SENATE. Admission of Missouri. DECEMBER, 1820. power of approving or disapproving. For this I contend; and these remarks are made to show the propriety and reasonableness of my claim. This privilege has been claimed, and this power has been exercised by an authority no more competent than that of the present Congress. But, say gentlemen, you must not examine into this subject, but turn it over to the judiciary. Sir, I choose to examine for myself. This being my right, I conceive a different course needless and improper. Needless, because Congress have the power and ability. This is delegated to this department of the Government; in the first instance, by the Constitution; and Congress have no right to surrender it. "New States may be admitted by the Congress," and no other body. of Virginia, applied to that Commonwealth for permission to form herself into a new State, and petitioned Congress for admission into the Union; whereupon an act passed for that purpose. "Where'as the Legislature of the Commonwealth of Vir'ginia, by an act entitled, &c., have consented that 'the district of Kentucky, &c., should be formed 'into a new State; and whereas a convention of delegates, &c., have petitioned Congress to consent, &c., that the said district should be formed ' into a new State, and be received into the Union, by the name of the State of Kentucky'-Be it enacted, &c., That the Congress doth consent 'that the said district of Kentucky, &c., shall, upon the first day of June, 1792, be formed into a new State; and, upon the aforesaid first day of June, 1792, the said new State, by the name and 'style of the State of Kentucky, shall be received ' and admitted into this Union, as a new and en'tire member of the United States of America." Thus we see the formality which has been observed in admitting new States into the Union. In no instance has this diminished, but in all instances it has increased. We will pass the admission of all intermediate States, and come to that of Louisiana, which is directly in point. The Territory of Orleans applied for admission into the Union, and Congress passed an act authorizing them to call a convention and form a constitution, enumerating certain conditions upon which she should be received; among which were the following: "That, in case the convention shall de'clare its assent, in behalf of the people of the 'said territory, to the adoption of the Constitu'tion of the United States, and shall form a con'stitution and State government for the people of This, sir, is distinctly admitted in the report of 'the said territory, the said convention is hereby the committee of the House, to whom the consti' required to cause to be transmitted to Congress tution was referred. They say, "the committee 'the instrument by which its assent to the Con- ' are not unaware that a part of the 26th section of stitution of the United States is thus given and the 3d article of the constitution of Missouri, by 'declared; and also a true and attested copy of which the legislature of that State has been direct'such constitution as shall be formed by said con- 'ed to pass laws 'to prevent free negroes and mu'vention; and, if the same shall not be disapprov-lattoes from coming to, and settling in, the State,' 'ed by Congress at their next session, the said has been construed to apply to such of that class 'State shall be admitted into the Union upon theas are citizens of the United States; and that 'same footing with the original States." Here we distinctly see that Congress required, previous to her admission, and as pre-requisites, that the convention should declare its assent to the adoption of the Constitution of the United States, and transmit the instrument of their assent to them; and, also, an attested copy of their constitution, and, if the same should not be disapproved by Congress," they should be admitted. It is improper, because it would perplex a certain class of proprietors. Apply this to the poor yellow man who owns land in Missouri. They pass a law prohibiting free negroes and mulattoes from settling "in the State, under any pretext whatsoever." This is in force till nullified by the judiciary, which cannot be effected without an action at law. Is he able to endure this excessive burden? Who would undertake it to get into Missouri? The barrier is equal to an armed force, extending around the whole territory of the State. It would keep any citizen in the Union out, and this was the design of it. Surely, if they were to say, (which they could with equal propriety,) that no citizen with a gray head should settle in Missouri, I would never make the attempt. Hence, then, this provision in the constitution of Missouri is in direct hostility to the Constitution of the United States. 'their exclusion has been deemed repugnant to the Federal Constitution." Here the fact for which we contend is conceded; and, also, that there are some "of that class who are citizens of the United States." If this is not the case, why your provisos? Why submit nothing to the judiciary? Why must there be a protestando introduced? Mr. President, I proceed to show the consequences of this provision. With respect to Missouri the law says, Section Some States have free citizens of color. This 7, "And be it further enacted, That, in case a con- is the case in Vermont, New Hampshire, and 'stitution and State government shall be formed Massachusetts. In Vermont, there is a mulatto for the people of the said Territory of Missouri, man by the name of Haines, who is a regular 'the said convention, or representatives, as soon as ordained minister in Rutland. He is pastor of a may be, shall cause a true and attested copy of church and society of white people; has frequent'such constitution or frame of State government,ly been moderator of the Theological Association as shall be formed or provided, to be transmitted 'to Congress." Here, then, we learn Congress prescribed conditions; required the constitution to be presented; reserved the privilege of examination, and the to which he belongs, and also of ecclesiastical councils convened for the ordination of ministers. In fact, his abilities, education, moral character, and standing in society, are such that he has received an honorary degree of Master of Arts from the University. But this man and his family, although of high standing in community, and possessing all the faculties of citizens, are proscribed, and, by the constitution of Missouri, are prohibited settling in the State. In New Hampshire, there was a yellow man by the name of Cheswell, who, with his family, were respectable in point of abilities, property, and character. He held some of the first offices in the town in which he resided, was appointed justice of the peace for that county, and was perfectly competent to perform with ability all the duties of his various offices in the most prompt, accurate, and acceptable manner. But, this family are forbidden to enter and live in Missouri. In Boston, is a mulatto man by the name of Thomas Paul, a regularly ordained Baptist Minister, pastor of a church of people of color, at whose meeting many white people attend, and who preaches by exchange or otherwise, with all the neighboring ministers of his denomination. Sir, you not only exclude these citizens from their Constitutional" privileges and immunities," but also your soldiers of color, to whom you have given patents for land. You had a company of this description. They have fought your battles; they have defended your country; they have preserved your privileges, but have lost their own. What did you say to them on their enlistment? We will give you a monthly compensation, and at the close of the year, 160 acres of good land, on which you may settle, and, by cultivating the soil, spend your declining years in peace, and in the enjoyment of those immunities for which you have fought and bled. Now, sir, you restrict them, and will not suffer them to enjoy the fruit of their labor. Where is the public faith in this case? Did they suppose, with a patent in their hand, declaring their title to land in Missouri, with the seal of the nation and President's signature affixed thereto, it would be said to them, by any authority, you shall not possess the premises? This could never have been anticipated. เ But, says the honorable gentleman from Maine, (Mr. HOLMES,) "they are perfectly secured by a saving clause in the constitution of Missouri," which must be taken in connexion with that part which prohibits their settling in the State. It must, therefore, be read: "it shall be the duty of 'the General Assembly to pass laws, to prevent free negroes and mulattoes from coming to and settling in this State, under any pretext whatsoever: 'Provided, however, The General Assembly shall 'never interfere with the primary disposal of the 'soil by the United States, nor with any regulation Congress may find necessary for securing 'the title in such soil to the bona fide purchasers." My humble opinion is, this does not reach the case. Were it to protect patentees of the Government, this would be only a part of that class of citizens who are liable to suffer. But the fact is, it will not do that. The law says, a mulatto man shall not settle in Missouri "under any pretext whatsoever." This provision says, "the Assembly shall never interfere with the primary disposal of the soil." What has this to do with his settling in SENATE. that State? It will afford him no relief. But "the 'Assembly shall not interfere with any regulation Congress may find it necessary for securing the 'title in such soil to the bona fide purchasers." What security will this afford to the yellow man desirous of settling in Missouri? They will not destroy his title, but they will not permit him to come into the State. The gentleman's argument goes upon the ground, that a title and possession are the same. This I do not admit. It is a principle laid down in the books, that one person may hold the title and another the possession; and this is proved from daily experience. If this were not the case, what gives origin to a writ of ejectment? It grows out of the very circumstance that one person may hold the title and another the possession; and the title may be good, but possession cannot be obtained without an action at law. The quality of the title in this case may be inferred from the fact, that, although the yellow man may not enter and possess the premises, he can transfer his title to a white citizen, who may, without molestation, enter and enjoy the premises. Then, on a critical examination of the Constitution, we find no relief, but are compelled to yield to the fact, that free citizens of some States are precluded the privilege of settling in Missouri; by which their rights are abridged, contrary to the provisions of the Constitution of the United States. Mr. President, can we suffer one, even the meanest of our citizens, to be unconstitutionally deprived of his privileges? No. We are the guardians of his rights, and, in the performance of our duty, we cannot permit them to be infringed. How was it with Mr. Meade, who was unjustly retained in prison in Spain? He was deprived of his liberties and immunities. Congress took notice of the circumstance, and that very justly. Executive interference was exercised, and his liberty was regained. This manifested a suitable regard to the rights of our citizens. When our citizens are taken and retained by the Algerines, you retake or negotiate and redeem them. In this case you make no distinction between the white man and negro-they are both redeemed with your money. When Commodore O'Brien was consul at Algiers, there were six negroes redeemed at the same price as white men; and one slave, who was restored to his owner, but not made free. When your soldiers are captured, black or white, you redeem them. It is proper that you should. These are only the infringement of other rights, than those abridged by the constitution of Missouri. The question is not what privileges may be violated, nor how many, nor to what degree, nor whether the citizen be black or white; but can we tamely suffer one State to deprive any citizen of any of his Constitutional rights and privileges? If Missouri can do this, why not keep a standing army, enter into a treaty, coin money, and grant titles of nobility? She is a frontier State-the Indians are near; it may be very convenient to keep an army or make a treaty. The reason is, the Constitution of the United States distinctly says she shall not. And in the other case it expressly declares, "the citizens of each State shall be en SENATE. Admission of Missouri. DECEMBER, 1820. honorable Delegate, and one of the gentlemen who appears here as a Senator, that this paragraph would be objectionable. But it is here, not inadvertently nor from necessity. If they had intended to pass a law similar to that directed by this paragraph in the constitution, they could have done it without this provision. Mr. President: Before I take my seat, I must be permitted to make a few strictures upon some remarks which fell from the honorable gentleman from South Carolina, (Mr. SMITH.) He observed that "negroes and mulattoes are not citizens of the United States." It is not my intention to con 'titled to all the privileges and immunities of the 'citizens of Missouri; and they shall have as free ingress and regress as her own citizens now 'have." This is the only consistent construction that can be given to the Constitution of the United States, and the only safe principle which can be adopted to secure the provisions of the Constitution from infraction, and the rights and privileges of the citizens of the several States from the most destructive violation. Admit the contrary principle, and each State becomes a monarchy, or is transformed to despotism. Our dearest privileges are wrested from our hands; and those very rights by which our national union, domestic tran-sume your time to demonstrate the contrary of quillity, and general welfare are secured, are forever annihilated. If you can proscribe one class of citizens, you may another. Color no more comes into consideration to decide who is a citizen than size or profession. You may as well say a tall citizen shall not settle in Missouri, as a yellow citizen shall not. If one State can do this all may. The consequence will be, that size, profession, age, shape, color, or any disgusting quality in a citizen, would be a sufficient reason why he should be precluded settling in any State, which, from its pride, caprice, or vanity, are disposed to keep him out. Sir, under such a state of things, where are our liberties and privileges? They are fled. They are absorbed in the caprice of a State. Where is your "free ingress and regress from State to State?" Your national existence is lost; the Union is destroyed; the objects of confederation annihilated, and your political fabric demolished. this; because it would not, in the least degree, vary the subject. Our inquiry is, and it is the point which settles the question, are they citizens of any particular State? This point I have proved, and on the other hand it is admitted; and if they are citizens of any one State in the Union, this is enough for our purpose. I would ask my friend, what is the man in his country who is neither a slave nor an alien? In mine he is a citizen. The gentleman argued largely to show "that slavery was tolerated in Republics." He need not have gone to Rome, Greece, nor Sparta, to have proved this; it is evident from our daily observation, and, of course, admitted. But what is this to the point in debate? What has this to do with the question whether Missouri has a Constitutional right to prohibit free citizens from settling in her Territory? Does it follow, because slavery is tolerated in Republics, therefore Missouri may proscribe free citizens? This reasoning is neither conclusive nor convincing. The gentleman says: "Missouri is now a State to all intents and purposes." This is not admitted. What has made her a State? What is the language of your resolution? Not that she now is, but that she shall be, a State, when this resolution is passed by both Houses, and approved by the President. Sir, I have endeavored to point out the objects of the American confederacy; the duty and power of Congress; the duty, power, and privileges of States; who are citizens of some States, and the rights of our citizens, and the provisions of the Constitution of the United States, by which those rights are secured, and the provisions of the constitution of Missouri; and have come to this irresistible conclusion, that the Constitution of the United States secures to the citizens of all the "Be it resolved, &c., that the State of Missouri States in the Union, "the privileges and immu-shall be, and is hereby declared to be, one of the nities of the citizens" of each State in the Union; but Missouri, in her constitution, precludes certain citizens, in certain States, the "privileges and immunities" of her own citizens; therefore, the constitution of Missouri contravenes the express provisions of the Constitution of the United States. For these reasons I vote against the resolution. 6 United States of America." But, were it true that she is a State, there is nothing gained by it. Vermont was a State a long time before she was received into the Union. The question is, shall Missouri be admitted with a constitution which conflicts with the Constitution of the United States? Sir, a few more words, and I close my argu- My friend argues, "we are bound by the Treaty ment. I regret that I feel compelled to offer an of Cession to receive her." Admit this. But in opinion of the complexion of this business. I la- that treaty there are terms and conditions. "The ment that it has the appearance of defiance. I inhabitants of the ceded territory shall be incorhave endeavored to put the most favorable con- porated in the Union of the United States, and struction possible upon it, and it amounts to aadmitted as soon as possible, according to the challenge. Oppose us if you dare! I am driven to this result from knowledge and reflection. On examining this constitution, I am sure it was not penned by uninformed men. Aside from a few exceptionable parts, it is one of the best constitutions I have ever seen. The Convention were not unapprized of the feelings excited last session. The particular exceptionable clause was not in the original draught. They were informed by their principles of the Federal Constitution." Hence, in her admission, the principles of the Federal Constitution must be observed and maintained inviolate. This was the ground on which Louisiana was received, and Missouri being a part of the same purchase, she must be admitted on the same principles, and in the same way, and no other. But the gentleman says, "States were admitted ! SENATE. without presenting their constitution." This may stricted. To maintain this position, he took occa- "Louisiana, Ohio, and other States, declare how persons coming into them shall obtain a residence." This we readily admit; and against such regulation have no objection. But does it follow, because certain States prescribe conditions on which emigrants shall gain a residence, therefore Missouri has a Constitutional right to prohibit the citizens of other States from settling in her territory? Really I do not see the force of the argument. This gentleman says, "the doctrine that free blacks have a right to enter free States, is dangerous." I am a little surprised to hear a gentleman of so much acuteness in disquisition upon Constitutional law, calculating upon consequences which have no immediate connexion with the subject. He might as well argue, that a commercial enterprise to the Euxine sea, would be detrimental to Massachusetts, and therefore Missouri must keep all free citizens of color out of her territory, as to argue that if free blacks may enter any free State, Maine will be infested with them; and therefore, Missouri must prohibit their settling in that State. "A State may exclude any person." Here we are at issue. I by no means admit the doctrine. Any State may regulate the terms upon which emigrants shall become residents; but no State has any right to exclude them. To utterly prohibit, and regulate by law the terms of inhabitancy, are materially and essentially different; and one within the municipal power of every State, the other expressly prohibited by the Constitution of the United States. But, says the gentleman, "the Constitution "States have made a distinction between white means, when they get in, they shall have privileges, people and blacks." This is very true; so they but they may be kept out." This is a little curious, have between white people. South Carolina has for a gentleman learned in the law. Then, if a distinguished that gentleman in giving him a seat person were to ascend in an air balloon, at a small here, and that very justly; and he has nobly dis- distance from the line of Missouri, and safely land tinguished himself. And what is this to the point? within her territory, the constitution secures to "But in the Eastern States, they whip black peo- him "privileges and immunities;" but it makes no ple-not only once and twice, but ten times, and provision for his crossing the line by land. Under every ten days." This may be true; and equally this exposition, where is the "free ingress and retrue, that they whip white people when they vio- gress" of the citizens of each State guarantied by late their laws; and continue to whip, black or the Constitution? Sir, your constitution is like a white, as long as they continue to violate whole-nose of wax. Your liberties and privileges are a some laws; and I suspect will persevere in the practice until they reform or emigrate to South Carolina, where they may receive better treatment. Does this prove any thing with respect to the constitutional power of Missouri? But, says the gentleman, "New Hampshire excludes negroes from training." This is very true; and so they excuse many white people. This only places them among the exempts; generally, the first class in society. And from this very circumstance, they have the privilege of walking about with the other gentlemen and seeing the soldiers train. It neither deprives them or any other person of citizenship or any other privilege. Blacks, then, are not degraded in New Hampshire. Custom has made a distinction between them and other men; but the Constitution and laws make none. Mr. President, a few words in reply to what has fallen from the gentleman from Maine, (Mr. HOLMES,) and I shall have done. He observed, purchasers under the United States are not re bubble. Your union, domestic tranquillity, and prospect of common defence, are prostrated to the ground. But, says the gentleman, this doctrine is certainly correct, and to test his principle, he adds, "send a mulatto man here, should we not feel our rights invaded? This has no connexion with the question. It is possible some gentleman might feel his rights invaded. But I would inquire, in my turn, what rights are invaded? And I would seriously ask the Senate, if any State in the Union were duly to elect a yellow man Constitutionally qualified, commission and send him here with his credentials, you can exclude him a seat? You have a right to decide on the qualifications of your members; but color is no more a qualification than height, profession, or nation. The gentleman observes, "a mulatto, though a citizen in one State, going into Missouri, has no other rights than a mulatto has in Missouri." Here we are at issue again. This doctrine I flatly deny. The salubrious air and fertile soil of Missouri can never metamorphose a free citizen into a slave; neither can the constitution and law of Missouri do it. Were the proposition true, then a black or yellow free citizen of Maine, going into Virginia, would be a slave. As I before intimated, it is citizen only, and not color, that comes into consideration, in deciding this question. But the gentleman, in a very affecting tone, enlists all our sympathies, in view of the consequences of rejecting this unconstitutional instrument from Missouri. For these, sir, I conceive Congress is not accountable; and, therefore, such imaginary phantoms are not proper subjects of discussion, nor suitable beacons to direct our course. Missouri was permitted, under a law of Congress, to form a constitution, "republican, and not repugnant to the Constitution of the United States," and "transmit an attested copy of such constitution to Congress." It was expected she would perform this in good faith. If she has utterly failed-formed and presented a constitution repugnant to the Constitution of the United States, and unpleasant consequences result, the fault is her own. There can be no provision in the constitution of Missouri inadvertently introduced; of course, all the consequences rest upon Missouri. These, however, are not to come into our consideration; the Constitution of the United States alone is to direct our course. But the gentleman discovers another difficulty, in case this constitution is rejected: he is unable to determine in what condition Missouri will be, whether Territory, or State, or neither. With respect to this, sir, I have only to observe, if that gentleman cannot divine, I presume it is within the scope of Congress, and merely that circumstance would not convince me the object is unattainable. I would also add, that every difficulty of this kind which could possibly have arisen might have been avoided by precautions similar to those observed by Maine. She, in the first place, petitioned the Legislature of Massachusetts for leave to form a constitution and independent State. This was granted. She then formed her constitution, and fixed her election for State officers after the probable time of the adjournment of the then next session of Congress. She presented her constitution for the approbation of Congress and admission into the Union. This was done. After she became, by an act of Congress, a State in the Union, she elected her officers, and organized her government. If Missouri had pursued the same moderate and consistent course, there could have been no possible difficulty with respect to her character or condition. Mr. President, these being my views of the subject, I close my remarks, after presenting my thanks to the honorable Senate for the great candor and attention with which they have indulged me while I have occupied their time. Mr. MACON followed the above speech with a motion to recommit the resolution to the select committee which reported it, with instructions to strike out the proviso adopted to-day on the motion of Mr. EATON. Mr. M. had no doubt whatever of the propriety of the naked resolution as DECEMBER, 1820. reported, and was opposed to the proviso; he therefore proposed this mode of getting rid of it. The question on recommitting the resolution was decided in the negative, by yeas and nays, as follows: YEAS-Messrs. Burrill, Dickerson, King of New York, Lanman, Lowrie, Macon, Mills, Morril, Noble, Palmer, Roberts, Ruggles, Sanford, Smith, Tichenor, Williams of Tennessee, and Wilson-17. NAYS-Messrs. Barbour, Brown, Chandler, Dana, Eaton, Edwards, Elliott, Gaillard, Holmes of Maine, Holmes of Mississippi, Horsey, Hunter, Johnson of Kentucky, Johnson of Louisiana, King of Alabama, Lloyd, Parrott, Pinkney, Pleasants, Talbot, Taylor, Thomas, Trimble, Van Dyke, Walker of Alabama, Walker of Georgia, and Williams of Mississippi-27. The question was then taken on ordering the resolution, as amended, to be engrossed and read a third time, and was decided in the affirmative, by yeas and nays, as follows: YEAS-Messrs. Barbour, Brown, Chandler, Eaton, Edwards, Elliott, Gaillard, Holmes of Maine, Holmes of Mississippi, Horsey, Johnson of Kentucky, Johnson of Louisiana, King of Alabama, Lloyd, Parrott, Pinkney, Pleasants, Smith, Talbot, Taylor, Thomas, Van Dyke, Walker of Alabama, Walker of Georgia, Williams of Mississippi, and Williams of Tennessee-26. NAYs-Messrs. Burrill, Dana, Dickerson, Hunter, King of New York, Lanman, Lowrie, Macon, Mills, Morril, Noble, Palmer, Roberts, Ruggles, Sanford, Tichenor, Trimble, and Wilson-18. TUESDAY, December 12. Mr. THOMAS presented the memorial of the register of the land office and receiver of public moneys at Shawneetown, praying compensation for extra services rendered in the execution of the act "granting the right of pre-emption in the purchase of lands to certain settlers in the Illinois Territory," and of the acts concerning Shawneetown; and the memorial was read, and referred to the Committee on Public Lands. Mr. TRIMBLE presented four memorials, signed by a number of individuals concerned directly or indirectly as purchasers of public lands prior to the law "making further provision for the sale of the public lands," stating that said law operates injuriously on them, and praying that they may be permitted to apply the payments already made to such portions of their entries as such payments will cover at two dollars per acre, and that the residue may revert to the United States; and the memorials were read, and severally referred to the Committee on Public Lands. Mr. NOBLE presented two memorials, signed by a number of individuals, of the same import and object as the preceding; which were read, and severally referred to the last mentioned committee. On motion by Mr. WILLIAMS, of Tennessee, that the Committee on Military Affairs, to whom was referred the petition of Rebecca Hodgson, be discharged from the further consideration thereof; the said motion was ordered to lie on the table. The Senate proceeded to consider the motion of yesterday, to inquire into the expediency of |