The Middle Period, 1817-1858

by John William Burgess

So far as the questions of constitutional and parliamentary law were concerned, the settlement reached was in accordance with right principles. It was right that the two subjects, which the Senate united in one bill, should be separated. The only justification for this act of the Senate was the manifest determination on the part of the House to impose an unconstitutional restriction as the condition upon which the people of Missouri should be allowed to assume the status and the powers of a Commonwealth of the Union. It was the only weapon left to the more conservative Senate, by which to defend the Constitution against the rashness of the more radical House. It need astonish no impartial student of our history that the Senate used it. No such momentous question was involved in this point of parliamentary procedure as there was in the exaggerated interpretation of the powers of Congress by the House. The Senate showed its willingness to yield its position upon this point so soon as the House would return to sound constitutional principle in the Missouri question. It was fortunate for the development of the parliamentary practice of Congress that the House so changed its position in reference to the greater question of constitutional law as to enable the Senate to return to the true parliamentary principle of the separation of subjects which differ in essence or in circumstances in the slightest degree. While, therefore, the Senate should not be too strongly criticised for using its power over its own rules of procedure, as a means of retaliation, it is a matter of great satisfaction that expedients were at last found for maintaining right principle and sound parliamentary custom in the case. And it was surely right that the attempt to make Congress the distributor of powers between the general Government and the Commonwealths was abandoned. The power which made the Constitution can alone set up the metes and bounds between the realm of authority of the general Government and that of the Commonwealths. This is the indispensable condition of federal government. If the general Government possesses such power, the system is centralized in theory, and may become so in fact at the pleasure of the general Government. If, on the other hand, the Commonwealths possess such power, the system is the loosest form of confederation, an international league.

It is true that the Constitution may authorize the general Government to limit the powers of the Commonwealths in regard to certain specified points and the federal system be still preserved, but a general authority in the general Government to do so, such as was claimed by the restrictionists from the vague provision vesting in Congress the power to "admit new States into this Union," amounts to nothing less than a claim of sovereignty by Congress over the new Commonwealths. Such was not the system which those who framed and ratified the Constitution intended to establish. Such is not the system which comports with the vast territorial extent and the climatic differences of the United States, and with the ethnical variety of the population of the country.

It is also true that those who resisted the restriction upon Missouri used terms and propositions, in reference to the genesis of the Union and the relation of the general Government to the Commonwealths, which will hardly bear the test of correct history and exact political science, but they had the true principle in respect to the point at issue, when they held that "the State," in the sense of the Constitution, is defined in the Constitution; that its powers are the residue after what the Constitution vests exclusively in the general Government and denies to the "States" shall have been subtracted from sovereignty; and that Congress cannot vary these relations under an interpretation of a general provision. They conceded that Congress might, as the general principle, admit or not admit, as it might judge proper, with all that this involved in reference to geographical boundaries and ripeness of the population for self-government, but they held that the thing admitted was created by the Constitution, through the people inhabiting the district to be formed into a Commonwealth, and not by Congress. And they repudiated the idea that the Declaration of Independence is any part of the constitutional law of the country, or that Congress can define the republican form of government which the United States is obligated by the Constitution to guarantee to every Commonwealth, in any other sense than that concretely expressed in the original Commonwealths.

They held this ground under enormous strain and pressure brought from without. Cross-roads assemblies, town and city meetings, and Commonwealth legislatures poured petitions and memorials in upon them in behalf of slavery restriction. The excitement, throughout the Northeast especially, was intense. They had to fight their battle under an ignoble issue. But it will not be denied by any impartial constitutional lawyer that they were, for this time, the upholders of the Constitution against an unwarranted attempt to stretch Congressional power.

Finally, the compromise provision, drawing the line of thirty-six degrees and thirty minutes through the Louisiana territory, and securing all north of it, which was by far the greater part, against the introduction of slavery during the period that it might remain under the exclusive jurisdiction of the general Government, was tantamount to a surrender, forever, of this vast domain to immigration from the North almost exclusively, and to the creation therein of new Commonwealths into which slaveholders could not take their slave property. Many American historians treat the express exclusion of slavery north of this line as no concession to the North, but as a mask under which the real concession, the concession to the South, was hidden. This they claim to have been the implied concession to hold slaves south of that line. But slavery was legal by custom in the whole of the province of Louisiana, when the United States received it from France. That is, a master might have taken slaves into any part of it, into which he might have gone himself, and would not thereby have violated any law, and the United States Government had not, down to 1820, changed this state of things by any act of its own.

The compromise upon the line of thirty-six degrees and thirty minutes was, therefore, a very decided limitation upon the existing rights of slave-masters. And even if slavery had not already penetrated into this region, it can hardly be claimed that the balance of advantage created by the compromise provision lay with the South, except upon the principle that the South ought not to have had anything, and the North ought to have had everything. Ethically, perhaps, this is the correct principle from which to judge the question, but politically and legally it was not, at that moment.

The Union consisted of Commonwealths, in all of which slavery existed at the time of and during the War for Independence, in almost all of which it existed when the Constitution of 1787 was framed and adopted, and in about half of which it existed, as the most important institution, at the period of the Missouri controversy. Further, it can hardly be denied that the Constitution contained recognition and guarantees of slave property. The vague phrases of the Declaration of Independence, even if intended to touch the relation of master and slave within the country, were not law. It is true that slavery was regarded both in the North and in the South as an evil, but men differed in opinion as to whether confining the slaves to a particular section was a better means for its mitigation than spreading them over a larger area, and reducing thus their number relative to the white population in any particular section.

Surrounded in thought with the ideas and conditions of 1820, it is difficult to see why the balance of advantage contained in the compromise provision of the Missouri bill did not lie with the North. Compromise or no compromise about the remainder of the Louisiana territory, Missouri was bound to be admitted without restriction as to slavery. The customary law of the region seeking to become a Commonwealth permitted slaveholding. The population was sufficient to warrant the assumption of Commonwealth powers. The Constitution did not authorize Congress to impose the slavery restriction, and the people of the region had protested against it. The admission of Missouri was, therefore, no legitimate element in the compromise. Neither was the agreement on the part of the Senate to separate Maine from Missouri any proper element in the compromise. The restriction placed by the House on Missouri rested on a false interpretation of constitutional law, and the connection of the two subjects in the same bill rested on a false interpretation of parliamentary law. In principle both had to be abandoned. The compromise was in reality only about the remainder of the Louisiana territory after the admission of Missouri, in no part of which had slavery, to that moment, been prohibited. How much of it should continue open to the further introduction of slavery by the immigration of masters with their slaves, and how much should be given over to practically exclusive immigration from the North—these were the only proper terms of the compromise. What the South finally obtained out of it was one Commonwealth, while the vast region from which slavery was excluded has produced eight or nine Commonwealths. In the light of these considerations it certainly appears that the cause of free labor won a substantial triumph in the Missouri compromise, and that, in place of that shameful surrender of freedom to slavery, so emphasized by certain historians, a mighty step forward in the progress of liberty was taken.

It was confidently hoped and believed that the compromise had solved the slavery problem, in so far as Congress could solve it. The whole country breathed more easily and the thoughts of men were turned to other subjects.