FEBRUARY, 1820. Admission of Missouri. H. of R. opinion? How easy also might the obligation of the State magistrates and judges to execute the laws of the Union be established, although denied by the most respectable authorities in the States? Indeed, the admission of precedent as authority on such topics would ripen the confederacy into that condition, at no very distant period, in which it might be asserted that the powers of Congress, like those of the British Parliament, had their base in precedent, and not in the grants of our written Constitution. I am, however, wrong in wasting time in exceptions against the improper use of precedents; for, with the admission that precedents could as well have place in giving birth to political power as in the regulation of confessed powers, the restrictionists will acquire nothing serviceable to them, because precedents are in no case valuable unless considered as adjustments, on mature deliberation, of contested questions; whereas, the people of Ohio, Indiana, and Illinois, having consented to all the regulations sought for by Congress, and those regulations being called into existence, as it were, by their request, the question of the power of Congress was not disputed or discussed. It is admitted that the people of Missouri are unwilling to be restricted, and the question now first presents itself as to our Constitutional power to impose the restriction without their consent. the United States, for the slaves were considered supreme tribunal has lately declared a different and protected as property on both sides of the Spanish line, and the emigrants from the United States found the additional quantity of granted land they could acquire for every slave, made their removal advantageous. Who, then, under these circumstances, would have thought the property of slaves insecure by the provision in the treaty for the maintenance and security of property? Anterior to the treaty of cession the citizens of the old United States received large sums of money for slaves sold and transported by the avenue of the Mississippi to Louisiana; and had the treaty preserved a total silence, with regard to the protection of property, it would be irreconcileable with justice that we should first sell those slaves to the inhabitants, and, after securing the price, proceed to emancipate them, or lessen their utility or value by emancipating their descendants. We are asked to bind, limit, or manacle the proposed State of Missouri. Are we to do so because we are more trustworthy respecting their own interests than themselves? We have legislated over the people of that Territory for seventeen years, and, during all that time, our humanity slumbered. We suffered slaves to pass the Mississippi, and thereby enhanced the price of our lands; and, in proportion as we anticipate the closing the land sales, and the cessation of our interest in permitting slaves to go, our humane sympathies are excited The view which I have submitted suffices, in until we at last become so willing to prohibit sla- my humble opinion, to show that the position asvery that we contemplate a new sort of State, with sumed by the restrictionists is not susceptible of only a portion of the features and capacities re- aid from precedents, and if it was, that there are tained by the other parties to our great compact. no legitimate or proper precedents to aid it; and I will now give attention to what gentlemen here I would be willing to rest this topic, were it who favor the restriction have urged, on the score not for the strange and objectionable inferences of precedent. They say they are authorized, from which gentlemen strive to deduce from the ordithe restrictions imposed on Ohio, Indiana, and Il-nance of 1787, for the government of the territory linois, to build the power of Congress to adopt the northwest of the Ohio river. The fourth section amendment of the gentleman from New York on of that ordinance declares "that certain articles precedents. Precedents may be useful to impart shall be considered as articles of compact between to free government uniform and steady nerves, and the original States and the people and States of to guard against the encroachments of prejudice that Territory, and forever remain unalterable, and passion. There can, however, be no prece- unless by common consent:" and the sixth article dent in relation to the powers of our national com- declares that "there shall be neither slavery nor inpact of such antiquity as to acquire any great por- voluntary servitude in the territory." tion of authority when unaccompanied by demonstrations of their orthodoxy; for the Constitution was only adopted in 1787, since which, and until this Winter, the history and journal of the Convention have been secret. But, in subscribing to the authority and utility of precedents, it should be remembered that they are not to transcend their legitimate sphere. When a jurisdiction, power, or authority, is found or known to exist, precedents are interposed, that it may not be perverted by the use of arbitrary discretion; but this jurisdiction or power must be shown to exist before we admit its need of precedents for its regulation. An attempt is here made, not to regulate the powers and business of Congress by precedents, but to derive those powers also from the same source. If precedents were lawful weapons in accomplishing such an object, how easy would be the task of showing that the State Legislatures could pass bankrupt laws, which they have always done, although the 16th CoN, 1st SESS.-41 Gentlemen insist that this article restrained the people of Ohio, and the other States formed in that Territory, from adopting any provision inconsistent with it in their State constitutions, without the consent of Congress, and at the same time afforded an instance of the authority of Congress thus to restrain the new States. This aspect of the ordinance is certainly plausible at first view, but not dangerous; for the idea of a power in Congress not only to impose on the people of a State a constitution not dictated by, or growing out of the federal compact, but to impose such arbitrary constitution on a people before they have sprung into existence, as was the case with regard to the then future or expected communities of Ohio, Indiana, and Illinois, is apt to shock the imagination, and stimulate such further inquiry as must obviate the error. I contend that the sixth article of the ordinance, whatever be its mode of expression, was temporary 281972 H. of R. Admission of Missouri. FEBRUARY, 1820. more. The framers of this Territorial constitution were men fashioned after the manners and notions of our English ancestors, who have always conceived that a grant or recognition of legislative power should be accompanied by a magna charta, or bill of rights, declaratory of certain fundamental principles, by which those intrusted with such important power should be guided. They therefore furnish in the ordinance a bill of rights, which, like similar declarations theretofore adopted by many of the States, was an imitation of the declarations of magna charta and of the bill of rights of the first year of William and Mary. We accordingly find it provided that the people shall be entitled to the habeas corpus, trial by jury, representation, judicial proceedings according to the course of the common law; that bail should be allowed, fines be moderate, cruel or unusual punishments not inflicted; that no man should be deprived of liberty or property but by the judgment of his peers or the laws of the land, &c. in its operation, and only intended to be adopted for the government of the Territory whilst a territory, dependent on the legislation of Congress, and would have been no part of the State constitution of Ohio, unless by the free adoption of the people of that State. To give it this interpretation consists both with the obligations of Congress and the peculiar relation between Congress and the Territory. It will consist, in the first place, with the obligation incurred by Congress in the acceptance of the cession of the territory from Vir ginia, the deed of cession having provided that the States to be formed in the Territory should be distinct, republican States, and admitted members of the federal Union, having the same rights of sovereignty, freedom, and independence, as the other States, which they would not have, unless permitted to govern themselves in all respects where not restrained by the federal obligation. I say, in the second place, that the interpretation I give best consists with the relations which existed between Congress and the Territory; for the communities forming in the Territory, being destined for free States, and Congress having only a temporary power over the Territory, it was not presumable that Congress, in such circumstances, could desire to make an everlasting regulation-no, not even by the consent of the people, who were not then in being, or in a condition to do any thing which would bind the future people of the country, as-petual. But an examination of the provisions of sembled in convention. Permit me now, sir, to beg a more particular examination of the ordinance of 1787, and a view of its parts in their just distribution. The ordinance comprehends 1st. A constitution and bill of rights; 2dly. Provisions for the creation of new States; 3dly. A recognition of the mutual interests and relations which shall subsist between the new States and Congress. The first two parts, the constitution and bill of rights, and the provisions for the birth of new States, were intended as temporary regulations. The third, or the part in relation to the respective or mutual interests of Congress and the new States, was to remain perpetual. 2d. The ordinance has provisions for the creation of new States, which are found in the fifth article, prescribing the time and circumstances in which the new States should be formed. 3d. The ordinance contains a recognition of certain relations of interest between the General Government and the new States, which is found in the 4th article, and were intended to remain perthe 4th article (which all will agree was to be perpetual) will prove the just caution of Congress in abstaining from all pretence of binding those people after the period designed for their emancipation. For these perpetual provisions are mere declarations of the obvious rights and obligations which would at all events have governed their mutual relations, if not inserted in the ordinance, although expressed to remove doubts and give assurances to those who might feel concerned; such as, that the new State should forever remain a part of the Confederacy; that the inhabitants should contribute their portion of the national debt; that the new States should not interfere with the primary disposal of the soil, or tax the lands of the United States; the clause also declaring that the navigable rivers should be common highways, was the proper result of the 4th article of the old act of confederation of the States. That so much of the ordinance as I have designated under my second head, which prescribes the time and manner in which the new States shall be formed, was intended to be temporary, and expire with its execution, whenever the territory became competent to form a State government, will not be questioned. 1st. The ordinance comprehends a constitution and bill of rights. The constitution is found in the erection of a Territorial government. In prescribing the respective departments of that government, as that there shall be a Governor, to be appointed by Congress, who should have the appointment of magistrates and civil officers; that there should be a General Assembly, to be elected by the free white male inhabitants of the counties and townships, to serve for the term of two years; that there should be a Legislative Council, to conThat so much of the ordinance contained under sist of a certain number, and appointed as therein my first division as created a constitution for the prescribed; that the Council and General Assem- territorial government, was only intended as a tembly should have legislative powers, subject, how-porary provision, is also evident, as no one will ever, to the negative of the Governor; that there should be a secretary, judges, &c.; that there should be no law affecting private contracts, nor contrary to the ordinance, &c. Here, then, we have a Territorial government, with legislative, executive, and judiciary powers; but the ordinance affords contend that the territorial constitution and departments could continue after the formation of a State constitution and government. That so much of the ordinance (arranged also under my first head) as is resolvable into a bill of rights, is temporary with regard to duration, would seem to follow the admission that the territorial constitution was temporary, especially if I am right in supposing (as I have done) that the object and use of the bill of rights was a declaration for greater certainty of the great principles which was to govern the exercise of the powers granted by the constitution. The bill of rights would then only retain its being, whilst the constitution, to which it is a predicate, remained in force, which would of course be during the continuance of the territorial government, and no longer. But, as my immediate object now is to arrive at the result that the bill of rights was not binding on the people of Ohio after the competency to form a State constitution, my purpose will be as well accomplished by the suggestion of an idea not so intimately connected with duration. Bills of right, or declarations of right, have been resorted to by our ancestors, to secure themselves against the abuse or oppression of legislative or executive authorities. They were the bonds of the sovereign, held by the people, as a fence against him. They conferred no legislative or executive powers; but, as far as they operated, constrained those powers. They differed from our modern American constitutions, as an imperfect does from a perfect right or obligation, or as a moral obligation is different from a legal obligation; for if the bill of rights was transcended, the excess was morally wrong; but, if the constitution be transcended, its legal operation is felt by annulling the excess of authority. As a bill of rights imposes no obligation, except on the Government, none other can violate it. The people can violate no obligation in relation to it, for they are under no such obligation. It is a schedule of their rights, not of their duties; those rights which our ancestors were used to say "doth appertain to the people of this realm." Who ever heard of the people being bound by a bill of rights? Gentlemen will have observed that the threefold division to which I have resorted is sufficient to comprehend the whole of the ordinance of 1787; and we have only to inquire to which of the three respective heads is the 6th article, inhibiting slavery, referable. It is not referable to the third head, which comprehends those interests, claims, and obligations, which arise out of the relations between Congress and the new States. The obligation to discharge a portion of the federal debt, to exempt public lands from taxation, and open the navigable rivers to the whole continent, &c., were objects affecting the permanent relations to the General Government; but whether slavery should exist in that country, like the provisions of the habeas corpus, jury trial, &c., only concerned that temporary connexion springing from, and consequently expiring with, the territorial dependency. I have, moreover, shown, that, in adjusting all other relations of interest and obligation between Congress and the new States, (which class of provisions I admitted to be perpetual,) Congress confined themselves to a mere declaration or recognition of rights and duties; which would have existed although the ordinance had been silent. If, therefore, the 6th article, containing a new and authoritative mandate, be forced in the same class, it H. OF R. would furnish a manifest anomalism. The inhibition of slavery has no connexion with the second division of the ordinance, which only regulates the creation of new States. But the first head comprehends the inhibition. It is either a part of the constitution or of the bill of rights found in the ordinance, nor is it material which; for, if it be a clause of the constitution, its operation was to restain the territorial legislature from the toleration of slavery, and expired with the government to which it gave limits. But, if it is to be considered a portion of the bill of rights, it expired with the extinction of the powers to which it was annexed as a restraint, whether we are to look for those powers in the territorial government, or in the temporary authority of Congress to legislate over the country in its territorial grade, and, indeed, as an article of the bill of rights, never had any force against the people themselves. The preamble to the articles in the ordinance expresses the motives to be, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws, and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the territory, &c. And this preamble, which good men might call a declaration of the sense of Congress on the fundamental rights of a people who stood there in the grade of colonists; which bad men would denominate a mere flourish; and which, at all events, was not intended to have any effect, as it contains nothing like an enacting clause or precept; has, nevertheless, been pressed into the service of our opponents, as a proof, that the articles of the ordinance, thus prefaced, became part of the constitutions of the States to be thereafter formed in the territory by a people who, as yet, had no existence. The Congress possessing but a limited and temporary authority, might exercise that authority with exalted and commendable views, or, indeed, might form an expectation that its temporary authority could be so exercised, during the infancy of the western settlement, as to incite moral sentiments and habits in the people, calculated, in the end, to produce a relish for institutions which were considered desirable by men of fashion in the political world. But Congress knew, that it could not, in the exercise of its most enlarged powers, pass laws to be irrevocable by its successors, much less by the people in convention. Congress, during the colonial condition of the territories, claimed and exercised the power of changing or modifying the constitutions of the territorial governments, instances of which are found in the acts of February 26th, 1808; March 3d, 1811; and May 20th, 1812. It was, therefore, politic to afford emigrants an assurance that no change of constitution should be made, except on the basis of certain principles. This assurance is given by Congress, being one party, and was obligatory on that party. The preamble speaks of laws and constitutions, considering them as synonymous. It immediately follows the constitution made by Congress for the territory, and evidently had no relation to State H. OF R. Admission of Missouri. FEBRUARY, 1820. as the arbiter of differences between the respective States. constitutions, for the contemplated States are not referred to in the preamble, nor had they been mentioned in any previous part of the ordinance. Is there not as great danger to this Government The preamble declares that the articles of the ordi- itself, from the intemperate use of Constitutional nance shall remain unalterable forever, unless by powers, as from the infraction of that instrument? common consent. Yes, forever, if you please; for The first abuse must be borne, until its continuthere are rights and interests depending on the ance engenders against government a spirit of disforce and obligation of the temporary laws of trust, or indeed enmity, whilst the last is apt to be Congress, which must live forever; such are the corrected either by the judiciary, or a full investigrants of land, and promises of public advantages gation of the Constitution. The Old Congress, to the inhabitants. But with whom did Congress in adopting the ordinance for the government of make this compact of several articles? The ordi- the Northwest Territory, were tempted by moral nance answers the question: "With the inhab-considerations, in relation to slavery, which can itants of the territory, and the future States to have no weight with us, for Congress having now be formed therein," for so it says. Such of the the undoubted right to prohibit the importation of provisions, then, as, from their nature, could only slaves, can, by the due exercise of that right, make be applicable to the territory, and such as were ex-it immaterial (on the score of the increase of slapressly applied by Congress only to the territory, very,) whether slaves are removed to the new, or would, of necessity, expire when the territorial retained in the old States. But the States under government should cease to exist, whilst such pro- the old Confederation, had a right to import slaves visions as were applicable to the future States from Africa or elsewhere; and the Congress, by would remain. An attention to the phraseology shutting the Western market against their admisof the articles of the ordinance, sufficiently man- sion, exercised its only mean of retarding the inifest, in the recital of the successive provisions, crease of slaves in the country. which are applicable to the territory and which A gentleman from Pennsylvania (Mr. SERto the States. Thus, the clause requiring the GEANT) says the inhibition of slavery in the terripayment of a portion of the federal debt of the torial ordinance was the result of compromise. He Union, expressly speaks of the people of the ter- has, however, failed to prove this assertion; nor ritory, and also of the new States. The inhibi- can I conceive how the inhibition could have tion against interfering in the disposal of the soil, sprung from compromise, or how the gentleman not only speaks of the territorial government, but would aid his side of the question by making it a of the new States. In the recognition of the sub-compromise. What was compromised? jection of the people to the old Confederacy of the Union, not only the territory, but the States to be formed therein, are spoken of. But, turn to the provisions of articles of the ordinance which I have insisted are temporary, and in the nature of a bill of rights, and mark the difference in phraseology. As when the habeas corpus, jury trial, &c., are secured, and excessive bail, cruel punishment, &c., prohibited, the inhabitants of the territory are only mentioned; not a word is there said of new States. Turn, also, to the 6th article which inhibits slavery; it speaks of the territory, and says not a syllable of new States. If it was a concession on the part of Virginia, or the South, what was the equivalent received by the South? Virginia had previously prohibited the importation of slaves, but inasmuch as she could not prevent their importation by other States, she was willing to lessen the demand for them. Virginia, always since 1699, has evinced her anxiety to abrogate the slave trade, and exerted herself most to prohibit the trade at a time when Pennsylvania and other States, now so forward in establishing restriction on Missouri, did not discourage, but rather promoted the importation of slaves. In the second year of George II., and during several years thereafter, whilst Virginia imposed as heavy a duty on the importation of slaves as the Crown, influenced as it was by the British merchants, would permit, with a view to a prohibition of the trade, Pennsylvania imposed a duty, which, reduced to an ad valorem impost, did not exceed about four per centum, by which means this province had a transit duty on Virginia slaves, and eventually kept the trade open between Africa and the country south of Susquehanna, notwithstanding the struggle of Virginia against it. I have not intended to dwell upon other objects connected with this question, because, being convinced that Congress has no power to impose the restriction, and that, if it had power, a reference to the faith of solemn obligations would compel us to negative the present attempt, it would seem superfluous, if not idle, to travel into the expediency of the measure. But, if the Constitution of the United States and the French Treaty are both in favor of the power you now attempt to exercise, it would remain for the friends of this Government to decide on the policy of restraining the It is insisted that the admission of slaves in liberty of the people and States, by a too copious Missouri and the West will open a wide market use of powers which have hitherto been dormant. and encourage the smuggling of foreign slaves, in Any attempt to reform the manners or character violation of the laws of the Union. We should of the people, by extirpating slavery, or by other be sure of the truth of this anticipation before we means, will, at any time, be found a task, the per- act on its basis, and, even when assured of its formance of which will bring us into collision truth, it would furnish but an eccentric excuse for with long rooted prejudices, as well as local jeal-legislation, in which we would allege our own ousies, and must draw the Government from that imbecility and incompetency to prevent an illicit lofty and impartial stand which it ought to sustain | trade, by ordinary means, as an apology for meas |