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SENATE.]

Admission of Missouri-Citizenship of Free Colored Persons.

[DECEMBER, 1820.

these rights, and stands in this relation to the State, he is a citizen. In Massachusetts, many persons of color existed in this relation to the State, and he should believe, until the contrary was shown, that the same was true in every State in the nation. To strengthen this concol-struction, he quoted the 4th article of the first Confederation, which ordains that the "free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States," and "shall have free ingress and regress," &c. He also quoted, from the Journals of the Old Congress, the resolve which formed the basis of the new constitution, and which recommends the appor tionment of taxes upon the numbers of "white and other free citizens," and made comments upon them, which he considered as conclusive in favor of his construction. Pursuant to these principles, it was familiar to all that persons of this description had received grants of land for serving in your army, and had been reclaimed among your impressed seamen.

proceed to state and to support his objection arising upon the face of it, and it was, shortly, to the clause which made it the duty of the legislature of the new State to prevent the ingress and settlement of free people of color, under any pretext whatsoever, within its boundaries. This requisition being, at first blush, in palpable lision with the clause of the United States Constitution, which provides for a community of rights for the citizens of one State with those of any other State into which we may go, there is no refuge from the objection but in a bold denial of the fact, that free persons of color may be citizens of some one State. And, to do justice to the candor of gentlemen, it must be allowed they enter the lists with manly frankness, and, in so many words, deny to people of color this capacity of citizenship; and it follows as a corollary, that they deny also the right of any one State to confer that capacity upon them. They call upon us to show what constitutes a citizen, and especially to prove that persons of color were at all considered as coming under that denomination, in any compact made with each other by the people of the United States. It would require more time than could be fairly claimed by any individual to do justice to this subject under all its aspects, but he trusted a very few remarks would be sufficient for a satisfactory confutation of this novel theory. For his greater security, however, he would confine himself to the circumstances which would give to a man the right of citizenship in Massachusetts; for if a man of color could be a citizen there, he would carry his privilege elsewhere. In that State, he said, at the time of the Revolution, the people were considered as retaining all such portions of the common law of England as were applicable to their circumstances. By that law, the people of England were distinguished into citizens, denizens, and aliens. In Massachusetts, they were also either citizens or aliens; and he had no doubt he might safely contend that in all the States they were either citizens, aliens, or slaves. All persons born within the realm of England were citizens. All persons born in Massachusetts, of free parents, were citizens; and all persons in that State, not aliens or slaves, (and there could be none of the latter, though, perhaps, a fugitive slave might have been considered as an alien prior to the federal stipulations on that point,) were of consequence free citizens.

To this relationship of a free citizen to his State, protection and allegiance were the necessary incidents, and these imply, of necessity, a right to reside within the jurisdiction, and to be secure of life, liberty, and property, under the guardianship of the laws. Every citizen is held to serve the State in time of public danger and of war, and to contribute to the public burdens. He is entitled to redress when injured by a foreign power; to be reclaimed when unjustly captured or detained; and when he brings an action for land, alienage cannot be pleaded in bar to his demand. If he possesses

Now, against these facts and plain reasoning. he was aware of but one objection adduced by gentlemen who had preceded him. These men were not citizens, it is said, in every State, because in nearly all, if not in every State, they are, or have been, made liable to certain disbilities not common to the free white citizens, All the arguments of gentlemen upon this point, however diversified, and the immensely vola minous citations from the statute books of the different States, terminated in this one objec tion. It was, therefore, the soundness of this single foundation stone, and that alone, which he was called upon to examine. To this, then, his first answer was, that a class of citizens may, under certain circumstances, be subjected to particular disqualifications, without being thereby disfranchised.* In every country wo men and minors are subject to disqualifications

the former are such as are perpetual. In some, large classes are debarred from the power of electing, or being elected, to office. An unjust government may create many odious dis tinctions between its privileged orders and other citizens; and à just government, from motives of sound policy, may exclude a minor class of the community from certain civil and political rights, enjoyed by the rest, and yet leave the excluded or restricted class in the condition of citizens. The right of protection in life, liberty, and property; of residence, and of inheritable blood; of taking and transmitting, by descent,

An act of Parliament, in the time of William III. pr vides, in substance, that "no person, born out of the ki dom of England, Scotland, or Ireland, or the dominions thereto belonging, although he be naturalized and made a denizen, (except such as are born of English parents) be capable to be of the privy council, or a member of either House of Parliament, or to enjoy any office or place of tr either civil or military, or to have any grant of lands, teme ments, or hereditaments, from the Crown, to himself, others in trust for him." Each State, prior to the Confeder powers, in regard to this subject, as the British Parliament

ation, and subsequent to the Revolution, had the

t

DECEMBER, 1820.]

Admission of Missouri-Citizenship of Free Colored Persons.

[SENATE.

and should therefore abstain from following them in detail. He persuaded himself, however, that all the inferences from these laws might be reduced to a few points, and disposed of in a few general remarks. As to one, and that by far the greater portion of the statutes cited by the honorable gentleman, they applied exclusively to paupers, vagabonds, and fugitives. Either the purview of each statute, or other statutes found in the same code, and constituting a part of one system, proved these to be the only objects of those laws, and as, in many instances, they applied to white persons equally with others, the argument built upon them proved too much.

By the constitution or laws of several States, the political rights of the white citizen are abridged. It is so in Massachusetts; in Virginia, where freeholders only vote; in Mississippi, where a creed (or the want of it) disqualifies a man for office, and where clergymen are not eligible to the Legislature. This species of exclusion is, therefore, no test of the character of citizen. Indeed, some of the instances mentioned by the honorable gentleman might be regarded as exemptions from burdensome duties with more propriety than as restrictions of civic privileges; and persons who are dispensed from obligations to serve in the militia, and on juries, by law, do not generally complain of their condition.

lands, and chattels, may all be unimpaired, and, while they remain so, it is impossible to say that a man ceases to be a citizen. Certainly, Republics formed upon the model of the United States will abstain from all permanent distinctions among their citizens, not founded in unavoidable necessity, or the all-controlling force of public opinion; and perhaps the case in contemplation is the only one that can ever arise to authorize or induce the annexation of perpetual disqualifications for political or civil trusts to qualities which are in themselves innocent and personal. But it might be otherwise; and if a State, by its constitution, were empowered to restrain its citizens from wearing arms or killing game, or discharging certain Another portion of these statutes affected political or civil functions, laws made pursuant merely qualifications for electing, or being electto such authority would not operate an extin-ed, to office. These also might be laid aside. guishment of the rights of the citizen, hateful and oppressive as they would be in themselves. Again, cases may be supposed to exist in which one description of citizens may have assented, either expressly or by implication, to enjoy the rights of citizenship under some limitations. And, perhaps, the consent of the colored free people who remained in our country at the epoch of our Independence, or who, being born within the United States, have since become the voluntary inhabitants of any State, in which such limitations have prevailed from time immemorial, may fairly be presumed to have acquiesced in the legality of such limitations, and to be concluded by their own consent. Still they may be citizens. Modifications of the When the laws and quotations, introduced rights of citizenship were familiar to the laws with such profusion by the honorable gentleof Rome prior to the time of Justinian; and, man, were arranged with reference to these two in fact, most of the distinctions of the privileged general heads, they would leave but a small orders in modern governments, when fairly ex- remnant for any other. He did not recollect amined, may be referred to the same principles, but one case which would not fall under them, and are neither more nor less than rights of and that was the statute of Massachusetts procitizenship differently graduated. Believing, hibiting intermarriages between white and cotherefore, in the correctness of this exposition, lored people. With respect to that law, it was he considered all arguments drawn from the proper to remark, that marriage was a civil laws of the several States, respecting free peo-contract regulated by the policy of every State, ple of color, to be entirely irrelevant to the subject, unless it could be made manifest that these laws had not merely been confined to a limitation of their political or civil privileges, but had entirely annulled all that portion of them which were essential to constitute the relation of citizen. In no State, he contended, had they yet been carried to this extreme; and, while any one of them could be found, in whose jurisdiction these persons were citizens, it would follow that they could not be disentitled to become citizens in any other State. The honorable gentleman from South Carolina had occupied an entire day, principally in reading and commenting upon the laws of the respective States, from North to South, discriminating between the white and colored people, in support of his broad denial of the capacity of citizenship to the latter. However amusing and enlivening those researches might have been in the hands of that gentleman, Mr. O. was convinced they would lose their charm in his hands,

according to its own views of public utility, and subject to greater or less ceremonials and restraints by the sovereign authority. It would not be pretended that laws creating temporary disabilities for matrimonial alliances, requiring age, consent of parents, or forms of marrying, would impair the quality of citizenship. And if the policy of a State might justify one denomination of restrictions upon the marriage contract which did not disfranchise those who be came subject to them, why could not the same policy interpose other impediments to marriage without drawing after them disfranchisement as a necessary consequence? Why was a black person disqualified as a citizen by being inhibited from marrying a white person, more than a white person was so under a reverse of the rule? There was no necessary connection between an incapacity created by law, in one description of persons, to contract marriage with those of another description, and an incapacity of all the rights of a citizen. It was difficult

SENATE.]

Admission of Missouri-Citizenship of Free Colored Persons.

[DECEMBER, 1820,

to illustrate this position by supposing examples, without seeming to disparage the unfortunate persons who were the objects of the exclusion. Hardly any other probable case could be imagined, that would call for the establishment of permanent legal distinctions between classes of citizens, in the exercise of the right to form matrimonial connections, and yet the policy of such a distinction in the state of our society, in this one instance, may be very unquestionable.ject of his journey? And if such a person could The free people of color being everywhere a very small minority of individuals, under particular circumstances, are not entitled to complain of special restrictions and exclusions, which the vast majority, by high considerations connected with their ideas of sound policy, and invincible predilections for their own race, and the desire of transmitting to posterity its blood pure and unmixed, and for no other reason, may have seen fit to impose. If leprosy, or any other disease attended with a decidedly hereditary and incurable taint, were known to prevail in a State, laws might be passed to prevent marriage with the infected persons without touching any other rights. He meant, ever, only to exemplify, and not to assimilate the cases-this, he repeated, being a peculiar case, and entire sui generis. He had thus far proceeded upon the supposition that all the statutes of the several States adduced upon the occasion, were in themselves constitutional. But, his second answer to this objection from the State laws was, that if any of them went so far as to disfranchise all free persons of color, such laws were void in themselves. He had heard of none that did go that length. Let us next, said he, advert for a moment to the suggestion of gentlemen, that if the clause of the constitution of Missouri should be found in discordance with that of the United States, a remedy would be found in the judicial department. It was, however, the first time he had ever heard it urged as a sound or safe principle that the rights, or even the claims of any portion of the people might be abandoned by the Legislature, because the courts could do them justice. It was, indeed, curious to observe the fluctuations of opinion relative to the judicial power occasioned by the different circumstances under which it was called forth. There was now upon the table a resolution declaring null and void the sedition act, which had received the sanction of two Congresses and many judicial decisions. In this case of Missouri, however, he insisted that the judiciary could give no adequate relief. The justice here sought was not remedial but preventive-not to restore to an individual violated rights, but to place numbers beforehand in a condition to exercise them. It was to retain (so far as the expression of the opinion of Congress could do it) to all free colored citizens the right of going to Missouri, if they thought fit, and settling therein, and not to redress the injury of one or more individuals who might be driven from its limits. Congress was to settle a principle, not

to try a cause-and if the principle was abandoned, no cause would ever be tried. What individual would ever be found to journey through the immeasurable wilderness, "with lingering steps and slow," and set his foot in Missouri with a certainty of being driven back, for the privi lege of having recourse to the courts of the United States, at an expense entirely beyond his compass, and beyond the value of the ob

be found, what is the situation of others who might wish to settle there while the cause is pending? It had, indeed, been often urged, that the Legislature of Missouri might enact laws to the end provided for in their constitu tion, even if that instrument had been silent. Certainly they might do so, but it was equally certain they might forbear thus to legislate. But, by passing this resolution, and thus giving efficacy to their constitution, you communicate to the State and to its constitution the whole power of the Union for giving effect to this policy, and compel their Legislature to pass laws which they might otherwise omit, or which, if how-enacted, they might afterwards repeal. The honorable gentleman from Maine had favored the Senate with an exposition of his ideas of the term citizen, as fouud in the constitution, which Mr. O. said he was not able to comprehend, but which, if he did understand it, would enables State to disfranchise all her citizens of all colors and complexions.

He would not pause to consider that doctrine, nor, indeed, to notice all the suggestions of that gentleman. There was, however, one topic un folded by him to which he would for a moment advert. The gentleman contended that our op position to the power of the States to exclude persons of color from settlement in their juris dictions, would operate in favor of the slaveholding States sending away their freed blacks into other States, and that the Northern States would be thus overrun with their swarms. He could not believe, however, that the North would realize their obligation to the gentleman for wishing to prevent that quarter of the coun try from this inconvenience, by shutting up Missouri, which would leave them no other re sort but the white peopled States. But further, if a colored man may become a free citizen, he cannot be sent away; and, if not a citizen, other States are not bound to receive.him when he is sent away. Mr. O., however, did not admit that the mere manumission of a slave would make him a citizen. This was a very different question from any which he had considered, and it might be far from true that manumission would produce any such effect, and yet every principle advanced by him remains impregnable.

On the whole, he said, he had no ambition to be distinguished as a zealot in the cause of emancipation, or an advocate for a sudden change of condition in that unfortunate class of persons who were held in servitude. Much less was he inclined to adopt any language or measures tending to excite among them a spirit of discon

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DECEMBER, 1820.]

Admission of Missouri-Citizenship of Free Colored Persons.

[SENATE.

tent, or to wound the feelings or rouse the irri- | ed, now that the resolution was reported to tation or resentment of their owners. The evil the Senate. Mr. E. then offered the following of slavery was too profoundly rooted for him to amendment to the resolution: indicate or even imagine its cure.

"Provided, That nothing herein contained shall be so construed as to give the assent of Congress to any provision in the constitution of Missouri, if any such there be, which contravenes that clause in the Constitution of the United States which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

Mr. KING, of New York, said, as the amendment had already been considered, and rejected by the Senate, he regretted that it had been deemed expedient to offer it again. I object now, said Mr. K., as I have done before, to this amendment, because it declares that, in the admission of Missouri, the Senate have not con

No circumstances led him to regret discussions affecting the people of color in the United States more than their unavoidable tendency to elicit observations which might be misunderstood, and aggravate the troubles of slavery by adding discontent and vain hopes of freedom to the number. The actual condition of slaves in the old States was not a subject for the cognizance of Congress. And until those whom it immediately concerned could make some discovery whereby the abolition of slavery could be effected, he feared that the efforts of others, however well intended, would be worse than nugatory. So far was he from wishing it to be understood by the slaves that the people of the Northsidered, and do not pronounce any opinion, conwould hold them justified in any violent measures to attempt the attainment of freedom, he was desirous of their realizing, what he believed to be true, that all considerate persons in every section of the Union would unite with one accord with their masters in putting down every species of revolt and insurrection, as pregnant with dreadful calamities to the whole nation. This had ever been his feeling and his language. But, with these convictions, he would strenuously and forever oppose the extension of slavery, and all measures which should subject a freeman, of whatever color, to the degradation of a slave. Believing, therefore, that every free citizen of color in the Union was joint tenant with himself in the public lands of Missouri, and of the jurisdiction possessed by the United Mr. EATON replied at some length. He said States in that Territory until it should be else- he certainly would be as unwilling as any one where vested; and that, however humble and to press the consideration of what he had subdisadvantageous might be his sphere, he was mitted, before gentlemen had fully made up entitled to his protection equally with those their minds, and were prepared to vote. He born to a happier destiny, he could not consent doubted not, however, but that upon this subto an act which should divest him of his prop-ject all were prepared. It would be borne in erty and rights, and interdict him from even passing into a country of which he was a legitimate co-proprietor with himself.

When Mr. OTIS had concluded

Mr. BARBOUR, of Virginia, presuming that some other gentleman might desire to deliver his sentiments on the question, moved an adournment; and the Senate adjourned.

MONDAY, December 11.
Admission of Missouri.

cerning the clause of the Missoure constitution which makes it the duty of the Lesislature thereof to pass laws to exclude free negroes and mulattoes from coming to, and settling in, Missouri. This declaration ought not to be made, because it would exhibit the Senate in this singular situation, (if his construction of the constitution of Missouri was correct,) that, in passing the act of admission, the Senate omits to consider and to allow its due weight to the only provision in that constitution upon which the obligation to admit, or not admit, Missouri depends. Mr. K. said he considered this proposition of much more importance than the mover of it appeared to do; and he was not willing to decide on it instanter at any rate.

mind by the Senate that this was not now an original proposition, but one that had before been considered and voted upon. When he had first the honor of submitting it, the gentleman from New York (Mr. KING) had urged his want of preparation, and on an application for postponement by himself, the postponement had been granted. Under this state of things, Mr. E. could not perceive any necessity for further procrastination, more especially when it seemed to be the wish of all to put an end, in some way, to this unpleasant question. Mr. E. said as to the constitutionality of the subject, however other gentlemen might be fully satisfied, yet with him, and with others he believed, the fact was otherwise. He was not Mr. EATON, of Tennessee, said, before the willing either to affirm or to deny, that the Senate proceeded to a final vote upon the reso- constitution of Missouri was in strict conformiution, he would ask permission again to offer ty to the Constitution of the United States; he he amendment which had heretofore been sub- should have doubts were he to be required afnitted, and rejected. This, he believed, was firmatively to vote either way. But of this he trictly in order. The rejection of the proviso did not pretend to doubt that, thus situated, thus eing before the Senate, in Committee of the doubting, it was his duty to lean to the side of the Whole, did not prevent it from being consider-constitution, and by his vote to support that in

The Senate then resumed the consideration of he resolution declaring the assent of Congress o the admission of the State of Missouri into he Union.

SENATE.]

Admission of Missouri-Citizenship of Free Colored Persons.

[DECEMBER, 1820

a great constitutional question. The inquiry is not, in this case, whether slavery shall exist or be tolerated in Missouri. I am ready to admit, for the moment, that this has been so far settled by the vote of the last session as not to come into the present debate; but the passing of the resolution recognizes a principle materially affecting the rights of other States and the privileges of their citizens. This principle, and the consequences of admitting it, will be the subject of my remarks.

strument which he and every member had sworn to maintain inviolate. The proviso ventured an opinion neither way; it was a protestando in the true signification of the term-the exclusion of a conclusion-a waiver on the part of Congress to give an opinion either one way or the other. This being the object which he wished to attain, he trusted the Senate would excuse his again pressing on their consideration that which had been before acted and voted upon. Encouraged by the information that some gentlemen who had before voted against the proviso had changed their opinions, and were now disposed to vote for it, was with him the inducement for again venturing to offer it. Time had been afforded to think fully on it, and further delay he thought ought not to be requested. To present my view more fully on this subMr. BARBOUR declined engaging in the de-ject, it may be useful to recur to the objects of bate, not, he said, that he was unwilling to meet the confederation. These I discover, in part, the question, but with a hope and under the in the preamble of the constitution: expectation that the question would be immediately taken.

The Senate then divided on the amendment, and there rose in its favor twenty-three members, and it was agreed to.

The question then being on ordering the resolution to a third reading, as amended

Mr MORRILL, of New Hampshire, arose and thus addressed the Senate:

Sir, I must be permitted to state that this debate is not courted by Congress; it is from imperious necessity that any are compelled to protest against the adoption of the resolution; to save the constitution of the nation inviolate, and preserve harmony and union.

"We, the people of the United States, in order to domestic tranquillity, provide for the common defence, form a more perfect union, establish justice, insure promote the general welfare, and secure the blessings and establish this Constitution for the United States of liberty to ourselves and our posterity, do ordain

of America."

"Union, justice, domestic tranquillity, com mon defence, general welfare, and the blessings of liberty secured to posterity," were the grand and primary objects in establishing this constitution, under which, and for these purposes, the Government was organized. The guardian

rights, is now committed to the people and their representatives in Congress. It is, then, our duty, with vigilance and a watchful eye to mark the progress of events, and arrest, at the threshold, the unhallowed hand which may be raised to pervert its meaning, misuse its provisions, or tarnish its glory. After reflecting upon the solemn obligations which devolve upon the members of this body, to examine with solicitude the principles and provisions of the constitution, and faithfully and impartially apply them to the existing circumstances of the country, it would not seem strange if a peculiar anxiety were manifest on their application to a case pregnant with doubts and fearful ap prehensions.

Mr. President: It cannot be said by the honorable Senate that I am in the practice of consuming much of their time in debate, or of frequently asking their attention to my remarks. When the honorable gentleman from Virginia, (Mr. BARBOUR,) immediately after this resolu-ship and protection of this, the charter of our tion was reported by your committee, intimated a wish that the question might be taken sub silentio, I was gratified with the hope that the unpleasant subject would pass off in that way. But as several gentlemen have occupied your attention, and have presented an unexpected view of the subject, I am inclined to offer my opinion also. In doing this, I am not influenced from an anxiety to make a speech before the Senate, nor from the pride of having the event announced in the public papers simply for the perusal of my constituents. I would assure the Senate I am not stimulated either by pleasure or ambition on this occasion; neither. will my remarks arise from any peculiar hostility to the admission of Missouri into this Union, on such principles, and with such a constitution, Sir, the first thing when I entered this cham as coincide with the provisions of the Consti- ber, to become a member of the Senate, was tution of the United States. I disclaim sinister to approach your chair, and take a solemn oath motives and sectional partialities on this sub- to support the constitution. This I consider ject, and declare myself actuated by more no- more than a mere formality-an obligation by ble and important views; and, solemnly im- which I am bound, in my own conscience, to pelled by a sense of duty I owe to my constit-guard with vigilance the general and particular uents and my country, I will endeavor to divest myself of preconceived opinions on the subject of slavery, and avoid any expression which may tend to revive those unpleasant sensations which so evidently prevailed in this body during the last session, and through the country, and examine the subject as involving

rights guaranteed by that instrument to this privileged nation. It is not necessary to refer you to the toils and privations of past periods to show their value. A moment's reflection upon the time that Sir Walter Raleigh visited the banks of the Roanoke; Captain Smith ex plored the Eastern shore from Penobscot to

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