for these parts, thought both parties equally at fault. The
point is a matter of little moment. The conflict between civilization
and barbarism is irrepressible, and arises as often from the
encroachments of civilization as from the onslaughts of barbarism.
[Sidenote: The fight at Fowltown.]
In November of 1817, General Gaines endeavored to secure an interview
with the chief of the hostile Indians, but the chief refused to visit
the General, whereupon the General sent a detachment of soldiers to
the chief's village, called Fowltown, to repeat his invitation, and to
conduct the chief and his warriors to a parley-ground. The soldiers
were fired upon by the Indians as they approached the village. They
naturally returned the fire, and then seized and destroyed the
village. A few Indians were killed in the conflict.
{29} The Indian agent, Mitchell, called this event the beginning of
the Seminole War. It was certainly something more like it than was the
capture of the Negro Fort. Still it will be more correct to consider
it as being only the continuation of the War of 1812, in so far as the
participation in that War of Great Britain's Indian allies on the
southern border of the United States was concerned. They had never
really resumed the status of peace after acting during that War, at
the instigation of the British officers in Florida, against the United
States.
[Sidenote: The Seminole War defensive.]
Following the fight at Fowltown hostilities became much more active.
Fowltown was situated north of the Florida line, upon territory ceded
by the Creeks to the United States in the Treaty of Fort Jackson. If,
therefore, the incident of November 20th was the beginning of the
Seminole War, it stamps that War as defensive in its character. The
troops of the United States were attacked upon the territory of the
United States. If the further prosecution of the War should, in the
judgment of the President, or of the officer whom he might vest with
discretionary power in the execution of his will, require the crossing
of the Florida line and the pursuit of the enemy upon Florida
territory, the character of the War could not be changed thereby. This
could not be regarded as making war on Spain. Spain could meet and
satisfy the right of the United States to do this only by dispersing
the Indians herself, and preventing Florida from becoming a base of
hostile operations against the United States. Spain could claim the
rights of neutrality for Florida only when she discharged these duties
of neutrality. The general principles of international custom required
that of her. When, now, we add to this the consideration that Spain
had pledged {30} herself in a specific agreement with the United
States to do these very things, and that Florida, nevertheless, was
actually a free zone, over which no civilized state had any efficient
control, then it certainly appears that the right of the United States
to pursue its enemy into Florida was clearly in keeping with the
recognized law of nations. The President, therefore, ordered the
pursuit of the enemy into Florida, under the qualification that if
they took refuge in a Spanish fortification the fortress should not be
attacked, but the situation should be reported to the War Department
and further orders awaited. This order was issued on December 16th,
1817, to General Gaines, who was then in command of the forces on the
Florida frontier.
[Sidenote: McGregor on Amelia Island.]
Meanwhile an adventurer by the name of McGregor had, with a band of
freebooters, taken possession of Amelia Island, which lies off the
coast of Florida, just below the mouth of the St. Mary's River, and
had, in the name of the Governments of Buenos Ayres and Venezuela,
proclaimed the independence of Florida against Spain. They made the
island an entrepot for the smuggling of slaves into the United States,
a storehouse for the results of their robberies, and head-quarters
generally for piratical expeditions.
[Sidenote: General Gaines sent to Amelia Island.]
By a secret act of the year 1811, the Congress of the United States
had declared its unwillingness to have Florida, or any part of it,
pass from the hands of Spain into those of any other power, and had
authorized the President to prevent it. Acting upon this authority,
the President instructed General Gaines to go to Amelia Island and
take possession of it.
[Sidenote: General Jackson placed in command in Florida. His orders.]
About ten days later, December 26th, 1817, the President assigned
General Jackson to the command of the {31} troops acting against the
Indians. The day before the issue of the order to General Jackson, the
War Department had received the news of the Indian attack upon
Lieutenant Scott's boat while ascending the Appalachicola with
supplies for the United States troops at Fort Scott. The cold-blooded
massacre of almost the entire crew of the boat apparently moved the
War Department to more energetic measures. The order to General
Jackson, besides investing him with the command, empowered him to call
on the Governors of the adjacent Commonwealths for such military
forces as he might deem necessary, with those already in the field, to
overcome the Indians, and informed him that General Gaines had been
instructed "to penetrate from Amelia Island, through Florida, to the
Seminole towns, if his force would justify his engaging in offensive
operations." "With this view," the order to Jackson continues, "you
may be prepared to concentrate your forces, and to adopt the necessary
measures to terminate a conflict which it has ever been the desire of
the President to avoid, but which is now made necessary by their
settled hostilities."
[Sidenote: Jackson's letter to President Monroe.]
When Jackson received these orders he was in Tennessee. He wrote
immediately to the President: "Let it be signified to me through any
channel (say Mr. J. Rhea) that the possession of the Floridas would be
desirable to the United States and in sixty days it will be
accomplished." General Jackson naturally supposed that this letter was
duly received and read by President Monroe, and that a subsequent
order, giving him discretionary powers in the prosecution of the
campaign, contained the answer to it. As we shall see, however, the
President claimed later that he did not read Jackson's letter until a
year after it was written and sent to him. It was certainly {32} the
President's fault if he did not. General Jackson certainly could not
be held accountable for the President's strange negligence in
examining official correspondence, and he had good reason to think,
from the tone of the order issued to him after his letter had had due
time to be received and read, that the Administration desired him to
occupy Florida.
Upon taking command Jackson called his Tennessee veterans to him, and
reached with them the Florida frontier in March of 1818.
[Sidenote: Jackson's operations in Florida.]
When he advanced into Florida he found that the Spanish officials in
Florida were in collusion with the Indians, and that the instigators
of the hostilities were an Englishman, named Ambrister, and a
Scotchman, named Arbuthnot, together with two Indian chiefs named
Hillis Hajo and Himallemico.
An order from the War Department, of January 16th, 1818, instructed
the commander of the United States forces in Florida that the honor of
the nation required a speedy termination of the War with the
Seminoles, "with exemplary punishment for hostilities so unprovoked."
Jackson naturally considered himself empowered to do speedy and
thorough work. He felt it necessary to seize St. Mark's and Pensacola,
in order to destroy the base of operations and the places of refuge of
the enemy, and he caused the four ringleaders of the enemy to be
executed. By the end of May (1818) the campaign was ended, and Florida
was in the military possession of the United States. The President
assumed the responsibility for Jackson's deeds, but offered to restore
St. Mark's and Pensacola, and therewith the nominal possession of
Florida, to Spain, so soon as Spain would garrison these points with
forces able to maintain peace with the United States and {33} disposed
to do so. Spain accepted the offer, fulfilled in a way the conditions,
and the places were restored to her jurisdiction.
[Illustration: FLORIDA, at the Time of Acquisition.]
[Sidenote: The first Treaty for the cession of Florida to the United
States.]
It was now manifest to Spain, however, that she could not control
Florida, and that her possession of the province was, and could be,
only nominal. She now, therefore, agreed to cede it to the United
States. The treaty bears date of February 22nd, 1819. Its important
provisions are contained in the second and third articles. By these
articles Spain ceded the Floridas, with the adjacent islands dependent
thereon, to the United States; and agreed with the United States that
the boundary between the two powers in North America should be the
west bank of the Sabine River from its mouth to the thirty-second
parallel of north latitude, thence the line of longitude to the Red
River, thence up the course of the Red River to the one-hundredth
parallel of longitude from London, or the twenty-third from
Washington, thence the line of longitude to the Arkansas River, thence
the south bank of the Arkansas to its source, thence the line of
longitude to the forty-second parallel of north latitude, and thence
this line of latitude to the South Sea.
This settlement of boundary included that of all other claims, of
whatever character, of the Government, citizens, or subjects of either
power against the Government, citizens, or subjects of the other. All
such were mutually renounced.
[Sidenote: Jackson's popularity in consequence of the Seminole War.]
The results of the Seminole War raised General Jackson to a still
higher plane of popularity than he possessed as the hero of the War of
1812. It was evident that here was a character who would have to be
reckoned with in future presidential contests. It is possible that
Jackson's chief mentor, William B. Lewis, had {34} conceived, at this
date, the idea of Jackson's candidacy for the highest place in the
gift of the nation. And it is highly probable that the fears of all
the existing aspirants for the presidency were excited by the
appearance of this new and popular rival for public favor. It is
difficult to explain upon any other theory the attempt made in
Congress, during the session of 1818-19, to suppress Jackson by a vote
of censure.
[Sidenote: The attempt in Congress to censure Jackson.]
This procedure certainly had no connection whatsoever with the
question of slavery extension through the acquisition of Florida. When
we find Tallmadge, of New York, the self-same person who introduced,
at the same session, the proposition for restricting slavery in
Missouri, defending Jackson's course in every particular, while Cobb,
of Georgia, attacked it, and when we consider that John Quincy Adams,
the life-long opponent of slavery, sustained Jackson in the cabinet,
while Calhoun moved to bring him to account for disobedience to
orders, we are bound to conclude that we have here nothing whatsoever
to do with the question of slavery.
[Sidenote: The same attempt in the Cabinet.]
Crawford, of Georgia, the Secretary of the Treasury, was the prime
aspirant for presidential honors, after Monroe should have completed
his two terms, and Cobb was Crawford's right-hand man. Clay was also
working up his plans. These two men felt it necessary to discredit
Jackson in every possible way. Clay made a great bugbear out of
Jackson's military heroship, and so threatening did he make it appear
to the principle of civil government and republican institutions that
he really seemed frightened at it himself. Crawford set up the same
strain, through Cobb, in a feebler key. Calhoun seems to have been
animated rather by wrath at what he {35} conceived to be the violation
of his orders, or, at least, the exceeding of his orders, than by
jealousy of a presidential rival. His presidential fever had not, at
that moment, reached a high degree. But what shall we say of Adams,
who undoubtedly then considered himself a candidate for the
successorship to Monroe, and who stood against the whole Cabinet in
Jackson's defence, and carried the day against both Crawford and
Calhoun combined. Of course it may be said that Adams thought his own
turn would come before that of Jackson, and that he would gain
Jackson's support by his attitude. But against such a supposition must
stand the fact that the Cabinet pledged itself to secrecy in regard to
all that was proposed on the subject, and that for ten years Jackson
supposed that Calhoun was the friend in the Cabinet who had
successfully defended him against the other members under the lead of
Crawford. The attitude of Adams in the question was noble and
disinterested, as well as patriotic, and had Jackson known of it in
1824, it is altogether probable that he would never have charged an
unfair bargain with Clay upon Adams for his own defeat.
[Sidenote: The failure of the attempt to censure Jackson in Congress.]
Clay and Cobb represented that every movement made by Jackson, from
the moment of his appointment to the command of the expedition to the
end of hostilities, was illegal and in defiance of the orders of the
War Department. They said he had no right to call upon his old
soldiers instead of asking the Governor of Tennessee for the militia.
They claimed that he waged an offensive war upon his own
responsibility against Spain, when the War Department had expressly
forbidden him to attack the Spanish forts, and they accused him of
murdering two prisoners of war. The House of Representatives showed
what it thought of these accusations by voting {36} down the
resolutions which contained the censure by a majority of nearly two to
one, while the resolutions of like effect introduced into the Senate
were laid on the table and never taken up for consideration.
[Sidenote: Assumption of the responsibility for Jackson's acts by the
Administration.]
The Administration had, under the influence of the Secretary of State,
Mr. Adams, already assumed the responsibility for Jackson's acts, had
upheld their legality, and was even then bringing its negotiations
with Spain, in regard to the cession of Florida, to a successful
close; while the British Government had refrained from any
interference on account of the treatment of Ambrister and Arbuthnot.
[Sidenote: Jackson triumphant.]
The attempt to suppress Jackson broke down thus upon all sides, and he
emerged from the assaults of his rivals with a greater popularity than
he had ever before enjoyed, and with improved prospects as a
presidential candidate. With the worship accorded to a hero he now
enjoyed the sympathy extended to a martyr.
[Sidenote: The Treaty of Cession attacked in Congress, but ratified by
the Senate.]
The Treaty itself, ceding the Floridas, did not escape attack. Adams
regarded it as a great diplomatic triumph for the United States, but
Clay expressed great disappointment with it, because it sacrificed, as
he viewed it, the claims of the United States to the territory between
the Sabine and the Rio del Norte. And Crawford, who was seizing every
opportunity to discredit the Administration, by encouraging it to
false measures from his place in the Cabinet, and then professing
publicly his disapprobation of them, also saw in the point emphasized
by Clay a prime occasion for making political capital.
The Senate showed what its members thought of such manoeuvres by a
speedy and unanimous vote in ratification of the Treaty.
{37} [Sidenote: Rejection of the Treaty by the Spanish Government.]
The Spanish Government, on the other hand, rejected the Treaty. Mr.
Adams felt, at the moment, that this was a blow to his reputation as a
diplomatist, and perhaps to his chances for the presidency. But it did
not prove to be such. Had the Treaty been then ratified three large
land grants made by the Spanish King to certain Spanish nobles, at a
date earlier than Mr. Adams had supposed, would not have been
extinguished by it. The rejection of the Treaty by the Spanish
Government, which at the same time sent another Ambassador, General
Vives, to take the place of Don Onis, and to renew negotiations on the
subject, gave Mr. Adams the opportunity to insist upon the cession of
Florida with the extinguishment of the above mentioned grants.
[Sidenote: Resumption of negotiations.]
When the new Ambassador arrived, the country was in the midst of the
excitement over the question of slavery extension in the Louisiana
territory, the history of which will be related in a succeeding
chapter. The effect of this agitation was to arouse some doubt in the
minds of those opposed to the extension of slavery in regard to the
expediency of any addition to the territory of the United States
southward. Mr. Adams himself felt the influence of this doubt, and was
prompted, in part at least, by it to assume an attitude of
indifference toward the new propositions of the Spanish Ambassador. He
gave the Ambassador to understand that Spain could make such a treaty
with the United States in regard to the subject as would be
satisfactory to the latter, or take the consequences of leaving things
as they were. The unshakable determination of Mr. Adams won the day,
and the old Treaty, with a new provision extinguishing the above
mentioned land grants, was finally ratified by both Governments, two
years after the date of {38} the original agreement between Mr. Adams
and Don Onis.
[Sidenote: The new Treaty ratified by the Senate and by the Spanish
Government.]
The vote of ratification by the Senate of the United States was again
practically unanimous. Only four votes were recorded against it; and
of these four one was cast by a brother-in-law of Mr. Clay, one by a
subservient friend of the same gentleman, and one by a bitter personal
enemy of General Jackson. The province was soon transferred to the
United States and Jackson became its first territorial governor. With
this the United States attained its natural boundary on the south,
eastward from the mouth of the Mississippi, and a source of chronic
irritation was removed.
[Sidenote: Political results of the Seminole War.]
It was to be expected that this territory would be erected into a
Commonwealth in which the institution of slavery would be legalized;
but this did not deter the statesmen of the North from securing the
great advantages just indicated. Radical abolitionism had not yet
blinded them to the general and paramount interests of the Union. In
fact, the results of the Seminole War and of the diplomacy of the
Administration in connection with it had the immediate effect of
diminishing the ultra-Southern influence in the Government. They
brought Adams and Jackson to the front, and set Crawford and Calhoun
back in the course of their careers. They had, indeed, much to do, as
we shall see later, with the development of the era of personal
politics, which prevailed from 1824 to 1832, and which terminated
finally in the separation of the all-comprehending Republican party
into the Whig party and the Democratic party.
{39}
CHAPTER III.
SLAVERY IN THE UNITED STATES BEFORE 1820
First Appearance of Slavery in the British North American
Colonies--Early Theory of the Benefits of Slavery--The Earliest Legal
Recognition of Slavery in the Colonies--Northern Colonies not well
Adapted to Negro Labor--The Southern Colonies well Adapted to Negro
Labor--Negro Slavery a Temporary Necessity in the South--Was Negro
Slavery an Error and an Evil from the first?--Slavery Legislation in
the Southern Colonies--Partus Sequitur Ventrem--Definitions of the
Slave Class--The Test of the Slave Status as Fixed by the Virginia
Statute--The Legal Position of the Slave--Tendency Toward Serfage in
the Code of 1705--Public Relations of the Slave System--The General
Object of the Laws in respect to Slaves--Slavery and the Revolutionary
Ideas of the Rights of Man--First Prohibition upon Slave
Importation--Abolition of Slavery in the Northern Commonwealths after
the Beginning of the Revolution--Slavery and the Constitution of
1787--Reaction against the Humanitarian Principles of the
Revolution--Abolition of the Foreign Slave-trade by Congress--Cotton
Culture and the Cotton-gin--The Effect of the Return to the Arts of
Peace upon the Ideas Concerning Slavery--Slavery During the War of
1812 and the Years just before and just after this War--Slavery in the
Louisiana Territory--Slavery in the territory West of North Carolina
and Georgia--Slavery in Louisiana a Different Question from Slavery in
the North Carolina and Georgia Cessions--Interest in Slavery in
Maryland and Virginia Increased by the Acquisition of Louisiana--The
Domestic Slave-trade--The Relation of Slavery to the Diplomacy of the
United States.
It is not easy to define the term slavery in the abstract without
unfitting it for application to the great majority {40} of the systems
of servitude which have ever existed. Especially will it be difficult
to gain a correct conception of the relation between the white man and
the negro in North America previous to 1860 by means of such a
definition.
The institution of negro slavery in the United States was an
historical growth, which was in some respects unique. We shall,
therefore, do better to follow the main stages of that development
than to attempt at the outset any definition whatsoever. We may, in
this manner, build up a true description of it, and escape the error
frequently contained in the brevity of a definition and in the nature
of an abstract proposition.
[Sidenote: First appearance of slavery in the British North American
colonies.]
[Sidenote: Early theory of the benefits of slavery.]
It began its existence, like most institutions and relations, as a
social custom. Most of the historians record the appearance of a Dutch
merchant ship at Jamestown, in the year 1619, having negroes on board,
and inform us that twenty of them were sold to the colonists. What
title the Dutch traders had to such property, exactly what they sold
to the colonists, and what rights the colonists acquired in or over
such property, were defined, guaranteed, and secured by no existing
statutes. If any of the parties to the transaction reflected upon
these subjects at all, they must have supposed that the right of
possession and the freedom of contract covered the whole case. There
is certainly no evidence that any of these parties, or anybody else,
had the faintest conception that the law of any state, or any
principle of natural justice, or of reason, was violated or impaired
by the procedure or the results of the procedure. It was a firmly and
universally established opinion of the time that the attachment of
infidels to Christians in a relation of servant to master was vastly
beneficial to the infidel, certainly so when {41} the infidel was also
a barbarian, and was taken out of slavery to a barbarian master, as
was the case in respect to almost all of the negroes brought to the
English colonies in North America.
We cannot dismiss this opinion as one of the errors of the dark ages.
It lives to-day as a principle of modern political science and
practical politics, under the form of statement that civilized people
have the right and duty to impose civilization upon uncivilized
populations by whatever means they may deem to be just and proper.
There can be no reasonable doubt that the negroes transferred from
slavery in Africa to slavery in the English-American colonies
themselves felt the amelioration of their condition, and were, in
general, entirely contented with their new lot.
[Sidenote: The earliest legal recognition of slavery in the colonies.]
The relation was established in the Northern colonies, as well as in
the Southern, in the early years of their existence, and it was in
Massachusetts rather than in Virginia that it first received legal
recognition, and began to be changed from a purely domestic
institution by suffering governmental regulation. In the Massachusetts
"Fundamentals," or "Body of Liberties," passed by the General Court in
1641, the slavery of negroes and Indians, and the slave-trade, were
expressly legalized. In fact, so far as the colonists themselves were
responsible for the introduction of negro slavery among them, the
impartial historian must place the greater blame upon a Northern
colony. Its citizens were first to develop commerce, and it was their
ships which brought the slave cargoes from the coasts of Africa to all
of the colonies.
[Sidenote: Northern colonies not well adapted to negro labor.]
[Sidenote: The Southern colonies well adapted to negro labor.]
The negroes were not, however, fitted for labor in the Northern
colonies. In the first place, it was too cold for them to thrive
there. A warm, moist air is the natural climate for the negro. In the
second place, the {42} work to be done in these sections was not
suited to his capacity. The Northern colonies had not, indeed, at that
early day, developed the finer forms of industry which have
subsequently distinguished that part of the country. They were then,
as to their internal pursuits, almost as completely agricultural as
the colonies of the South. But their farming required a great deal
more of intelligence, thrift, and industry in the laborer than the
negro of that day possessed. The country was broken, the good soil was
limited in amount, the weather was capricious, and the management of
the crops demanded judgment and discretion. On the other hand, the
vast level areas of good soil, the warm, uniform climate, and the
simple crops of the Southern colonies furnished the conditions
favorable to the employment of negro labor.
[Sidenote: Negro slavery a temporary necessity in the South.]
It is not easy to see how the rich swamp-lands of these colonies could
ever have been reclaimed and made tributary to the civilization of the
world in any way but by the employment of negro labor. And it is no
easier to see how the pure negro could then have been brought to do
this great work save through slavery to the white race, save by being
forced to contribute the muscular effort, under the direction of the
superior intelligence of the white race, to the realization of objects
determined by that superior intelligence. The negro is proof against
malaria, and thrives under the burning sun. The white man is destroyed
by the former and greatly disabled by the latter. And the pure negro
would not at that period of his development labor voluntarily. These
were the elements of the problem which confronted those who undertook
to subject the vast marshes of the Southern colonies to cultivation
and to prepare them for the {43} production of their most valuable
contributions to the comforts of civilized man. The solution of the
problem was negro slavery.
[Sidenote: Was negro slavery an error and an evil from the first?]
We are most of us inclined, at this day, to hold that this was an
erroneous solution, and that we could have discovered a better one;
but it was the solution which was reached, and we shall be wiser if we
seek to understand it clearly, instead of wasting our energies in its
condemnation, remembering that many of the things of the past, which,
from the point of view of the present, we are prone to regard as
error, and even as sin, are only anachronisms. In fact, those who
founded the colony of Georgia thought _then_ that they had a better
solution of the problem. They prohibited slavery at the outset from
that colony. In fourteen years they came to regard this act as a great
mistake, and the noblest spirits among them acknowledged themselves in
error, and joined in the movement for the introduction of negro
slave-labor.
[Sidenote: Slavery legislation in the Southern colonies.]
The conditions above mentioned were undoubtedly the chief causes of
the more rapid and pronounced development of negro slavery in the
Southern colonies. And that more rapid and pronounced development
directs us rather to the legislation of the Southern colonies than to
that of the Northern, in following the legalization of the relation.
[Sidenote: Partus sequitur ventrem.]
Virginia naturally took the lead, and furnished the precedents for the
others. The first question, both as to time and importance, which
required legislative treatment, was the question of the status of the
children of slaves. Where legalized marriage does not exist, the only
certainty in respect to parentage is attained by regarding the mother.
Rights and status in such a condition of society are, therefore,
transmitted through the female line. _Partus sequitur ventrem_ is the
rule {44} not only of the civil law, but of every system of law
regulating the accidents of descent among people where the mingling of
the sexes is not controlled by civilized marriage. Insuperable
obstacles present themselves in the attempt to apply any other rule.
It was no unusual or arbitrary enactment of the Virginia legislature
which, in 1662, prescribed the rule that the status of the slave
mother should determine that of her offspring. This rule was followed
in all the colonies, and many of them enacted it into statute law.
[Sidenote: Definitions of the slave class.]
So long as the slaves were few in number and were not Christians the
necessity for legislation defining the slave class was not felt; but
so soon as the slave-trade became more active, and slaves began to
receive Christian baptism, the old customary test in regard to this
matter, that of infidelity or heathenism, would no longer suffice. The
colonists of that day were too conscientious to cut the knot of this
difficulty by denying Christian baptism to any one seeking it. They
considered it their prime duty to lead the heathen to the knowledge of
Christ. It is evident that their consciences were greatly troubled
over the question of the effect of Christian baptism upon the slave
status. The colonial legislatures, the Home Government, and the Bishop
of London were appealed to for counsel in the dilemma. The answers
received from all of these were to the effect that the status of the
slave was not changed by Christian baptism or conversion.
[Sidenote: The test of the slave status as fixed by the Virginia
statute.]
The test of the slave status was then necessarily fixed by
legislation. The Virginia statute declared all servants brought into
the country by land or sea, who were not Christians in their native
country at the time when they were purchased or procured, nor free in
{45} England or some other Christian country, to be slaves. Exception
was made of Turks and Moors in amity with the King. This statute,
taken together with the rule _partus sequitur ventrem_, which rule was
re-enacted, became the test of the slave class. At the same time heavy
penalties were attached to the marriage or cohabitation of white women
with slaves.
[Sidenote: The legal position of the slave.]
Of course it very soon became necessary that the legal position of the
slave should be definitely fixed. The legislature of Virginia again
set the precedents. Concisely stated, this legislation provided that a
slave could have no standing in the ordinary courts, either as party
or witness; that a slave could own no property; that a slave owed
obedience to the master, who might force the slave to labor, and
chastise the slave even to the extreme of so injuring the slave that
the slave might die in consequence thereof, without incurring the
penalties of felony; that the slave could be sold or inherited as
personal property; and that the offspring of the female slave belonged
to the master owning her at the time of its birth.
[Sidenote: Tendency toward serfage in the Code of 1705.]
The wilful killing of a slave by anyone, even the master, was
accounted murder, and extraordinary tribunals, without a jury, were
constituted for the protection of his person. The Code of 1705 even
contained regulations which indicated that the trend of thought and of
legislation, at that juncture, was toward attaching the slave to the
soil, which would have been a step upward in a course, which, if
consistently followed, would have made the slave a serf. But the still
prevailing rules, which allowed the slave to be seized and sold for
the debts of the master, and regulated the inheritance of slaves
according to the {46} law governing the descent of personal property,
seem to have completely neutralized that tendency before the middle of
the century had been reached.
[Sidenote: Public relations of the slave system.]
Naturally the private law accidents of the relation were first
developed and fixed, but very soon the rights and powers of the
community in regard to the institution began to claim attention. The
public peace and welfare must be safeguarded against the possible
conduct of the slave, on the one hand, and of the master, on the
other.
The legislation of Virginia set the example in these respects also.
That legislation provided that no slave should have, or carry arms, or
go outside of the plantation of his master without a pass from his
master, or lift his hand against a Christian; that a sheriff should
arrest a runaway slave on the warrant of two justices, and might
lawfully kill any slave who resisted arrest; and that no slave should
be emancipated without the consent of the Governor and Council.
On the other hand, it provided that the master should be responsible
for all damage done by his slave at any place where there was no
Christian overseer, and required that any master giving freedom to his
slave should pay the cost of his transportation out of the colony.
[Sidenote: The general object of the laws in respect to slaves.]
Such was substantially the law of negro slavery in all of the colonies
at the beginning of the decade before the Revolution. It was perhaps
more severe than this in South Carolina, and it was certainly less so
in Massachusetts.
The objects which it had in view were to secure the master's property
in the slave, to enable the master to hold the slave in obedience and
force him, if necessary, to labor, and to protect the public peace and
welfare against the abuse of the relation by the master, and against
the vicious nature of the slave.
{47} It does certainly appear that the century of law-making upon the
subject had not ameliorated the condition of the slave. We must
remember, however, that the first stages in the legalization of any
relation sometimes make the situation appear worse than what obtained
before the movement began, although it may not be worse in fact.
[Sidenote: Slavery and the Revolutionary ideas of the rights of man.]
But the period of the Revolution brought with it a great change of
view in regard to the morality of slavery, and this change of idea
produced great modifications in the law of slavery, all of which
tended not only toward an improvement of the condition of the slave,
but also toward the ultimate extinction of slavery.
When we regard the Revolution of the colonies against the motherland
from the point of view of the present, we can easily see that its
purpose was very different from that of the French Revolution. What it
really sought and accomplished was national independence against
foreign rule. Those, however, who formulated the creed of the
Revolution sought its justification in the doctrine of human rights
rather than in that of national rights. The philosophy of the
eighteenth century was a humanitarian outburst. Politically and
legally it is summed up in the very misleading propositions that all
men are born equal and are endowed with freedom, and that the people
have the right to change or abolish existing government at their
pleasure. Whatever we may think of these doctrines now, our ancestors
professed to believe in them, and there is no reason to doubt the
sincerity of their profession, so far as their own consciousness went.
They saw also the inconsistency of slavery with these doctrines, and
quickly came to regard slavery as an evil which should be removed as
soon as possible.
{48} [Sidenote: First prohibition upon slave importation.]
The Continental Congress took the first step in this direction. Two
years before it declared independence it prohibited any further
importation of slaves, and repeated the prohibition two years later.
These acts are good evidence that, at the moment, the question of
slavery was regarded as a matter of national concern.
The Congress was, however, so occupied with the duties pertaining to
the prosecution of the war, that it failed to go forward in this
matter, as well as in many other matters of national concern; and when
the Confederate Congress succeeded the Continental Congress, it did so
upon the basis of a written constitution, or rather articles of union,
which vested no powers whatsoever in it over the subject of slavery.
[Sidenote: Abolition of slavery in the Northern Commonwealths after
the beginning of the Revolution.]
The separate colonies, now become "States" by the theory of the
Articles of Confederation, took up the question. Massachusetts
abolished slavery substantially by her constitution of 1780.
Pennsylvania provided for gradual emancipation by a statute of the
same year. Rhode Island, Connecticut, and New Hampshire followed the
example of Pennsylvania. And New York, New Jersey, Delaware, Maryland,
and Virginia forbade any further importation of slaves.
[Sidenote: The Ordinance of 1787.]
Under such impulses and influences the Confederate Congress, in spite
of the fact that no power in respect to slavery had been conferred
upon it, assumed to pass the famous Ordinance of 1787, decreeing the
free status exclusively in all of the territory then belonging to the
United States north of the Ohio River. The power to enact the
Ordinance could not even be derived by the most generous principles of
implication from any provision in the Articles of Confederation. To
justify the exercise of it by the Confederate {49} Congress it is
necessary to go back to the general principle of political science
that, as there was no government for this territory but the
Confederate Congress, and as there were no limitations in the Articles
of Confederation upon the powers of the Congress in this territory,
the powers of that Congress must have extended in this territory to
all subjects usually regulated by government.
The claim sometimes made that this Ordinance was a treaty between the
"States" forming the Confederation, or between them and the "States"
to be formed out of that territory in the future, is altogether
untenable. It was nothing more nor less than a legislative act of the
Congress.
It is an incontrovertible proof of the universality and intensity of
the opposition to the farther spread of slavery that the common
consciousness of the age acquiesced in this most latitudinarian
construction of the powers of the Confederate Congress, and that the
Congress itself voted the measure with but a single dissenting voice.
[Sidenote: Slavery and the Constitution of 1787.]
At the same moment that this measure was being considered in the
Congress, the Constitutional Convention, sitting at Philadelphia, was
framing the national Constitution of 1787. The attitude which the
nation would assume in this new instrument of its organic law toward
the subject of slavery was one of the most, if not the most, important
of the questions which the Convention was called upon to consider.
There can be little doubt that the men of 1787 had come to regard the
question of the rights of man a little more calmly than they did
during the heat of the battle with the motherland. In Luther Martin's
famous letter to the legislature of Maryland upon the work of the {50}
Convention of 1787, a very significant passage concerning the existing
views upon slavery occurs. He wrote: "At this time we do not generally
hold this commerce" (the slave-trade) "in so great abhorrence as we
have done. When our liberties were at stake we warmly felt for the
common rights of men. The danger being thought to be past which
threatened ourselves we are daily growing more insensible to those
rights."
The Constitution of 1787 contains evidence of the correctness of this
statement. Among its provisions were to be found three most important
compromises with the slavery interest, three most important
recognitions of slavery. The first was political in its nature. It
counted the negro for three-fifths of the white man in the
distribution of the representation in the House of Representatives and
in the Presidential Electoral Colleges. The second was commercial in
its nature. It forbade the Congress to prohibit, before the year 1808,
the migration or importation of such persons as the existing "States"
might see fit to admit. The third was a direct guarantee of slave
property. It required the surrender to his master of an escaped slave
wherever found in the United States. These were most momentous
provisions. They secured slave property, increased slave property, and
made slavery a vast political power in the hands of the slave-masters.
There is no doubt that the clock of the ages was turned back full half
a century in regard to this great question by the Constitution of
1787.
[Sidenote: Reaction against the humanitarian principles of the
Revolution.]
From 1787 to 1808 the reactionary course was pursued almost without a
single break. Kentucky was made a Commonwealth with the slave status.
The Congress accepted from North Carolina and Georgia cessions of the
territory which lay to the west of them, and which they claimed as
belonging to them, with a condition {51} that slavery should not be
forbidden therein by Congress. The slave Commonwealth of Tennessee was
immediately formed out of a part of this territory. The vast territory
of Louisiana, in which slavery existed wherever it was inhabited, was
added to the domain of the Union. The District of Columbia, the seat
of the general Government, was made a slave-holding community, through
the adoption by Congress of the laws of Maryland as the code of the
District. A fugitive slave-law was passed by Congress, which enabled
any white man to seize, as his slave, any man of color, and bring him
before any magistrate, and, upon proof satisfactory to the latter, to
demand such papers and certificates as would legally warrant him in
reclaiming the slave and transporting him to the place whence he was
said to have escaped; and petitions to Congress complaining of the
abuse of this arbitrary power were laid aside without consideration.
Even the Territory of Indiana prayed Congress to suspend for it that
part of the Ordinance of 1787 which forbade slavery within its limits.
And South Carolina abolished her law against the importation of
slaves, and opened the way wide for a vast increase of the slave
population.
[Sidenote: Abolition of the foreign slave-trade by Congress.]
These last acts seem to have aroused the consciousness of the Congress
to the rapidity with which the whole country was becoming again
subject to the slave-holding interests. The Congress resisted the
importunities of the Indiana leaders, and after giving South Carolina
a reasonable time to re-enact her law abolishing the foreign
slave-trade, without effect, proceeded itself to abolish the trade
from the first moment that the Constitution permitted this to be done,
from January 1st, 1808.
[Sidenote: Cotton culture and the cotton-gin.]
[Sidenote: The effect of the return to the arts of peace upon the
ideas concerning slavery.]
It has been customary to ascribe the great revulsion {52} of view in
regard to slavery, which certainly manifested itself everywhere in the
United States between 1790 and 1807, to cotton culture and the
cotton-gin. The invention of the cotton-gin, in the first part of the
last decade of the eighteenth century, and the increased demand for
cotton fabrics throughout the world, had made the cultivation of
cotton highly profitable. An increase in cotton culture was naturally
encouraged by such enhanced profits, and this tendency produced an
increased demand for negro labor and for new lands, since the cotton
crop requires a warm climate and low lands, and exhausts the soil very
rapidly. Those parts of the country adapted to cotton-raising felt,
therefore, a renewed interest in the increase of negro labor and in
territorial extension. And those parts not so adapted felt an indirect
interest in the same, since the increased and still increasing profits
of the cotton culture made a market for their slaves and a carrying
trade for their shipowners. There is no doubt that such was the main
cause of the great change of view in regard to the question of negro
slavery which the country experienced between 1790 and 1810, but it
was not the sole cause. It was inevitable that, when the men of that
era passed out of the excited state of mind and feeling produced by
the War with the motherland, and came to the task of re-establishing
the relations of peace and every-day life and business, they should
regain a calmness of judgment, a respect for vested rights, and a
regard for customary relations, which placed the political philosophy
of 1776 under many limitations and qualifications, some of which,
certainly, were sound and valuable. It is only when we take all of
these considerations together that we comprehend the reasoning of the
men of the first decade of this {53} century upon the great question.
They saw a great interest developing which was bringing wealth and
comfort into an impoverished country. They knew that it could be then
sustained only by negro labor. They did not believe that the negro
would work unless forced to it by the white man. They thought it was
better for the negro himself to have food, clothing, and shelter, in
slavery, than to starve, or become a robber, in liberty. They felt, on
the other hand, that the slavery of one human being to another was an
exceptional relation in a political system which rested its own right
to independent existence upon the doctrine of human freedom. It was
not, then, unnatural that they arrived at the conclusion that to
prohibit further importations of the barbarians from Africa was the
only remedy for which the time was ripe. They sincerely believed that
they would place themselves and their slaves in a far more
advantageous position for the gradual elevation of the latter by
having to deal only with negroes born and reared amid civilized
surroundings, and that freedom would finally be attained by all, as
the result of a gradual advancement in intelligence, morals, and
industry, and would be thus attained without any shock to the
civilization and welfare of the country.
This appeared to the men of that day, both of the North and of the
South, to be the only safe way to proceed in solving the question of
the relation between the highly civilized Anglo-American race and the
grossly barbaric negro race in the United States. We think now that
they might have done better, and some of the more unsympathetic
critics of our history affirm that they did nothing of any
consequence, and that in what they did do they acted with a
consciously deceptive purpose. There may have been a few to whom this
criticism can be justly applied, but there is no {54} sufficient
evidence that the mass of them were insincere either in act or
thought. The contention that they were is more partisan than truly
historical.
[Sidenote: Slavery during the War of 1812, and the years just before
and just after this war.]
The decade between 1807 and 1817 was filled with the questions of
foreign relations, of foreign war, and of the results of foreign war.
The suspension, and then the almost entire destruction, of foreign
commerce by the British Orders in Council, the Napoleonic decrees, the
Jeffersonian embargo, and the War of 1812, reduced the exportation in
cotton from about fifty millions of pounds in 1807 to less than twenty
millions of pounds in 1814. The pecuniary interest in the maintenance
of slavery declined thus quite materially, and the majority of the
leading men, both North and South, still regarded negro slavery as
only a temporary status, which would be gradually modified in the
direction of freedom.
[Sidenote: Slavery in the Louisiana territory.]
Notwithstanding all this, however, the slavery interest was steadily
waxing in influence and power throughout this period. First of all the
existence and the extension of slavery in the vast territory purchased
from France was secured. The custom of slave-holding had been
introduced into this territory by the French and Spanish immigrants,
while it was in the possession of France and Spain, before the year
1800. In that year Spain, as we have seen, receded it to France. Nine
years before this date, slavery had been abolished in France by the
National Assembly. It is certainly a question, then, whether the
re-establishment of French supremacy over Louisiana in 1800 did not
produce the abolition of slavery there. It will be remembered that
France was at that moment subject to the consular government of
Bonaparte, and that the Consul was not an enthusiast for the
revolutionary ideals. He did not disturb the custom of slave-holding
{55} in Louisiana, and when he ceded this vast territory to the United
States, in 1803, the custom existed in all its inhabited parts. The
Treaty of cession contained a provision which pledged the Government
of the United States to uphold the rights of property of the
inhabitants of the province. It can be fairly said, therefore, that
the United States Government obligated itself to France to maintain
slavery within the territory ceded until it should be erected into a
Commonwealth, or into Commonwealths, of the Union.
The United States Government might have violated the Treaty, if it had
chosen to do so, and the question then raised would have been one of a
purely diplomatic or international character. There would have been no
question of constitutional power involved. The act of the United
States Government breaking the Treaty would have been the law of the
land for the inhabitants of this territory.
The United States Government, however, not only permitted the
continuance of the custom of slave-holding in Louisiana, but when, in
1804, Congress divided this vast region into two parts by the
thirty-third parallel of latitude, and organized the southern portion
as the Territory of Orleans, and placed the northern portion under the
jurisdiction of the Governor and judges of the Territory of Indiana,
it, at the same time, authorized citizens of the United States
immigrating into the Territory of Orleans, for the purpose of actual
settlement, to take their slaves with them, and provided that the
French laws in force at the date of the division should continue in
the northern part until repealed or modified by the Governor and
judges of Indiana Territory. Any danger to slavery in this district of
Louisiana, which might be contained in the power vested by Congress in
the Governor and judges of the Territory of Indiana to {56} repeal or
modify the French laws which Congress had allowed to continue in the
district, was overcome, the following year, by the independent
organization of this district as the Territory of Louisiana, and by a
provision in the Act of Congress effecting this organization, which
provided for the continuance in force of the laws of the district,
until repealed or modified by the legislature of the Territory.
When, therefore, in 1812, the Territory of Orleans was erected into
the Commonwealth of Louisiana, and the name of the Territory of
Louisiana was changed to Missouri, there was no question about the
status of the new Commonwealth. It was, both in fact and in law, a
slave-holding Commonwealth; and the custom of slave-holding was
perpetuated in the newly named Territory by the provision in the Act
of Congress that the laws and regulations of the Territory of
Louisiana should remain in force in the Territory of Missouri until
repealed or modified by the legislature of the Territory of Missouri.
[Sidenote: Slavery in the territory west of North Carolina and
Georgia.]
The Government of the United States had entered into obligations with
North Carolina and Georgia, as we have seen, not to prohibit slavery
in the territory ceded by them to the United States. Whatever we may
think of the binding force of any such agreement from a legal point of
view, certainly from an ethical point of view it could have been urged
that the Government would have broken faith with some of the citizens
of the United States had the Congress disregarded this understanding.
[Sidenote: Slavery in Louisiana a different question from slavery in
the North Carolina and Georgia cessions.]
It cannot, however, be contended that there was any obligation, legal
or moral, resting upon the Government of the United States toward any
of the citizens of the United States, or any of the Commonwealths, to
maintain slavery in the province of Louisiana and in the {57}
Territories carved out of it. There was, as we have seen, a provision
in the Treaty of cession of 1803, by which the United States
Government obligated itself to France to protect the property of the
inhabitants of the province. But the Government of the United States
was under no obligation to any citizen of the United States, or to any
Commonwealth of the Union, to keep this Treaty inviolate. It may be
affirmed, then, that the United States Government had, in the case of
Louisiana, for the first time, permitted and maintained slavery in
territory where it was perfectly free to act in regard to this subject
as it would, in so far as its own citizens were concerned. This
certainly manifested a great increase in the power of the
slave-holders over the general Government.
[Sidenote: Interest in slavery in Maryland and Virginia increased by
the acquisition of Louisiana.]
In consequence of this vast territorial extension of slavery the
interest of the more Northern of the old slave-holding Commonwealths
in slavery was, during this period, greatly re-enlivened. Maryland and
Virginia were already, in 1807, overstocked with slaves. The opening
up of the virgin lands of the Southwest to the immigration of masters
and slaves from the older Commonwealths, and the abolition of the
foreign slave-trade, now made the Southwest an excellent market for
the surplus slave population of these older Commonwealths.
[Sidenote: The domestic slave-trade.]
The domestic slave-trade began now to be one of the chief sources of
the wealth of Maryland and Virginia especially. Those who participated
in this traffic justified it by the claim that it was better for the
slaves themselves to be removed to new homes, where they could be
better supported, than to be kept in their old homes and suffer for
the want of the necessaries of life, and that the distribution of the
slave {58} population over a larger area would make future
emancipation easier, and less dangerous to the supremacy of the white
race. There was a certain force in this reasoning. The mass of the
slave-holders seem to have been fully convinced of its soundness,
although it did not entirely quiet the consciences of the best men
among them to the many painful incidents connected with the separation
of the slaves, made subject to this traffic, from their old homes and
associations.
It is easy to see, however, that the raising of negro slaves, having
become a most profitable industry in the older Commonwealths, acted as
a vast bribe upon the ideas of men in regard to the questions of the
perpetuation and extension of slavery, and beclouded their consciences
in respect thereto.
[Sidenote: The relation of slavery to the diplomacy of the United
States.]
Finally, the capture and abduction of negro slaves by the British
forces during the War of 1812, and the demand of the slave-holders
that the United States Government should secure the restitution of
their slaves, or compensation for the loss of them, from the British
Government, moved the United States Government to assume its attitude
toward slavery in the administration of the international affairs of
the country. The cardinal political principle of the slave-holding
statesmen, at that period, was that slavery was a "State" matter with
which the United States Government had no concern, and in regard to
which it had no powers. This appeal to the Government to voice and
enforce their demands against Great Britain in respect to their slave
property has seemed, therefore, to some of the later and more radical
critics of American history to have been a gross inconsistency, and
they have represented it as a proof of the insincerity of the
slave-holders wherever their pecuniary interests were involved.
{59} This criticism is rather taking, but a sound view of the
Constitution will hardly support it. In making the United States
Government the _exclusive_ organ for dealing with foreign countries,
the Constitution impliedly confers upon that Government a protectorate
against foreign states over interests which are regulated, internally,
only by the powers of the respective Commonwealths of the Union. It is
true that this doctrine rests upon a national view of the federal
system of government in the United States, a view which the
slave-holding statesmen did not later share. From their later
particularistic principle of the fundamental character of the Union,
such a general protectorate over "State" interests by the United
States Government against foreign countries could hardly be inferred
from the Constitution. If this principle could be assumed by these
critics as having been held at that time by the slave-holding
statesmen, their charge of inconsistency, if not of insincerity, would
be fairly made out. But such, as we have seen, was not the case. Many
of the slave-holding statesmen of 1816 were stronger in the national
view of the character of the Union than were the statesmen of New
England itself.
The United States Government recognized its duty to extend the
protection demanded in the case, and it secured from the British
Government compensation to the masters for the loss of slave property
occasioned by the acts of the British officers during the War.
Such was the status of the slavery question at the close of the War of
1812-15, at the commencement, therefore, of the period when,
withdrawing themselves from foreign complications, the people of the
United States began to adjust the different parts of their political
system, chiefly if not solely, to the demands of their internal
interests, and to solve the problems of their {60} polity from the
point of view of their domestic institutions. It is not strange, then,
that from this point of time onward the powerful institution of negro
slavery recognized more and more clearly its natural relations to all
of these questions of internal policy and law, and sought more and
more determinedly to bring the political system and the policies of
the United States into accord with its own exclusive interests. For
the first three or four years after the close of the War this tendency
did not, as has been pointed out, appear upon the surface, but it was
working in the depths. From 1820 to 1861, certainly, it furnishes the
point of view for the correct elucidation of the majority of the great
problems of the history of the United States.
{61}
CHAPTER IV.
THE CREATION OF THE COMMONWEALTH OF MISSOURI
The Growth of Slavery not Seriously Checked by the Prohibition of the
Foreign Slave-trade--The General Government Powerless Against Slavery
in the Existing Commonwealths--The Powers of the General Government in
Respect to Slavery in the Territories--The Powers of Congress in the
Admission of new "States" into the Union--Slavery in the Missouri
Territory--The First Petition from Missouri Territory for the
Permission to form a Commonwealth--The Second Petition, and the First
Bill in Congress, for the Admission of Missouri--The Tallmadge
Amendment to the Bill--Passage of the Amendment by the House of
Representatives--Passage of the Original Bill by the Senate--The
Missouri Bill during the Session of 1819-20--Mr. Taylor's
Proposition--The Bill for the Admission of Maine Reported and Passed
by the House of Representatives--The Failure of Mr. Taylor's Plan--The
Missouri Bill again before the House of Representatives--Mr. Taylor's
Amendment to the Bill--The Independent Missouri Bill of the
Senate--The Refusal of the Senate to Disconnect the two Measures--The
Conference on the Subject, and the First Missouri
Compromise--President Monroe's Approval of the Compromise--Review of
the Points Involved in the Contest--The Revival of the Missouri
Struggle--The Missouri Constitution in Congress--Mr. Lowndes' Bill for
the Admission of Missouri with the Instrument Unchanged--Defeat of the
Lowndes Bill in the House--Passage of the Senate Bill with a Proviso
by the Senate--The Senate Bill Tabled by the House--Mr. Clay and the
Second Missouri Compromise--Passage of the Second Missouri Compromise
Act--The General Effects of the Decisions Reached in the Missouri
Question.
[Sidenote: The growth of slavery not seriously checked by the
prohibition of the foreign slave-trade.]
Already before the year 1819, as we have seen in the preceding
chapter, had it become manifest that the {62} influences and measures
relied upon by the forefathers for the ultimate extirpation of negro
slavery were not effecting the desired result in the Commonwealths
south of the line of Pennsylvania and of the Ohio. It was evident that
the revolutionary enthusiasm for universal liberty and the rights of
man was not so strongly felt by the generation which grew up after
"'76" as by the generation of "'76," that the laws against the
importation of slaves were being evaded, and that the slaves were
increasing by birth many times more rapidly than they were decreasing
by emancipation and removal to the colonies of the American Society
for Emancipation. Moreover, four new Commonwealths had been
established--Kentucky, Tennessee, Louisiana, and Mississippi--in which
slavery was legalized, and a fifth--Alabama--was even then in process
of creation. It was manifest from all sides to the friends of
universal freedom that other means than those hitherto relied upon
must be found, if any progress was to be made in the advancement of
liberty, yea if the evident retrogression in respect to this prime
element of political civilization was to be checked.
[Sidenote: The general Government powerless against slavery in the
existing Commonwealths.]
All had been done by the United States Government, however, against
slavery within the existing Commonwealths that the Constitution
allowed. Before anything more could be undertaken, the Constitution
itself would have to be so amended as to authorize it. The
extraordinary majorities required for the initiation and adoption of
amendments made it practically impossible to effect anything by such
means. Of the thirteen original Commonwealths, seven had abolished
slavery and six had retained it. To these had now been added
four--Vermont, Ohio, Indiana, and Illinois--in {63} which slavery was
forbidden, and five in which it was permitted--Kentucky, Tennessee,
Louisiana, Mississippi, and Alabama--making thus the number upon each
side the same. And although the population in the Commonwealths north
of the line of Pennsylvania and the Ohio had outstripped, in increase,
that in those south of this line by near half a million of souls in
thirty years, and the representation in the national House of
Representatives stood consequently in favor of the former section in
the ratio of 104 to 79, still the method of representation in the
Senate, and the equality in the number of the Commonwealths
permitting, with those prohibiting, slavery, stood firmly in the way
of any amendment of the Constitution, either favorable or unfavorable
to the slavery interest.
[Sidenote: The powers of the general Government in respect to slavery
in the Territories.]
The Constitution furnished, however, an indirect way of reaching the
desired result. It gave the Congress general powers within the
Territories and did not restrict these powers in behalf of slavery.
Congress might thus prohibit slavery in the Territories, and the
Territories would thus become settled by a free population, an
anti-slavery population, which would form Commonwealths at the proper
time, in which the free status would be perpetuated by Commonwealth
law. And when a sufficient number of free Commonwealths had been thus
created to give the necessary majorities to amend the Constitution in
the direction of abolition, slavery might be extinguished in the
Commonwealths which had already legalized it. But the first difficulty
in the way of the effectiveness of this line of action was the fact
that Congress had already forfeited, in part, the opportunity, by
failing to keep the southern portion of Louisiana Territory under a
Territorial organization until slavery could have been eradicated in
it. And it was probably, in {64} 1819, already too late to attempt to
keep the remaining parts of this vast region, so far as it had been
settled at all, under Territorial organization until this result could
have been effected. At least, the advocates of freedom in 1819
evidently thought so, for they searched the Constitution to find some
other power in the general Government by which to deal with the
question.
[Sidenote: The powers of Congress in the admission of new "States"
into the Union.]
There was another provision which had been already several times
applied to this very subject and to other subjects. It was the
provision which conferred upon Congress the power to create, or
co-operate in creating, new Commonwealths out of the Territories of
the United States. This power is expressed in general terms, and in
its employment Congress had imposed a number of limitations upon the
powers of the new Commonwealths which the Constitution did not impose
upon those of the original Commonwealths. Here, then, was a possible
way for those seeking the advancement of liberty to effect their
purpose. If their interpretation of the Constitution, in regard to the
extent of this power, was correct, and they could only command the
President and a simple majority in both branches of Congress, they
could abolish slavery in every new Commonwealth at the time of its
creation, and make the continuance of the free status the perpetual
condition of its continued existence as a Commonwealth. It would then
be only a question of time when sufficient majorities would be secured
for so amending the Constitution of the United States as to expel
slavery from the old Commonwealths through the regular forms for
constitutional development. It was an attractive scheme, and appeared
to provide the means for ridding the country peaceably of its great
evil at no very far distant day. It was the last possible means which
the Constitution afforded. It was {65} tried in the creation of the
Commonwealth of Missouri and it failed. It is this which constitutes
the significance of the great movement. The result attained made the
abolition of slavery by the United States Government, through legal
and peaceable means, an utter impossibility. It contributed, at least,
toward making the War of 1861 an historical necessity.
As we have seen in the preceding chapter, slaveholding had become
established by custom in the vast region known as the Louisiana
province, wherever it was inhabited, during the periods when it
belonged to Spain and France, and had been permitted to continue after
its acquisition by the United States; and that in 1812 this province
was divided into one slave-holding Commonwealth, Louisiana, and one
slave-holding Territory, Missouri.
[Sidenote: Slavery in the Missouri Territory.]
From 1812 to 1818 Congress did nothing toward the extinction of
slavery in the Missouri Territory, or preventing the free immigration
of masters with their slaves into the Territory. Neither had the
legislature of the Territory done anything touching these subjects. It
may, therefore, be assumed that in the year 1818, the holding of
negroes as slaves was legal by custom, if not by positive law, in the
whole of the Missouri Territory, so far as it had been settled, and
that unless something should thereafter be done, either by the United
States Government or by the Territorial government, forbidding it,
slavery would be likewise legal wherever the Territory might become
settled.
[Sidenote: The first petition from Missouri Territory for the
permission to form a Commonwealth.]
Before the beginning of the year 1818, the population in the Territory
which looked to the town of St. Louis as its centre had begun to
agitate the question of the establishment of Commonwealth government.
During the Congressional session of 1817-18, petitions {66} appeared
in the House of Representatives from this population, praying for the
erection of that part of Missouri Territory, bounded roughly by the
thirty-sixth parallel of latitude on the south, the line of longitude
passing through the point of confluence of the Kansas River and the
Missouri River on the west, the Falls of the Des Moines River and the
course of that river on the north, and the Mississippi on the east,
into a Commonwealth of the Union. The petitions were referred and
reported on, and the bill presented reached the stage for debate in
the committee of the Whole House, but was not taken up during the
session.
[Sidenote: The second petition, and the first bill in Congress, for
the admission of Missouri.]
Early in the following session, that of 1818-19, the Speaker of the
House of Representatives presented a memorial from the Territorial
legislature of Missouri which contained substantially the same prayer
as the petitions presented at the preceding session. This memorial was
immediately referred to a committee for report, but the bill which
grew out of the petitions and the memorial was not brought forward for
debate in the committee of the Whole House until February 13th, 1819.
[Sidenote: The Tallmadge amendment to the bill.]
It was upon this day, and during this first debate, that Mr. James
Tallmadge, of New York, offered the famous amendment to the bill,
which precipitated a discussion, that lasted for more than a year,
upon the great subject of the distribution of powers between the
United States Government and the Commonwealths, a discussion in which
all the great legal lights of both Houses of Congress participated,
and during the course of which the whole country hung with painful
anxiety upon the outcome. It was the first great trial of the
Constitution under the issue of a domestic question, a question which
threatened to {67} divide the country upon geographic lines, a
question which, therefore, threatened the dissolution of the Union.
The exact words of this amendment are essential to a correct
comprehension of the question involved. It reads: "And provided that
the further introduction of slavery or involuntary servitude be
prohibited, except for the punishment of crimes, whereof the party
shall have been duly convicted; and that all children born within the
said State, after the admission thereof into the Union, shall be free
at the age of twenty-five years."
[Sidenote: The debate upon the Tallmadge amendment.]
The debate upon this motion is not fully reported in the annals of
Congress, but it is sufficiently reported to give a correct idea of
the constitutional questions involved. The discussion proceeded from
the two points of view of constitutional powers and public policy. Of
course the first point for the restrictionists, as those who favored
the amendment were termed, to establish was the constitutionality of
the power of Congress to impose this restriction in erecting a
Territory into a Commonwealth. If Congress has, or had, no such power,
the question of policy need not have been considered. They claimed the
power, and based it upon that paragraph of Article IV. section three,
which reads: "New States may be admitted by the Congress into this
Union." It will be readily seen that this is a very loose statement
concerning the powers of Congress in establishing this most
fundamental relation. Taken apart from all connections, its most
natural meaning is that foreign states may become politically joined
with the United States by an Act of Congress, in so far as this
country is concerned. On the other hand, taken with the context, it
appears to mean that Congress may establish Commonwealth governments,
or, in the language {68} of the Constitution, "States," upon the
territory belonging to the United States, or to some "State" or
"States" already within the Union. This is, without any reasonable
doubt, its only meaning. For if it had any reference to the connection
of foreign states with the United States, it would confer the most
important diplomatic power of the United States Government upon the
Congress, while the Constitution certainly confers the whole of this
class of powers upon the President and the Senate.
[Sidenote: The exact question at issue in the first debate on the
Missouri question.]
This was not, however, the point at issue in the Missouri question.
That point was, whether, in the creation of new Commonwealths by
Congress upon territory already within the Union, and subject to the
exclusive jurisdiction of the general Government, Congress had the
constitutional power to impose restrictions upon the new Commonwealths
thus created, which the Constitution did not impose upon the original
Commonwealths. The restrictionists, led by Mr. Tallmadge and Mr.
Taylor, of New York, and Mr. Fuller, of Massachusetts, contended that
Congress possessed this power. Their argument, reduced to a pair of
propositions, was, that the Constitution did not _require_ Congress to
"admit new States into this Union," but only _empowered_ Congress to
do so at its discretion; that therefore Congress could _refuse_ to
admit at its discretion, and that if Congress could admit or refuse to
admit at its own discretion, it could admit upon conditions, upon such
conditions as it might deem wise to impose, and could make the
continued existence of the new Commonwealth, as a Commonwealth, depend
upon the continued observance by it of these conditions.
[Sidenote: The precedents cited in support of the Tallmadge
amendment.]
They pointed to the precedents of Ohio, Indiana, and Illinois, upon
all of which Congress had imposed, as a {69} condition of their
assumption of Commonwealth powers and government as "States of the
Union," the requirement that their constitutions should not be
repugnant to the "Ordinance of the Northwest Territory of 1787," the
sixth article of which provided that there should be neither slavery
nor involuntary servitude, except as a criminal penalty, in the
Territory, from which these Commonwealths were carved out. They
contended that Congress thus prohibited slavery in these new
Commonwealths as the condition of its assent to their assumption of
the status of Commonwealths of the Union and of their continued
existence with that status.
They further pointed to the precedent of Louisiana, upon whose
"admission into the Union as a State," Congress imposed the conditions
that the new Commonwealth should use the English language as its
official language, should guarantee the writ of _habeas corpus_ and
trial by jury in all criminal cases, and should incorporate in its
organic law the fundamental principles of civil and religious liberty.
[Sidenote: Argument for the amendment from the duty of the United
States to guarantee a republican form of government to every
Commonwealth.]
They went so far as to assert that the Constitution not only permitted
Congress to lay the prohibition of slavery upon every new Commonwealth
which it might "admit into the Union," but obligated Congress to do so
by the constitutional provision which makes it the duty of the United
States Government to guarantee a republican form of government to
every Commonwealth of the Union. That is, they claimed that slavery
was incompatible with the republican form of government, and that
Congress was therefore bound by the Constitution to prohibit slavery
whenever called upon to act in regard to it.
[Sidenote: Argument from morals and policy.]
Having thus, from their point of view, vindicated the {70}
constitutional power and duty of Congress to enact the restriction,
they claimed the personal liberty of every human being to be a
self-evident principle of ethics, specifically recognized in the
Declaration of Independence, and therefore a principle of the
political system of the United States. And, finally, they demonstrated
the ruinous policy of the system of slave labor in the economy of the
country.
There is no question that Mr. Tallmadge and his friends had taken
strong ground, and that it would require extraordinary efforts to
dislodge them.
[Sidenote: Replies to the arguments of the restrictionists.]
During the first debate upon the subject, the opponents of the
restriction do not seem to have been so clear in their own minds in
reference to the principles involved as they became later, and their
arguments do not appear so convincing. Nevertheless, they touched the
point which was the real gist of the contention, and dealt with it
ably from the first. Mr. Scott, the delegate from Missouri Territory,
and Mr. P. P. Barbour, of Virginia, made a vigorous attack upon the
claim of a power in Congress to enact the restriction, as a condition
of admitting Missouri, "as a State," into the Union. They demonstrated
quite clearly that the interpretation which the restrictionists placed
upon the constitutional provision empowering Congress "to admit new
States into the Union" would enable Congress to establish inequalities
_ad libitum_ between the original Commonwealths and the new ones;
would, in principle, enable Congress to make mere provinces of the new
Commonwealths. They showed conclusively that the real question of the
controversy was not whether slavery should exist in Missouri or not,
but was whether the Commonwealth of Missouri should be allowed to
determine that matter for herself or should have it determined for her
by the {71} Congress of the United States. They pointed to the facts
that the original Commonwealths exercised, before the formation of the
existing Constitution of the United States, exclusive power over this
matter, each for itself; that the Constitution had not withdrawn this
power from them, nor prohibited it to them; and that the Constitution
declared all powers not delegated to the United States Government, nor
prohibited to the "States," to be reserved to the "States"
respectively or to the people. They, therefore, claimed that the
determination of the question whether slavery should exist in any
Commonwealth or not was a power reserved by the Constitution to each
Commonwealth for itself, and that the attempt to introduce a
distinction between the old Commonwealths and the new, in regard to
the possession of this power, was an attack upon the first principle
of federal liberty, the principle of equality in powers and duties
between the members of the Union, an attack which could be justified
legally only by an express warrant from the Constitution itself.
They disputed outright the constitutionality of the restrictions in
regard to slavery which Congress had imposed upon the Commonwealths of
Ohio, Indiana, and Illinois, and held that these Commonwealths might,
at any time, so amend their organic law as to introduce slavery; and
they justified the restrictions imposed upon Louisiana as having
express warrant from the Constitution.
They did not deny the claims of the restrictionists that slavery was
ethically wrong and economically destructive, but they contended that
the evil and the impolicy of it would be mitigated by allowing the
slaves to be spread over a larger extent of territory, reducing thus
their numerical ratio to the white population in the older
Commonwealths, and enabling their masters {72} to emigrate with them
from poor and exhausted lands to rich virgin soil, instead of being
obliged to keep them in want, or sell them to new and, therefore, less
considerate masters. They argued, upon this point, that all
importation of slaves from foreign countries having been strictly
prohibited, not one slave could be added to the number already
existing by allowing their movement into new territory, but that their
condition would be vastly improved by the increased products of their
labor.
[Sidenote: The pledge to maintain slave property in Louisiana in the
Treaty of cession.]
They contended, finally, that the treaty with France by which
Louisiana was ceded to the United States contained an express
provision pledging the United States Government to protect all the
existing property rights of the inhabitants of the province, and to
admit these inhabitants, so soon as consistent with the principles of
the Constitution of the United States, to the enjoyment of
Commonwealth powers on an equality with those of the other
Commonwealths of the Union.
There is no question that hostility to slavery colored the views of
the restrictionists in regard to the constitutional powers of
Congress, and there is also no question that the anxiety of the
slaveholders to maintain the security of their property led them to
exaggerate all of the defences of the Constitution in its behalf. It
must, however, be conceded that the opponents of the restriction had,
from the outset, the better of the argument in the question of
constitutional law, and maintained it throughout the debate. They did
not express themselves as clearly and as exactly as the political
scientist of this age would do, but they demonstrated quite
convincingly that the questions of political ethics and public policy
were, at the moment, entirely impertinent, unless it could be
satisfactorily established that Congress possessed the constitutional
power to act in the {73} premises. And they showed that no federal
system of government could exist, as to the new Commonwealths, if
Congress had the unlimited authority to distribute powers between the
general Government and these Commonwealths, which the interpretation
that the restrictionists placed upon the clause of the Constitution
vesting Congress with the authority to "admit new States into this
Union" involved.
The ethical and economical influences and considerations weighed more
heavily in the minds of the Northern members than the arguments from
constitutional law, although they asserted that the Constitution also
was upon their side.
[Sidenote: Passage of the Tallmadge amendment by the House of
Representatives.]
They carried the first part of Mr. Tallmadge's amendment, the
prohibition upon the further introduction of slavery into Missouri, by
a majority of eleven votes, and the second part, the provision for the
emancipation of all slaves born in Missouri, after its admission as a
Commonwealth, when they should have reached the age of twenty-five
years, by a majority of four votes.
The leading men from the North who voted against the amendment were
Parrot, of New Hampshire, Holmes, Mason, and Shaw, of Massachusetts,
Storrs, of New York, Bloomfield, of New Jersey, Harrison, of Ohio, and
McLean, of Illinois. They were strong and fearless men and no friends
to slavery, but they were good constitutional lawyers, and they felt
that it was better to stand by the Constitution with slavery than to
expose it to the strain of exaggerated interpretations.
[Sidenote: The Missouri bill in the Senate.]
It was upon February 17th, 1819, that the Missouri bill was finally
passed by the House and sent to the Senate. It was immediately read
twice in the Senate and referred to the committee in charge of the
bill for admitting Alabama.
{74} On the 22nd, Mr. Tait, of Georgia, in behalf of the committee,
reported the bill to the Senate, with the recommendation that the
Tallmadge amendment be stricken out.
The annals of Congress state that "a long and animated debate" took
place upon this recommendation, but the speeches are not reported. It
may be safely concluded, however, that the argument against the power
of Congress to pass the amendment prevailed very decidedly in the
minds of the members of this more calm and judicial body. They voted,
twenty-two to sixteen, against the first part of the amendment, and
thirty-one to seven against the second part. Such men as Otis, of
Massachusetts, and Lacock, of Pennsylvania, voted against the entire
amendment, and Daggett, of Connecticut, and even Rufus King, of New
York, recorded their voices against the second part of it.
[Sidenote: Passage of the original bill by the Senate.]
The bill admitting Missouri, without the Tallmadge amendment, passed
the Senate on March 2nd, and was returned to the House substantially
in this form. The House immediately refused to agree to the striking
out of the amendment, and the Senate resolved thereupon to adhere to
its own act. The bill was thus lost for the session, and the Missouri
question became the firebrand with which to light up fanatical and
incendiary passions, both at the North and at the South, during the
following recess of the Congress.
[Sidenote: The Missouri bill during the session of 1819-20.]
At the beginning of the session of 1819-20, Mr. Scott secured the
reference of the memorials concerning the admission of Missouri,
presented at the preceding session, to a select committee. On the
following day, December 9th, Mr. Scott reported a bill from this
committee, which authorized the inhabitants of that part of Missouri
Territory already described to form a constitution and Commonwealth
{75} government. This new bill was read twice and referred to the
committee of the Whole House for discussion.
[Sidenote: The policy of the restrictionists to delay the admission of
any new Commonwealths.]
Warned by the experiences of the preceding session, the
restrictionists now took another tack. They developed the plan of
delaying the formation of any more Commonwealths in the Missouri
Territory until Congress could abolish slavery in the whole of it.
During the debate of the preceding session upon the power of Congress
to impose upon new Commonwealths, at the time of their creation,
limitations not prescribed by the Constitution, it had been asserted
by the restrictionists, and not denied by their opponents, that
Congress could control the status of the Territories, and keep slavery
out of them or abolish it in them, at its own discretion, during the
period before the Territories should be permitted to assume
Commonwealth government. This seems to have been considered by nearly
all, if not quite all, as a fair interpretation of that provision of
the Constitution which vests in Congress the power to make all needful
rules and regulations respecting the Territories of the United States.
The friends of slavery restriction now determined to take advantage of
this possibility, even at this late day, and go back to the work of
clearing all the Territories west of the Mississippi of slavery by a
Congressional Act; after which the formation of new Commonwealths in
these Territories might be delayed until they could be settled by a
population, which would, by local law, maintain the free status. Mr.
John W. Taylor, of New York, seems to have formulated the plan. On the
14th of December he moved the appointment of a committee to consider
the question of prohibiting the further introduction of slavery into
the Territories of the United States west of the Mississippi. The
proposition was voted, and Mr. Taylor himself was {76} appointed the
chairman of the committee. Mr. Taylor then moved that the
consideration of the Missouri bill be postponed to the first Monday of
the following February. The friends of this bill objected most
strenuously to this proposition, and Mr. Taylor's party compromised
with them by agreeing to shorten the period of the proposed
postponement to the second Monday of January.
[Sidenote: Mr. Taylor's proposition.]
Mr. Taylor's plan was moderate in its character. He did not propose to
emancipate slaves already held within these Territories or their issue
born therein, but simply to prevent any further increase by
immigration or importation. It is difficult to see how the
slaveholders themselves could have opposed this proposition with much
vigor. They had, nearly all of them, professed to regard slavery as an
evil, though they had suggested that the evil would be mitigated by
the spreading of the slaves over more territory. It was at any rate to
be expected that those Representatives and Senators from the North,
who had voted against the Tallmadge amendment from legal scruples
only, would join with the restrictionists in the support of Mr.
Taylor's measure, since they all regarded slavery restriction as sound
policy wherever the Constitution would permit it. There certainly
seemed to be a fair chance for the passage of a law which would
protect the Territories from, at least, any considerable increase of
the slave population which might already be within them, and give
white immigration a chance to occupy and fill them, and form free
Commonwealths in them. But this passing hope was dashed by a
conjunction of events, the elements of which had already presented
themselves.
[Sidenote: The petition from the convention in Maine for the admission
of Maine.]
[Sidenote: The bill for the admission of Maine reported and passed by
the House of Representatives.]
The people resident in that part of Massachusetts known as the
district of Maine had, through delegates in convention assembled,
framed a Commonwealth constitution and government. The assent of
Massachusetts {77} had been regularly given to the division of the old
Commonwealth. And on December 8th, 1819, Mr. Holmes, of Massachusetts,
presented to the House of Representatives a petition from the
constitutional convention in the district of Maine, praying for the
admission of Maine, as a Commonwealth, into the Union, on an equality
with the Commonwealths already existing. The people of this district
had not asked the permission of Congress to form a constitution and
government, for the reason afterwards alleged that they were already
in the enjoyment of this status as a part of Massachusetts. The reason
offered was not, however, entirely satisfactory, and the people of the
district were hardly able to clear themselves from the charge of an
undue assumption of powers. The petition was, however, immediately
referred to a committee, with Mr. Holmes as chairman. On the 21st, Mr.
Holmes reported a bill to the House providing for the admission of the
district as a Commonwealth. On the 30th, the House, in committee of
the Whole, took up the bill for consideration, and in the course of
the debate upon it Mr. Clay suggested the connection of the Missouri
bill with the Maine bill. Mr. Clay did not, however, put his
suggestion into the form of a motion, and therefore the House came to
no vote upon the point at this juncture. The bill for the admission of
Maine was passed on January 3rd, 1820, without any connection with the
Missouri bill, and without any restrictions or limitations upon the
powers of the new Commonwealth beyond what the Constitution of the
United States placed upon those of the original Commonwealths. Mr.
Clay's suggestion was not, however, lost upon the Senate, as will be
seen later.
{78} [Sidenote: The failure of Mr. Taylor's plan for preventing
slavery extension.]
Meanwhile Mr. Taylor's committee had not been able to come to any
agreement. On December 28th, 1819, before the final passage of the
Maine bill, Mr. Taylor stated to the House that the committee had
instructed him to ask for its discharge. The House agreed to his
request, and he immediately moved that a new committee be appointed,
and "instructed to report a bill" prohibiting the further admission of
slaves into the Territories of the United States west of the
Mississippi River. This motion evidently appeared to the House to be a
prejudgment of the whole question, since it postponed the
consideration of it indefinitely.
[Sidenote: The Missouri bill again before the House of
Representatives.]
The Missouri bill was, however, also allowed to rest until January
24th, 1820, and when, upon that day, the Speaker announced the bill as
the first order, Mr. Taylor moved for another week's delay, and the
motion was lost by only a single vote. On the next day the House, in
committee of the Whole, proceeded to consider the bill. On the 26th,
Mr. Storrs, of New York, undertook to connect the prohibition of
slavery in the region north of the thirty-eighth parallel of latitude
and west of the Mississippi River and the proposed Missouri boundary
with the grant of the permission to form a Commonwealth in Missouri.
The opponents of slavery extension did not, however, regard this as
sufficient compensation for their support of the bill, and Mr. Storrs'
motion was lost.
[Sidenote: Mr. Taylor's amendment to the bill.]
Whereupon Mr. Taylor moved that the people of Missouri should be
required to ordain and establish in their constitution the prohibition
of slavery and involuntary servitude, except as a punishment for
crime, in the proposed Commonwealth. Conceding, as the result of the
discussions, and {79} the action of the Congress during the preceding
session, that Congress had no constitutional authority to impose
restrictions upon new Commonwealths, as the condition of their
admission into the Union, which the Constitution did not impose upon
the original Commonwealths, the new question involved in Mr. Taylor's
motion, from the point of view of constitutional law, now was, whether
Congress could require of a new Commonwealth, as the condition of its
admission to the Union, that it should impose any limitations upon
itself which the Constitution of the United States did not impose upon
the original Commonwealths. Could Congress effect indirectly what it
could not do directly?
[Sidenote: Mr. Taylor's argument in support of his amendment.]
Mr. Taylor's argument rested substantially upon the proposition,
upheld by the restrictionists during the preceding session, that if
Congress could admit, it could refuse to admit, and if it could admit
or refuse to admit, it could admit upon conditions. He, however,
advanced other propositions and suggestions. He held that the
admission of a new Commonwealth into the Union was a procedure in the
nature of a contract between the United States Government and the
people of the new Commonwealth, and, therefore, admitted of any terms
accepted by both parties. He further held that the provision of the
Constitution, which impliedly vested in Congress the power to
prohibit, after 1808, the importation or migration of slaves, covered
the case, in that the word migration meant passage from one
Commonwealth into another, in distinction from importation, which
meant the bringing of slaves into the United States from foreign
countries. And he suggested that territory acquired by the United
States subsequent to the formation of the Constitution need not be
treated with the same consideration, as to the rights of its
inhabitants, as that which {80} belonged to the United States at the
time of the formation of the Constitution.
[Sidenote: Replies to Mr. Taylor's reasoning.]
Of course the members from the South resisted Mr. Taylor's
conclusions. But they were not alone in their position. Some of the
strongest opponents of slavery from the North stood up with them in
resisting what they considered to be an attack upon the principle of
federal government. Mr. Holmes, of Massachusetts, was again chief
among them, and it is to his argument that one must look for the most
scientific and unprejudiced view of the subject.
[Sidenote: Mr. Holmes' argument against the amendment.]
After demonstrating most convincingly that the clauses of the
Constitution which vested in Congress the power to prohibit the
migration of persons into the United States after 1808 and to regulate
commerce between the Commonwealths could not be interpreted as giving
Congress the power to prevent the transportation of slaves from one
Commonwealth into another, Mr. Holmes attacked the fundamental
proposition upon which Mr. Taylor relied, the proposition that if
Congress could admit, it could refuse to admit, and if it could admit
or refuse to admit at pleasure, it could admit upon conditions. Mr.
Holmes contended that the power to determine whether slavery should
exist or not in any community was possessed by each Colony before the
Revolution, and by each "State" after the Revolution, and that the
Constitution of 1787 had not deprived the "States" of it, but had
recognized it as belonging to each of them exclusively; that new
"States" admitted by Congress into the Union must have all the rights,
and be subject to all the duties, which the original "States"
possessed, on the one side, and were obligated to discharge, on the
other; that Congress could not increase the powers of the general {81}
Government within the new Commonwealths by selling the Territories a
license to the Commonwealth status, and taking the pay for it in
powers to be exercised by the general Government in the new
Commonwealths, which that Government could not, by the Constitution,
exercise within the original Commonwealths; and that if Congress
assumed to exercise such power, and the people of the Territory
seeking the Commonwealth status should even accept the imposed
condition, the new Commonwealth had the right and the power to free
itself from the condition, and the Congress was powerless to prevent
it.
[Sidenote: Mr. McLane's argument against the amendment.]
Mr. McLane, of Delaware, a Commonwealth whose legislature had
instructed the representatives from the Commonwealth in Congress to
support all measures for preventing the spread of slavery in the
Territories of the Union west of the Mississippi, presented the
question with even greater clearness and conciseness. He simply
analyzed the words of the Constitution which make up the clause
conferring power on Congress "to admit new States into this Union." He
said that the power to admit was not the power to create; that the
very use of the word presupposed that the power to create the "State"
resided elsewhere than in Congress; that Congress must admit a
_"State,"_ not a Territory or a province or anything but a _"State;"_
that a "State," in the system of federal government of the United
States, was an organization whose powers and duties had been
determined by the Constitution of the United States itself, and could
not be altered by Congressional definitions and limitations; that
Congress must admit the "State" into _this Union_, not into some other
union; and that _this Union_ was a system of federal government, in
which the relations between the general Government {82} and the
"States" had been fixed by the Constitution of the United States, and
could not be altered by a mere Congressional act. This was strong
reasoning, and it had a powerful effect upon the minds of all who
heard it and of all who read it.
[Sidenote: The independent Missouri bill of the Senate.]
Meanwhile events were occurring in the Senate which were to exercise a
controlling influence over the fate of the bill in the House. On
December 29th, 1819, a memorial from the Territorial legislature of
Missouri, praying for the admission of that part of the Territory
already described in the memorial to the House, had been presented in
the Senate, and referred to the Judiciary committee. On January 3rd,
1820, the House bill admitting Maine was sent into the Senate. Mr.
James Barbour, of Virginia, immediately gave notice of his intention
to move the connection of the two subjects in the same bill, and on
the same terms. As we have seen, Mr. Clay had already made this
suggestion in the House, but had not formally proposed it.
[Sidenote: The connection of the House bill admitting Maine with the
Senate's bill admitting Missouri.]
The House bill admitting Maine was immediately referred to the
Judiciary committee, which committee already had the Missouri bill in
its charge, and on January 6th, Mr. Smith, of South Carolina, the
chairman of this committee, reported from it to the Senate the House
bill admitting Maine, with an amendment authorizing the people of
Missouri, within the general geographical boundaries already
described, to form a constitution and Commonwealth government. The
amendment contained no restrictions or conditions with regard to
slavery.
On January 13th, the day fixed for considering the report of the
committee, Mr. Roberts, of Pennsylvania, moved the recommitment of the
Maine bill to the {83} Judiciary committee, with the instruction that
the bill should be divested of the amendment in regard to Missouri.
The vote upon this motion would, therefore, reveal the attitude of the
Senate upon the question of tacking the two subjects together. Such
men as Mr. Roberts, Mr. Mellen, Mr. Burrill, and Mr. Otis argued that
they should be disconnected, on the ground of the discordance of the
two provisions. The people of Maine, they said, had already formed
their constitution and government, and were simply asking for
admission, while the Missouri bill was a measure for enabling the
people of a part of the Missouri Territory to form a constitution and
government, under which they might be admitted later, provided that
constitution should prove satisfactory to Congress.
On the other hand, such men as Mr. Barbour, Mr. Smith, and Mr. Macon
contended that the two subjects were entirely germane, and that any
contrary appearance was caused by the unwarranted action of the people
of Maine in proceeding so far as they had done without asking the
consent of Congress, for which wrongful procedure presumptuous Maine
should not be rewarded and respectful Missouri punished.
[Sidenote: The refusal of the Senate to disconnect the two measures.]
On the 14th, the vote was taken upon the motion to recommit, and it
was lost by a majority of seven votes in forty-three. A number of the
Senators from the Northern Commonwealths voted with the Southerners in
refusing to separate the two subjects.
The question then came upon the contents of the bill as reported by
the Judiciary committee. Mr. Roberts immediately moved to amend the
bill by a provision prohibiting the further introduction of slavery
into Missouri. The arguments upon this motion were substantially a
repetition of what had already been said {84} upon the subject in the
House of Representatives. The amendment was voted down, on February
1st, by a large majority.
[Sidenote: Mr. Thomas' amendment to the joint measure.]
On the 3rd, Mr. Thomas, of Illinois, offered an amendment, which was
destined to play a very important part in the further development of
the subject. It was the proposition to exclude slavery from the
Louisiana territory above thirty-six degrees and thirty minutes,
except within the limits of the proposed Commonwealth of Missouri. The
Senate was not yet prepared, however, to consider this, the question
before it, at the moment, being the question of procedure, the
question whether the two subjects should be united in one bill. The
Senate had only voted not to recommit the bill to the Judiciary
committee with instructions, and it was thought necessary to take a
formal vote upon the question of the connection of the two subjects as
proposed by the committee before considering any further amendments to
it. Mr. Thomas, therefore, withdrew his motion for the moment.
[Sidenote: Mr. Pinkney's great argument against the power of Congress
to lay restrictions on new Commonwealths not imposed by the
Constitution on the original Commonwealths.]
It was at this stage of the proceedings, when apparently there was
nothing before the Senate but the question of the union of the two
subjects, that Mr. Pinkney of Maryland made his brilliant and
unanswerable argument upon the question of the powers of Congress in
the premises. It differed logically very little from Mr. McLane's
powerful analysis of the subject in the House, but it was elaborated
and embellished as only Mr. Pinkney's beautiful diction could do it.
The gist of the reasoning was, however, contained in a few sentences
which ran as follows: "What, then, is the professed result? To admit a
State into this Union. What is this Union? A confederation of States,
equal {85} in sovereignty, capable of everything which the
Constitution does not forbid, or authorize Congress to forbid. It is
an equal union between parties equally sovereign. They were sovereign,
independent of the Union. The object of the Union was common
protection for the exercise of already existing sovereignty. The
parties gave up a portion of that sovereignty to insure the remainder.
As far as they gave it up by the common compact, they have ceased to
be sovereign. The Union provides the means for securing the residue;
and it is into _that_ Union that a new State is to come. By acceding
to it, the new State is placed on the same footing with the original
States. It accedes for the same purpose, that is, protection for its
unsurrendered sovereignty. If it comes in shorn of its beams, crippled
and disparaged beyond the original States, it is not into the original
Union that it comes. For it is a different sort of Union. The first
was a Union _inter pares_. This is a Union _inter disparates_, between
giants and a dwarf, between power and feebleness, between full
proportioned sovereignties and a miserable image of power--a thing
which that very Union has shrunk and shrivelled from its just size
instead of preserving it in its true dimensions. It is into _this_
Union, that is the Union of the Federal Constitution, that you are to
admit or refuse to admit. You can admit into no other. You cannot make
the Union, as to the new States, what it is not as to the old; for
then it is not _this_ Union that you open for the entrance of a new
party. If you make it enter into a new and additional compact is it
any longer the same Union?... But it is a State which you are to
admit. What is a _State_ in the sense of the Constitution? It is not a
State in general, but a State as you find it in the Constitution....
Ask the Constitution. It shows you {86} what it means by a State by
reference to the parties to it. It must be such a State as
Massachusetts, Virginia, and the other members of the American
Confederacy--a State with full sovereignty except as the Constitution
restricts it. The whole amount of the argument on the other side is,
that you may refuse to admit a new State, and that, therefore, if you
admit, you may prescribe the terms. The answer to that argument is,
that even if you can refuse, you can prescribe no terms which are
inconsistent with the act you are to do. You can prescribe no
conditions which, if carried into effect, would make the new State
less a sovereign State than, under the Union as it stands, it would
be. You can prescribe no terms which will make the compact of Union
between it and the original States essentially different from that
compact among the original States. You may admit or refuse to admit,
but if you admit, you must admit a State in the sense of the
Constitution--a State with all such sovereignty as belongs to the
original parties; and it must be into _this_ Union that you are to
admit it, not into a Union of your own dictating, formed out of the
existing Union by qualifications and new compacts, altering its
character and effect, and making it fall short of its protecting
energy in reference to the new State, whilst it requires an energy of
another sort--the energy of restraint and destruction."
This is the old-fashioned political and rhetorical way of saying what
the modern publicist would state in such language as this: In a
federal system of government, all powers are distributed by the state,
the nation, the ultimate sovereignty, through the Constitution,
between the central Government and the Commonwealths. The assumption
by the central Government of the authority to redistribute these
powers in a different manner, in any {87} given case, is an assumption
of sovereignty, the Constitution-making power, and the possession of
any such power by the central Government makes a federal system of
government impossible. It makes the Commonwealths only creatures and
agencies of the central Government. It changes the whole system from
federal government to centralized government. In the federal system of
government as it existed, in 1820, in the United States, the
determination of the question whether slavery should exist or not in
any Commonwealth was reserved through the Constitution to each
Commonwealth for itself, since this power was neither vested in the
central Government nor denied to the Commonwealths. If Congress could
assume this power, it could assume any and every other power and right
which the Commonwealths possessed. Such authority in the central
Government would destroy in principle the federal system, at once, and
make the government a centralized form.
[Sidenote: Pinkney's argument successful.]
There was nobody in the Senate who did, or could, answer this
argument. The amendments proposed after this to the bill as reported
from the Judiciary committee contained no further restrictions upon
the Commonwealth powers of Missouri, but had reference only to what
remained of the Louisiana territory north and west of the boundaries
of the proposed Commonwealth.
[Sidenote: The adoption of Mr. Thomas' amendment by the Senate, and
the passage of the Maine-Missouri bill thus amended.]
The formal vote connecting the two subjects of Maine and Missouri was
taken in the Senate on February 16th, and after this was resolved
upon, Mr. Thomas immediately renewed his motion to amend the bill by
the addition of a clause prohibiting slavery in the Louisiana
territory above thirty-six degrees and thirty minutes, outside of the
boundaries of the proposed Commonwealth of Missouri. After an attempt,
on the {88} one side, to carry this line up to the fortieth parallel,
and a counter attempt on the other to make the prohibition extend to
all the territory west of the Mississippi, except that already under
Commonwealth government, or in process of being put under Commonwealth
government by the existing bill--the result of which would have been
the prohibition of slavery in the just organized Territory of
Arkansas--Mr. Thomas' amendment was adopted as the fair compromise.
The bill, as thus amended, passed the Senate on February 18th, 1820,
and was sent immediately to the House of Representatives.
[Sidenote: The House of Representatives' refusal to agree to the
combination.]
[Sidenote: The conference on the subject, and the first Missouri
compromise.]
The form of the bill was now the House bill in regard to Maine, with
the Missouri bill and the Thomas proposition attached to it as
amendments. The House voted to disagree to these amendments, and sent
the bill, stripped of them, back to the Senate. The Senate voted
immediately to insist upon its amendments, and the House answered with
a vote insisting upon its position. Thereupon, the Senate requested a
conference with the House upon the subject, and appointed Mr. Pinkney,
Mr. Barbour, and Mr. Thomas as its representatives. The House acceded
to the request and appointed Mr. Holmes, Mr. Taylor, Mr. Lowndes, Mr.
Parker, and Mr. Kinsey as its representatives. These gentlemen met and
agreed without much difficulty to the following points: That the
Senate should withdraw its amendments to the House bill for the
admission of Maine; that both the Senate and the House should pass the
Missouri bill, without the condition in reference to the restriction
of slavery in the proposed Commonwealth; and that both the Senate and
the House should add a provision to the Missouri bill prohibiting
slavery in the remainder of the Louisiana territory north of
thirty-six degrees and thirty {89} minutes. That is, the House should
gain its point of order in the separation of the two subjects; the
Senate should gain its point of constitutional law in defending the
new Commonwealth against restrictions not imposed by the Constitution
upon the original Commonwealths; and the two should compromise upon a
fair division of the remaining parts of the Louisiana territory
between the interests of the North and those of the South. The Senate
accepted the recommendations of the committee without much difficulty,
and voted the measures contained in them. The House also accepted the
recommendations and voted the necessary provisions upon its part.
[Sidenote: President Monroe's approval of the Compromise.]
When the measures were placed before President Monroe for his
approval, he called a meeting of the Cabinet to consider the subject.
There was no difficulty except upon a single point, the prohibition of
slavery in the remainder of the Louisiana territory above thirty-six
degrees and thirty minutes north latitude. Was this to be taken as
prohibiting slavery in the Commonwealths which might be formed upon
this territory in the future, or did the Congress only intend to lay
this restriction upon this territory merely for the period during
which it might continue subject to the exclusive jurisdiction of the
general Government, the period of Territorial organization? If the
former, the Missouri question would have to be fought over again
whenever a new Commonwealth should be formed in this territory. The
Cabinet interpreted the prohibition as applying only during the period
before the Commonwealth organization should be established, and upon
the basis of this interpretation advised the President that the
measure was constitutional. The President signed the Maine bill on the
3rd of March and the Missouri bill on the 6th (1820).
{90} [Sidenote: Review of the points involved in the contest.]
So far as the questions of constitutional and parliamentary law were
concerned, the settlement reached was in accordance with right
principles. It was right that the two subjects, which the Senate
united in one bill, should be separated. The only justification for
this act of the Senate was the manifest determination on the part of
the House to impose an unconstitutional restriction as the condition
upon which the people of Missouri should be allowed to assume the
status and the powers of a Commonwealth of the Union. It was the only
weapon left to the more conservative Senate, by which to defend the
Constitution against the rashness of the more radical House. It need
astonish no impartial student of our history that the Senate used it.
No such momentous question was involved in this point of parliamentary
procedure as there was in the exaggerated interpretation of the powers
of Congress by the House. The Senate showed its willingness to yield
its position upon this point so soon as the House would return to
sound constitutional principle in the Missouri question. It was
fortunate for the development of the parliamentary practice of
Congress that the House so changed its position in reference to the
greater question of constitutional law as to enable the Senate to
return to the true parliamentary principle of the separation of
subjects which differ in essence or in circumstances in the slightest
degree. While, therefore, the Senate should not be too strongly
criticised for using its power over its own rules of procedure, as a
means of retaliation, it is a matter of great satisfaction that
expedients were at last found for maintaining right principle and
sound parliamentary custom in the case. And it was surely right that
the attempt to make Congress the distributor of powers between the
general Government and the Commonwealths {91} was abandoned. The power
which _made_ the Constitution can alone set up the metes and bounds
between the realm of authority of the general Government and that of
the Commonwealths. This is the indispensable condition of federal
government. If the general Government possesses such power, the system
is centralized in theory, and may become so in fact at the pleasure of
the general Government. If, on the other hand, the Commonwealths
possess such power, the system is the loosest form of confederation,
an international league.
It is true that the Constitution may authorize the general Government
to limit the powers of the Commonwealths in regard to certain
specified points and the federal system be still preserved, but a
general authority in the general Government to do so, such as was
claimed by the restrictionists from the vague provision vesting in
Congress the power to "admit new States into this Union," amounts to
nothing less than a claim of sovereignty by Congress over the new
Commonwealths. Such was not the system which those who framed and
ratified the Constitution intended to establish. Such is not the
system which comports with the vast territorial extent and the
climatic differences of the United States, and with the ethnical
variety of the population of the country.
It is also true that those who resisted the restriction upon Missouri
used terms and propositions, in reference to the genesis of the Union
and the relation of the general Government to the Commonwealths, which
will hardly bear the test of correct history and exact political
science, but they had the true principle in respect to the point at
issue, when they held that "the State," in the sense of the
Constitution, is defined in the Constitution; that its powers are the
residue after what the Constitution vests exclusively in the general
{92} Government and denies to the "States" shall have been subtracted
from sovereignty; and that Congress cannot vary these relations under
an interpretation of a general provision. They conceded that Congress
might, as the general principle, admit or not admit, as it might judge
proper, with all that this involved in reference to geographical
boundaries and ripeness of the population for self-government, but
they held that the thing admitted was created by the Constitution,
through the people inhabiting the district to be formed into a
Commonwealth, and not by Congress. And they repudiated the idea that
the Declaration of Independence is any part of the constitutional law
of the country, or that Congress can define the republican form of
government which the United States is obligated by the Constitution to
guarantee to every Commonwealth, in any other sense than that
concretely expressed in the original Commonwealths.
They held this ground under enormous strain and pressure brought from
without. Cross-roads assemblies, town and city meetings, and
Commonwealth legislatures poured petitions and memorials in upon them
in behalf of slavery restriction. The excitement, throughout the
Northeast especially, was intense. They had to fight their battle
under an ignoble issue. But it will not be denied by any impartial
constitutional lawyer that they were, for this time, the upholders of
the Constitution against an unwarranted attempt to stretch
Congressional power.
Finally, the compromise provision, drawing the line of thirty-six
degrees and thirty minutes through the Louisiana territory, and
securing all north of it, which was by far the greater part, against
the introduction of slavery during the period that it might remain
under the exclusive jurisdiction of the general Government, was {93}
tantamount to a surrender, forever, of this vast domain to immigration
from the North almost exclusively, and to the creation therein of new
Commonwealths into which slaveholders could not take their slave
property. Many American historians treat the express exclusion of
slavery north of this line as no concession to the North, but as a
mask under which the real concession, the concession to the South, was
hidden. This they claim to have been the implied concession to hold
slaves south of that line. But slavery was legal by custom in the
whole of the province of Louisiana, when the United States received it
from France. That is, a master might have taken slaves into any part
of it, into which he might have gone himself, and would not thereby
have violated any law, and the United States Government had not, down
to 1820, changed this state of things by any act of its own.
The compromise upon the line of thirty-six degrees and thirty minutes
was, therefore, a very decided limitation upon the existing rights of
slave-masters. And even if slavery had not already penetrated into
this region, it can hardly be claimed that the balance of advantage
created by the compromise provision lay with the South, except upon
the principle that the South ought not to have had anything, and the
North ought to have had everything. Ethically, perhaps, this is the
correct principle from which to judge the question, but politically
and legally it was not, at that moment.
The Union consisted of Commonwealths, in all of which slavery existed
at the time of and during the War for Independence, in almost all of
which it existed when the Constitution of 1787 was framed and adopted,
and in about half of which it existed, as the most important
institution, at the period of the Missouri controversy. Further, it
can hardly be denied that the Constitution contained recognition and
guarantees of slave property. {94} The vague phrases of the
Declaration of Independence, even if intended to touch the relation of
master and slave within the country, were not law. It is true that
slavery was regarded both in the North and in the South as an evil,
but men differed in opinion as to whether confining the slaves to a
particular section was a better means for its mitigation than
spreading them over a larger area, and reducing thus their number
relative to the white population in any particular section.
Surrounded in thought with the ideas and conditions of 1820, it is
difficult to see why the balance of advantage contained in the
compromise provision of the Missouri bill did not lie with the North.
Compromise or no compromise about the remainder of the Louisiana
territory, Missouri was bound to be admitted without restriction as to
slavery. The customary law of the region seeking to become a
Commonwealth permitted slaveholding. The population was sufficient to
warrant the assumption of Commonwealth powers. The Constitution did
not authorize Congress to impose the slavery restriction, and the
people of the region had protested against it. The admission of
Missouri was, therefore, no legitimate element in the compromise.
Neither was the agreement on the part of the Senate to separate Maine
from Missouri any proper element in the compromise. The restriction
placed by the House on Missouri rested on a false interpretation of
constitutional law, and the connection of the two subjects in the same
bill rested on a false interpretation of parliamentary law. In
principle both had to be abandoned. The compromise was in reality only
about the remainder of the Louisiana territory after the admission of
Missouri, in no part of which had slavery, to that moment, been
prohibited. How much of it should continue open to the further
introduction of slavery by the immigration of {95} masters with their
slaves, and how much should be given over to practically exclusive
immigration from the North--these were the only proper terms of the
compromise. What the South finally obtained out of it was one
Commonwealth, while the vast region from which slavery was excluded
has produced eight or nine Commonwealths. In the light of these
considerations it certainly appears that the cause of free labor won a
substantial triumph in the Missouri compromise, and that, in place of
that shameful surrender of freedom to slavery, so emphasized by
certain historians, a mighty step forward in the progress of liberty
was taken.
It was confidently hoped and believed that the compromise had solved
the slavery problem, in so far as Congress could solve it. The whole
country breathed more easily and the thoughts of men were turned to
other subjects.
[Sidenote: The revival of the Missouri struggle.]
But the peace proved to be only an armistice. In less than twelve
months the battle was raging again with more than its former fury.
The Missouri convention, which drew up and voted, in the middle of the
year 1820, the organic law for the new Commonwealth, inserted a
paragraph therein which made it the duty of the legislature, proposed
to be established by that law, to enact measures for preventing
mulattoes and free negroes from immigrating into and settling within
the Commonwealth.
[Sidenote: The Missouri constitution in Congress.]
On November 14th, 1820, this instrument was presented to the Senate of
the United States, and on the 16th to the House of Representatives,
for the purpose of moving these bodies to pass an act admitting
Missouri into the Union as a Commonwealth. The instrument was
immediately referred by each House to a committee; and on the 23rd,
Mr. Lowndes, the chairman of the House Committee, {96} reported a bill
for effecting this result, and, on the 29th, Mr. Smith reported a bill
of like tenor to the Senate.
[Sidenote: Mr. Lowndes' bill for the admission of Missouri with the
instrument unchanged.]
Mr. Lowndes' bill was prefaced by a statement of views, which
presented the questions of constitutional interpretation to which the
provision referred to in the Missouri instrument gave rise. He alluded
to the possible repugnance of the provision to that clause in the
Constitution of the United States which guarantees to the citizens of
each Commonwealth all the privileges and immunities of citizens in
every other Commonwealth; but said that the provision in the Missouri
instrument could be interpreted to mean only such mulattoes and free
negroes as were not citizens in any Commonwealth. And he held that,
whether this be the true interpretation or not, the judiciary of the
United States, and not the Congress, should determine the question of
repugnance between the Missouri instrument and the Constitution of the
United States. He finally took the ground that Missouri was now
already a Commonwealth by virtue of the Act of Congress giving her
people permission to form Commonwealth government, and by virtue of
the act of her people in forming a Commonwealth constitution, and he
declared that the refusal or failure of Congress, at this time, to
pass a formal act of admission could not reduce her again to the
Territorial status.
[Sidenote: Serious opposition to the Lowndes bill.]
Mr. Sergeant, the spokesman of the opposition to Mr. Lowndes' report,
met these propositions with the counter-propositions, that a Territory
becomes a Commonwealth of the Union only by a Congressional Act
admitting it to that status; that no other kind of a Commonwealth than
a Commonwealth in the Union is known to the political {97} system of
the United States; that all the acts done by Congress and by the
people resident within a Territory before the Congressional Act of
admission are nothing more than preliminaries, and that a Territory
remains a Territory until the passage of this latter act; that the
provision in the Missouri instrument in regard to the exclusion of
mulattoes and free negroes was repugnant to that clause in the
Constitution of the United States which guarantees to the citizens of
any Commonwealth the privileges and immunities of citizens in every
other Commonwealth of the Union into which they may go; and that
Congress, not the Judiciary, is the body which should determine
whether such repugnance exists, and, if so, correct it.
There is no doubt that, from the point of view of a correct political
logic, the opponents of Mr. Lowndes' propositions in regard to the
making of a Commonwealth of the Union stood upon the firmer ground,
despite the fact that the precedents did not sustain fully their
claims. As a fact, Congress had been guilty of such irregularities in
the admission of some of the Commonwealths as to give much support to
the notion that there could be a Commonwealth in the political system
of the United States before its formal admission into the Union. But
the argument is unanswerable, that a Commonwealth not in the Union is
a foreign state; that in order that a Territory shall attain this
latter position and status its constitutional right to secede from the
United States must be recognized, which is absurd; and that,
therefore, the Congressional Act of admission is what makes a
Territory of the Union into a Commonwealth of the Union, the only kind
of a Commonwealth known to the political system of the United States.
They also stood upon the firmer ground in holding {98} that it is the
duty of Congress to scrutinize closely the measures proposed for
enactment by it from the point of view of their constitutionality, and
to pass no act, of the constitutionality of which it is not reasonably
convinced, under the pretext that the Judiciary is the proper body to
correct the usurpation. The members of Congress take the same oath to
uphold the Constitution as the judges do. The revisory powers of the
Judiciary over the acts of Congress were not given in order to excuse
the Congress from exercising its preliminary judgment upon the
constitutionality of its own acts. They were given simply to correct
errors in judgment.
[Sidenote: The protection of the rights of citizens of one
Commonwealth within the territory of another by the United States.]
On the other hand, when a citizen of one Commonwealth immigrated into
and settled in another, it was a question whether he did not lose the
right to be treated as a citizen in the latter Commonwealth, in so far
as the Constitution of the United States, as it was in 1820, was
concerned, and become subject to the laws of the latter Commonwealth
as to his status. If he were only passing through, or sojourning
temporarily in, the latter Commonwealth, it was clear that the
Constitution of the United States protected him as a citizen of
another Commonwealth, but when he changed his residence and
citizenship to the latter Commonwealth, the question became much more
complicated. It was now whether the laws of one Commonwealth were, by
virtue of the Constitution of the United States, valid in another
Commonwealth for the protection of persons against the laws of the
latter Commonwealth, who had become citizens and residents of the
latter Commonwealth.
It must be remembered, however, that the immediate question involved
in the provision of the Missouri instrument was whether a Commonwealth
could prohibit the citizens of other Commonwealths from immigrating
{99} into, and gaining residence and citizenship within, itself. How
it might treat such persons after these things had been accomplished
was a subsequent matter. But even limiting the question to this point,
it was certainly a startling thing to the Southerners to be told that,
by virtue of the Constitution of the United States, a negro citizen of
Massachusetts had the right to immigrate into, and become a citizen
of, South Carolina, when the laws of South Carolina did not admit
negroes to citizenship.
[Sidenote: Defeat of the Lowndes bill in the House.]
On December 13th (1820), after a long, earnest, and, at times,
acrimonious debate, the Lowndes measure for the admission of Missouri
was defeated by a vote of ninety-three to seventy-nine.
[Sidenote: Passage of the Senate bill with a proviso by the Senate.]
The bill presented by Mr. Smith in the Senate was taken up for
consideration on December 4th. The arguments pro and con were about
the same as those offered in the House, but the bitterness of feeling
which seemed to animate the members of the opposition to the measure
in the House was not manifested by those adverse to it in the Senate.
Nevertheless, there was a majority in the Senate against passing a
simple measure for admission without any limitations. They finally
voted the bill, with the proviso attached: "That nothing herein
contained shall be so construed as to give the assent of Congress to
any provision in the constitution of Missouri, if any such there be,
which contravenes that clause in the Constitution of the United States
which declares that 'the citizens of each State shall be entitled to
all the privileges and immunities of citizens in the several States.'"
[Sidenote: The Senate bill tabled by the House.]
The House tabled this bill on the same day that it rejected the
measure offered by its own committee. But what now was the status of
Missouri? Her people had {100} elected a governor and members of the
legislature under the organic law formed in July, and it was
considered doubtful whether there still existed any Territorial
officials exercising governmental powers. The House, however, would
not even inquire into this fact. They said the question before them
was one of law and not of fact at all.
[Sidenote: Mr. Clay and the second Missouri Compromise.]
After some futile attempts made by Mr. Eustis, of Massachusetts, for
the admission of Missouri upon a future day, provided the obnoxious
clause should be expunged from her organic law before that day, Mr.
Clay came forward and assumed the management of the question.
On January 29th, 1821, he asked the House to go into committee of the
Whole to consider the Senate bill admitting Missouri. This proposition
was naturally agreed to, and, after several unsuccessful attempts made
by others at an immediate amendment of the Senate bill in the
committee of the Whole House, Mr. Clay moved the reference of the bill
to a select committee of thirteen persons. This motion was passed, and
the committee was chosen, with Mr. Clay as its chairman.
On February 10th, 1821, Mr. Clay reported the recommendations of the
committee. They were expressed in the proposition: That Missouri
should be "admitted into this Union on an equal footing with the
original States, in all respects whatever, upon the fundamental
condition that the said State shall never pass any law preventing any
description of persons from coming to and settling in the said State,
who may now be or hereafter become citizens of any of the States of
this Union; _and provided also_, that the legislature of the said
State, by a solemn public act, shall declare the assent of the said
State to the said fundamental condition, and shall transmit to the
President of the United States, on or before the fourth {101} Monday
of November next, an authentic copy of the said act: upon the
reception whereof, the President, by proclamation, shall announce the
fact: whereupon, and without any further proceedings on the part of
Congress, the admission of the said State shall be considered as
complete: _and provided_ further, that nothing herein contained shall
be construed to take from the said State of Missouri, when admitted
into this Union, the exercise of any right or power, which can now be
constitutionally exercised by any of the original States."
[Sidenote: The failure of Mr. Clay's first attempt.]
Mr. Tomlinson, of the committee, took the floor against the report,
and showed so conclusively that the legislature of a Commonwealth
could not bind the makers of the organic law of the Commonwealth, and
that, therefore, any obligation which the legislature of Missouri
might assume toward Congress might prove nugatory, that the Senate
bill, with the amendment offered by Mr. Clay's committee, was voted
down.
[Sidenote: Mr. Clay's second attempt to secure a compromise.]
Mr. Clay waited ten days after this in order to let the feelings of
the members become mollified, and on February 22nd, one of the most
significant days in American history, made his final attempt to secure
a compromise. He moved that members to a conference committee be
appointed by the House. The motion was carried, and on the next day
the members of the House contingent of the committee, consisting of
twenty-three persons, under the lead of Mr. Clay, were appointed. The
Senate met the advance promptly and appointed seven members to
represent it.
[Sidenote: The second Missouri Compromise.]
On the 26th, Mr. Clay reported the results of the conference, in the
form of a resolution of the following tenor: "Resolved, by the Senate
and House of Representatives of the United States, in Congress {102}
assembled, that Missouri shall be admitted into this Union on an equal
footing with the original States in all respects whatever, upon the
fundamental condition, that the fourth clause of the twenty-sixth
section of the third article of the constitution submitted on the p
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