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SENATE.]

Constitution of Missouri-Citizenship of Free Colored Persons. [DECEMBER, 1820.

many laws of the United States would become inoperative in Missouri, if the clause which he opposed could be maintained in force; and, as an instance, he referred to the laws against kidnapping. In regard to this crime of kidnap

souri had done nothing; for, according to it, all people of color who are carried there, must, ipso facto, be slaves, inasmuch as a free negro could in nowise go there, admitting the clause to have its full effect.

accepted, Mr. B. said his objections to it arose | preceding, and endeavored to show that even on the following clause, which he found in the 26th section of the 3d article: "That it shall be the duty of the General Assembly of the State, as soon as may be, to pass such laws as may be necessary (among other things) to prevent free negroes and mulattoes from coming to and set-ping, Mr. B. remarked, the constitution of Mistling in this State, under any pretext whatsoever." This clause, Mr. B. conceived to be entirely repugnant to the Constitution of the United States. It prohibits a very large class of persons from entering the State at all; it does not say what shall be done when they get there, but it peremptorily prohibits their enter- | ing it under any pretext whatsoever. Even if soldiers of the United States, people of this proscribed class cannot enter Missouri without violating the constitution of the State. It was well known, Mr. B. said, that we have colored soldiers and sailors, and good ones, too, but under no pretext, whether of duty or any other motive, can they enter Missouri. He did not suppose if people of this description, in the service of the country, should enter the State, it would be attempted by the State authorities to exclude them; but it was sufficient, he thought, to show the unconstitutionality of the clause.

Great difficulty seemed to arise in deciding the question, as to what constituted citizens in the different States. Citizens of one State were entitled to the rights of citizens of all the States; yet the different States exercised the power of prescribing certain probationary rules to those coming from another State, to entitle them to all the privileges. If a citizen of Massachusetts removes to another State, he cannot vote as soon as he enters it-a certain residence is required of him-and the people of Missouri were competent by law to impose a residence of one or more years on a citizen going there, to entitle him to all the privileges of citizens of the State; he complies with no more than is exacted of all, and which the State has a right to require. This was a question, however, which they did not touch; they avoided it altogether, and have declared that a certain class shall not come into their State at all, even though they may be citizens of other States, enjoying all the privileges of such.

Mr. B. did not himself conceive it difficult to define what constituted a citizen. If a person was not a slave or a foreigner—but born in the United States, and a freeman-going into Missouri, he has the same rights as if born in Missouri; after complying with the conditions prescribed by the laws to qualify him for the exercise of these rights, he stands precisely on the same footing, and his rights are in every respect the same as if he had been born there. The question then was, Mr. B. said, had the people of Missouri the constitutional right to prohibit from entering that State a large class of persons who were citizens of the Commonwealth of Massachusetts? To establish the negative of this proposition, Mr. B. adduced various other arguments in addition to the

Mr. B. said he was not prepared at present to affirm that Missouri might not pass laws to prohibit persons from carrying there negro or mulatto convicts, or, perhaps, foreigners from coming into the State; this was a question on which no opinion now was necessary; but he contended that the clause as it stood prohibited the entrance of a large portion of people who were, to all intents and purposes, citizens in other States. Admit the legality of this clause, and, Mr. B. said, the Legislature of Missouri might, with the same right, go still further, and pass laws to exclude citizens born in certain portions or districts of the United States. This was a measure, he argued, which one independent_nation could not adopt towards another. England could not pass such a law against the people of France, or of any other friendly nation; such a measure would be too offensive to be borne, and would be considered to amount almost to a declaration of war. If distinct and independent nations dare not enact such laws towards each other, how was it possible, Mr. B. said, that the power could be exercised by one of these States towards other States of the Union?

All the distinctions among citizens which arise from color, rested, Mr. B. said, on State laws alone-there was nothing in the Constitution of the United States which recognized distinctions. In Massachusetts there was no distinction; a man of color possessed there precisely and identically the same rights as a white man born in the same State, and he asked if it was possible for Missouri, consistently with the Constitution of the United States, to exclude any of those people from that State, who should think proper to remove from Massachusetts to Missouri? The States of this Union were not distinct and independent nationsthey are, said Mr. B., a confederacy of kindred republics; when they formed their constitution of government, they used the language, “We, the people of the United States," and it is not in the power of one of the members of this confederacy to enforce the clause Missouri has adopted, and it is the duty of Congress to reject it.

Mr. B. said he would add nothing more about the right of Congress to decide this question; he would merely say, Congress must from necessity decide it; it must admit the members of Missouri; in that act the question was involved, and they were obliged, therefore, to de

DECEMBER, 1820.]

66

Missouri State Constitution-Citizenship of Free Colored Persons.

[SENATE.

cide it. It was useless, therefore, to talk of re- | with such views, finding the clause could do no ferring the question to the judiciary. As Congress might admit new States" into the Union, it was clear to his mind that Congress must determine the conditions on which they should come in.

Mr. B. said he would offer a few words as to the dangers which were apprehended by some gentlemen from a rejection of the constitution offered by Missouri. What were the consequences, Mr. B. asked, which would follow the rejection? The only one which he could perceive was, that Missouri must remain one year longer out of the Union. Was this such a hardship? And to avoid this trifling consequence, must we, said Mr. B., give a vote which will violate the constitution we have sworn to support, and which we are all so deeply interested in maintaining? As a Territory the people of Missouri had gone on, he said, very prosperously, and no great inconvenience could result from continuing in the territorial condition one year longer. It is said they have formed a constitution, and under it have elected a Governor and Legislature, and, having assumed the functions and character of a State, if they are not now admitted into the Union, they will go on without our consent. Mr. B. said he presumed the people of Missouri felt the same attachment to the Union, and to the tranquillity, and honor, and glory of it as we do; and he would not be lieve, he would not do them the injustice to believe, that rather than endure the small inconvenience of retaining the territorial character a few months more, they would rashly throw away all the interest they had in the greatness and glory of their country. They might possibly still think that their constitution ought not to have been rejected on account of this offensive clause, and may feel some excitement on the occasion; yet they must see the necessity and propriety of some sacrifice to the conscientious opinion of Congress, and would consent to qualify their constitution in the objectionable feature. But, said Mr. B., if we ratify it as it is, we establish a precedent and admit a point that the judiciary will never be able to overthrow; do not then leave to another tribunal the decision of a question which belongs to us, but let us meet and decide it ourselves.

If the constitution were not accepted, Mr. B. said it would be easy to obviate any difficulty by passing an additional act authorizing the people of Missouri to form another convention and revise their constitution; and he was confident this odious feature would be expunged. These people, Mr. B. said, were not Missourians, properly so distinguished, but were Americans, collected there from all the States, the same people as ourselves. They would appreciate the motives of Congress, and do them justice; they would recollect, also, that this act passed in a spirit of compromise and accommodation, from a desire to preserve peace and quietness in every part of the Union; and re-assembling

good, they would repeal it. Sanction this improper clause now, said he, and you sanction it for all time to come; and however we may desire hereafter to avoid it, it will be irrevocably established.

Mr. B. said the little he had spoken had exhausted his strength, and he could add nothing more if he wished to do so.

When Mr. B. had concluded

Mr. SMITH, of South Carolina, intimated an intention of replying to Mr. B.; but, as he would have to refer to several constitutions and other authorities, in the course of his argument, he asked a short time to prepare them, and moved the postponement of the subject until to-morrow; which motion prevailed, and it was postponed accordingly.

FRIDAY, December 8.

Missouri State Constitution-Citizenship of Free Colored Persons.

The Senate then resumed the consideration of the resolution declaring the admission of the State of Missouri into the Union on an equal footing with the original States.

Mr. SMITH, of South Carolina, addressed the Senate, as follows:

He observed that, on any subject, however interesting it might be, he could not flatter himself with a hope that he could entertain the Senate. But, what he had to offer at present, on this very important occasion, would consist very much of references, and he feared might prove tedious; therefore he felt more necessity than on most occasions to ask for a little patience and their kind indulgence.

The resolution declaring the admission of Missouri into the Union, he thought, was nothing more than a matter of form, and might be dispensed with. He had examined the journals of the Senate and House of Representatives for the course heretofore pursued by Congress on the admission of new States into the Union, and found it had been various. He would give their history.

Vermont was the first new State admitted after the adoption of the Federal Constitution. On the 9th of February, 1791, President WASHINGTON laid before Congress documents received from the Governor of Vermont, expressing the consent of the Legislature of New York, and of the Territory of Vermont, that the said territory shall be admitted to be a distinct member of our Union. On the 18th of the same montht an act of Congress was approved for the admission of Vermont into the Union, without any of this formality, that her constitution should be republican, &c. The act says, Vermont, having petitioned Congress, &c., on the 4th day of March, &c., shall be received and admitted into this Union, as a new and entire member of the

Senate Journal, 241.

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+ Public Laws, 2d vol. page 193.

SENATE.]

Missouri State Constitution-Citizenship of Free Colored Persons.

United States of America." On the 31st of October following, Mr. Robinson took his seat in the Senate,* and on the 4th of November Mr. Bradley took his seat. There was no constitution either submitted to, or required by, Congress. Nor were there any traces of a constitution of that new State to be found previous to the 9th of July, 1793. Congress never supposed at that day they had a power to require a constitution from a new State coming into the Union, nor to examine if such constition was republican. Mr. S. said he knew very well that the people of that respectable State contend it was one of the original States. We know of none but thirteen original States. Vermont would have made fourteen; and it was treated of, and so called at the time, as a territory. It was detached from New York, and, by the express consent of the Legislature of New York, she was received into the Union.

Kentucky was the next new State admitted into the Union. On the 18th of December, 1789, and after the adoption of the Federal Constitution, the Legislature of Virginia passed the act authorizing Kentucky to form a separate State. On the 4th of February, 1791, Congress passed an act of consent that Kentucky should become a separate State, and be admitted into the Union on the first day of June, 1792. On the 19th of April, 1792, its constitution was formed, but was never submitted to Congress. On the 5th of November, 1792, Messrs. Brown and Edwards, as Senators from that State, took their seats in the Senate, without even an inquiry for a constitution.

Tennessee formed her constitution on the 6th of February, 1796. This was the first constitution of a new State submitted to Congress. There does not appear to have been any reference made of this constitution to any committee, or any other order taken upon it. There is to be found in the debates of the 5th and 6th of May, 1796, an objection made to one provision of that constitution, inasmuch as it was repugnant to the Constitution of the United States. This objection was made by a member from South Carolina, and was replied to by Mr. Baldwin of Georgia, "that, if repugnant to the Constitution of the United States, it was a nullity, because the Constitution of the United States was paramount." And this appears to have put an end to the objection.

Ohio was the next new State adopted into the Union. On the 30th of April, 1802, the law passed authorizing Ohio to form a constitution and State government. On the 29th of November, 1802, she formed her constitution.T On the 7th January, 1803, it was laid before

* Vide 1 vol. new ed. Senate Journal, 332.
+ Ib. 336.

Laws of the U. S. 3d. vol. 191.

§ Ib. 192.

Vide Journal, 451.

Laws of the U. S. vol. 8d, page 496.

[DECEMBER, 1820

In

the Senate, and was referred to a committee,
which never reported on it.* On the 19th of
February, 1803, Congress passed a law "to
provide for the due execution of the laws of the
United States within the State of Ohio."
this last law, it is declared that, by the law of
30th April, 1802, authorizing the people of the
Territory of Ohio to form a constitution and
State government, Ohio had become one of the
United States of America. This law says noth-
ing about her being admitted into the Union on
an equal footing with the original States; but
simply says, "whereby the said State has be-
come one of the United States of America."

Louisiana was authorized, by an act of Congress of the 20th of February, 1811, to form a constitution and State government, and formed her constitution on the 28th January, 1812. On the 8th of April, 1812, was admitted into the Union by a law.‡ This was the first State admitted with formality. The new mode of declaring this State to be admitted, by law, seems to have been dictated from motives of interest. Louisiana had within her limits the Mississippi and other valuable navigable rivers. By that law, which admits her into the Union, the free navigation of all those rivers is secured forever to all the old States, free from "any tax, duty, impost, or toll;" whilst the old States retain the right to these exactions, and some of them do actually exact it.

The State of New York now exacts, as a toll, one dollar upon every passenger in the steamboats that go up the North River, and derives from that source an immense revenue, laying the whole United States under contribution; whilst her own citizens are navigating the Mississippi and its waters, under the act of Congress, without being subjected to any such duty. And this is what they have been pleased to call admitting her "into the Union upon an equal footing with the original States, in all respects whatsoever."

Indiana was admitted into the Union by a joint resolution of both Houses of Congress, on the 11th of December, 1816; but its history proves beyond a doubt that it was considered a State, to all intents and purposes, before the resolution passed. An act in the usual form had passed for its admission; and it had, by a convention, formed a constitution on the 20th of June, 1816. Congress assembled on the 24 of December, 1816; on that day the House of Representatives admitted Mr. Hendricks, the member elect, to take the oath of office, and take his seat in the House. On the 4th, the resolution originated in the Senate; on the 6th it passed; was sent to the House on the 9th, and passed that day-eight days after the meinber had been admitted to his seat; nor had the House of Representatives ever taken up the súbject at all. On the 11th, the resolution was

* Vide Senate Journals.

+ Laws U. S. page 524.
Laws U. S. vol. 4, page 402.

DECEMBER, 1820.]

DEBATES OF CONGRESS.
Missouri State Constitution-Citizenship of Free Colored Persons.

approved. Here, it is evident there was a
great falling off in vigilance; but, it is to be re-
marked, we were going north about. Louisi-
ana could not be admitted by any thing less
solemn than a law. Indiana did not require a
resolution, for the House of Representatives at
least. On the 12th of February, 1817, the
Presidential votes were counted in the Repre-
sentatives' Chamber, whither the Senate, in a
body, had gone for that purpose. All the votes
of the several States were counted, except the
votes of Indiana. Here Mr. S. said, he would
read from the Journals of the House of Repre-
sentatives, what passed on that occasion, as there
were several gentlemen of the Senate who had
taken their seats since.*

Mr. S. said, in consequence of this proceeding, the Senators had a very solemn procession down the stairs and up again, and there it ended; for they unanimously concurred in considering it so frivolous that they forbid it a place on the Journals. The Electors of President and Vice President were elected by the State of Indiana, and the electoral votes given before the resolution was offered for its admission into the Union. This act was solemnly sanctioned by both Houses of Congress. It was the highest act which a State, in its political capacity, can perform. Who, then, can doubt for a moment that Indiana was a State, as perfect as it is possible for this Government to make? If Indiana was so, why should not Missouri be so, under the same circumstances? It cannot be doubted. She is a State, and you cannot disfranchise her. But, it is said she cannot be admitted into the Union, because her constitution is repugnant to the Constitution of the United States, and is not republican; and that Congress, by the Federal Constitution, is to guarantee to every State a republican form of government; therefore, it is the province of Congress to examine for this quality in the con

* Journal H. R. 2d session, 14th Congress, pages 885, 386, 387. When the President of the Senate was about to open the

votes of that State, for the purpose of having the same counted,

"Mr. Taylor, one of the Representatives from the State of New York, rose, and objected to the same, and stated that, in his opinion, the votes of the Electors of Indiana, for President and Vice President, ought to be received.

Upon which objection being made, the Senate, on motion of one of its members, withdrew; and, being absent, a resolution was then submitted by Mr. Sharp, in the following words:

Resolved, by the Senate and House of Representatives, &c., That the votes for the electors for the State of Indiana, for President and Vice President of the United States, were properly and legally given, and ought to be counted. "A motion was made by Mr. Taylor, of New York, to amend the said resolution, by striking out all thereof after the enacting clause, and inserting the following: That the votes of the Electors of the State of Indiana, for President and Vice President of the United States, having been given previous to the admission of that State into the Union, ought not to be received and counted. And debate arising thereon, a motion was made by Mr. Ingham, that the resolution be postponed indefinitely. And the question being taken thereon, it passed in the affirmative.

"The Senate again attended, &c, And the President of the Senate, in the presence of both Houses, proceeded to open the certificates of the Electors of the State of Indiana, which he delivered to the tellers, by whom it was read, and

who took lists of the votes therein enclosed."

[SENATE.

stitution of any State which applies for admis-
sion into the Union.

If, sir, Congress has to decide upon the re-
publican form of government of the new States,
it has also to decide upon it for all the old
States. The language of the constitution is,
"the United States shall guarantee to every
State in this Union a republican form of gov-
ernment." This applied immediately to the
old States; and, if it is the duty of Congress,
why did not Congress examine all the constitu-
tions of the several States? Why not require
each State, when it alters or new-models its con-
stitution, to submit it to that tribunal to decide
whether it is republican? Nine of the States
have altered their constitutions since the adop-
tion of the Constitution of the United States.
New Hampshire, in February, 1792; Connec-
ticut, in September, 1818; Vermont, in July,
1793, or rather formed one; Pennsylvania, in
September, 1792; Delaware, in June, 1792;
Maryland, at sundry times; South Carolina, in
June, 1790; Georgia, in May, 1798; and Ken-
tucky, in August, 1799. None of these States
have ever submitted their renewed constitu-
tions to Congress for its approbation. It is the
duty of Congress, under the term "guarantee,"
to look into any constitution. Who will be
bold enough to say it is not its duty to see that
no State shall alter its constitution, but by its
permission and authority? It would be to lit-
tle purpose to say the United States shall guar-
antee the republican form of government, un-
less its control can be continued. Every State
has the power to revise its constitution when-
ever it shall think proper. And, if you look at
the constitution of Missouri to-day, and pass it
as republican, and that State should alter it to-
morrow, and destroy its republican features,
and defy your control, this power has been
given to very little purpose, and had much bet-
ter been withheld.

Mr. S. said, upon looking into the constitution of the thirteen original States, he had discovered that Rhode Island had no constitution; nor had she ever any. She has what the good people of that State call the "charter of Rhode Island," granted by King Charles the Second; in which he has made certain reservations, as an acknowledgment of his sovereignty. throughout the whole instrument, the people are treated of, and called subjects. They can have no claim to a republican form of government under such a charter.

And

Why, then, does not Congress issue its writ of quo warranto to the Governor or the Legislature of Rhode Island, calling on them to show by what authority they claim to be one of the United States? Or to show cause, if any they can, why that State should not be disfranchised for holding her government under a foreign Prince? Or else issue some process to compel her to form such a constitution as shall guarantee to her a republican form of government? Congress has as much power to do this as it has to reject the constitution of Missouri.

SENATE.]

Missouri State Constitution-Citizenship of Free Colored Persons.

[DECEMBER, 1820.

government. The evidence of this, it is said, is manifested in the third and fourth clauses of the twenty-sixth section of the third article of the constitution of Missouri, which authorizes the Legislature to pass laws "to prevent free negroes and mulattoes from coming to and settling in this State under any pretext whatsoever."

of them were not sold to foreign nations, or butchered by their masters, who had the absolute control over their persons and lives, without account, were finally suffered to mingle with the free men, and became one people. But the difference of color forbids that course with us, and will operate as a perpetual barrier, until time shall overcome it. Although they are not slaves themselves, who were pro

If Congress has the power to guarantee the republican form of government, and it can only be exercised when a State presents itself for admission into the Union, there ought to be a uniformity in its course. The same State of Rhode Island refused to adopt the Federal Constitution for some time after the organization of this Government. Then Rhode Island stood The Convention, which formed our Federal precisely on the ground on which Missouri now Constitution, has not been as explicit as we is said to stand. Missouri is a State, but it is could wish in defining what a republican form said is not in the Union; Rhode Island was a of government is. But we have always underState, and acknowledged on all hands to be out stood that sort of government which is adminof the Union at that time. Why did not Con- istered by the people to be a republican form gress exercise this salutary control when Rhode of government, and does not obtain nor lose Island came into the Union; and abrogate her this form when the free negroes and mulattoes English charter, and give her a constitution, are excluded from a participation. This is a with at least some semblance of a republican case sui generis. The history of the ancient form of government in it, and blot out the odi- world furnishes no precedent. The Grecian ous words, sovereign and subject, monarchical Republics abounded in slaves; but they had no vestiges which still characterize it? It is evi- share in the political concerns of the nation. dent, to a demonstration, that Congress is not Sparta was said to approach nearer to a pure the tribunal to decide this constitutional ques- democracy than any other government that tion. It must be left to the judicial department, ever existed. Yet they had slaves in thousands whose province alone it is to judge the private and hundreds of thousands, who had no share rights of individuals. There are no govern-in political affairs. They were white, and what mental rights to be involved, but the rights of persons only, if any; and shall Congress erect itself into a tribunal to investigate whether by chance some free negro or mulatto, fifty years hence, might suffer, and put this whole Union in jeopardy? He viewed such a crisis with awe. Mr. S. said he would be amongst the last to invoke it, but we could not shut our eyes upon what was going on in the northern section of this Union. At the time they were fulmi-hibited by this constitution to settle in Missounating their threats to dissolve the Union, if Missouri should be admitted into it, they were declaring to the world that the Southern States were endeavoring to intimidate, but would not dare to disturb the Confederacy. One printer, of Philadelphia, tired of waiting for some post of honor or profit under the old government, has divided the Union on paper, and laid out a snug government for himself and his friends, under which, perchance, he may be better provided for. Another fellow has called himself Patrick Henry, and writes as if it belonged to him to dissolve this empire, if he should so will it. He intends to bring about in this country a succession of Patrick Henrys, in imitation of the Cæsars of the Roman world; and he is to be Patrick Henry the second. This Patrick Henry the second has declared if Missouri with her constitution is received, it is of itself a dissolution of the Union. If ever this Union is disturbed, it will be by such monsters as these. It is not here that revolution is to commence; it is to begin with the people, by means of misrepresentations-by imposing on their honesty. Let those who are fanning this flame beware of the consequences. If the torrent begins to roll, there is no telling where it is to stop.

We are told this constitution is not republican; therefore it cannot be sanctioned, because it is the duty of the Government to guarantee to every State of this Union a republican form of

ri; yet they are the late offspring of slaves, and have been placed and considered in the body politic upon the same footing and no other. Their parents were slaves during the Revolutionary war. They were in a state of slavery from Boston to the St. Mary's, laboring in your fields. It was not then slaveholding States and non-slaveholding States, but all were slaveholding States. It is true since that time the Northern States, finding it their interest to do so, have sold the greater part of them to the Southern people, and have freed the rest. These freed negroes and mulattoes are now, for the first time, called citizens of the United States; and are, it is said, by the Constitution of the United States, entitled to all the privileges and immunities of citizens of the several States.

As no example is to be found in the history of any other nation, and this being the first time this question has occurred in our own Government, whether free negroes and mulattoes are, as such, citizens, must be ascertained by such evidences as, from the nature of things, we are compelled to give the highest credence to. Mr. S. said this was to be found in the Constitution and laws of the United States, and in the constitutions or laws of the several States. They furnish a mass of evidence, which nobody could doubt but a sceptic, that free negroes and mulattoes have never

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