SENATOR THOMAS'S COMPROMISE.

367

separate, and also to exclude slavery from Missouri. But the restrictionists were powerless in the Senate, though all powerful in the House. No new arguments were added in the Upper Branch, but old ones were added from the fathers, and particularly from the Federalist, which was made to do duty on both sides of the question. It was apparent that the deadlock between the two Houses was not likely to be broken unless by a compromise of some sort, and this was speedily forthcoming.

On the eighteenth, Senator Thomas, of Illinois, introduced a bill forbidding slavery north and west of the proposed State of Missouri, this was the opening wedge. Meanwhile the legislatures and many public meetings over the Union had taken up the issue and had sent resolutions to Congress, some favoring, others opposing the further extension of slavery. Delaware alone of the slave States opposed further slavery extension. By a majority of two votes, the Senate, on the sixteenth, united the Maine and Missouri bills,1 and Senator Thomas offered the specific compromise, that except within the limits of the State of Missouri, slavery should be prohibited in all western territories north of 36 deg. 30 min.2 One of the Southern members, Barbour, of Virginia, tried to lower the line to 40 deg., but the Thomas line practically extended the old line of the Ohio river and afforded good ground for a working compromise. The analogy of the ordinance of 1787, was preserved by the addition of a fugitive slave clause, which Thomas proposed on the seventeenth, and thus amended the compromise passed the Senate by a vote of thirty-four to ten. Eaton of Tennessee, attempted to limit the effect of the bill, that it should apply only so long as the West should remain a territory,

1 Benton, VI, 450.

2 February 17, 1820, Id., 451.

368

THE MAINE-MISSOURI BILL.

but Trimble, of Ohio, wished to enlarge its effect by applying it to all territory west of the river, except Missouri, but both propositions failed.

The Maine-Missouri bill went to the House on the eighteenth, and there fell into the hands of a hostile party. First, the House rejected the Missouri rider to the Maine bill, and also the Thomas amendment, and proceeded to discuss its own original bill containing the Taylor restrictions. The discussion clearly showed that whatever bill the House passed was sure to contain a restrictive clause of some kind. The Senate gave notice that it would insist upon its own amendments, and the House by a vote of ninety-seven to seventy-six refused to agree to the Senate bill. The friends of Missouri, of whom none were more zealous than Lowndes of South Carolina, were willing to vote the compromise principle, if Missouri could be admitted as a slave State. When the Senate learned that the House insisted on its own bill, Thomas moved for a committee of conference. The motion prevailed, and the House, on the following day, also agreed to confer. But this amicable move did not change the course of affairs in the House, which, on the first of March, passed its own Missouri bill with the Taylor restrictions, and sent it to the Senate.1 On the following day, the Senate substituted the Thomas compromise for the Taylor restrictions, and returned the bill to the House. The two bills were then sent to the committee of conference which soon reported that the Senate should abandon its attempt to unite Maine and Missouri in one bill, and Maine should be admitted; the House should abandon slavery restrictions within the State of Missouri, but the Thomas amendment should be accepted and slavery be forbidden north and west of that State. But before the House concurred the 1 Annals, 1572.

THE MISSOURI CONSTITUTION.

369

grave character of the pending issue was again portrayed in no uncertain language. The fate of the Union was in the balance. Men might smile at the idea of disunion but unless the radical restrictionists of the North, said Kinsey of New Jersey, were willing to accept the olive branch offered by the South, and suffer an equal division of the vast and fertile West, disunion must follow. But the House was loath to abandon restrictions for compromise, and the report of the conference committee was carried only by a majority of three.1 The report was accepted on the second of March;2 Maine was admitted, and on the fifteenth, the people of Missouri were authorized to form a constitution.

The Missouri convention met on the twelfth of June, at St. Louis, and in seven weeks framed a constitution, one clause of which, suggested by Thomas H. Benton, renewed and embittered the Missouri controversy. The general assembly was instructed to pass as soon as possible such laws as might be necessary to prevent free negroes and mulattoes from coming into the State or settling in it under any pretext.3 The constitution was sent to Congress and was referred to a select committee of the House, which reported on the twenty-third of November. The Benton provision was the chief theme. Was it repugnant to the Constitution of the United States? Did it apply to citizens of the United States? But as a similar clause was found in the laws of five States, was it without precedent? The constitutions and laws of all the States discriminated more or less between white and black men in all the relations of life. If too broad a construction were

1 Ninety to 87.

2 Benton, VI, 471.

3 Missouri Constitution, 1820, Article III, Section 26; Benton's Thirty Years' View, I, 8.

370

POWER OF CONGRESS OVER A TERRITORY.

to be put upon the provision affecting the privileges and immunities of citizens of the several States, their powers of self defense would be broken down, and a consolidated government would be the result. As soon as the people formed a State government, they became sovereign and independent, and it was the province of the courts, not of Congress to determine the constitutionality of laws. This was the substance of the committee's report, which concluded with a recommendation in favor of admitting the new State.

But the Missouri constitution raised a new question. The old issue had involved the power of Congress to impose conditions on a territory; the new question was whether Congress could impose conditions upon a State? If the Benton provision conflicted with the national Constitution, that fact should be left to be determined by the Supreme Court. The provision excluded free persons of color, even if citizens, to enter the State, but such persons were excluded by State constitutions already in force. Why discriminate against Missouri, it had organized a State government1 under an act of Congress and was already a sovereign State. To all this it was replied that Missouri was not yet a State, for though she had chosen Senators and Representatives, they had not yet been admitted to seats in Congress, nor had the Missouri constitution been approved. Whether or not it was repugnant to that of the United States was for Congress alone to determine. Free persons of color were citizens in seven States2 of the Union, and the constitutions of these did not prohibit such persons from voting. The right of citizenship

1 XIX, Niles Register, 51.

2 New Hampshire, Vermont, Massachusetts, New York, Pennsylvania, North Carolina and Tennessee.

STATUS OF FREE NEGROES.

371

did not give the right to vote; but the right of free locomotion was indispensable to citizenship.

The Missouri constitution raised a question in Congress which had never before come up, the status of free persons of color. There were more than three hundred thousand such persons in the country in 1820, of whom about sixty thousand were males of voting age.1 At this time the extension of the right to vote to such persons was agitated as a reform in the State of New York, and the right was embodied in the constitution of that State of 1821. The laws of New York at the time of the Missouri controversy permitted free persons of color, duly qualified to vote. Such persons voted in Tennessee,2 and had been known to vote in North Carolina,3 in which State the letter of the constitution empowered them to vote, and they had long been accustomed to vote in Massachusetts, New Hampshire and Vermont, but public sentiment in Tennessee and North Carolina was hostile to negro suffrage and practically abrogated the right; and public sentiment in the New England States cannot be said either to have encouraged this class to emigrate or to vote. In all these States public sentiment was the higher law, whether or not it conformed to the law of the constitution, and the animus of this higher law now pervaded the debate in Congress over the Missouri constitution. The debate suddenly started up after a motion made by Cobb, of Georgia, on the twelfth of January, 1821, for the correction of the journal, that it read "the State of Missouri." That title having been used in three memori

1 For a particular account of the laws affecting them, and of their condition, see my Constitutional History of the American People, 1776-1850, Vol. I, Chap. XII.

2 Caldwell's Constitutional History of Tennessee.

* Proceedings and debates of the North Carolina Convention, June 4 to July 11, 1835; 355 and passim.