"The first defense of slavery as a positive good ever to be heard on the floor of Congress"

In The Old Republicans: Southern Conservatism in the Age of Jefferson, Norman K. Risjord identifies an argument by North Carolina Senator Nathaniel Macon, made on Thursday January 20, 1820, during the Missouri debates, as “the first defense of slavery as a positive good ever to be heard on the floor of Congress”:

It is a fact, that the people who move from the non-slaveholding to the slaveholding States, when they become slaveholders by purchase or marriage, expect more labor from them than those do who are brought up among them.

To the gentleman from Rhode Island (Mr. Burrill) I tender my hearty thanks, for his liberal and true statement of the treatment of slaves in the Southern States. His observations leave but little for me to add, which is this, that the slaves gained as much by independence as the free. The old ones are better taken care of than any poor in the world, and treated with decent respect by all their white acquaintances. I sincerely wish that he, and the gentleman from Pennsylvania, (Mr. Roberts,) would go home with me, or some other Southern member, and witness the meeting between the slaves and the owner, and see the glad faces and the hearty shaking of hands. . . .

The owner can make more free in conversation with his slave, and be more easy in his company, than the rich man, where there is no slave, with the white hireling who drives his carriage. He has no expectation that the slave will, for that free and easy conversation, expect to call him fellow-citizen, or act improperly.

California and the Missouri Compromise Line

In the late 1840s, during the lead-up to the Compromise of 1850, some federal legislators argued that the prospective state of California should be divided in half and ultimately be admitted as two states. These were southerners, of course, who were proposing that the Missouri Compromise line be extended to the Pacific. The northern portion would be admitted as a free state; slavery would be permitted in the south.

It was not to be, because most northerners, and some southerners (including Louisiana slaveholder Zachary Taylor), objected, for a variety of reasons, and most of us would say that the good guys won that fight. But Lawprof Ilya Somin's recent post at Volokh makes me wonder: would we all not have been better off, at least in the long run, if proponents of the extension of the Missouri Compromise line had succeeded?

(The) Mississippi Burning

[I]t would have been happier for us if the the Mississippi [River] had been an eternal torrent of burning lava, impassable as the lake which separates the evil from the good, and the regions beyond it destined to be covered forever with brakes and jungles, and the impenetrable haunts of the wolf and the panther . . ..

Senator Harrison Gray Otis of Massachusetts, Speech to the Senate on Tuesday January 25, 1820.

The Clayton Compromise 2: The Northern Members Reject Extension of the Missouri Compromise Line to the Pacific

As described in the last post, the Senate appointed the eight members of the Clayton Committee on Thursday July 13, 1848. The Committee performed its work expeditiously, for Senator John M. Clayton of Delaware as Chairman reported the Committee's proposed bill to the Senate less than a week later, on Wednesday July 19, 1848.

The Committee formulated its legislation in private. However, we have a reasonably good idea of the course of the Committee's deliberations. Both at the time and later Senator Clayton described the other approaches discussed and rejected before the bill took shape. In a nutshell, the four southern members – including (incredibly) John C. Calhoun of South Carolina and (ironically) David R. Atchison of Missouri – endorsed the idea of extending the Missouri Compromise line to the Pacific Ocean: slavery would be barred north of the line, and permitted (but not required) south of it. The four norther members of the committee, however, refused to acquiesce.

When he introduced the Committee's bill on July 19, 1848, Sen. Clayton related this history as follows:

[A]fter a full interchange of views, a vote was taken on a proposition moved by the Senator from Missouri, [Mr. ATCHISON,] “that the spirit of the Missouri compromise be adopted to govern the settlement of all the Territories of the United States.” On this question the committee divided, five for and three against the motion. The Senator from Indiana [Mr. BRIGHT] then moved the proposition . . . containing the words of the Missouri compromise. As the condition of the territory was now said to be different from that to which that compromise applied in 1820, a motion was made by the Senator from Kentucky [Mr. UNDERWOOD] to amend that proposition by providing that “all the territory in New Mexico and California, south of the parallel of 36° 30', shall be placed on same footing in all respects as to slavery that existed in Louisiana while it was a territory.” On this question, the committee divided, four for the motion and four against it. After the failure of this motion, the question was taken on the proposition of the Senator from Kentucky, and with a like result – the committee being again equally divided.

At this stage of the proceedings all compromise appeared to be impossible.

Six years later, debate raged in the Senate over the proposed Nebraska Bill, with northern legislators railing that the abrogation of the Missouri Compromise line was a betrayal of a fundamental compact between the sections. Presumably in that context, on March 1, 1854 Senator Clayton reportedly delivered (I cannot find the speech in the Congressional Globe; the quote below is taken from this source) a more emotionally-colored rendition of the northern members' refusal to extend the compromise line back in 1848:

Now, sir, I am compelled, in justice to both sections of the Union, to relate in your presence, you having been a member of the committee, and knowing the truth of the facts which I am about to state, what occurred in that committee. As soon as we assembled, a proposition was made by a member from the South to extend the Missouri compromise line to the Pacific. You, sir, remember it well. The vote upon it stood four northern members against it, and four southern members for it. The proposition was renewed in every form in which we could conceive it would be proper; but our northern friends rejected it as often as it was proposed. We discussed it; we entreated them to adopt it. We did not pretend that it was a constitutional measure, but it had been held by many as a compact between the North and the South, and in such an emergency as that then existing, it had been justified by the people as a measure of peace. We argued the question to show our northern friends the justice, not the constitutionality, of extending such a line to the Pacific. I remember well that I obtained a statement from the Land Office which showed the effect of it; and I thought it ought to satisfy northern gentlemen. From that statement it appeared that if the line were extended to the Pacific, the free labor of the North would have the exclusive occupation of one million six hundred thousand square miles of land in the territories outside of the states, and the South but two hundred and sixty-two thousand, in which, observe, slavery could only be tolerated in case the people residing there should allow it. The debates which followed the report of the committee fully sustain all these statements of mine. Among other things I said in a speech, delivered in the Senate, after the report, on the 3d of August, 1848, which will be found on page 1207 of the Appendix to the Congressional Globe for that session:—

"I am bound to state, and I will now do It in the presence of all the members of the committee, northern as well as southern, that in that committee the South proposed the Missouri compromise in spirit and effect; that all the territory north of 36° 30' should be free, and all south of it open to slavery, if the people there should will it."

Again, I stated at the same time:—

"The proposal of the South to run the line of 36° 30' to the Pacific would have made one million six hundred thousand square miles of the territory, lying beyond the states, on both sides the Rocky Mountains, free from slavery for ever, and would have left for African slavery south of 36° 30' parts of California and New Mexico, containing only about two hundred and seventy thousand square miles of the most worthless part of the whole country – In other words less than one-sixth in area, and less than one-twentieth in value of all the territory acquired by the common blood and treasure. The gentlemen of the committee from the North having voted down this proposal made by a southern member, there was indeed, as the gentleman from South Carolina [Mr. Calhoun] has described it, a solemn pause in that committee. All hope of amicable settlement for the moment vanished, and unnatural contention seemed likely to prevail among us. . . .

Mr. Atchison, the President, (in the chair,) here rose, and said: If the Senate will permit me, I will here state that the Senator from Delaware has, according to tho best of my recollection, substantially stated what did take place while that committee was in session.

In Which Robert Pierce Forbes Takes Me to the Woodshed

I'm too lazy to provide all the background, but very briefly in an earlier post I asserted that in the aftermath of the Missouri Compromise most northerners regarded the resolution of the crisis as a defeat. In a comment to that post, Prof. Robert Pierce Forbes, the author of The Missouri Compromise and its Aftermath: Slavery and the Meaning of America, raised a question about my conclusion, citing correspondence of two of the restrictionist leaders, James Tallmadge and John W. Taylor. I in turn published a follow-up post noting Prof. Forbes's question and asserting that there appeared to be extenuating circumstances surrounding the expressions in the correspondence. I pledged to highlight any reply that Prof. Forbes might be so gracious to supply.

Prof. Forbes has now done exactly that, and true to my word I want to give him the floor. Here is his response without edit:

Dear Mr. Tig,

Thank you for your invitation to respond to your thoughtful post. It calls to mind a quotation from Einstein that I cite in my introduction: "The theory decides what we can observe." Since you know that the Compromise was a defeat for its authors, the letters must be ones of consolation.

But how would you read them if you had never heard of the Missouri Compromise? Would “great Joy," "a monument to your fame," "ample recompense," look like commiseration in defeat? In public, as I make clear, the architects of the Compromise had to describe it as a Southern victory. But in their private correspondence--in letters not likely to be intercepted by Bucktail postmasters--the two men most responsible for restriction expressed their delight in the outcome.

This stuff is far from obvious; it took me literally years to figure it out.

I have an idea as to at least one point I want to make, but for now I'll keep my powder dry. The books I want to consult first - Prof. Forbes's work and Glover Moore The Missouri Controversy, 1819-1821 - are at my weekend place. But respond I shall!

About the illustration:

A satire condemning the duplicity and conspiracy of the "Bucktail" faction of New York Democrats in their April 1824 ouster of New York's ex-governor DeWitt Clinton from his post as canal commissioner. The Library's impression of the print has the missing letters in the names of the figures filled in by hand. Twelve men stand in a room, with a platform, table, and lamp on the right. On the left G[ardiner] is about to exit saying, "I will run home and ask the people how they will like it before I give my vote." To the left of the platform P[ierson] says to B[ourne], "I hope we shall give you a united vote for the removal of Mr. Clinton I have long wished an opportunity to have revenge on him for blowing up the old Burr Conspiracy." B[ourne]: "I am delighted with the prospect! Clinton has always been my devil--it will be impossible to pull him down to our level if we do not dishonor him. I recommend secrecy as success depends upon our taking the members by surprise at the moment of adjournment." Others in the room speak (counterclockwise, from the far left): S[eama]n: "I beg of you to pause ere you adopt any more lobby measures--we were sent here for public good--yet all our measures have for their object individual benefit. This base deed will produce a reaction and may make him Governor. The republican party so justly famed for justice and liberality will in their haste to free themselves from this odium forget and forgive everything." M[ors]e: "The North river squad think the Canal a benefit to ourside [sic] of the City and they will therefore disapprove our dishonoring its founder." D[rake]: "I wish I could be excused from voting, my conscience tells me it is wrong my judgment tells me it will dishonor the State--but the lobby requires it and it must be done." H[yatt]: "I vote here against the measure but if a majority of this meeting decide in its favor I will vote for it in the house tomorrow as my creed is the majority must rule." B[enedict]: "It is inconsistant with a Soldiers honor to build up or pull down any man to gratify angry or sordid passions --besides this lobby influence must be check'd or it will ruin the State." [Henry] W[heaton]: "I will support the measure to punish him for the injury he did our profession by recommending the fee bill and extending the jurisdiction of the judges." [Clarkson] C[rolius]: "I will support the measure in hopes of appeasing the wrath of the Bucktails altho' I fear they are too hard baked to be gull'd in this way. Besides My Insurance Co. & the lobby." W[ar]d: "My vote shall be given for this removal because he is the author of all our troubles about the electoral law. When Govr. he recommended to the Legislature the restoration of the peoples rights." T[own]: "It is true he has been my Benefactor and I ought to shudder at the deed but three months tuition in the hands of the lobby does away these squeamish feelings." Above, in a cloud, is Columbia with an American flag and an eagle, saying, "I renounce them and their ways."

The Rights, Advantages and Immunities of Citizens of the United States

Section 1 of the Fourteenth Amendment includes the so-called Privileges or Immunities Clause, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Most scholars have come to agree that, if the Fourteenth Amendment applies the Bill of Rights to the States, it was the Privileges or Immunities Clause that was supposed to do the job. This, in turn, has set off a scholarly search for the meaning of and antecedents to the mysterious phrase, “the privileges or immunities of citizens of the United States.”

Most legal historians have, not surprisingly, pointed to a clause in Article IV, Section 2 that contains similar language. The Privileges and Immunities Clause provides that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

In his important new article, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, constitutional historian Kurt T. Lash identifies a different source. It turns out that treaties and treaty-related documents in the period between the founding and the Civil War repeatedly referred to the rights, privileges and immunities “of citizens of the United States.” What is more, we have contemporary explanations of what the terms were understood to mean.

Since my purpose here is to whet your appetite, not rehash Prof. Lash's entire article, I want to cut to the chase and focus on one example to which Prof. Lash points. Article III of the Louisiana Purchase Treaty provided that inhabitants of acquired territory (which included Missouri) would enjoy “all these rights, advantages and immunities of citizens of the United States”:

The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.

During the Missouri Crisis of 1819-1821, this provision became the focus of discussion and argument. Anti-restrictionists (that is, those who contended that Missouri should be admitted as a state without restriction as to the form of its state constitution) maintained that restriction violated Article III.

Among those who denied the charge was Daniel Webster, who in December 1819 authored A Memorial to the Congress of the United States, on the subject of restraining the increase of Slavery in New States to be admitted into the Union.

In the Memorial, Webster countered the Article III argument by drawing a distinction between “the rights, advantages and immunities” granted under state law and those “of citizens of the United States.” The constitution and laws of a particular state might or might not grant all sorts of rights; but “the rights, advantages and immunities of citizens of the United States” were those set forth in the federal Constitution and common to all:

The rights, advantages, and immunities here spoken of [in Article III], must, from the very force of the terms of the clause, be such as are recognized or communicated by the Constitution of the United States; such as are common to all citizens, and are uniform throughout the United States. The clause cannot be referred to rights, advantages, and immunities derived exclusively from the State Government, for these do not depend upon the Federal Constitution. Besides, it would be impossible that all the rights, advantages, and immunities of citizens of the different States, could be at the same time enjoyed by the same persons. These rights are different in different States; a right exists in one State which is denied in others, or is repugnant to other rights enjoyed in others. In some of the States, a freeholder alone is entitled to vote in elections; in some a qualification of personal property is sufficient; and in others, age and freedom are the sole qualifications of electors. In some States, no citizen is permitted to hold slaves: in others, he possesses that power absolutely; in others, it is limited.

Webster then went on to describe some of “the rights derived under the Federal Constitution”:

The obvious meaning, therefore, of the clause is, that the rights derived under the Federal Constitution, shall be enjoyed by the inhabitant of Louisiana in the same manner as by the citizens of other States. The United States, by the Constitution, are bound to guarantee to every State in the Union a republican form of government; and the inhabitants of Louisiana are entitled, when a State, to this guarantee. Each State has a right to two Senators, and to Representatives according to a certain enumeration of population, pointed out in the Constitution. The inhabitants of Louisiana, upon their admission into the Union, are also entitled to these privileges.

"I hold in my hand a series of resolutions . . ."

Having devoted a few posts to descriptions of the oratorical style of Henry Clay, I thought I would take a look at two of his speeches. Before doing so, however, I urge you to to try to hear Clay speaking the words – a deep voice that, even at conversational levels, could fill the largest room and mesmerize an audience. You should also try to visualize Clay, a not particularly handsome, loose-limbed man who used movement – an arched eyebrow, the sweep of an arm, a stroll across the Senate floor, a pinch of snuff – to dramatize his points:

“He moved from his desk,” one observer wrote. “He walked up and down between the rows of seats. He took snuff. He used his hands freely. He varied his voice; was sometimes rapid, sometimes slow, sometimes solemn, sometimes playful. . . . He had the air of an accomplished actor playing a part with great skill but with an eye always on the audience and their applause.”

“Unfortunately,” Merrill Peterson explains, “none of the actions of his speeches could be transmitted to the printed page. The reported speeches were but skeletons of the originals.” As we read Clay’s speeches in coming posts, we must all, therefore, use our reconstructive powers to imagine a performance – not merely a speech – by a master.

The speeches that I want to take a look at are the ones he delivered in the United States Senate at the end of January and the beginning of February 1850, in support of his compromise resolutions. In the first, given on Tuesday January 29, 1850, Clay publicly unveiled his resolutions for the first time and “present[ed] a few observations upon each . . . with the purpose, chiefly, of exposing it fairly and fully before the Senate and before the country.” The second extended over two days, Tuesday and Wednesday February 5 and 6, 1850. In it, Clay set forth his arguments more fully and pleaded with his audience to support them.

In January 1850, Clay was approaching the end of a long and distinguished career. Approaching seventy-three years of age (born April 12, 1777), he had first set foot in the Senate in 1806, when, at the age of twenty-nine, he was, in theory, constitutionally ineligible to serve. Having featured prominently in the resolution of two earlier crises – the Missouri Crisis of 1819-1821 and the Nullification Crisis of 1832-1833 – Clay was widely expected to fill a similar role in the resolution of this crisis, and he knew it. Taking advantage of his reputation, Clay maneuvered to make his initial presentation the focus of debate. John C. Waugh explains and sets the stage:

It had been announced to the country beforehand that Clay was to appear in the Senate on January 29 to offer a set of resolutions. On that day the weather was bright and beautiful, and crowds hopeful of cramming into the Senate gallery began arriving early, long before the session opened. Alexander Stephens, who had gone to the Senate chamber with the mob, noted that “every aisle, nook and corner” was jammed. He estimated that when Clay rose to speak, “thousands were disappointed,” unable to get within earshot of him.

When Clay rose, he dramatically focused the audience's attention on a document he was holding. “ Mr. President,” Clay intoned, probably holding the document up for all to see, “I hold in my hand a series of resolutions which I desire to submit to the consideration of this body. Taken together, in combination, they propose an amicable arrangement of all questions in controversy between the free and the slave States, growing out of the subject of slavery.

Clay then explained the limited purpose of his present speech:

It is not my intention, Mr. President, at this time, to enter into a full and elaborate discussion of each of these resolutions, taken separately, or the whole of them combined together, as composing a system of measures; but I desire to present a few observations upon each resolution, with the purpose, chiefly, of exposing it fairly and fully before the Senate and before the country; and I may add, with the indulgence of the Senate, towards the conclusion, some general observations upon the state of the country and the condition of the question to which the resolutions relate.

Clay concluded his introduction with an attempt to diffuse knee-jerk criticism by emphasizing the “care and deliberation” he had devoted to preparing the resolutions he was about to introduce:

Whether they shall or shall not meet with the approbation and concurrence of the Senate – as I most ardently hope they may; as I most sincerely believe they ought – I trust that at least some portion of the long time which I have devoted, with care and deliberation, to the preparation of these resolutions, and to the presentation of this great national scheme of compromise and harmony, will be employed by each Senator before he pronounces against the proposition embraced in these resolutions.

Clay then proceeded to read his first resolution:

1st. Resolved, That California, with suitable boundaries, ought, upon her application, to be admitted as one of the States of this Union, without the imposition by Congress of any restriction in respect to the exclusion or introduction of slavery within those boundaries.

He had very little to say concerning it. Clay raised and dismissed an alleged procedural “irregularity” in California’s anticipated petition for admission and praised California as worthy of admission (“She forms now one of the bright stars of this glorious Confederacy”). Although – or because – everyone knew that California was about to apply for admission as a non-slave state, Clay downplayed this initial resolution as almost unnecessary:

The resolution proposes her admission when she applies for it. There is no intention on my part to anticipate such an application, but I thought it right to present the resolution as part of the general plan which I propose for the adjustment of these unhappy difficulties.

And with that, Clay briskly moved on to his next topic.

About the illustration:

A patriotic, illustrated sheet music cover for a song composed by Charles Collins, Jr., and dedicated to Kentucky senator Henry Clay. The work celebrates Clay's efforts to preserve the Union, and was a product of the optimism following passage of the Compromise of 1850. The Union is symbolized here by a circular chain in which every link is inscribed with the name of a state and its year of entry into the Union. California, admitted in 1850, is represented by the center ring below. At the top of the ring is an eagle with shield and olive branch, emerging from a cloud and flanked by two American flags. The chain is superimposed on an arch supported by two Doric columns, which in turn rest upon a stepped pedestal inscribed: "The United States of America. Union and Liberty, Forever, One and Inseparable." Outside of the columns are floral swags and acanthus ornaments. Inside is a view "The Capitol at Washington" with two men on horseback on its lawn. Above the dome appear the lines: "In Union's Chain, within its Spell, /Freedom & peace & safety dwell." An inscription (printed) appears below the illustration, a facsimile of a note by Henry Clay endorsing "the sentiments and the poetry" of the song and acknowledging the composer's dedication of the piece to him.

The Missouri Compromise: A "great Joy" to the North?

Several months ago, I wrote a post on the Missouri Compromise entitled The Missouri Compromise: Compromise, Armistice or Defeat? The post concluded, based on a review of congressional votes, that northern representatives viewed the first Missouri Compromise – the Compromise of 1820 – as a defeat:

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.

Recently, Robert Pierce Forbes, the author of The Missouri Compromise and Its Aftermath: Slavery and the Meaning of America (which I see is slated to be released in paperback August 15), was kind enough to visit these pages and left the following comment to the post:

All very true. But what do you make of the fact that [James] Tallmadge and [John W.] Taylor celebrated and congratulated each other?

Since a comment from one of the leading authorities on the Compromise is not exactly an everyday event, I thought I’d explore it and venture a response.

Prof. Forbes describes the celebration and congratulations he refers to in his comment in greater detail in his book, as follows:

[T]idings of the Missouri vote brought “great Joy” to the originator of the restriction amendment and its principal backer. From former representative James Tallmadge, John W. Taylor received fervent congratulations: “You have in this business a monument to your fame. Accept the thanks of a sincere friend for your perseverance – Talents – & devotion to the cause of your nation – & of suffering human nature.” For his part, as he wrote to his wife, Taylor also felt satisfaction. “We have gained all that was possible, if not all that was desired. . . . an ample recompense for all the time and talent it has cost us.”

It strikes me that we are viewing here, in part, a not uncommon human reaction to defeat after a long and bitter struggle. The two warriors had lost, but they could console themselves with the knowledge that they had fought the good fight against large odds and had at least achieved something.

In addition, as Prof. Forbes himself points out in the next paragraph, it was possible to see this as the beginning, not the end, of the match. The first round had been close, and there was reason to believe the odds would be better in the second:

Moreover, the struggle to admit Missouri was hardly finished. The principal task for opponents of restriction was consolidating their position. They had prevailed by just three votes, and even if, as I think it should be, [John] Randolph’s assertion that six more northern votes waited in the wings if needed is taken seriously, this still amounted to a tenuous margin. By every indication, most “doughfaces” could expect stiff reelection challenges; the Seventeenth Congress would undoubtedly be still more unfriendly to slavery expansion.

Was the first Missouri vote a defeat? Yes, but a glorious one. The South’s nose had at least been bloodied, and Northern consciousness, as we might say today, had been raised. There would be future battles, and victory would ultimately result.

It goes without saying that I would be delighted to highlight any comment or response from Prof. Forbes.

Jefferson Cries Wolf in the Night? 3

In his book The Missouri Compromise and Its Aftermath: Slavery and the Meaning of America, Robert Pierce Forbes argues persuasively that Thomas Jefferson’s April 22, 1820 “fire bell in the night” letter to John Holmes – previously discussed here and here – was, let us say, a trifle disingenuous.

Apart from the fact that the letter conveniently catapulted Holmes, a loyal Republican, to the United States Senate, Forbes notes that other contemporaneous Jefferson correspondence is free of the doom-and-gloom predictions the letter contains. In fact, what stands out is that the tone of Jefferson’s letters depends on the identity of the recipient. “Jefferson reserved his tone of fatalism for northerners and anticompromise southerners.”

Procompromise confidantes like president James Monroe heard a different message from the Sage of Monticello. Forbes cites, for example, a letter that Jefferson wrote three weeks later to the president. In the letter, dated May 14, 1820, Jefferson gushed about the nation’s future prospects (emphasis added):

Dear Sir,

—Your favor of the 3d is received, and always with welcome. These texts of truth relieve me from the floating falsehoods of the public papers. I confess to you I am not sorry for the non-ratification of the Spanish treaty. Our assent to it has proved our desire to be on friendly terms with Spain; their dissent, the imbecility and malignity of their government towards us, have placed them in the wrong in the eyes of the world, and that is well; but to us the province of Techas will be the richest State of our Union, without any exception. Its southern part will make more sugar than we can consume, and the Red river, on its north, is the most luxuriant country on earth. Florida, moreover, is ours. Every nation in Europe considers it such a right. We need not care for its occupation in time of peace, and, in war, the first cannon makes it ours without offence to anybody. The friendly advisements, too, of Russia and France, as well as the change of government in Spain, now ensured, require a further and respectful forbearance. While their request will rebut the plea of proscriptive possession, it will give us a right to their approbation when taken in the maturity of circumstances. I really think, too, that neither the state of our finances, the condition of our country, nor the public opinion, urges us to precipitation into war. The treaty has had the valuable effect of strengthening our title to the Techas, because the cession of the Floridas in exchange for Techas imports an acknowledgement of our right to it. This province moreover, the Floridas and possibly Cuba, will join us on the acknowledgement of their independence, a measure to which their new government will probably accede voluntarily. But why should I be saying all this to you, whose mind all the circumstances of this affair have had possession for years? I shall rejoice to see you here; and were I to live to see you here finally, it would be a day of jubilee. But our days are all numbered, and mine are not many. God bless you and preserve you muchos años.

Forbes correctly observes, “Nothing in Jefferson’s boldly activist letter to Monroe reveals any trace of pessimism for the nation’s prospects.”

Likewise, Forbes points to Jefferson’s letter to his old friend the Marquis de Lafayette dated December 26, 1820, in which Jefferson described “Missouri” as involving little more than political posturing and “noise”:

With us things are going on well. The boisterous sea of liberty indeed is never without a wave, and that from Missouri is now rolling towards us, but we shall ride over it as we have over all others. It is not a moral question, but one merely of power. Its object is to raise a geographical principle for the choice of a president, and the noise will be kept up till that is effected. All know that permitting the slaves of the south to spread into the west will not add one being to that unfortunate condition, that it will increase the happiness of those existing, and by spreading them over a larger surface, will dilute the evil everywhere, and facilitate the means of getting finally rid of it, an event more anxiously wished by those on whom it presses than by the noisy pretenders to exclusive humanity. In the meantime, it is a ladder for rivals climbing to power.

To antislavery men and northerners, however, Jefferson purported to convey fear and uncertainty. In a letter written on December 26, 1820 – the same day that he wrote to Lafayette – to Pennsylvanian Albert Gallatin, “a pronounced Republican opponent of slavery then serving as U.S. minister to France," Jefferson reverted to pessimism, clearly designed to persuade the influential Gallatin to support and lobby for compromise. Although the Missouri question was nothing but a Federalist plot, it had stirred up a hornets’ nest, and secession was not out of the question unless cooler heads prevailed (emphasis and paragraph breaks added):

But nothing has ever presented so threatening an aspect as what is called the Missouri question. The Federalists, completely put down and despairing of ever rising again under the old divisions of Whig and Tory, devised a new one of slave-holding and non-slave-holding States, which, while it had a semblance of being moral, was at the same time geographical, and calculated to give them ascendency by debauching their old opponents to a coalition with them. Moral the question certainly is not, because the removal of slaves from one State to another, no more than their removal from one country to another, would never make a slave of one human being who would not be so without it. Indeed, if there were any morality in the question it is on the other side; because by spreading them over a larger surface their happiness would be increased, and burden of their future liberation lightened by bringing a greater number of shoulders under it.

However, it served to throw dust into the eyes of the people and to fanaticize them, while to the knowing ones it gave a geographical and preponderant line of the Potomac and Ohio, throwing fourteen States to the North and East, and ten to the South and West. With these, therefore, it is merely a question of power; but with this geographical minority it is a question of existence. For if Congress once goes out of the Constitution to arrogate a right of regulating the condition of the inhabitants of the States, its majority may, and probably will, next declare that the condition of all men within the United States shall be that of freedom; in which case all the whites south of the Potomac and Ohio must evacuate their States, and most fortunate those who can do it first.

And so far this crisis seems to be advancing. The Missouri constitution is recently rejected by the House of Representatives; what will be their next step is yet to be seen. If accepted on the condition that Missouri shall expunge from it the prohibition of free people of color from emigration to their State, it will be expunged, and all will be quieted until the advance of some new State, shall present the question again. If rejected unconditionally, Missouri assumes independent self-government, and Congress, after pouting awhile, must receive them on the footing of the original States. Should the Representatives propose force, 1, the Senate will not concur; 2, were they to concur, there would be a secession of the members south of the line, and probably of the three Northwestern States, who, however inclined to the other side, would scarcely separate from those who would hold the Mississippi from its mouth to its source.

What next? Conjecture itself is at a loss. But whatever it shall be you will hear from others and from the newspapers; and finally the whole will depend on Pennsylvania. While she and Virginia hold together, the Atlantic States can never separate. Unfortunately, in the present case she has become more fanatisized than any other State. However useful where you are, I wish you were with them. You might turn the scale there, which would turn it for the whole. Should this scission take place, one of the most deplorable consequences would be its discouragement of the efforts of the European nations in the regeneration of their oppressive and cannibal governments. Amidst this prospect of evil I am glad to see one good effect. It has brought the necessity of some plan of general emancipation and deportation more home to the minds of our people than it has ever been before, insomuch that our governor has ventured to propose one to the Legislature. This will probably not be acted on at this time, nor would it be effectual; for, while it proposes to devote to that object one-third of the revenue of the State, it would not reach one-tenth of the annual increase.

My proposition would be that the holders should give up all born after a certain day, past, present, or to come; that these should be placed under the guardianship of the State, and sent at a proper age to St. Domingo. They are willing to receive them, and the shortness of the passage brings the deportation within the possible means of taxation, aided by charitable contributions. In these I think Europe, which has forced this evil on us, and the Eastern States, who have been its chief instruments of importation, would be bound to give largely. But the proceeds of the land office, if appropriate to this, would be quite sufficient.

God bless you, and preserve you multos años.

Likewise, in yet another letter written on December 26, 1820 (seems to have been a busy catch-up day!), “to his old friend David Baillie Warden, an Irish Presbyterian encyclopedist and dedicated opponent of slavery and racism,” Jefferson sounded similar themes:

But nothing disturbs us so much as the dissension lately produced by what is called the Missouri question: a question having just enough of the semblance of morality to throw dust into the eyes of the people, & to fanaticise them; while with the knowing ones it is simply a question of power. The Federalists, unable to rise again under the old division of whig and tory, have invented a geographical division which gives them 14. states against 10. and seduces their old opponents into a coalition with them. Real morality is on the other side. For while the removal of slaves from one state to another adds no more to their numbers than their removal from one country to another, the spreading them over a larger surface adds to their happiness and renders their future emancipation more practicable.

Jefferson Cries Wolf in the Night? 2

A long time ago, I began to discuss Thomas Jefferson's famous 1820 "fire bell in the night" quote concerning the threat presented by slavery. I want to revive the topic and evaluate the quote by looking at the context.

As I noted in my earlier post, the quote comes from a letter that Jefferson sent on April 22, 1820, about seven weeks after the first Missouri crisis had been resolved by the passage of bills that called for the admission of Maine as well as Missouri as new states, and provided that slavery would not be permitted in the Louisiana Purchase territory (other than the future state of Missouri) above 36 degrees 30 seconds north latitude (which latitude formed the southern border of Missouri). Why did he send this after-the-fact correspondence to an addressee who is now virtually unknown? For that matter, who on Earth was John Holmes, anyway?

The identity of the addressee is in fact one clue as to Jefferson’s motivation and purpose in sending the letter. John Holmes, it turns out, was a former Federalist turned Republican politician from the Maine "district" of the state of Massachusetts. For our purposes, the most important thing to know about Holmes is that he served in the House of Representatives as a representative of the Maine district of Massachusetts from March 1817 until he resigned on March 15, 1820 as Maine was about to be admitted as a new state. Three months later, on June 13, 1820, the newly-assembled Maine legislature elected Holmes as one of the state’s first United States Senators.

During the first Missouri crisis, southerners in Congress, irate over northern refusal to admit Missouri as a slave state, tied the pending admission of Maine to the admission of Missouri. It would therefore be logical to think that Mainers would have favored Missouri’s admission in order to realize their long-sought ambition of statehood.

In fact, a large number of Mainers (like Timothy Claimright, whose views I recently discussed) took exactly the opposite view. They favored restriction (i.e., restricting slavery in Missouri) and were furious when they learned that slave interests were holding their own statehood, the merits of which no one questioned, hostage to Missouri’s admission. Determined not to give in to what they perceived to be blackmail, many insisted that their representatives stand firm on Missouri.

John Holmes appeared to be well-positioned to take advantage of this popular outrage. As a delegate to the Maine constitutional convention in the fall of 1819, he had opposed a proposal to exclude black men from the vote:

I know of no difference between the rights of the negro and the rights of the white man; God Almighty has made none; our [Massachusetts] declaration of rights has made none. That declares that “all men (without regard to color) are born equally free and independent.”

When Congress assembled in December 1819, it was Holmes who notified the House that Maine had completed all prerequisites to admission. He soon learned, however, that Maine’s admission was being held hostage to Missouri – and he was outraged. Initially, he protested that the admissions of the two states were “wholly unconnected” and suggested (albeit with some circuitous language) that he “should forfeit the chance of Maine rather than forfeit my opinion.”

By New Year’s day, 1820, however, he was backtracking, apparently endorsing the proposition that “it would be best that the Mother should have twins this time.” Soon after, he convinced another Maine District congressman to join him in supporting Missouri’s unrestricted admission.

Holmes presumably expected that his position would be understood and supported as a reluctant necessity. He was wrong. He soon discovered “that Maine’s citizens considered the move to extend slavery an outrage,” and that he and colleague Mark Langdon Hill (whom Holmes had converted) were the only members of the seven-man Maine District delegation to support Missouri's unrestricted admission. He also “came under withering attack in the northern press and on the floor of Congress.”

By the end of January 1820, Holmes was virtually alone, detested by many of his constituents, and in deep political trouble. Quoting from letters of William King, Maine’s leading politician (and soon to be its first governor), to his half-brother Rufus King of New York, Robert Pierce Forbes has summarized the political landscape as follows:

“In the attempt to associate the admission of Maine and Missouri together,” William [King] wrote his half brother, “the motive is so apparent, that it has excited general disgust in this State.” Maine’s citizens desired statehood, but only “on terms honorable & correct . . . they will not, I am sure, consent to bargain their way along let the consequence be what it may.” John Holmes was the only member of the Maine delegation intending to vote with the South, William informed his brother; “it is hardly fair to judge his motives, altho’ opinions are expressed freely on the subject.” . . . “Mr. Holmes’ course is generally complained of here, and I am inclined to think his constituents will not be disposed to overlook his present conduct.”

When the final vote came on March 2, 1820, Holmes and Mark Hill were the only two members of the Maine District delegation to vote in favor of the Compromise. Holmes, returning to Maine hoping to be elected one of the state's first Senators, instead met "anger and vilification at home for his part as the arch-doughface of the Missouri capitulation."

Jefferson's fire bell letter to Holmes -- in which the revered founding father "tender[ed] the offering of my high esteem and respect" to Holmes "as the faithful advocate of the Union" -- proved to be a godsend:

It could be argued that nothing less than an endorsement from the author of the Declaration of Independence himself could have salvaged Holmes's political career in Maine. Fortunately for him, [Holmes] had exactly that. . . . Armed with this powerful document by the founder of their party, with its forecast of doom for the infant nation, Holmes secured election as one of Maine's first senators from the new state's chastened Republican legislature.

"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.

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.

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

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.