The Middle Period, 1817-1858. John William Burgess
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.
| 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 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 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 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.
| 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.
| 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 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.
| The House of Representatives' refusal to agree to the combination. 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