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SENATE.

Admission of Missouri.

DECEMBER, 1820.

Their right to go is only by inference. They are entitled, you say, to certain privileges and immunities when there; and therefore they have a right to go. We answer, they are entitled to no privileges and immunities of citizens, when there; and therefore Missouri has a right to exclude them.

A contrary decision would moreover be against all precedent, and the constant practice of most of the States in the Union. When a contest for power between the United States and a State occurs, it becomes this Senate jealously to guard those rights which it was constituted to preserve. The tendency of the Federal Government is to acquire by slow and imperceptible encroachments on the rights of the States-one acquisition may succeed another until there shall be nothing left.

It is, furthermore, unusual strictly to scrutinize every clause of a constitution of a new State, on her admission into the Union. Reject a State for one objectionable clause, and, if you err, the error cannot be easily corrected. Admit her, and, if a clause is repugnant to the Constitution of the United States, it is inoperative and void, and would be annulled by a judicial decision. The State would be, in the Union, pruned of the offensive limb, and the residue of her constitution would remain.

erty and personal security under the protection of laws fairly administered; but he has these in common with foreigners, and in some respects with slaves. No person can be said to be entitled to the privileges of an American citizen, unless he can have an agency in the formation or administration of the laws; that agency may be prospective, but a perpetual exclusion from this deprives him of the essential attributes of a citizen; but these attributes are conferred or withheld by the will of the State, legally or constitutionally expressed; a citizen, therefore, has his character from the State of which he is a member; the State may deprive him of it, and again restore it back; as it can totally destroy it, so it can create it in its highest perfection. It would seem, then, inevitable that, inasmuch as the privileges of citizenship are conferred or withheld by each State at its will, they may be and almost unavoidably must be different in different States. The question then presents, what "privileges and immunities of citizens have the free blacks of Missouri? And we see at once they have none. By the charter which you made for them, free blacks can neither elect nor be elected, and this disability is made perpetual by their constitution. By the existing territorial laws they cannot bear arms without being housekeepers and having a license from the civil authority; nor act as jurors in any case, nor testify as witnesses, except in suits between per sons of their own color. The free black of Missouri, then, has no privileges of citizenship there. Then, can a free black citizen of Maine have any greater privileges or immunities in Missouri, than her own free blacks? Does a citizen of one State going to another carry his political condition with him or assume that of the State where he goes? The former principle breaks down every qualification required by a constitution of a State, and authorizes one State to confer privileges for the whole. No gentleman has, I believe, pretended to insist on such a construction. A citizen of Maine entitled to elect and be elected, goes to Virginia; the constitution of Maine made him an elector without property and with a year's residence; that of Virginia requires a freehold and further residence; does he instantaneously become an elector in Virginia, or must he be subjected to the disabilities of Virginians conditioned like him? He must submit of course to the laws of the State to which he goes. But in Maine a free black is a citizen; he goes to Virginia-can he there have any other privileges and immunities than the free blacks of Suppose a case, not improbable,—suppose MisVirginia? By the same rule, certainly not; if he souri rejected by a disagreement between the two could, the free blacks of Virginia might emigrate Houses of Congress one branch believing that to Maine, tarry a year, become electors there, and she has complied with the conditions, is a State, return, bringing with them the elective franchise, and entitled to admission; the other believing that which they could exercise in spite of the constitu- she has failed to comply, and must retire back to tion of Virginia. A person, then, going from one her territorial condition. You promised Missouri State to another, takes all the privileges and im- two things-a State government, and admission munities, and is subject to all the restraints and into the Union. She is in the enjoyment of one, disabilities as to residence, property, age, and color, and demands the other. One House of Congress of the people of the State where he goes. If, then, is willing she should enjoy the other, and the other free blacks and mulattoes going into Missouri House refuses, and demands that she should yield could have no privileges and immunities of citi-up what she has obtained. One House having a zens when there, she has a right to exclude them. negative on the other, what could be done? The

This is a question which may be very safely trusted with the Judiciary. Who are the parties to the compact in the act of last session? The United States and Missouri. Missouri contends that she has complied with the terms, and demands a fulfilment on our part. We refuse, and charge her with a failure to fulfil her stipulations. Who is to decide? Will we insist on deciding our own case, or will we consent to the decision of an umpire? There is no risk on our part in submitting the question to the Supreme Court. In questions of State and Federal powers, they have, I believe, never been suspected of leaning very far in favor of the former. Indeed, it is not in the nature of men placed as they are to do it. Their origin, compensation, responsibility, and pride, all forbid it. If the people of Missouri are willing to submit to this tribunal, we act not as an honorable man would act with his neighbor if we refuse.

But suppose you insist on the objection. Is it by any means certain that you may not produce a state of things perplexing, if not dangerous? I do not pretend that Missouri will resist your authority. My fear is, that you cannot agree to exercise it.

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necessity should be strong, and the case clear, before I would hazard such a state of things. But, so far from the case being clear, and the necessity strong, it is manifest, I think, that you have no power, and, if you had, it is not only unnecessary, but impolitic and unsafe, to exercise it. The propositions upon which I have insisted, and endeavored to maintain, are these:

The "privileges and immunities" of citizens are nowhere extended to free blacks and mulattoes, by

the Constitution of the United States nor laws of Congress.

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Mr. Oris, of Massachusetts, said that, in presenting to the Senate a few general observations upon the question before them, he would take leave to begin where the honorable gentleman, (Mr. HOLMES,) who had just sat down, had left off. That gentleman had enlarged upon the consequences to be apprehended from the rejection of Missouri, under her present constitution, in terms adapted to excite alarm. But while he admitted that, in all cases, where discretion can be exercised, the consequences of measures, as they might affect not only the welfare but the feelings of the people, and their disposition to execute the laws, should justly be regarded; yet when the dictates of conscience, and the obligation of oaths, and language of the Constitution, left no alternative, it was the part of those who had duties to perform to discharge them with firmness, after due deliber-j ation, and to trust to the consequences and effects. This would be his course, under any view to be imagined, of the reception of the fate of their application for admission by the good people of Missouri. But he did not permit himself to indulge any fears of such results as had been intimated. His respect for that people, and his persuasion of their knowledge of their true interests, banished from his mind every suspicion of a temper that would lead them to adopt rash and violent measures, and embroil themselves with the Union upon a question of Constitutional law, which it would be so much easier to settle by an amicable adjustment. He was sorry that the question had arisen, and had presumed that the people of Missouri would have placed themselves in a condition to claim their admission, upon the ground of a compliance with the terms held forth to them by Congress; and thus to have disarmed the opposition of such of the former minority as might have considered those terms binding on the public faith. But this they had not done, and, although some inconvenience might be attached to the course they had taken, the only remedy could be found in

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SENATE.

a course of reasonable and moderate measures on the part of themselves and their friends.

The resolution upon the table, said Mr. O., contains a proposition, which Congress is either bound to adopt of course, as a ministerial act, or upon which they are entitled to exercise a sound discretion. But propositions of the first description, calling upon Congress to register the acts of anodone in substance without their consent, were, as ther State, and to do, pro forma, what was already he humbly conceived, anomalies entirely unknown to the Constitution, and not recognised by any rules or proceedings of this House.

Under the sanction of an act of Congress, the people of Missouri have been authorized to form a constitution, subject to certain limitations and conof the Union. How, then, is it possible to advance ditions, and thereupon to become an integral part a step without reading and examining their constitution, and deciding upon the fact whether or not they have complied with these terms? To a would be admitted on all sides to be indispensable; certain extent, he presumed, this investigation without it, who can tell whether she has confined herself within the prescribed territorial limits? Who would know that she had not extended her claim of jurisdiction to the Rocky mountains? We may also be entitled to ascertain whether she has established a republican or a monarchical government; whether she arrogates the power of making peace and war, regulating commerce, collecting imposts, or other powers inhibited in express terms of the Constitution to the several States. If, then, we not only may carry our researches thus far, but should be bound in duty not to shut our eyes against these flagrant assumptions of power, who will say where the line of discrimination begins, and class under their proper heads those invasions of the Constitution which we are held to notice, and those at which it behooves us to wink?

Gentlemen who deny this right of Congress to decide upon a question placed before them for decision, insist with great vehemence that Missouri is a State, and, of consequence, that her members are entitled to their seats; and if she be not a State, they call upon us to describe her actual condition, and to say what she is. But, to say nothing of the inference which seems unavoidable, that, upon this hypothesis, the proccedings of Congress are superfluous, and the foundation for all debate is removed, and the members need only offer themselves to be qualified; it might with equal truth be affirmed that Missouri would be a State, if she had made a Governor for life, or instituted an hereditary Senate, or claimed the publie lands, or, in many other particulars, trenched upon the rights of the General Government, and held the terms of the proffered admission in contempt. But the assumption of her being a State is a fallacy—a begging of the question-and an illusion, arising from the repetition of a high-sounding word. In truth, the people of the United States, by their Congress, are parties to an executory contract. The people of Missouri are the other parties. The former have granted to the latter the faculty of becoming a

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State, when, among other things, they shall have formed a constitution not repugnant to the Constitution of the United States. Now, by what law or usage, or principle of natural equity, does a party, who, by certain acts to be performed on his part, is to be entitled to the benefit of a subsequent act to be performed by another party, become the sole judge of his own fulfilment and perfect claim? Has not the party who is called upon to make the last concession a right to be satisfied? If there be a controversy and a tribunal, will not this last mentioned party stand upon his defence? In the ordinary transactions of civil life there could be no doubt. Why, then, is it expected that Congress should surrender an advantage which every individual would retain? Congress, it may be said, cannot be arraigned before any tribunal, neither can it be impleaded upon any of the innumerable private pecuniary claims that are constantly made upon its justice. In these cases it invariably makes a law for itself. Doubtful claims are always rejected; and there could be no consistency in reserving scrupulously the power of deciding upon demands for money and services, which are often paltry and insignificant, and shrinking from decisions which involve the civil or political rights of any portion of the people, however poor and humble their condition. It is, then, entirely fallacious to insist that Missouri, by taking advantage of her own wrong, has become a State, and precluded your right of inquiring into her condition. The fallacy is apparent when the inquiry is made, is she a State of that description which is entitled to be admitted into the Union? This involves the further questions, Is her constitution republican? Is it conformable to the Constitution of the United States? Has she complied with the precedent conditions annexed to her grant? If in these points her constitution is defective, it is not incumbent on those who oppose her admission to waive their objections in consequence of the change of name or organization; neither is it essential to give her a name, or to define the heteroclite condition in which she has placed herself; though he saw no difficulty in saying she was yet a Territory, in her transit towards the condition of one of the United States, and none in providing by law (especially with a kindly concurrence on the part of that people) for an adaptation of the present form of her government to her territorial condition, until that should be changed.

The honorable gentleman from South Carolina had asserted, with great confidence, that several States had been admitted into the Union without any evidence to be found on record of an examination into the provisions of their constitution. "Several of those States were without constitutions," and, "why," exclaimed the gentleman, triumphantly, "do you not issue a quo warranto against Rhode Island and other States?" To this, said Mr. O., the answer is most obvious. Rhode Island, Vermont, and North Carolina, had the option, at the time of the formation of the Federal Government, of becoming parties to it at pleasure. They were independent States, acting as such, and their constitutions or forms of government were

DECEMBER, 1820.

subjects of notoriety to the other States with whom they had united under the Old Confederation. They did not adopt the Constitution of the United States at the same epoch with the other States, but there was a perfect understanding of their being at liberty to send in their adhesion; and, when they did so, nothing was wanting but laws extending to them the jurisdiction of the Union. In respect to every other State, it was manifest that their several constitutions had been submitted to the inspection of Congress, as would be demonstrated by a recurrence to its acts, and although the form of the resolutions adopted of late years had not been originally observed. The State of Virginia, by an act of December, 1789, authorized Kentucky to become a State at some period subsequent to 1791, at a time to be fixed by the people. They accordingly formed a constitution, and determined that the era of its active supremacy should be in June, 1792. Meanwhile Congress convened, and determined on the same time for its admission into the Union, and, by necessary intendment, must have had before them the constitution as it had been adopted. In the act extending to Ohio the benefit of certain laws of the Union, there is an express recognition of her having framed a republican form of government. In the instance of Tennessee, there was a debate upon a clause in her constitution, which shows that the instrument was before Congress; and, since the time of her admission, a more precise formality has been observed in every instance. Nothing, therefore, he contended, was to be gained by the gentleman's reliance upon precedents, which were all against him. Having thus, (continued Mr. O.,) established it to be the right and duty of Congress to examine this instrument, he should 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 collision 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,

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 limita'ileges 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 Confederation, and subsequent to the Revolution, had the same powers, in regard to this subject, as the British Parliament.

SENATE.

Admission of Missouri.

DECEMBER, 1820.

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, niore 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 every where a very small minority of indi

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 stat-viduals, under particular circumstances, are not utes 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,

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

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