DECEMBER, 1820.

Admission of Missouri.

SENATE.

he would confine himself to the circumstances terminated in this one objection. It was, therewhich would give to a man the right of citizenship fore, the soundness of this single foundation stone, in Massachusetts; for if a man of color could be and that alone, which he was called upon to exa citizen there, he would carry his privilege else-amine. To this, then, his first answer was, that where. In that State, he said, at the time of the a class of citizens may, under certain circumRevolution, the people were considered as retaining stances, be subjected to particular disqualificaall such portions of the common law of England tions, without being thereby disfranchised.* In as were applicable to their circumstances. By every country women and minors are subject to that law, the people of England were distinguished disqualifications-the former are such as are perinto citizens, denizens, and aliens. In Massachu-petual. In some, large classes are debarred from setts, 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.

the power of electing, or being elected, to office. An unjust Government may create many odious distinctions between its privileged orders and other citizens; and a 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, lands, and chattels, may To this relationship of a free citizen to his State, all be unimpaired, and, while they remain so, it is protection and allegiance were the necessary in- impossible to say that a man ceases to be a citicidents, and these imply, of necessity, a right to zen. Certainly, Republics formed upon the model reside within the jurisdiction, and to be secure of of the United States will abstain from all permalife, liberty, and property, under the guardianship nent distinctions among their citizens, not founded of the laws. Every citizen is held to serve the in unavoidable necessity, or the all-controlling State in time of public danger and of war, and to force of public opinion; and perhaps the case in contribute to the public burdens. He is entitled to contemplation is the only one that can ever arise redress when injured by a foreign Power; to be to authorize or induce the annexation of perpetual reclaimed when unjustly captured or detained; disqualifications for political or civil trusts to qualand when he brings an action for land, alienage ities which are in themselves innocent and personcannot be pleaded in bar to his demand. If he al. But it might be otherwise; and if a State, by possesses these rights, and stands in this relation its constitution, were empowered to restrain its to the State, he is a citizen. In Massachusetts, citizens from wearing arms or killing game, or many persons of color existed in this relation to discharging certain political or civil functions, the State, and he should believe, until the contrary laws made pursuant to such authority would not was shown, that the same was true in every State operate an extinguishment of the rights of the citiin the nation. To strengthen this construction, he zen, hateful and oppressive as they would be in quoted the 4th article of the first Confederation, themselves. Again, cases may be supposed to exwhich ordains that the "free inhabitants of each ist in which one description of citizens may have ' of these States, paupers, vagabonds, and fugitives assented, either expressly or by implication, to en'from justice excepted, shall be entitled to all priv-joy the rights of citizenship under some limitaileges and immunities of free citizens in the sev'eral 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 apportionment 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.

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 disabilities not common to the free white citizens. All the arguments of gentlemen upon this point, however diversified, and the immensely voluminous citations from the statute books of the different States,

tions. 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

* An act of Parliament, in the time of William III., provides, in substance, that "no person, born out of the kingdom of England, Scotland, or Ireland, or the ized and made a denizen, (except such as are born of dominions thereto belonging, although he be naturalEnglish parents,) shall be capable to be of the privy council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements, or hereditaments, from the Crown, to himself, or others in trust for him." Each State, prior to the Confeder ation, and subsequent to the Revolution, had the same powers, in regard to this subject, as the British Parliament.

SENATE.

Admission of Missouri.

DECEMBER, 1820.

by their own consent. Still they may be citizens. I they would leave but a small remnant for any other. Modifications of the rights of citizenship were familiar to the laws of Rome prior to the time of Justinian; and, in fact, most of the distinctions of the privileged orders in modern Governments, when fairly examined, may be referred to the same principles, and are neither more nor less than rights of citizenship differently graduated. Believing, therefore, in the correctness of this exposition, he considered all arguments drawn from the laws of the several States, respecting free people 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, 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.

Another portion of these statutes affected merely qualifications for electing, or being elected, to office. These also might be laid aside. 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.

When the laws and quotations, introduced with such profusion by the honorable gentleman, were arranged with reference to these two general heads,

He did not recollect but one case which would not fall under them, and that was the statute of Massachusetts prohibiting intermarriages between white and colored people. With respect to that law, it was proper to remark, that marriage was a civil contract regulated by the policy of every State, 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 became 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 connexion 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 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 connexions, and yet the policy of such a distinction in the state of our society, in this one instance, may be very unquestionable. 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, however, 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

December, 1820.

Admission of Missouri.

SENATE.

gation to the gentleman for wishing to prevent that quarter of the country from this inconvenience, by shutting up Missouri, which would leave them no other resort 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.

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- On the whole, he said, he had no ambition to not to restore to an individual violated rights, but be distinguished as a zealot in the cause of emanto place numbers beforehand in a condition to ex- cipation, or an advocate for a sudden change of ercise them. It was to retain (so far as the ex-condition in that unfortunate class of persons who pression of the opinion of Congress could do it) to were held in servitude. Much less was he inclined all free colored citizens the right of going to Mis- to adopt any language or measures tending to souri, if they thought fit, and settling therein, and excite among them a spirit of discontent, or to not to redress the injury of one or more individ- wound the feelings or rouse the irritation or resentuals who might be driven from its limits. Con- ment of their owners. The evil of slavery was gress was to settle a principle, not to try a cause- too profoundly rooted for him to indicate or even and if the principle was abandoned, no cause imagine its cure. would ever be tried. What individual would ever No circumstances led him to regret discussions be found to journey through the immeasurable affecting the people of color in the United States wilderness, "with lingering steps and slow," and more than their unavoidable tendency to elicit obset his foot in Missouri with a certainty of being servations which might be misunderstood, and driven back, for the privilege of having recourse aggravate the troubles of slavery by adding disto the courts of the United States, at an expense content and vain hopes of freedom to the number. entirely beyond his compass, and beyond the value The actual condition of slaves in the old States of the object of his journey? And if such a per- was not a subject for the cognizance of Congress. son could be found, what is the situation of others And until those whom it immediately concerned who might wish to settle there while the cause is could make some discovery whereby the abolition pending? It had, indeed, been often urged, that of slavery could be effected, he feared that the the Legislature of Missouri might enact laws to efforts of others, however well intended, would be the end provided for in their constitution, even if worse than nugatory. So far was he from wishthat instrument had been silent. Certainly they ing it to be understood by the slaves that the people might do so, but it was equally certain they might of the North would hold them justified in any vioforbear thus to legislate. But, by passing this res-lent measures to attempt the attainment of freeolution, and thus giving efficacy to their constitu- dom, he was desirous of their realizing, what he tion, you communicate to the State and to its con- believed to be true, that all considerate persons in stitution the whole power of the Union for giving every section of the Union would unite with one effect to this policy, and compel their Legislature accord with their masters in putting down every to pass laws which they might otherwise omit, or species of revolt and insurrection, as pregnant with which, if enacted, they might afterwards repeal. dreadful calamities to the whole nation. This had The honorable gentleman from Maine had favored ever been his feeling and his language. But, with the Senate with an exposition of his ideas of the these convictions, he would strenuously and for term citizen, as found in the Constitution, which ever oppose the extension of slavery, and all meaMr. O. said he was not able to comprehend, but sures which should subject a freeman, of whatever which, if he did understand it, would enable a color, to the degradation of a slave. Believing, State to disfranchise all her citizens of all colors therefore, that every free citizen of color in the and complexions. Union was joint tenant with himself in the public He would not pause to consider that doctrine, lands of Missouri, and of the jurisdiction possessed nor, indeed, to notice all the suggestions of that by the United States in that Territory until it gentleman. There was, however, one topic un- should be elsewhere vested; and that, however folded by him to which he would for a moment humble and disadvantageous might be his sphere, advert. The gentleman contended that our oppo- he was entitled to his protection equally with those sition to the power of the States to exclude persons born to a happier destiny, he could not consent to of color from settlement in their jurisdictions an act which should divest him of his property would operate in favor of the slaveholding States and rights, and interdict him from even passing sending away their freed blacks into other States, into a country of which he was a legitimate coand that the Northern States would be thus over-proprietor with himself.

run with their swarms. He could not believe, When Mr. OTIS had concluded

however, that the North would realize their obli- Mr. BARBOUR, of Virginia, presuming that some 16th CoN. 2d SESS.-4

the Missouri constitution which makes it the duty of the Legislature 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.

SENATE.

emit

This

to detain the Senate; that if he had entertained a wish to engage in the discussion, the present state of his health was such, that he could not express himself so as to be heard by the Senate, nor could he speak at all without great pain. He rose, he said, to state an objection to the constitution of Missouri, which had not been alluded to in the debate on this resolution-an objection of more force, and, in his view, involving principles more important to the interests of the nation, than the provision which had been so much discussed. The eighth article of the constitution of Missouri authorizes the establishment of a bank with a capital not to exceed five millions of dollars, at least onehalf of which shall be reserved for the use of the Mr. EATON replied at some length. He said he State. Mr. T. said he considered this provision a certainly would be as unwilling as any one to direct and palpable violation of that part of the press the consideration of what he had submitted, tenth section of the Federal Constitution, which before gentlemen had fully made up their minds, provides that "no State shall coin money, and were prepared to vote. He doubted not, how-bills of credit, [or] make any thing but gold and ever, but that upon this subject all were prepared. silver coin a tender in payment of debts." It would be borne in mind by the Senate that this important provision of the Federal Constitution, was not now an original proposition, but one that said Mr. T., was intended to guard against evils had before been considered and voted upon. When which might embarrass the Federal Government, he had first the honor of submitting it, the gentle- and prove destructive to the best interests of the man from New York (Mr. KING) had urged his people of the United States. An immaterial change want of preparation, and on an application for in the form did not change the substance. Whepostponement by himself, the postponement had ther a bill of credit is signed by an auditor, a been granted. Under this state of things, Mr. E. treasurer, an officer of a State, or a president of a could not perceive any necessity for further pro- bank created for that purpose, the evils are the crastination, more especially when it seemed to same. The power to coin money, regulate the be the wish of all to put an end, in some way, to value thereof, and of foreign coin, and fix the this unpleasant question. Mr. E. said as to the standard of weights and measures, has been exconstitutionality of the subject, however other clusively given to Congress. It was never congentlemen might be fully satisfied, yet with him, | templated or anticipated that these important and with others he believed, the fact was other powers should be rendered nugatory by bank mawise. He was not willing either to affirm or to chinery, put in operation either by Federal or deny, that the constitution of Missouri was in strict State power. Mr. T. said it was also his opinion conformity to the Constitution of the United States; that banks, as established in the United States, he should have doubts were he to be required af- are anti-republican institutions, which tend inevifirmatively to vote either way. But of this he did tably to aristocracy. not pretend to doubt that, thus situated, thus doubting, it was his duty to lean to the side of the Constitution, and by his vote to support that instrument 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 Mr. President: It cannot be said by the honorvoted against the proviso had changed their opin-able Senate that I am in the practice of consuming ions, 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.

Mr. BARBOUR declined engaging in the debate, not, he said, that he was unwilling to meet the question, but with a hope and under the expectation that the question would be immediately taken. Mr. TRIMBLE, of Ohio, said it was not his wish

Mr. SMITH said he would refer the gentleman to the journals of the last session, to show that a resolution admitting Alabama into the Union had passed without opposition, and that the constitution of Alabama contained a provision for the establishment of a bank.

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. MORRIL, of New Hampshire, arose and thus addressed the Senate:

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 resolution 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