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 Const.i.tution of 1787 was framed and adopted, and in about half of which it existed, as the most important inst.i.tution, at the period of the Missouri controversy. Further, it can hardly be denied that the Const.i.tution 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 a.s.sumption of Commonwealth powers. The Const.i.tution 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 const.i.tutional 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 const.i.tution 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 pa.s.s 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 const.i.tutional 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 Const.i.tution 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 Const.i.tution 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 const.i.tution, and he declared that the refusal or failure of Congress, at this time, to pa.s.s 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 pa.s.sage 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 Const.i.tution 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 const.i.tutional 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 const.i.tutionality, and to pa.s.s no act, of the const.i.tutionality 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 Const.i.tution 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 const.i.tutionality 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 Const.i.tution 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 pa.s.sing through, or sojourning temporarily in, the latter Commonwealth, it was clear that the Const.i.tution 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 Const.i.tution 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 Const.i.tution of the United States, a negro citizen of Ma.s.sachusetts 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: Pa.s.sage 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 pa.s.sing 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 a.s.sent of Congress to any provision in the const.i.tution of Missouri, if any such there be, which contravenes that clause in the Const.i.tution of the United States which declares that 'the citizens of each State shall be ent.i.tled 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 Ma.s.sachusetts, 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 a.s.sumed 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 pa.s.sed, 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 pa.s.s 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 a.s.sent 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 const.i.tutionally 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 a.s.sume 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} a.s.sembled, 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 const.i.tution submitted on the part of said State to Congress shall never be construed to authorize the pa.s.sage of any law, and that no law shall be pa.s.sed in conformity thereto, by which any citizen of either of the States of this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is ent.i.tled under the Const.i.tution of the United States: Provided that the legislature of the said State, by a solemn public act, shall declare the a.s.sent of the said State to the said fundamental condition, and shall transmit to the President of the United States, on or before the fourth Monday in November next, an authentic copy of the said act; upon the receipt whereof the President, by proclamation, shall announce the fact; whereupon, and without any further proceeding on the part of Congress, the admission of the said State into this Union shall be considered as complete."

[Sidenote: Pa.s.sage of the second Missouri Compromise Act.]

It will be seen that this recommendation contained the same objectionable feature as did that of the committee of Thirteen of the House, that is, the proposition to rely upon the Missouri legislature to enter into an obligation to Congress, which should bind all future legislatures and also the const.i.tuent power of the Commonwealth. It was, therefore, attacked upon the same ground, but the supporters urged so strongly that Congress should put a reasonable faith in the honor of Missouri to keep the pledge made by her first legislature, that the resolution was finally adopted by the House, by a very small majority, on the same day that it was reported. It was immediately sent to the {103} Senate for concurrence, and, after a brief debate, was voted by that body on the 28th, by a large majority.

The great struggle was at last over, and it was sincerely hoped that the "era of good feeling," so suddenly interrupted by it, had been restored. Apparently it was so, but while the decision finally reached saved the country from one great danger, it sowed the seeds of another. A brief review of the effects of that decision upon the const.i.tutional law, political science, and social conditions of the Republic will make this apparent.

[Sidenote: The general effects of the decisions reached in the Missouri question.]

In the first place, the decision involved the const.i.tutional and political principle that, in the federal system of government generally, and in the system of the United States in particular, the powers of government are, and must be, distributed by the sovereignty behind, and supreme over, both the general Government and the Commonwealths, and not by either of the two governments, unless expressly empowered to do so, in specific cases, by the sovereignty through the Const.i.tution. This is undoubtedly a sound principle, both of political science and const.i.tutional law, but it taught the Southerners that protection of their property in slaves would depend upon strict construction of the Const.i.tution. It caused their leaders to desert the broad national ground in the interpretation of the Const.i.tution which they had occupied since 1812, and to seek more and more to limit and restrict the powers of Congress, in which the majority of the members of one House, at least, must always come from the North, and in the other House of which no more than an exact balance could be maintained.

It introduced, therefore, the principle which led necessarily to a division of the all-comprehending Republican party into two branches, the one branch holding {104} to the lat.i.tudinarian and national views of the party from 1812 to 1819, and the other to the earlier creed of 1798 to 1812. The former finally coalesced with the remnants of the Federal party and formed the National Republican or Whig party, while the latter called itself the Democratic party.

It is necessary to keep clearly in mind the cause of the division of the Republican party into its two branches in order to understand the principles which distinguished them, for their names are somewhat misleading. For example, it is quite difficult to understand, upon general principles, why the slaveholders of the South should be called Democrats, while many of the little farmers and the artisans of the North should be called Whigs. The element of democracy which was to be found in the political creed of the Southern masters was strict construction of governmental powers, the least possible interference of government in private affairs, and the largest possible individual autonomy--in a word, individual immunity against government. The master could take care of himself, if left free to rule his slaves.

In the second place, the Missouri decision involved the principle of const.i.tutional law that the Congress has general powers of legislation in the Territories, and may do anything therein not forbidden by the Const.i.tution. This is also a sound and valuable principle. It was this which won the great Northwest for free labor, so far as government could affect the question, and gave the Union the strength to meet the crisis of 1861-65. The Southerners eventually saw what they had lost in conceding this interpretation of the powers of Congress, and, as will be seen further on, sought to repudiate it; but their long acquiescence in it had allowed it to gain the power of const.i.tutional precedent, too strong to be successfully overcome.

{105} In the third place, the Missouri decision involved the principle that there was, before the Fourteenth Amendment was adopted, an United States citizenship which carried with it immunities and privileges which no Commonwealth could lawfully deny or abridge, and which the United States Government was bound to protect and defend against any Commonwealth seeking to impair them. It demonstrated the difficulties which could arise by allowing a Commonwealth to confer United States citizenship, and thereby bind the United States Government to sustain the acts of one Commonwealth within the jurisdiction of another Commonwealth, whose laws might be directly contradictory to those of the first Commonwealth upon the subject in point. It did not undertake to solve the difficulty. It only held firmly to the principle, while it made many of the best minds aware that this most national provision of the Const.i.tution would, sooner or later, certainly require an advance all along the line in the further development of the governmental system of the country.

In the fourth place, the Missouri decision taught the inhabitants of the older Commonwealths that the West could not be held in a provincial or quasi-provincial status; that it must be carved up and formed into Commonwealths having the same powers and privileges as the older Commonwealths; and that, therefore, the political centre of the United States was bound to move westward, and the East was ultimately to come, in large degree, under the influence of the West. It was this which has helped powerfully to carry the brain and the money of the East to the West, and is making in the West a new, and, in some respects, more enterprising, East.

Finally, the Missouri decision taught the South that there was a provision in the Const.i.tution of the United {106} States which probably made it possible for the Northern Commonwealths to force, through the power of the general Government, a cla.s.s of persons upon the Southern Commonwealths, in the enjoyment of the full rights of citizenship, whom these Commonwealths did not and would not recognize as citizens in any respect; and that there was a growing disposition at the North to make an advance against slavery at every possible point. The effect of this conviction was most baleful both upon the spirit of the masters and the status of the slaves. It created that resentment in the minds of the Southerners against interference in their domestic affairs, which closed their ears to all arguments against slavery, and it moved them to the enactment of measures in their several Commonwealths for the purpose of keeping the slaves under stricter discipline and in denser ignorance. It increased vastly, if it did not introduce, that utter misunderstanding of each other's feelings and motives between the people of the two sections, which made it possible for the people of the North to believe, finally, that the story of "Uncle Tom's Cabin" was the sober truth, and the general rule of conduct of master toward slave in the South, and for the people of the South to believe that jealousy of riches and comfort was the sole spirit which prompted the attacks of the North upon slavery--a misunderstanding, therefore, which proved irreconcilable so long as the subject of it remained.

The Missouri decision made thus both for good and for evil--for good, surely, in that it produced clearer ideas upon the character of federal government, and preserved the East from an illiberal political policy toward the West; and in that it secured the great Northwest for free labor;--for evil, possibly, in that it estranged the two sections of the Union, and put a stop to any movement in the South for the gradual and {107} peaceable emanc.i.p.ation of the slaves, or for the substantial amelioration of their condition. It is not very likely, however, that any such movement would have proved successful, and it is, therefore, probable that what appears on the outside to have been an evil was in reality a good, in that it drove the disease in the body politic of the South onward toward the crisis, which must be pa.s.sed in order that the permanent cure might be effected.