362

SLAVERY EXCLUSION.

as free soil. The principle of the compromise embodied in the ordinance was doubtless at this time in the mind of many members of Congress, who wished the new State to be free soil, and would extend the anti-slavery clause of the ordinance over it. The sudden appearance of a Free-Soil party at the time of the committee's report favoring the admission of Missouri, appears upon closer examination to have been the result of many causes of long standing, rather than a sudden inspiration. The conditions which the Committee of the Whole imposed, that the Constitution of new States should be republican in form, gave opportunity to test what that form was understood to be.

Two days after the committee's report, Tallmadge, of New York, precipitated one of the most critical debates in our constitutional history by proposing two restrictions on the new State; the exclusion of slavery, except as punishment for crime, and the gradual emancipation of all children born slaves within the State, at the age of twentyfive years. The effect of these two restrictions would ultimately transform Missouri into free soil. The ordinance of 1787 undoubtedly suggested the first restriction, and the gradual emancipation acts of several Northern States, the second. The restrictionists urged the expediency of the two provisions, but the anti-restrictionists, with equal zeal, replied that Congress had no authority to impose any conditions other than that the new State be republican in form. But the restrictionists cited the authority of Congress to dispose of and make all needful rules and regulations respecting territorial and other property of the United States, and referred to the enabling acts of Ohio, Indiana and Illinois, each of which forbade slavery. As Missouri lay west of these States, the restrictionists argued 1 February 15, 1819; Benton's Debates, VI, 334.

QUESTION OF RESTRICTION.

363

that it should be subject to the same anti-slavery restrictions. To this it was replied that Missouri was under different conditions than the Northwest Territory had been, for, being a part of the Louisiana purchase, its people were under the treaty of 1803, which bound the United States to protect the property of its citizens. Admitting the general truth of this, the restrictionists answered, that while the treaty made provision for the admission of new States it said nothing of their organization, and even if it had made explicit provision on this point, it could not be binding on Congress, for a treaty was made by the Senate and the President, while the admission of new States and their organization were matters determined by Congress. That the treaty was not binding was clear from the organization of the territories of Louisiana and Orleans, and the admission of Louisiana. In the acts relating to these, Congress had imposed conditions, and therefore, fully established a precedent. Moreover, if Congress had power to purchase the Louisiana country, had it not power to regulate its territorial government, and, if it judged best, to provide for the gradual abolition of slavery within it?

This citation of precedents favorable to the constitutional views of the restrictionists strengthened their case, but there was another aspect to the matter, the economic effect of restricting slavery. Would it not depreciate the value of land in the new State and thus do it an irreparable injury from the outset? But the restrictionists quickly retorted that, on the contrary, the price of land, if slavery were abolished, would rise, citing in proof the greater market price of lands in free States compared with that in slave. They argued also that the exceptions in the Constitution in favor of slavery applied only to the original States. New States could be organized with

out reference to those exceptions. The republican form of government for a State, upon which the Constitution insisted, did not mean a government with slavery. At this point Clay, speaking for the anti-restrictionists, affirmed that the proposed restriction would violate the clause in the Constitution which declares citizens of each State entitled to all the privileges and immunities of citizens of the several States; which led a Free Soil member to ask him, whether slavery could be called a privilege. He said he feared that if the Tallmadge restrictions were adopted, they would prove only the beginning of conditions; but he was assured that the only condition demanded was that the government of the new States should be republican in form. The question, grave as it was, was quite new, for as yet no settled definition had been made of the term, "republican form of government." The restrictionists pressing their advantage, argued that the migration and importation of slaves had been permitted by Congress until 1808, but that time had now passed, and Congress could prohibit both migration and importation, which meant from one State to another as well as from one country to another. The anti-restrictionists made answer, that as the States were equal, sovereign and independent, Congress could not discriminate among them without destroying the Union. Citizens of the older States had the right to determine whether or not they would have slavery; why should not citizens of Missouri have the same privilege? On the sixteenth of February, both the Tallmadge restrictions were adopted, though by a sectional vote.1

On the following day, Taylor of New York, an ardent Free-Soiler, moved to incorporate an anti-slavery clause in the bill then pending for a territorial government for 1 Benton's Debates, VI, 356.

ALARM OF THE SLAVOCRATS.

365

Arkansas.1 This alarmed the supporters of slavery even more than Tallmadge's restrictions for Missouri. Was slavery to be assaulted both in the States and in the territories? Had Congress any authority to impose conditions upon the citizens of a State or a territory, distasteful to them? Were not the people of a State, or a territory, the proper judges of their own constitutional rights? At this point, McLane of Delaware, generalizing on the interpretation which the American people North and South had long put upon the ordinance of 1787, and recognizing that the region north of the Ohio river was intended to be free soil forever, and that south of the river forever slave soil, proposed that the principle of the ordinance should be applied west of the Mississippi by fixing some line, north of which slavery should be forbidden. Such an arrangement might easily be made it was thought, because the region west of the river was so vast it would afford ample room both for freedom and slavery. Taylor's proposition to exclude slavery west of the Mississippi was lost by one vote, and McLane's proposition to fix a dividing line was carried by a majority of two, but was almost immediately reconsidered. The vote showed that the House was nearly equally divided on the great issue of restriction, and Taylor then proposed the line of 36 deg. 30 min. north latitude. Several other lines were suggested, some of which were far enough south to include Arkansas, but that territory was finally organized without restriction as to slavery. The Missouri bill was now taken up by the Senate, which on the seventeenth of February, struck out the Tallmadge amendments and passed the bill, thus two Missouri bills were pending, both admitting the territory as a State, the House bill forbidding 1 Id., 357.

366

MISSOURI: A NATIONAL ISSUE.

slavery, the Senate bill permitting it. Neither the House nor the Senate would recede from its position, and without any serious attempt at a conference Congress adjourned.1

When it re-assembled, in December, the Missouri question had become a great national issue, the first of a sectional character in our history. Scott, the Missouri delegate, again presented a petition for its admission, and Strong, a member from New York, gave notice of his intention at an early day to introduce a bill forbidding slavery within the territories of the United States. The people of the District of Maine had for several years been contemplating separation from Massachusetts and organizing as an independent State. The Massachusetts legislature at last gave its consent, a convention assembled at Portland and framed a constitution which was ratified by the people of the District. A bill for the admission of Maine passed the House on the third of January; a similar bill was pending in the Senate. While the House bill was under way, Clay, in ambiguous but suggestive words, intimated that if hard conditions were imposed on new States in the West, equally hard ones might be imposed on new ones in the East. Whatever he meant by this, and doubtless his purpose was to throw out a hint of compromise, when the House bill was brought up in the Senate, on the sixth of January, it was speedily proposed that a clause for the admission of Missouri should be attached as a rider to the Maine bill. There was no natural relation between the two matters. Pennsylvania, sought in vain to keep the propositions

1 Annals of Congress, 1572; March 3, 1819.

Roberts of

2 The Articles of Separation, the Proclamation of the Governor of Maine and other documents are given in the Maine Constitutional Convention, 1819-20; Charles E. Nash, editor; Augusta,

3 1820.