The Middle Period, 1817-1858. John William Burgess
of the Louisiana territory north of thirty-six degrees and thirty minutes. That is, the House should gain its point of order in the separation of the two subjects; the Senate should gain its point of constitutional law in defending the new Commonwealth against restrictions not imposed by the Constitution upon the original Commonwealths; and the two should compromise upon a fair division of the remaining parts of the Louisiana territory between the interests of the North and those of the South. The Senate accepted the recommendations of the committee without much difficulty, and voted the measures contained in them. The House also accepted the recommendations and voted the necessary provisions upon its part.
| President Monroe's approval of the Compromise. |
When the measures were placed before President Monroe for his approval, he called a meeting of the Cabinet to consider the subject. There was no difficulty except upon a single point, the prohibition of slavery in the remainder of the Louisiana territory above thirty-six degrees and thirty minutes north latitude. Was this to be taken as prohibiting slavery in the Commonwealths which might be formed upon this territory in the future, or did the Congress only intend to lay this restriction upon this territory merely for the period during which it might continue subject to the exclusive jurisdiction of the general Government, the period of Territorial organization? If the former, the Missouri question would have to be fought over again whenever a new Commonwealth should be formed in this territory. The Cabinet interpreted the prohibition as applying only during the period before the Commonwealth organization should be established, and upon the basis of this interpretation advised the President that the measure was constitutional. The President signed the Maine bill on the 3rd of March and the Missouri bill on the 6th (1820).
| Review of the points involved in the contest. |
So far as the questions of constitutional and parliamentary law were concerned, the settlement reached was in accordance with right principles. It was right that the two subjects, which the Senate united in one bill, should be separated. The only justification for this act of the Senate was the manifest determination on the part of the House to impose an unconstitutional restriction as the condition upon which the people of Missouri should be allowed to assume the status and the powers of a Commonwealth of the Union. It was the only weapon left to the more conservative Senate, by which to defend the Constitution against the rashness of the more radical House. It need astonish no impartial student of our history that the Senate used it. No such momentous question was involved in this point of parliamentary procedure as there was in the exaggerated interpretation of the powers of Congress by the House. The Senate showed its willingness to yield its position upon this point so soon as the House would return to sound constitutional principle in the Missouri question. It was fortunate for the development of the parliamentary practice of Congress that the House so changed its position in reference to the greater question of constitutional law as to enable the Senate to return to the true parliamentary principle of the separation of subjects which differ in essence or in circumstances in the slightest degree. While, therefore, the Senate should not be too strongly criticised for using its power over its own rules of procedure, as a means of retaliation, it is a matter of great satisfaction that expedients were at last found for maintaining right principle and sound parliamentary custom in the case. And it was surely right that the attempt to make Congress the distributor of powers between the general Government and the Commonwealths was abandoned. The power which made the Constitution can alone set up the metes and bounds between the realm of authority of the general Government and that of the Commonwealths. This is the indispensable condition of federal government. If the general Government possesses such power, the system is centralized in theory, and may become so in fact at the pleasure of the general Government. If, on the other hand, the Commonwealths possess such power, the system is the loosest form of confederation, an international league.
It is true that the Constitution may authorize the general Government to limit the powers of the Commonwealths in regard to certain specified points and the federal system be still preserved, but a general authority in the general Government to do so, such as was claimed by the restrictionists from the vague provision vesting in Congress the power to "admit new States into this Union," amounts to nothing less than a claim of sovereignty by Congress over the new Commonwealths. Such was not the system which those who framed and ratified the Constitution intended to establish. Such is not the system which comports with the vast territorial extent and the climatic differences of the United States, and with the ethnical variety of the population of the country.
It is also true that those who resisted the restriction upon Missouri used terms and propositions, in reference to the genesis of the Union and the relation of the general Government to the Commonwealths, which will hardly bear the test of correct history and exact political science, but they had the true principle in respect to the point at issue, when they held that "the State," in the sense of the Constitution, is defined in the Constitution; that its powers are the residue after what the Constitution vests exclusively in the general Government and denies to the "States" shall have been subtracted from sovereignty; and that Congress cannot vary these relations under an interpretation of a general provision. They conceded that Congress might, as the general principle, admit or not admit, as it might judge proper, with all that this involved in reference to geographical boundaries and ripeness of the population for self-government, but they held that the thing admitted was created by the Constitution, through the people inhabiting the district to be formed into a Commonwealth, and not by Congress. And they repudiated the idea that the Declaration of Independence is any part of the constitutional law of the country, or that Congress can define the republican form of government which the United States is obligated by the Constitution to guarantee to every Commonwealth, in any other sense than that concretely expressed in the original Commonwealths.
They held this ground under enormous strain and pressure brought from without. Cross-roads assemblies, town and city meetings, and Commonwealth legislatures poured petitions and memorials in upon them in behalf of slavery restriction. The excitement, throughout the Northeast especially, was intense. They had to fight their battle under an ignoble issue. But it will not be denied by any impartial constitutional lawyer that they were, for this time, the upholders of the Constitution against an unwarranted attempt to stretch Congressional power.
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 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 Constitution of 1787 was framed and adopted, and in about half of which it existed, as the most important institution, at the period of the Missouri