The Middle Period, 1817-1858. John William Burgess
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.
| 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 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.
| 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.
| 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 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."
| 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 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.
| 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.
| 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 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.
| 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.
| Argument from morals and policy. |
Having thus, from their point of view, vindicated the constitutional