H. OF R.] Missouri State Constitution-Citizenship of Free Colored Persons. practice in former times, when no causes existed so likely to disturb and mislead the sober judgment. Every man ought to examine the record of those days, and rather lean to a decision consistent with them. Referring, then, for illustration, to the case of Ohio, after she had formed a constitution and State government, although no resolution had passed declaring her admission into the Union, it became necessary to pass a law to extend over her territory the jurisdiction of the courts of the United States; and the preamble to that law recites that the people did, on a certain day, form a constitution and State government, and give a name, whereby the said State has become one of the United States that is, by the act of forming a constitution. And such, Mr. L. said, was the principle on which the United States had always acted. But, he said, the preamble was interesting, not only because it confirmed his argument in the main, but also marked the time and circumstance which, in the opinion of Congress at that time, made a people a State, viz., the day on which a constitution is formed, and the act of forming it. [DECEMBER, 1820. enough that they who choose them were already in the condition of States. In the case of Kentucky, indeed, without any declaratory resolution, without any thing like a formal acknowledgment of her being a State, but by virtue of an act declaring, prospectively, that when she had formed a constitution she should be a State, she was admitted without further legislation. In the case of Indiana, there was a yet more formal and authoritative exposition of the principle for which Mr. L. contended. In the case of Indiana, the practice of a declaration of admission first occurred, which had been since followed in other cases. Properly viewed, that declaration, Mr. L. said, was only a form of notification to the other States-a proclamation by Congress to the Union, of the admission of another State into the family. That such was the light in which it was viewed on this first occasion on which it was employed, was evident from the fact, that the resolution of declaration passed on the 11th December, 1816, and the representative from the State was admitted to his seat on the 2d December, nine days preceding; so that it was evident the declaratory resolution was then regarded as a mat was still stronger proof, in the case of Indiana, of his position. In counting the votes for President and Vice President a few days after the above date, those of Indiana given before the passage of the declaratory resolution, were received and counted. If a people may rightfully, and even without objection, elect a Governor, Legislature, and Judges-may elect and send to Congress Senators and Representative, and, finally, may vote for President and Vice President upon what principle will it be said that a people, enjoying and exercising all these rights, are not a State; or that to constitute them a State, requires the further interposition of this House? He could not admit it, he repeated. The proof afforded by other precedents, how-ter of form and notification merely. But there ever, that a people became a State on forming a constitution under the authority of Congress, was still less equivocal than that which had been cited. In every instance, and, as far as he knew, without an attempt at resistance, whenever such a constitution has been formed by a Territory, they have not only been considered a State, but the elections which they have made under their constitution have been held to be good. If, by the act of forming a constitution, they have not become independent States, how has it happened that, without a single exception, they have elected their own governors, judges, &c., and their acts have been constitutional and valid? Can it be said of all these cases that Congress, knowing these territorial people had usurped the powers of States, would have silently submitted to it? Their having done so was the strongest proof that every one of these States had, in the opinion of Congress, of the State governments, and of the people, the powers which they exercised. These observations, Mr. L. said, he had made with a view to show how little foundation there was for an opinion, which he had understood was not uncommon, that the act of the last session was merely a suggestion to the people of Missouri that they might form a constitution if it pleased them, and that, if that constitution met the approbation of the Congress of the United States at their next session, they should then be admitted into the Union. Mr. L. said he knew there were persons who believed that the people of Missouri Territory do not become a State until, by an act posterior to the formation of their constitution, Congress declares their admission. Mr. L. said he Another circumstance, Mr. L. said, showed, could not admit this. It was disproved by the beyond dispute, that it was not intended by uniform language of precedents. The acquies- this House, in passing the act of the last session, cence of Congress in their elections of Senators merely to give authority to the people of Misand Representatives to Congress disproved it. souri to propose a constitution, but that it was These elections held previous to the submission intended to confer on Missouri, by that act, all of their constitutions to Congress, had uniform- the rights which the oldest and proudest States ly been held valid. Who are Senators? They of the Union are supposed to possess. When are deputed by the States composing the Union that act was under consideration, it appears by to represent them in Congress. If States only the journal of this House, that a motion was can vote for Senators, the uniform practice of made by Mr. TAYLOR to amend the bill by recognizing all such elections as are subsequent striking out these words, "And the said State, to the adoption of a constitution, is conclusive | when formed, shall be admitted into the Union DECEMBER, 1820.] Missouri State Constitution-Citizenship of Free Colored Persons. upon an equal footing with the original States, | [H. OF R. here went into an argument of some detail, the amount of which was, that, as to numbers, a very large majority of the free blacks in the United States were not considered citizens in their respective States; and that, in construing any general provision of a constitution, it was fair to consider it as having a general application, and not as being without exceptions. In any view there could be nothing more clear than that, if the objected provision was capable of a construction which would reconcile it with the constitution, it ought to receive that construction. For example, in this case of Missouri, he thought it might be quite fair to say that that provision respecting free people of color must be construed liberally, as intending to exempt from its operation such of them as were citizens in other States. However this might be, he contended, as the committee had laid it down in their report, that it was a question not for this House, but for a different tri But, Mr. L. said, there were many who object to this course-the course pursued in all other cases who allow that the judiciary could, with more ease, certainty, uniformity, and effect, ex The substance of Mr. L.'s argument then was, he said, that, by the act authorizing the people of Missouri to form a constitution and State government, certain rights were given to them; by the former practice of the Government, he had endeavored to show that the mere circum-bunal to determine. stance of assenting to the proposition of Congress was enough to constitute the people a State, the act of declaration, now proposed to the House, being mere surplusage. Missouri had, then, a right to form a government abso-pound constitutional law, but contend that we lutely and inalienably. If she had not now the rights of a State, let it be shown how she had lost them. It is contrary to the principles of the constitution, contrary to the genius of our Government, that, having once given them the right of self-government, Congress can now take it from them. Considering this question as settled, the next important question was, whether the constitution formed by the State of Missouri becomes void by the admission into it of a clause not compatible with the Constitution of the United States, admitting, for the sake of argument, that such is the fact. Whether that particular clause of the constitution to which exception was understood to be taken was constitutional or not, the interest of the nation, justice to Missouri, and respect for itself, required that the House should not undertake to decide. In taking this ground, Mr. L. said he knew he should be considered by some as evading the performance of a duty which, in the present case, they supposed to be devolved on this House. On this account he should attempt to show that no duty devolved on this House to express an opinion with respect to that clause; and intimated that he could show, were it necessary, that similar provisions were contained in various acts of the United States to which exception had been taken in neither House. The clause of the Missouri Constitution to which he referred was that requiring the Legislature to pass laws to prohibit the settlement of free negroes in the State, which was supposed to conflict with the provision of the Constitution of the United States, which provides that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Mr. L. must decide whether the provision in question be constitutional or not. We must express an opinion on it, however inexpedient, because it is our duty. Now, Mr. L. said, he did not see that having declared that the people of Missouri should form a constitution and State government, imposed on this House the duty of construing law in this more than any other case. It might be considered rather an objection to it, inasmuch as, in doing so, they would have to expound the law themselves had made-no principle being better established than that the authority which forms the law should not construe nor apply it. The true question in this case then was, which was the best tribunal to decide the question respecting this disputed clause of the Missouri constitution. If it were asked whether this House, or the Senate, or the Judiciary of the country, were the best qualified to expound a law, there would be no difference of opinion on the question. It must, then, be a consideration of paramount duty only on the part of this House to decide upon it, which could induce it to undertake the exposition of a law in respect to the construction of which there was a doubt. Mr. L. then examined, somewhat at large, the question, whether a judicial or legislative tribunal be the most capable to decide correctly such a question as was supposed to be presented by the particular clause in the constitution of Missouri. He argued, from the inability of either branch of Congress to act independently on any such question, from their inability to act with uniformity, &c., that they were not the proper bodies to be charged with judicial investigations. And why, he asked, the rights of all the States being equal, should those of Missouri be subject to an adjudication different H. OF R.] Missouri State Constitution-Citizenship of Free Colored Persons. [DECEMBER, 1820. consistent with the ground he had already taken, if for no other reason than that the judicial tribunal could decide the question now agitated, and decide it better than this House. The duty of Congress, in this respect, begins where that of the Judiciary ends. from that to which other States are subject? | interfere. Nor did he think this was at all inThe rights of the old States were subject to judicial decision; and no man would pretend that, in respect to any old State, Delaware for example, her constitution could be suspended, that her Senators and Representatives should be excluded from these halls, on Congress thinking they had discovered something not altogether right in her constitution. It was an essential objection to the power now claimed for Congress, that, if allowed, it would be a power to be exercised in a new State, which none would pretend it could exercise in an old one. Upon every consideration, of which he urged several others, he was in favor of leaving the matter with the Judiciary, where, and where only, in his opinion, it properly belonged. Referring to his former remark, that gentlemen would do well to satisfy themselves that their opinions were not the effect of prejudice, by examining what was the conduct of their predecessors in more quiet times, Mr. L. said he would turn to the case of the second new State which was admitted into the Union, and the objections to whose admission were removed in the way proposed in the present case. Tennessee, without waiting for a law of Congress to authorize her, held a convention, formed a constitution, and sent it on to Congress. The objection was made in the House of Representatives, by Mr. SMITH, of South Carolina, that the constitution of Tennessee was incompatible with that of the United States; to which Mr. BALDWIN replied, that, if there should be things in the constitution of Tennessee not compatible with the Constitution of the United States, "it was well known that the Constitution of the United States would be paramount-they can therefore be of no effect." He quoted this to show that this suggestion of referring the question to another tribunal than this, was not an expedient to get over this case, but one which had prevailed in the early days of the Republic. The conflict between the constitution of Ten The principles which had influenced, from time to time, the conduct of the different branches of the Government, would lead to the same conclusion. At the time of the formation of the Federal Constitution (to go back to that date), it was foreseen that there might be a disposition, at some future day, in some or other of the States, to break over the barriers of the constitution about to be formed, &c., and a provision was introduced prescribing a mode of deciding controversies of that description. If, in all other cases of constitutional questions, it has been provided that they shall be decided by the Judiciary, the reason must apply and be conclusive why this body should not undertake to decide a constitutional question in the case of Missouri. Justice requires that those who have the same rights shall have their rights de-nessee, however, and that of the United States, cided by the same tribunal. If, however, the only objection to the passage of the resolution now under consideration was, that an inference might be drawn, from the silence of Congress, that they approved the exceptionable provision in the constitution of Missouri, Mr. L. suggested that some mode might be adopted by which the objection on this point might be explained. He should himself, as an individual, with the utmost reluctance express any opinion on the subject, and he thought it would be exceedingly unwise in Congress to do so. There would be no end to such a course. There were in the constitution of Missouri, and of every State in the Union, clauses to which some might take exception, of which Mr. L. instanced the provisions respecting banks, &c., which some believed the States had no right to establish. Every consideration of prudence and propriety, in his opinion, forbade from interposing in the present instance. Mr. L. said he did admit, however, that there might be cases in which Congress might find it to be their duty to interpose, on the moment of admission of new States into the Union. For instance, if, in relation to the term of Senators, or any other provision which, from its character, could not be brought before the Supreme Court, the new constitution were incompatible with that of the United States, it was his opinion it would be a good reason why Congress should was much more unequivocal than in the present case, and so far the present case is more favorably presented to Congress than was that of Tennessee. In the latter case, the Legislature were required to provide some means by which the State of Tennessee should be sued in its courts, with a proviso that this advantage should be confined to citizens of that State, and not extended to those of other States. Here was a direct conflict with the Constitution of the United States, whilst that of Missouri is only constructive. Yet, in that case, the question of constitutional law was left to those who were most likely to decide correctly, and withal competent to enforce their decision-that is, to the Supreme Judicial Tribunal. He thought it perfectly compatible with the most nice and rigid sense of duty for Congress to do the same in the case now before them. Mr. L. said he knew an objection had been taken to leaving the Judiciary to sustain a conflict with a State, in regard to the conformity of its constitution to that of the United States. But, surely, if in regard to all other States, it now has that authority, there can be no hardship in leaving the same power with it, in regard to the new States. Mr. L. said the views he had expressed were founded on the belief that Missouri was now, to all intents and purposes, a State. But, he said, if he did not believe, that, under the act of last DECEMBER, 1820.] Missouri State Constitution-Citizenship of Free Colored Persons. session, Missouri is a State already; if he thought she was only a State in fact and not a State in right, he should have the same opinion as he had now expressed. She has her own government, legislature, and judiciary, and exercises all the rights of a sovereign State. In this case, as in the other, he should think it inexpedient to pronounce on the constitutional question; because, should that clause be excepted from the recognition, it could be reinstated on her becoming a State, without the power of Congress to prevent it; and the question must at last be decided by the Judiciary, the only competent tribunal. Mr. L. here concluded his remarks, reserving for a future occasion the answers to objections which he might not have anticipated. And, on motion of Mr. SERGEANT, the committee rose, and the House adjourned. THURSDAY, December 7. Two other members appeared and took their seats, to wit: from Pennsylvania, ANDREW BODEN; and from Kentucky, BENJAMIN HAR DIS. Missouri. The House then resolved itself into a Committee of the Whole, Mr. NELSON of Virginia in the chair, on the resolution declaring the admission of Missouri into the Union on an equal footing with the other States of the Union. And the question having been again stated— Mr. SERGEANT rose. Of the speech which he delivered, occupying upwards of two hours' time, the following must be considered as a free but not a very full report: Mr. S. began by saying, with respect to the question hinted at by the gentleman from South Carolina, and discussed at the last session, he did not agree with him that the decision of the question now before the House depended upon the decision of the question agitated at the last session. How far that question might be involved in the present question, might be a subject for consideration; but, independently of that question, the one now presented was a very important one. However minute in itself, if it extended but to a single provision of the constitution presented by the people of Missouri, it yet involved considerations which those, who had listened to the arguments of the gentleman from South Carolina, must see, went to the whole extent of determining what power actually remained in Congress with regard to any territory after authorizing them to form a constitution-what they have a right to insist upon, what they have a right to do and say upon the subject-in short, the question whether Congress have or have not any power at all under the Constitution of the United States, with respect to the admission of a new State into the Union, after the passage of an act authorizing the people to forin a constitution. It could not be doubted or denied, Mr. S. ad- [H. OF R. mitted, that there was, in looking at the admissions of States into the Union, heretofore, at least, an apparent irregularity, and much of apparent disorder. If, however, any inference were to be drawn from precedents in the case, it would be, that there never had been any precise examination of the powers of Congress in this respect-no established mode of admission or, in other words, that there had been every variety of mode. For the sake of the future peace and harmony of the Government of the United States; for the sake of the territories hereafter applying to be admitted into the Union-for the sake of Congress alone, said Mr. S., it is incumbent on us all to examine the grounds of this question; to see what are our rights, and what theirs, and deduce, from a full consideration of these, a rule which shall be uniform as to the States hereafter to be admitted into the Union, and free from the danger of exposing us to contests such as that which appears to have arisen on the present occasion. The power to admit a State into the Union, no one would doubt, was a very high one-a power to part with a portion of that authority which was originally vested in the old States, and which exists in the present States, and to admit to a participation in our counsels, in our power, in the control and management of every thing concerning our rights and property, a new and integral member of the Union. The question became one of graver consideration, when it was considered that it was proposed now to extend this participation to an object which was not in the contemplation of those who formed the Constitution of the United States, who had looked in their provisions to the territory then in possession of the United States, and probably had never calculated on the admission of States out of territory beyond the original limits of the United States. This high power was given to Congress; and, after the discussion of last session, it was needless to say, was given without limitation. The power is, "to admit new States into the Union;" it is granted in the broadest and most comprehensive manner—and, it would seem to follow, as the consequence of this grant of general authority, that Congress possessed every power and authority necessary to its fair exercise. Whatever power was really given to Congress, it was their duty to exercise, and not turn it over to any other department, confiding in it to cure the defect which Congress suffered to pass uncorrected. There was nothing in the Constitution of the United States which countenanced a different course. It is our right and our duty, said Mr. S., when a State offers herself for admission into the Union, to see that she can come into the Union under the Constitution of the United States, and in conformity with its provisions. For certainly, whatever were the terms in which the power was given to the people of Missouri to form a constitution, no one could for a single moment doubt that that power was never intended to transcend the Constitution of the United States, or to bring H. OF R.] Missouri State Constitution-Citizenship of Free Colored Persons. [DECEMBER, 1820. into the Union a State whose constitution was | people to form a constitution, to admit them not conformable to that of the United States. Such a grant would have been an exercise of authority by Congress beyond the constitution: it would be an anomaly impossible to account for an inconsistency with the Constitution of the United States which it would be impossible for any one to reconcile. It would therefore seem, that when, as incident to the power of admitting States into the Union, Congress authorized a territory to form a constitution and State government, it must follow that the constitution, so to be formed, is to be conformable to the Constitution of the United States, and that the territory thus authorized does not in any sense become a State until she has formed such a constitution. Our power, said Mr. S., is to admit, and incidentally to authorize the formation of a constitution, with a view to admission. Have Congress the power to authorize a people to form a constitution and State government sovereign and independent of the United States? No, the power to authorize a people to form a constitution is an implied power, subordinate to the full power, which never is effectually exercised until the act of admission subsequent to the formation of a constitution. Mr. S. said, he made these remarks in the outset, to meet at once an argument of the member from South Carolina, which was plausible, captivating, and seemed to be calculated to smooth the way, and remove every difficulty. That argument was that the State, from the moment of its formation of a constitution, became an independent and sovereign State. Where, said Mr. S., is your power in the constitution to make such a State? Your power is to admit States into the Union, and your power to authorize the people of a Territory to form a constitution, is merely subordinate and subsidiary to the main power. Can you admit a State by anticipation, as the gentleman has suggested? You transcend your authority if you do so. Mr. S. ventured to say that Congress never had done so; that they could not do so; and, in some sense or other, every member of the committee would agree with him in this opinion. Could Congress, by anticipation, bind itself to the admission of a State, (for such was the argument yesterday pressed upon the committee,) so as to have no choice but to accept such a constitution as that State chose to offer? Surely not; but, according to the argument advanced by the gentleman from South Carolina, not only was the present Congress to be bound by the act of the last session, but the present Congress might, by an act passed now, bind the next Congress to the admission of a State into the Union. Was the authority given by Congress to the people to form a constitution, a compact with them that they should be admitted into the Union on any other terms than those prescribed to them? For one, Mr. S. said, he did not feel himself bound, by giving the authority to a into the Union, unless their constitution should be such as the people of the United States, through their representatives, thought fit to accept as the fundamental rule of government of the State thus to be admitted. Mr. S. then proceeded to say, that he did not mean now to enter into the question of the last session-it had been discussed enough. He did not mean to abandon the opinion which he had then formed and expressed. It had not been formed hastily, but carefully and deliberately, and he had seen no reason to change his mind upon it. Without going into that question at all, he should proceed to the immediate question presented by the argument of the gentleman from South Carolina. This single question was, whether it is the right and duty of Congress, before admitting a State into the Union, to see that its constitution and State government be not repugnant to the Constitution of the United States. He should have hoped, he said, and he yet hoped, that the opinion would be nearly unanimous in this body, that there might be such a repugnancy between such a State constitution and the Constitution of the United States, as would not only justify Congress in interfering, but make it their imperious duty to interfere, to prevent her taking rank in the Union. Whether that was the case in the present instance, was, he said, a different question. The preliminary inquiry was that which he had just stated. It had been said that Missouri was already an independent State; that she has formed a State government under an unlimited authority from Congress; and that she has now the same rights as the proudest and oldest States in the Union. If it be so, said Mr. S., what are we now deliberating about? Why is it, that the resolution now under consideration, is proposed for our adoption? Why are this and the other House called upon to pass a legislative act which is altogether unnecessary, and which has clauses in it, if this construction be true, which are extremely objectionable? If this construction be correct, her Senators and Representatives have a right to their seats on the floor of either House-to unite in the common counsels on the affairs of the Union, and to give to the votes of Missouri the same force as those of any other State. Why are they, then, said Mr. S., kept waiting at our doors, and not permitted to partake of our deliberations? Why do they wait until the fate of this resolution be known? It was said that this resolution was nothing but a declaration of a fact. Such a notification was not necessary for the Senators and Representative of Missouri; it was not necessary for Congress, if, the fact being known, the former had nothing to do to entitle them to a seat, but to advance to the Chair of either House, and take the oath to support the Constitution of the United States. Why was it, moreover, that the constitution of Missouri had |