"To be coupled with slaves, [Maine] will never agree"

I believe several readers reside in the great state of Missouri (and I spent a few years there myself), so hope they forgive me if I point out some of the abuse that the territory and its residents took during the Missouri Crisis.

Exhibit No. 1 is the poem reproduced above, entitled Maine Not to Be Coupled with the Missouri Question (click to enlarge and read). It was apparently composed by one Timothy Claimright of Brunswick, Maine in January 1820. Mr. Claimright, clearly upset that his state's admission was being held hostage to Missouri's, vented his spleen upon that state, where people "live in a bog . . . they grope in a fog . . . they wallow in mire, O'erwhelm'd with musquitoes . . . Fill'd with agues." Mr. Wainright also took pointed shots at slavery: "They too lazy for work, drive slaves, whom they fear; . . . Tho' lock'd up, they dream of slaves, whom they dread; . . . And without their slaves, how long would it take To shell enough corn to purchase one hake?"

Exhibit No. 2 is a nice summary of contemporary gibes against Missouri assembled by Glover Moore. Spurred by reports of violence in Missouri against restrictionists, northern publications portrayed the territory as a slaveocratic version of Dodge City and Tombstone:

Thereafter Missouri became the target of many a gibe and witticism. . . . Federalist and Clintonian newspapers regaled their readers with hair-raising stories of Missouri mob violence and lawlessness -- accounts of duels, personal encounters with dirk and pistol, St. Louis ladies who wore and wielded dirks, fights between boatmen, broken bones, noses bitten off, attacks by slaveholders on ministers, floggings, and Negro mistresses (one of whom went on a rampage and flogged her white paramour, who thereupon committed suicide in humiliation).

A resident of Pittsburgh who had been considering moving to Missouri took the precaution to write to the editor of the St. Louis Gazette to ask if it was true that the people of St. Louis wore dirks and pistols, "and consequently, a man's life is in continued danger."

As an aside, the reference in the poem to "a King of her own" is to William King. The half-brother of Preston King, William King was the principal proponent of statehood for Maine and the state's first governor after admission.

Play that Bandjeau, Earl!

Wikipedia asserts that our word "banjo" derives from an African language, or perhaps Italian. How about French? Glover Moore quotes an article from the February 15, 1820 edition of the Georgetown [District of Columbia] Metropolitan that uses a French, or pseudo-French, spelling, and associates the instrument with slaves in New Orleans and Louisiana:

That our slaves are ill-treated, no man who has ever looked around him will assert. See them in their quarters -- See them in the interior of Louisiana -- see them in the town of Orleans, assembled on the levee, after their work is done, and a sad face among a groupe of negroes will be found as rare, as courteous language in the London Courier towards this country -- the Violin and Bandjeau are ever in tune, and tripping it lightly to the air of their favorite song "Massa, Misses, kill a duck," they are more heedless of the morrow than . . . ourselves.

The Missouri Compromise: Rufus King and the Higher Law

Compare and contrast:

But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes. The territory is a part, no inconsiderable part, of the common heritage of mankind, bestowed upon them by the Creator if the universe. We are his stewards, and must so discharge our trust as to secure in the highest attainable degree their happiness.

William Seward, 1850

I have yet to learn that one man can make a slave of another -- if one man cannot do it, no number of individuals can have any better right to do it, and I hold that all laws or compacts imposing such a condition upon any human being are absolutely void because contrary to the law of nature, which is the law of God, by which he makes his way known to man, and is paramount to all human control.

Rufus King, 1819.

The Missouri Compromise: Glover Moore Spots Floyd Shoemaker Spotting Henry Geyer

In a recent post, The Missouri Compromise: Henry Geyer Spots a Flaw, I discussed Floyd Calvin Shoemaker's assertions that Henry Clay's compromise resolution resolving the second Missouri Crisis of 1821 may have inadvertently referred to the wrong paragraph of the Missouri Constitution of 1821, and the role that this mistake may have played in the willingness of the Missouri legislature to pass the "solemn act" required by the resolution.

The hawk-eyed Glover Moore was apparently also aware of Mr. Shoemaker's book and credited his observations. Here's Moore's take (paragraph breaks added):

The condition of admission imposed upon Missouri did not specifically refer to free Negroes and mulattoes. It merely provided that the fourth clause of the twenty-sixth section of the third article of the constitution of Missouri should never be construed to exclude citizens of another state from the benefit of the privileges and immunities granted them by the federal Constitution.

In the copy of the Missouri constitution which Congress had in its possession, the fourth clause . . . was the provision regarding the migration of free Negroes and mulattoes. [I would say Moore is wrong here; it was the fourth paragraph of the oddly-formatted section.] As the constitution was printed in Missouri, however, the fourth clause . . . referred to something else.

Because of this fact, some Missourians thought that Congress had made an error and had designated the wrong clause. They were willing to agree to the condition of admission, since they considered it to be meaningless as stated by Congress.

Moore cites Shoemaker's book, a contemporary newspaper report, and (for those of you with access to research libraries) Lucien Carr, "An Error in the Resolution of Congress admitting Missouri into the Union," in Proceedings of the Massachusetts Historical Society, Second Series, XIII (1900), 448-54.

Indiana : Indianapolis :: Missouri : ???

I was amused to discover that, according to Glover Moore, in or about 1821 Missouri considered naming its state capital "Missouriopolis." Out-of-state reviews were not good, with one restrictionist newspaper suggesting "Slave-opolis" or "Black-opolis" instead. I assume that the idea was dropped for other reasons.

Talk Talk

This song has amazed me for decades.

The Road to the Road to Gettysburg

At TOCWOC, Brett Schulte recently announced that he and bloggers at a number of other sites will be posting their ten favorite Gettysburg books. As I told Brett privately, I haven't even read ten Gettysburg books. I'll therefore contribute in my own idiosyncratic way, by providing a list of my ten favorite books on the period leading up to the Civil War. Let's call it, "The Road to the Road to Gettysburg."

Warning: Violent, Pornographic Bat Book

A friend gave me this book on bats. Very good. The photos really are amazing.

But what makes the book blog-worthy is the fact that it has a warning on the back cover:

CAUTION: PARENTAL GUIDANCE REQUIRED

This book has been written for adults. It contains explicit descriptions and illustrations dealing with the mating behavior of bats. Bats are mammals and their mating behavior may be compared to human behavior.

There are also photos showing living bats being eaten alive by snakes. Blood-sucking behaviors, and other sensitive areas, are covered in great detail. These may be objectionable to adults and children alike.

Now who wouldn't want a book like that?

The Missouri Compromise: Henry Geyer Spots a Flaw

While rummaging for information about the Missouri Compromise, I stumbled across a 1916 book by one Floyd Calvin Shoemaker entitled Missouri’s Struggle for Statehood 1804-1821. In it, the author makes a claim that I’ve seen nowhere else. I don’t vouch for it, but it’s a fascinating piece of trivia if true.

You may recall that the version of Section 26 of Article III of the Missouri Constitution delivered to Washington in 1820 contained some odd punctuation and paragraph breaks, as follows:

The general assembly shall have no power to pass laws; First, For the emancipation of slaves without the consent of their owners, or without paying them, before such emancipation, a full equivalent for such slaves so emancipated; and, Second, To prevent bona fide emigrants to this state, or actual settlers therein, from bringing from any of the United States, or from any of their territories, such persons as may there be deemed to be slaves, so long as any persons of the same description are allowed to be held as slaves by the laws of this state.

They shall have power to pass laws; First, To prohibit the introduction into this state of any slave who may have committed any high crime in any other state or territory; Second, To prohibit the introduction of any slave for the purpose of speculation, or as an article of trade or merchandise; Third, To prohibit the introduction of any slave, or the offspring of any slave, who heretofore may have been or who hereafter may be, imported from any foreign country into the United States, or any territory thereof, in contravention of any existing statute of the United States; and, Fourth, To permit the owners of slaves to emancipate them, saving the rights of creditors, where the person so emancipating will give security that the slave so emancipated shall not become a public charge.

It shall be their duty, as soon as may be, to pass such laws as may be necessary.

First, To prevent free negroes and mulattoes from coming to, and settling in, this state, under any pretext whatsoever; and,

Second, To oblige the owners of slaves to treat them with humanity, and to abstain from all injuries to them extending to life or limb.

Henry Clay’s compromise resolution resolving the second Missouri crisis, in turn, referred to the provision exhorting the Missouri legislature to bar “free negroes and mulattoes” from the state as “the fourth clause of the twenty-sixth section of the third article of the [Missouri] constitution.”

Presumably, the reference to the “fourth clause” of Section 26 was intended to point to the fourth paragraph of the oddly-paragraphed Section (“First, To prevent free negroes and mulattoes from coming to, and settling in, this state, under any pretext whatsoever . . .”). But the fact is that that sentence was not the fourth “clause” of Section 26.

Shoemaker asserts that, during the course of the debates in the Missouri legislature concerning whether and how to respond to Clay’s proviso, Henry S. Geyer, then Speaker of the Missouri House, pointed out this discrepancy and argued that Missouri legislators could agree that the “fourth clause” did not violate the Privileges and Immunities Clause because the “fourth clause” in fact had nothing to do with barring “free negroes and mulattoes”:

In the course of the debate, Geyer "stated a fact not generally known – That the clause mentioned in the Resolution of Congress is not the one concerning free negroes and mulattoes. There are but three principle clauses in the twenty-sixth section of the third article, and the only clause distinguished as a fourth – is the last subordinate branch of the second principal clause and provides that the General Assembly shall have power, to permit the owners of slaves to emancipate them saving the rights of Creditors, where the persons so emancipating will give security that the slave so emancipated will not become a public charge. – But counting the clauses of the twenty-sixth section without reference to the numbers thereto attached and the fourth clause, will be that which gives the General Assembly power “To prohibit the introduction of any slave for the purpose of speculation, or as an article of trade or merchandise."

Shoemaker does not exactly assert that Geyer’s argument made the difference between passage or defeat of Missouri’s resolution purporting to comply with Clay’s resolution. But he does suggest that the argument at least made the majority in support far larger than it might otherwise have been:

[After Geyer’s argument, t]he bill and preamble were then agreed to by a large majority and reported from the committee of the whole without amendment. In this form it passed the House and was sent to the Senate.

* * *

When the resolution of Congress was considered by the general assembly of Missouri, there was opposition to passing the solemn public act. It is impossible to say accurately how strong was this opposition. Some objected to the wording of the solemn public act, others to the entire condition imposed by Congress. At this juncture Henry S. Geyer, Speaker of the House, later United States Senator from Missouri, in a speech advocating the passage of the solemn public act, pointed out that the clause in the Missouri constitution designated by Congress was not the free negro and mulatto clause to which that body objected. . . . Following this revelation by Geyer, the solemn public act passed by a large majority.

The Missouri Compromise: Missouri's "Sarcastic and Defiant" Compliance

By way of reminder, Henry Clay’s compromise resolution ending the second Missouri Crisis called for the admission of Missouri, “Provided, that the legislature of the said state, by a solemn public act, shall declare the assent of the said state to the . . . fundamental condition”

that the fourth clause of the twenty-sixth section of the third article of the constitution submitted on the part of said state to Congress, shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen, of either [any?] of the states in this Union, shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the constitution of the United States . . .

Glover Moore reports that, “In June 1821, the Missouri legislature made the promise which Congress desired but expressed it in such sarcastic and defiant language that the ire of the antislavery press was again aroused.” Although Moore did not quote Missouri’s language, you may be sure that his description made me determined to find it, and here it is. I really like the way it is entitled a "Solemn Public Act”, thus mocking the resolution:

A SOLEMN PUBLIC ACT, declaring the assent of this State to the fundamental condition contained in a resolution passed by the Congress of the United States, providing for the admission of the State of Missouri into the Union on a certain condition.

Whereas, the Senate and House of Representatives of the United States, by their resolution approved on the second day of March, in the year of our Lord eighteen hundred and twenty-one, did declare that Missouri shall be admitted into this Union, upon 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 constitution, submitted on the part of said State to Congress, shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen of either of the States in this Union, shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States; provided, that the legislature of the said State, by a solemn public act, shall declare the assent of said state, to the said fundamental condition, and shall transmit to the President of the U. 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 said state into this Union shall be considered as complete.

Now, for as much as the good people of this state have by the most solemn and public act in their power, virtually assented to the said fundamental condition, when by their representatives in full and free convention assembled, they adopted the constitution of this state, and consented to be incorporated into the Federal Union, and governed by the constitution of the United States, which among other things provides that the said constitution, and the laws of the United States made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or law of any state to the contrary notwithstanding; and although this general assembly are of opinion that the congress of the United States have no constitutional power to annex any condition to the admission of this state into the federal Union, and that this general assembly have no power to change the operation of the constitution of this state, except in the mode prescribed by the constitution itself; Nevertheless, as the congress of the United States have desired this general assembly to declare the assent of this state to said fundamental condition, and forasmuch as such declaration will neither restrain, or enlarge, limit or extend the operation of the constitution of the United States, or of this state, but the said constitutions will remain in all respects as if the said resolution had never passed, and the desired declaration was never made, and because such declaration will not divest any power or change the duties of any of the constituted authorities of this state, or of the United States, nor impair the rights of the people of this state, or impose any additional obligation upon them, but may promote an earlier enjoyment of their vested federal rights, and this state being moreover determined to give to her sister states, and to the world, the most unequivocal proof of her desire to promote the peace and harmony of the Union, Therefore, Be it enacted and declared by the General Assembly of the State of Missouri, and it is hereby solemnly and publicly enacted and declared,

That this state has assented and does assent that the fourth clause of the twenty-sixth section of the third article of the constitution of this state, shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen of either of the United States shall be excluded from the enjoyment of any of the privileges and immunities to which such citizens are entitled under the constitution of the United States.
Approved, June 26, 1821.

Moore archly describes the denouement:

President [James] Monroe, less squeamish than [Theodore] Dwight and [Robert] Walsh and happy to be rid of a vexatious problem, proclaimed the final admission of Missouri on August 10, 1821.

The Missouri Compromise: So Much For a Sacred Compact

The second session of the Sixteenth Congress opened on November 13, 1820. The “debate centered chiefly in the House, since there could be no doubt that the Senate would be favorable to the immediate admission of Missouri.” The south would vote solidly in favor, and it was clear that there we sufficient northern senators to provide a substantial majority.

In the House, the Missouri constitution was formally presented on November 16, 1820 and referred to a select committee, which reported in favor on November 23, 1820. On December 13, 1820, after prolonged debate, the House rejected the committee’s recommendation by a vote of 79-93, divided sectionally as follows:

In Favor Against

North 5- 92
South 74- 1

“It was now clear to everyone,” Glover Moore observes, “that the Missouri question would dominate the second session of the Sixteenth Congress as effectively as it had the preceding one.”

A subsequent vote provides a clear picture on how northern representatives regarded the compromise. Rep. Rollin C. Mallary of Vermont “sought to tack on . . . an amendment requiring Missouri to provide for the gradual abolition of slavery before entering the Union.” The amendment was defeated, with solid southern opposition, by a vote of 61 to 107. But almost two-thirds of northern representatives supported the amendment (61-34). Moore comments:

Thus by a two to one majority the representatives from the free states repudiated the Missouri Compromise within less than a year after its adoption. It is not surprising that they should do this, however. They had never been in favor or the compromise and did not, like some of their descendants, regard it as sacrosanct. Rather, they considered it an undesirable piece of legislation which they would gladly repeal if they could.

After months of acrimonious debate, Henry Clay’s meaningless but face-saving compromise resolution attracted sufficient numbers of northern votes to resolve the second phase. That resolution provided "for the admission of the state of Missouri into the Union, on a certain condition":

Resolved by the Senate and the House of Representatives of the United States of America, in Congress assembled, 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 constitution submitted on the part of said state to Congress, shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen, of either [any?] of the states in this Union, shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the constitution of the United States: Provided, that the legislature of the said state, by a solemn public act, shall declare the assent 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.

Yet even at the end, an overwhelming majority of northern representatives – almost 80% of those voting – refused to hold their noses and vote in favor:

In Favor Against

North 18- 80
South 69- 1

I Gain New Insight

And Now, Some Sigur Ros

Sigur Ros - Við spilum endalaust - A Take Away Show from La Blogotheque on Vimeo.

And here's how to pronounce the name

The Missouri Compromise: The Origins of the Second Crisis

Glover Moore and Robert Pierce Forbes appear to disagree, at least tacitly, over the primary reasons for the outbreak of the second Missouri Crisis. Forbes places primary emphasis on the “the content of the Missouri constitution [quoted here] itself.”

Its provisions prohibiting the legislature from passing any future emancipation act and directing the enactment of laws excluding free blacks from the future state did not merely outrage restrictionists but represented an egregious insult to northern backers of the first Compromise and a deep embarrassment to moderate southerners.

Moore, on the other hand, places greater emphasis on the fact that northern restrictionists were simply not willing to admit defeat. “Actually, it was not the Missourians but the slavery restrictionists who first revived the controversy, and this they did long before the meeting of the Missouri constitutional convention and before any issue relating to free Negroes and mulattoes had arisen.” Moore relates that a network of antislavery activists (as we would call them now) worked hard in the spring and early summer of 1820, before the Missouri convention met, to keep the Missouri issue in the public eye. When the constitution was promulgated in June, they used the issues the constitution presented.

The issue that wound up being the subject of the second crisis – whether the constitutional provision imposing on the Missouri legislature the “duty” “[t]o prevent free negroes and mulattoes from coming to, and settling in, this state, under any pretext whatsoever" violated the Privileges and Immunities Clause -- was an odd one. It appears true that, to that date, no other state had imposed an absolute ban on the immigration of free blacks. However, a number of western states, including Ohio, Indiana and Illinois, had imposed substantial restrictions on free black immigration.

As Forbes suggests, however, restrictions had little choice. The slavery issue had already been fought and lost. The provision restricting emancipation “was entirely unprecedented in a state constitution,” but “it was not unconstitutional.” The free black immigration issue thus “represented the only potential ground to bar the territory from the Union, even if it opened a host of problematic questions about northern treatment of the same group.”

On the other hand, if free blacks were U.S. citizens, then Missouri’s constitution clearly violated the privileges and immunities clause of the federal constitution, and Missouri could not be admitted until it amended or repealed the offending article. Even if Missouri’s residents proved willing to make such a change, it would certainly cause a delay of several months, by which time the Sixteenth Congress would have adjourned [no later than March 3, 1821], giving way to the more antislavery Seventeenth Congress, which would have a better chance of excluding a slaveholding Missouri altogether.

I'm not sure that Forbes is entirely consistent. In the earlier quote, he suggested that northerners were in fact "outraged" and "insult[ed]" by the Missouri provisions concerning emancipation and free black immigration. The latter quote makes pretty clear, however, that the invocation of these provisions was merely a tactic because it would not be productive to raise the underlying issue -- slavery -- a second time.

The Missouri Compromise: Missouri Drafts a Constitution

The legislation that comprised the first Missouri Compromise, described in my last post, was passed and signed into law at the beginning of March 1820. In June, the people of Missouri held a convention and drafted a constitution

Article III of the proposed constitution, entitled “Of Legislative Power,” was the analog of Article I of the U.S. Constitution. Section 26 of that article, which became the focal point of subsequent attacks, contained provisions relating to slaves and “free negroes and mulattoes”. In broad terms, the section was divided into three parts, identifying (a) laws the legislature had “no power to pass,” (b) laws the legislature did “have power to pass,” and (c) laws that the legislature had a “duty” to pass.

It’s worth reading the entire Section 26, I think, because it reflects a number of conflicting impulses. On the one hand, it attempts to encourage the immigration of slave-owning settlers, severely restricts emancipation and forbids the immigration of free blacks. On the other hand, it demonstrates an aversion for the slave trade, and the constitutional exhortation to treat slaves “with humanity” is particularly surprising.

I have retained the odd punctuation and paragraph breaks of the copy that was apparently delivered to Washington. They may prove significant:

The general assembly shall have no power to pass laws; First, For the emancipation of slaves without the consent of their owners, or without paying them, before such emancipation, a full equivalent for such slaves so emancipated; and, Second, To prevent bona fide emigrants to this state, or actual settlers therein, from bringing from any of the United States, or from any of their territories, such persons as may there be deemed to be slaves, so long as any persons of the same description are allowed to be held as slaves by the laws of this state.

They shall have power to pass laws; First, To prohibit the introduction into this state of any slave who may have committed any high crime in any other state or territory; Second, To prohibit the introduction of any slave for the purpose of speculation, or as an article of trade or merchandise; Third, To prohibit the introduction of any slave, or the offspring of any slave, who heretofore may have been or who hereafter may be, imported from any foreign country into the United States, or any territory thereof, in contravention of any existing statute of the United States; and, Fourth, To permit the owners of slaves to emancipate them, saving the rights of creditors, where the person so emancipating will give security that the slave so emancipated shall not become a public charge.

It shall be their duty, as soon as may be, to pass such laws as may be necessary.

First, To prevent free negroes and mulattoes from coming to, and settling in, this state, under any pretext whatsoever; and,

Second, To oblige the owners of slaves to treat them with humanity, and to abstain from all injuries to them extending to life or limb.

The Missouri Compromise: Maine Admitted, Missouri Not So Much

As you probably know, the Missouri crisis of 1819-1821 actually involved two distinct controversies and settlements. Most entries on the Missouri Compromise will tell you this, but they often don’t do a good job explaining the details.

The second crisis and compromise arose out the way in which the first phase was resolved. The first settlement was reflected in two acts passed by Congress and signed into law by President Monroe at the beginning of March 1820.

The first act, entitled An Act for the admission of the state of Maine into the Union, provided, as the title suggests, for the actual admission of Maine as a state on a date certain – March 15, 1820. As the Wherefore clause of the Act recited, the people of Maine, previously a “district” of the State of Massachusetts, had already, with Massachusetts’ consent, formed a de facto independent state government and established a state constitution. Therefore, once the president signed the bill into law, no further action by Congress or anyone else was necessary:

WHEREAS, by an act of the state of Massachusetts, passed on [June 19, 1819], entitled “An act relating to the separation of the district of Maine from Massachusetts proper, and forming the same into a separate and independent state,” the people of that part of Massachusetts heretofore known as the district of Maine, did, with the consent of the legislature of said state of Massachusetts, form themselves into an independent state, and did establish a constitution for the government of the same, agreeably to the provisions of the said act – Therefore,

Be it enacted by the Senate and the House of Representatives of the United States of America, in Congress assembled, That from and after [March 15, 1820], the state of Maine is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatever.

In short, Maine was a done deal.

Missouri, however, was not. Unlike the people of Maine, the people of Missouri had not already established a proposed constitution. The statute that addressed the Missouri issue (and which also contained the proviso concerning the the status of the remainder of the Louisiana Purchase north of 36 degrees 30 minutes north) did not exactly itself admit Missouri as a state. The Missouri Act sort of fudged the issue. As the title of the Act indicates – An Act to authorize the people of the Missouri territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states, and to prohibit slavery in certain territories – the Act authorized the people of Missouri to establish a constitution and state government:

Be it enacted by the Senate and the House of Representatives of the United States of America, in Congress assembled, That the inhabitants of that portion of the Missouri territory included within the boundaries hereinafter designated, be, and they are hereby, authorized to form for themselves a constitution and state government, and to assume such name as they shall deem proper . . .

The Act also suggested that, once the people of Missouri had performed these acts, admission would follow more or less automatically. Indeed, the Act did not even state in so many words that further action by Congress would be required:

. . . and the said state, when formed, shall be admitted into the Union, upon an equal footing with the original states, in all respects whatsoever.

Even so, it is probably fair to infer that some ministerial declaration by Congress would be necessary. First, Section 4 contained a proviso that suggested that Congress retained the right to insure that the people of Missouri had complied with the requirements of the statute and the Constitution:

Provided, That the same [the state constitution and government], whenever formed, shall be republican, and not repugnant to the constitution of the United States; and the legislature of said state shall never interfere with the primary disposal of the soil by the United States, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers; and that no tax shall be imposed on lands the property of the United States; and in no case shall non-resident proprietors be taxed higher than residents.

Second, Section 7 of the Act provided that a copy of the constitution needed to be transmitted to Congress, presumably for final approval:

And be it further enacted, That in case a constitution and state government shall be formed for the people of the said territory of Missouri, the said convention or representatives, as soon thereafter as may be, shall cause a true and attested copy of such constitution, or frame of state government, as shall be formed or provided, to be transmitted to Congress.

David M. Currie views Section 7 as clinching the argument that a subsequent congressional declaration was required to effect Missouri's formal admission:

Congress took no chances that Missouri might fail to meet the conditions of statehood laid down in its enabling act. Like Louisiana, and unlike any of the Northern states previously admitted, Missouri was expressly required to submit its constitution to Congress [citing Section 7].

This imbalance – Maine had been admitted as a state; Missouri had not – gave opponents of slavery expansion a second bite at the apple.

James Madison: The Articles of Confederation as Treaty

James Madison, Vices of the Political System of the United States (April 1787):

8. Want of ratification by the people of the articles of Confederation.

In some of the States the Confederation is recognized by, and forms a part of the constitution. In others however it has received no other sanction than that of the Legislative authority. From this defect two evils result: 1. . . .. 2. As far as the Union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of confederation by any of the parties to it, absolves the other parties from their respective obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.

Max Farrand, Records of the Federal Convention of 1787, Vol 1, pp. 122-23 (Tuesday June 5, 1787):

Mr. Madison thought this provision [recommending conventions under appointment of the people to ratify the new Constitution] essential. The articles of Confedn. Themselves were defective in this respect, resting in many of the States on the Legislative sanction only. . . . He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from [the whole] obligation. For these [reasons as well as others] he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.

Max Farrand, Records of the Federal Convention of 1787, Vol 1, p. 315 (June 19, 1787) (paragraph breaks added):

If [Mr. Madison asserted] we consider the [present] federal union [under the Articles] as analogous . . . to the conventions among individual States. What is the doctrine resulting from these conventions? Clearly, according to the Expositors of the law of Nations, that a breach of any one article, by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach.

In some treaties it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting Treaties. But are there any exceptions of this sort to the Articles of confederation? So far from it there is not even an express stipulation that force shall be used to compel an offending member of the Union to discharge its duty.

[Madison] observed that the violations of the federal articles had been numerous & notorious. Among the most notorious was an Act of N. Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congs. – and yielded not farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance.

[Madison] did not wish to draw any rigid inferences from these observations. He thought it proper however that the true nature of the existing confederacy be investigated, and he was not anxious to strengthen the foundations on which it now stands [i.e., the new structure should stand on entirely different “foundations”].

“Publius” [James Madison], The Federalist No. 43 (Jan. 23, 1788):

A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.

Blackstone and Madison on League vs. Union

William Blackstone, Commentaries on the Laws of England (1765-69), discussing the Act of Union of 1707, by which England and Scotland united to form Great Britain

UPON these articles, and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringment of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and “essential conditions of the union.”

It may justly be doubted, whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would consequentially dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a foederate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton's alliance. 195.) But the imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though not certainly destroy) the union.

Max Farrand, Records of the Federal Convention of 1787, at 2:93 (July 23, 1787):

[James Madison] considered the difference between the system founded on the Legislatures only, and one founded on the people to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1 . . .. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation.

Short Takes, Slavery Edition

Three recent SSRN articles touching on legal aspects of 18th and 19th Century slavery. Haven't read any of them yet, but a quick glance suggests the first is more likely to be of interest to general readers:

Paul Finkelman, Let Justice Be Done, Though the Heavens May Fall: The Law of Freedom:

In May 1772 Lord Mansfield, Chief Justice of the Court of King's Bench in England, heard preliminary arguments in the case of James Somerset, a Virginia slave who claimed his freedom under English common law. Charles Stewart, Somerset's master, wanted to send the slave to Jamaica to be sold. Somerset sought a writ of habeas corpus to escape this fate. This action brought the legality of slavery before the highest court in Great Britain.

This case would serve as the precedent for freeing slaves in a number of jurisdictions outside of Great Britain. Yet, Somerset did not bring immediate freedom to all slaves in England; as late as the 1830s at least some blacks were probably enslaved in Great Britain. And, Somerset surely had little immediate impact on most of the Empire, where slavery existed for another half century.

Lea S. Vandervelde, The Labor Vision of the Thirteenth Amendment:

The conventional understanding of the Thirteenth amendment is that it abolished the particular antebellum southern institution that subjugated black persons as slaves. Yet, the congressional debates reveal a much more expansive vision of labor reform. This theme has largely been lost in modern interpretation. Historical events rarely result from a single cause, and a single idea rarely drives legislative action. Nonetheless, beside the more religious abolitionist arguments, one finds numerous speakers who focused on labor conditions. Consequently, this Article aims to recapture the strong pro-labor theme that runs consistently through the debates.

As a whole, the Reconstruction debates reflect a desire to improve all workers' status by recognizing the dignity of labor, guaranteeing workers a wide range of opportunities for advancement, and raising the floor of legal rights accorded all working men. The pattern of discourse in the debates reveal a structure formed by three types of statements. The first addresses the historical need to rid employment relations of the master's patriarchal dominion over all laborers in his household and to accord the employee a realm of family and personal privacy free from employer control. The second describes the core concept of autonomy for laborers in their social and economic relations with employers. The final group targets certain specific labor practices as inconsistent with the spirit of labor autonomy. This three part configuration is useful in exploring the amendment's reach in restructuring baseline rights in the modem employment relation. The Reconstruction debates constitute an important resource because they record the original attempt to mandate constitutionally a minimum level of worker protection.

The debates follow an interesting dialectical pattern. In order to respond to the criticisms of slavery's advocates, the Radical Republicans had to create both a positive vision as well as the negative condemnation of slavery. The free labor ideal provided its affirmative side. The free labor ideal grew out of the Republican Party's origins in the Free Soil, Free Labor Movement as well as the self-interest of the northern white working class. Together, they present a powerful argument for constitutionally grounding the protection of working people from overreaching subjugation and abuses at the hands of employers.

The evidence suggests that the thirteenth amendment was animated by a conception of labor reform broader than the elimination of racial servitude which was its catalyst. From this perspective, race slavery was objectionable not only for its pernicious racism, but also as the most obvious and brutal violation of the free labor principle. Senator Henry Wilson’s remarks typify this perspective when he explained the party’s motivation as concern for the condition of the "worst off working man," rather than merely his formal legal reclassification.

This free labor vision has potentially far-reaching implications for constitutional interpretation of the thirteenth amendment and for many aspects of the modern employment relation.

Ariela J. Gross, Legal Transplants: Slavery and the Civil Law in Louisiana:

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction "transplanted" in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a "Black Code," first adopted in 1806, which owed a great deal to both French and Spanish law. Comparisons of Louisiana with other slave states tend to emphasize the uniqueness of New Orleans' three-tier caste system, with a significant population of gens de couleur libre (free people of color), and the ameliorative influence of Spanish law. This reflects more general assumptions about comparative race and slavery in the Americas, based on the work of Frank Tannenbaum and other historians of an earlier generation, who drew sharp contrasts between slavery in British and Spanish America. How does the comparison shift if we turn our attention away from slave codes, where Tannenbaum focused, to the "law in action"? At the local level, one can see the way slaves took advantage of the gap between rules and enforcement, and to fathom racial meanings at the level of day-to-day interactions rather than comparisions of formal rules. This essay surveys three areas of law involving slaves - manumission, racial identity, and "redhibition" (breach of warranty) - to compare Louisiana to other jurisdictions, and particularly to its common-law neighbors.

The May 15, 1776 Declaration of Independence

I missed a couple of related historical anniversaries recently.

On Friday May 10, 1776, the Continental Congress agreed to a resolution recommending that the colonies form new governments:

Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.

The Congress also appointed "a committee of three . . . to prepare a preamble to the foregoing resolution." John Adams, Edward Rutledge and Richard Henry Lee were selected as the members.

On Wednesday May 15, 1776, the Continental Congress ordered the publication of the resolution passed on May 10, together with the following preamble:

Whereas his Britannic Majesty, in conjunction with the lords and commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these United Colonies from the protection of his crown; And whereas, no answer, whatever, to the humble petitions of the colonies for redress of grievances and reconciliation with Great Britain, has been or is likely to be given; but, the whole force of that kingdom, aided by foreign mercenaries, is to be exerted for the destruction of the good people of these colonies; And whereas, it appears absolutely irreconcileable to reason and good Conscience, for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of the government exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies; therefore, resolved, etc.

Poor John Adams believed, and would always believe, that the resolution, which he had presented with Richard Henry Lee on May 10, together with the May 15 preamble, which he had authored, constituted the document that marked the independence of the colonies. It was for this reason that he was happy to delegate to his young associate, Thomas Jefferson, the task of preparing a draft of the document that became known as the Declaration of Independence.

A Fantasy

If the members of the national press corp were not so busy acting as lap dogs for the administration, someone would pose the following question to the president at his next press conference:

Sir, during the campaign you characterized the administration's military commission system as a "legal black hole" and "dangerously flawed legal approach," which "undermines the very values we are fighting to defend." You similarly excoriated administration policies concerning indefinite detention of suspected terrorists and the release of photographs showing alleged prisoner abuse.

My question, sir, is this. Have you called President Bush and apologized to him? And if not, why not?

Ah, the fantasies we have!

And Now, For Some Aht!

Rick Klauber is one of my favorite contemporary artists. Here's one of Rick's shim paintings.

"I have come here to hear that voice"

Having just related one the well-known clashes between Henry Clay and John Randolph of Roanoke, I thought I’d pass on Robert Remini’s charming story of the reconciliation that took place between the two men in late February or the beginning of March 1833, less than three months before Randolph’s death. I have added a paragraph break for readability:

The reconciliation took place quite by accident. “There was no explanation, no intervention,” said Clay. Randolph had gone to the Senate one evening which the Kentuckian was speaking. “Help me up,” Randolph commanded, “I have come here to hear that voice.” Clay spotted him “looking as if he were not long for this world; and being myself engaged in a work of Peace [the conclusion of the Nullification Crisis],” he walked over to Randolph when he had concluded his speech and extended his hand. Randolph seized it, and their salutations were “cordial on both sides.”

Ever the consummate politician, Clay later left his card at Randolph’s lodgings, but the two men never met again. The Virginian died a few months later on May 24 [1833], after pronouncing Clay “a brave man, he is a consistent man . . . an independent man and an honest man.” Still, when he died, he wanted to be buried facing west so could keep an eye on Henry Clay. Just in case.

Henry Clay Outsmarts John Randolph of Roanoke

The House passed the legislation comprising the Missouri Compromise on March 2, 1820. The next day, March 3, John Randolph of Roanoke moved for reconsideration. Robert V. Remini tells the story as well as anyone:

Speaker [Henry] Clay turned to [Randolph] with a look of studied contempt. After a moment he announced that the hour was late, the members exhausted. The motion, he declared, would be postponed until the following day. At that time, it would be in order.

The following day Randolph rose to have the vote reconsidered. Clay ruled him out of order, until the routine business of the House had been concluded. Meanwhile, as Speaker he signed the Missouri bill and had the clerk deliver it to the Senate. When Randolph rose once more after the routine matters had been completed, Clay blithely announced that the bill had gone over to the Senate and could not be retrieved. The Missouri vote, already taken, was final.

Some States May Be More Equal Than Others?

I learned something yesterday that stunned me: the Constitutional Convention voted to give Congress the power to admit new states on different terms than those to be enjoyed by the original states.

On August 29, 1787, the Constitutional Convention addressed Article XVII, concerning the admission of new states, as presented by the Committee of Detail on August 6, 1787:

New States lawfully constituted or established within the limits of the United States may be admitted, by the Legislature, into this Government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting.

During the August 29 debate, Gouverneur Morris, representing Pennsylvania, specifically proposed to delete the language requiring the admission of “new States” “on the same terms with the original states”:

Art. XVII being taken up, Mr. Govr. MORRIS moved to strike out the two last sentences, to wit "If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt, which shall be then subsisting." – He did not wish to bind down the Legislature [i.e., Congress] to admit Western States on the terms here stated.

In the ensuing debate, the Convention approved Morris’s motion and deleted the language. Moreover, it is pretty clear that Convention did so because the participants wanted the federal government to retain the option to admit new states on unequal terms:

Mr. [James] MADISON [of Virginia] opposed the motion, insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with other States.

Col. [George] MASON [of Virginia]. If it were possible by just means to prevent emigrations to the Western Country, it might be good policy. But go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies.

Mr. Govr. MORRIS, did not mean to discourage the growth of the Western Country. He knew that to be impossible. He did not wish however to throw the power into their hands.

Mr. [Roger] SHERMAN [of Connecticut], was agst. the motion, & for fixing an equality of privileges by the Constitution.

Mr. [John] LANGDON [of New Hampshire] was in favor of the Motion, he did not know but circumstances might arise which would render it inconvenient to admit new States on terms of equality.

Mr. [Hugh] WILLIAMSON [of North Carolina] was for leaving the Legislature free. The existing small States enjoy an equality now, and for that reason are admitted to it in the Senate. This reason is not applicable to new Western States.

On Mr. Govr. Morris's motion for striking out.

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. no. Va. no. N. C. ay. S. C. ay. Geo. ay.

After a little more tinkering, the delegates arrived at the final version of the first sentence of Article IV, Section 3:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

The Missouri Compromise: Compromise, Armistice or Defeat?

I have discussed in several earlier posts David M. Potter’s conclusion that the Compromise of 1850 was not a compromise at all, but rather an armistice.

But what about the Missouri Compromise of 1820? I suspect that the general impression is that it was a compromise. After all, it sure looks like a compromise at first blush. The South gained a new slave state (Missouri) that extended north of where slavery had legally existed before, while the North gained a new free state (Maine) and the commitment that slavery would not be permitted in the rest of the Louisiana Purchase territory.

But an analysis of key votes held during the Missouri Crisis casts doubt upon this conclusion. Closer examination suggests that it was only a half a compromise, or more precisely, that only side compromised, while the other did not.

Glover Moore lays out and discusses the key votes in his dated but valuable The Missouri Controversy 1819-1821. In the Senate, the key vote that Moore discusses was held on February 17, 1820. The first “vote was taken on ordering the Maine-Missouri bill to be engrossed and read a third time. As the bill embraced all of the compromise measures, a vote for engrossment was a vote for the compromise.” The result, broken down sectionally, was as follows:

For Against
North 4 18
South 20 2
Totals 24 20

Moore observes that “[t]he vote leaves no doubt about which section of the country favored and which did not favor the compromise of 1820.”

Likewise in the House. The House never voted on the compromise as a whole, because that was precisely the test that Speaker Henry Clay was determined to avoid. To gauge sectional willingness to compromise, Moore therefore looks at two separate votes.

Taking the North first, Moore asserts that “the willingness of Northern representatives to compromise must be gauged by their vote against the second recommendation of the conference committee that the antislavery clause be eliminated from the Missouri bill.” Northern Representatives voted against striking the clause by a margin of 14 to 87. “Thus, by an overwhelming majority, Northern representatives rejected the only concession which the compromise of 1850 required of them.”

Looking at the South, Moore maintains that “[t]he willingness of Southern representatives to compromise can only be judged by the vote on the Thomas proviso [barring slavery from the remainder of the Louisiana Purchase], the concession which the compromise required of the South.” Southern representatives voted in favor of the proviso by margin of 39 to 37.

Moore comments:

By voting 39 to 37 in favor of the Thomas proviso, Southern representatives approved the compromise of 1820. The majority they gave it was a slender one, but even that was in marked contrast with the uncompromising vote of the Northern congressmen.

In short, it would appear that, from the southern perspective, the Compromise of 1820 was in fact a compromise. An overwhelming majority of southern senators and a slim majority of southern representatives voted in favor of the compromise or the key concession they were asked to make to achieve it.

To the North, however, the Compromise of 1820 was not a compromise. It was not even an armistice – it was a defeat. Of those northern legislators who voted, 82% of Senators and 86% of Representatives voted against compromise or against the key concession they were asked to make.

The Original Dough Faces -- Or Is That Doe Faces?

In an earlier post I discussed the origin of the term “dough face” and whether it was “dough face” or “doe face.”

Add Glover Moore to those who squarely straddle the fence:

Because of a misinterpretation of a remark made by John Randolph, the eighteen Northerners who made it possible to admit Missouri without restriction [on slavery] became known as “dough faces.” . . . Perhaps he regarded absentees and last minute converts as half-baked or easily molded, or they may have reminded him of children who daubed their faces with dough and became frightened by a glance at the mirror. It is also possible that the epithet should be spelled “doe faces” and was an allusion to the timidity of the female deer.

Moore notes that, whether or not Randolph had particular individuals in mind, eighteen northern members of the House of Representatives who either did not vote or voted in favor of removing the anti-slavery restriction on March 2, 1820 were forever tarred with the epithet. For the record, four northern Representatives were absent during the vote (“DR” stands for Democratic-Republican; “F” for Federalist; and “U” unclear):

Caleb Tompkins (DR, New York) (brother of Vice President Daniel D. Tompkins)
Walter Case (DR, New York)
Harmanus Peek (DR, New York)
Henry W. Edwards (DR, Connecticut)

Fourteen northern Representatives voted affirmatively to strike the anti-slavery proviso:

Mark L. Hill (DR, Massachusetts)
John Holmes (DR, Massachusetts) (no, not that John Holmes)
Jonathan Mason (F or U, Massachusetts)
Henry Shaw (DR, Massachusetts)
Samuel Eddy (DR, Rhode Island)
James Stevens (DR, Connecticut)
Samuel A. Foote (DR, Connecticut) (who later inadvertently precipitated the Webster-Hayne debate)
Henry Meigs (DR, New York)
Henry R. Storrs (F, New York)
Joseph Bloomfield (DR, New Jersey)
Charles Kinsey (DR, New Jersey)
Bernard Smith (DR, New Jersey)
Henry Baldwin (DR or U, Pennsylvania) (a future Justice of the Supreme Court)
David Fullerton (DR, Pennsylvania)

The final vote in the house was 90 for eliminating the anti-slavery provision, 87 for retaining it. No Representative from a slaveholding state voted for retention. The dough face votes and abstentions were thus critical.

"I am bound to make a speech for Buncombe"

I won’t vouch for this story, found in Glover Moore’s The Missouri Controversy, although a quick check reveals internet sites repeating the substance:

As the debate over Missouri continued indefinitely, many of the speeches predictably became repetitious and boring. . . . Finally, when Representative Felix Walker of North Carolina rose to speak on February 25, [1820,] the House refused to listen to him. Walker represented the Buncombe County district. According to tradition, he stated that his constituents expected him to say something about Missouri and that he was bound to “make a speech for Buncombe.” In this manner, it is said, the word “bunkum” or “bunk” entered the American vocabulary.

The Missouri Crisis: A Prequel

In The Missouri Controversy 1819-1821, Glover Moore points out a prequel to the dispute over slavery in Missouri of which I was unaware of.

On Monday November 23, 1818, a “resolution declaring the admission of the State of Illinois into the Union, on an equal footing with the original States, was read a third time.”

At that point, New York Representative James Tallmadge, Jr. – who three months later would ignite the Missouri controversy – rose and “assigned the reasons why, in his opinion, the resolution ought not to be adopted.” Rep. Tallmadge's principal objection related to the failure of the proposed Illinois constitution specifically to bar slavery. “The principle of slavery,” he maintained, “if not adopted in the constitution, was at least not sufficiently prohibited.”

Pointing first to Article 6 of the Northwest Ordinance, which barred slavery, Rep. Tallmadge first argued that it “was in the nature of a convention between the United States and the people of the States and Territories to be formed out of that territory.” Consequently, “[i]f the [proposed state] constitution was found to comport with that provision, it ought to be received by Congress; if not, it ought to be rejected. “Mr. T.” contended that the proposed Illinois constitution “contravened this stipulation, either in the letter or the spirit.”

Turning (as it were) to the merits of slavery, Rep. Tallmadge condemned it as “despotism” that contradicted the Declaration of Independence:

It had often been cast as a reproach on this nation, that we, who boast our freedom, and pride ourselves on our independence, yet hold our fellow-beings in service. Americans had been represented, indeed, with one hand exhibiting the declaration of independence, and with the other brandishing the lash of despotism.

Rep. Tallmadge softened the blow of his words by placing the blame for the “original sin” of slavery on the British. He recognized that the southern states were trying to “control and regulate the evil,” and had no desire to interfere with their efforts in states where slavery already existed. “But, Mr. T. said, if Congress should voluntarily recognise this feature in a constitution submitted for their decision, and in violation, too, of a compact forbidding it, they would take upon themselves the unjust imputation he had alluded to.”

Rep. George Poindexter of Mississippi then took the floor. He believed that the proposed Illinois constitution was not a bar to admission, but his statements concerning slavery were remarkable given the rancor of later debates:

Mr. POINDEXTER, of Mississippi, said he fully concurred with the gentleman from New York, in his solicitude to expel from our country, whenever practicable, anything like slavery. It is not with us, said he, a matter of choice whether we will have slaves among us or not; we found them here, and we are obliged to maintain and employ them. It would be a blessing, could we get rid of them; but the wisest and best men among us have not been able to devise a plan for doing it.

Rep. Poindexter did not deny that the federal government could condition Illinois' admission on the wording of its constitution, but he did assert that it was a futile exercise, for the people of a state could change their constitution at will, since [i]n the nature of free governments, no law could be irrepealable.” Remarkably, however, “he hoped that neither Ohio, Indiana, nor Illinois, would ever permit the introduction of slavery within their limits. He hoped, as far as we could, we should expel slavery from this country.”

After an intervening speech by Rep. Richard C. Anderson, Jr. of Kentucky, Rep. Tallmadge took the floor again. The most interesting part of his response (to me at least) addressed Rep. Poindexter's contention that, after statehood, citizens of Illinois could amend their constitution to permit slavery. Rep. Tallmadge argued that the Republican Form of Government clause of the Constitution might bar them from doing so – the first articulation on the floor of Congress of that argument of which I am aware:

With respect to the power of a State to change its constitution, he was not prepared to say that a State was, in that respect, under no restraint. Would Gentlemen admit a State into the Union to-day under a republican form of government, and permit it to call a convention to-morrow, and change its form of government to a monarchy? That State would cease, by the very act, to be a component part of the Union, and the same result would follow, he presumed, if a State were to violate the condition on which it was admitted into this Union, by admitting the introduction of slavery.

This was too much for future president William Henry Harrison, then serving as a Representative of the State of Ohio. Although “the introduction of slavery” was “the object of” Harrison's “abhorrence,”

he protested against the doctrine of the gentleman from New York. He could assure the gentleman that the people of that State [of Ohio] were fully aware of their privileges, and would never come to this House, or to the State of New York, for permission so to alter their constitution.

The resolution to admit Illinois passed by an overwhelming margin, 117 to 34. At the same time, those 34 negative votes – thirty-three from the north, one from Maryland – were an omen of the future.