Front Page Titles (by Subject) SECTION 15.: THE MISSOURI QUESTION. - Construction Construed and Constitutions Vindicated
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
SECTION 15.: THE MISSOURI QUESTION. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
About Liberty Fund:
The text is in the public domain.
Fair use statement:
THE MISSOURI QUESTION.
It is with great reluctance that I consider a question, which has been so ably discussed with so little edification; but it constitutes a proof so forcible, in favour of the construction of the federal constitution for which I have contended, that it cannot be neglected.
The idea of a balance of power between two combinations of states, and not the existence of slavery, gave rise to this unfortunate, and as I shall endeavour to prove, absurd controversy. What is the political attitude of nations towards each other, supposed by a balance of power? Hostility. What is the effect of hostility? War. A balance of power is therefore the most complete invention imaginable for involving one combination of states, in a war with another. It is in its nature, and will be in its consequences, equivalent to the balance of power between England and France; and after a series of bargains and contrivances to stunt of pilfer each other, the party worsted in the warfare, disguised by these bargains and contrivances, will be driven by interest or resentment to use more destructive arms.
But can this happen, when congress itself is to hold the scales, make the bargains, and adjust the balance? If it would discharge this business fairly, a balance of power would be worth nothing, nor would a preponderance be so fiercely contended for. The extreme anxiety to obtain a preponderance acknowledges a thorough conviction on both sides, that a majority in congress will not make fair bargains; and that it will sacrifice the interest of some states and individuals to advance that of others. The very first debate under the influence of this new balance of power had ascertained, that it will destroy the old federal principles, founded in similar and sympathetick interests, and transform congress into a body, merely diplomatick. The new confederation to be substituted for the old one, ought to be stated without disguise, that it may be duly estimated, and compared with its rival. It proposes to draw a geographical line between slavery and no-slavery; to train the people on each side of it, into an inveterate habit of squirting noisome provocations at each other through the press; and to create a degree of animosity as an ally to ambition and avarice, quite sufficient to induce a preponderating balance to exert its whole energy, in obtaining exclusive advantages. Thus every vestige of the federal union, according to the existing compact, would be gradually destroyed, because the two bands of congressional negotiators would be employed in making successive bargains in relation to the balance of power, or in triumphantly exercising an acquired preponderance over a vanquished adversary; and every new bargain like the one already made, and every new partiality, would be an alteration of the federal constitution. Congress would be converted by the new federal scheme of a balance of power, between two combinations of states, into a convention, meeting annually to make new bargains for obtaining a preponderance, and local advantages over each other; or in fact to make annually a new federal constitution. To those who saw the difficulty of making that we now have, the consequences of this species of policy will be quite plain.
It will very much resemble the whig and tory policy of England. By that, two parties were artificially created, whose whole business it was to get money and power, without any regard to the publick good. The parliament retained its representative and debating qualities, but the intention of discussion and deliberation was wholly defeated. The most conclusive reasoning ceased to make any impression, and every decision, almost every individual vote, is certainly foreseen before a deliberation. But there is one very material difference between this new project for a balance of power in the United States, and the English balance between whigs and tories. Ours will superadd to the disgusting moral deformities of theirs, the hideous feature of being geographical.
Our idea of a balance of power contemplates two spacious territories, with the population of each separately integral, as conglomerated by an adverse interest; and though substantially federal in themselves, substantially anti-federal with respect to each other. It is absurd to imagine that slavery is the real conglutinator of these conglomerations, (hard words will be pardoned on this hard subject,) because one party cannot want slaves, now that the slave trade is abolished; would not keep them; and a rape, like that of the Sabine women, is by no means to be apprehended; and because, should any disposition exist to take them away, the other party are quite willing to part with them.
A political balance of power, and a crusade against slavery, through the bowels of the constitution, are two things so very distinct, that a thousand reasons might be urged against their supposed consanguinity; I shall, however, only trouble the reader with six. First, the crusade would certainly destroy the union; now the conviction of both parties, that it is their interest to preserve it, causes a profession on the part of our balance-mongers, that this new division is intended to cement it. Secondly, zeal to abolish slavery may find ample food, without hazarding the union upon the experiment. The Brazils, Cuba or Africa itself, would supply it with ample employment for the furor liberandi. Thirdly, a little matter of trade might be mingled with crusades to these countries; and if in Africa for instance, things should not be found ripe for chivalry, a consolation for the disappointment might be found in lucrative return cargoes for the other two countries. Fourthly, the honour of a crusade against foreigners, and in one case heathens, would be as great as the honour of a crusade against brethren and christians, and the danger would be less. Fifthly, it is prudent, when a resolution is taken to set fire to some body’s house, to go far from home, lest the flames may reach our own, as the wind is apt to change. Sixthly, if our consciences tell us that we ought to enslave freemen, to make slaves free, and to cause the destruction of a million or two of people, white and black, in the good work, nature tells us to give the preference in such favours, to those who need them most; and not to destroy the rights and lives of those whom we love and who love us, because they are suffering a misfortune imposed on them by others. My imagination seizing upon this suggestion went to work, and conjured up a set of witches before my eyes, who seemed to be pouring into a huge cauldron called the United States, a collection of poisonous ingredients, all labelled at top “slavery,” and to be singing,
But upon looking at the underside of the labels, I invariably discerned the words “ambition, avarice, exclusive privileges, bounties, pensions and corporations.”
The subject of internal slavery was definitively disposed of by the federal compact, and it would be a fraud to open it again. To violate the compact as to a local internal affair, would destroy it. For above thirty years since the last union, this subject, unstirred, has given the United States no trouble. No reflecting man can hesitate to believe, that our experience has ascertained, that let alone, it will be harmless to the union; and that if it be used to excite hostile feelings between two great divisions of states, its mischiefs may exceed the most apprehensive anticipation. Besides, all politicians agree that a reformation of long standing evils is best effected by slow remedies, and the progress made by the states themselves towards diminishing this, shews that they may be trusted with confidence in an affair of their own, of which they are the rightful and best judges.
When I was at college in 1775, a shoemaker sometimes made speeches to the students to invigorate them in the patriotism so necessary at that period. Being intoxicated upon one of these occasions, he was obliged to sustain himself by a post in the street whilst he delivered his harangue, which he demonstrated by concluding with the maxim “united we stand, divided I fall,” and letting go the post, down he tumbled. The post, it is true, kept its ground; but if the union be lost, no divination is necessary to foresee, that every state will get a fall. If the United States are intoxicated by the word “slavery” not only to let go, but to dig up the post, by which they are supported, how will the comparison stand between them and the drunken shoemaker?
I have said that this new policy is absurd, and I will attempt to prove it. A permanent balance of power can only be founded in natural causes, and slavery has no connexion with geographical circumstances. Climate, proximity and navigation, can only beget combinations between states, sufficient to create the baleful idea of a geographical balance of power. Maine can never be united with Ohio, nor Maryland with Missouri, in forming a balance of power composed of two divisions of states. But, if a balance of power is attempted to be established by the line of slavery, it will introduce a natural, instead of an unnatural geographical division, and a line between eastern and western states will very soon be substituted for this whimsical species of geography. The experiment will produce great disorder and confusion, and afford a temporary gratification to individual avarice and ambition; but it will soon be discovered that natural, local and lasting interests are more conglutinating than a temporary, flagging and crusading enthusiasm; and if the states must be divided and arrayed against each other, they will take refuge from the sway of a fanatick, within lines marked out by nature.
The boundaries of the states were respected, and the right of internal self-government reserved to them by the federal constitution, to remove the temptations arising from a natural dissimilarity of circumstances, which might seduce them into the ruinous system of partial combinations; and congress were only invested with powers reaching interests which were common to all the states, to prevent a possibility of geographical partialities, which would certainly operate as provocations towards the chief danger which menaced the glory and happiness of the United States. From this policy, intended to avert the greatest misfortune the United States can sustain, the policy of an interference by congress with an interest not common among all the states, of exciting local feelings and manufacturing mutual provocations, and of establishing two great combinations of states, is a complete departure; and it cannot therefore produce the effects, which the policy of the constitution laboured to accomplish. In pursuance of its great object to prevent combinations between states, the constitution, after having distributed powers between the federal and state governments, with a view to supersede all the means having a tendency towards the deprecated calamity, closes the subject by a positive prohibition upon a state “to enter into any agreement or compact with another state.” Now, is not the Missouri agreement or compact, a positive violation of this plain prohibition, and supposing no other argument existed, clearly unconstitutional from this single consideration? It is a compact or agreement by one half of the states with the other half, and from its magnitude, and the power of the parties, infinitely more dangerous than the attempt by the Hartford convention to conglomerate a few states into a separate interest, adverse to that general interest, comprised by the powers delegated to the federal government. The Missouri compact or agreement was made by negotiators elected by the states to sustain the existing federal union, and not to form two new confederations of states, and to make a new compact between them; in doing so, the negotiators therefore exceeded their representative powers, and their compact was void. The members of the Hartford convention had better powers; they were chosen for the purpose of making a new compact between a few states, and though it would have been against the constitution, and a subversion of the union to do so, they would yet have acted by a representative authority. But, supposing that the members of congress should be considered as genuine representatives of the states, clothed with a power to make a new compact between them, yet no such compact could constitutionally be made, by delegates or representatives, or the Hartford convention was not reprehensible. The attempts, therefore, of this convention and of congress were equally unconstitutional, because the old compact of union prohibits any new compact between the states, except in the modes pointed out by the constitution itself, in which modes both are equally deficient.
Slavery being an absurd motive for establishing the proposed geographical division and balance of power, so positively forbidden, and so sedulously counteracted by the federal constitution, because it cannot be permanent, and would destroy the union; we are forced to look for some other, to unriddle the sudden enthusiasm, ardently cultivated at this juncture; and to consider whether the true motive is more favourable to a lasting union and to good government, than the spurious one. Considered only an instrument to effect ends, the real question to be considered is, whether these ends are good. The ends to be effected are, a monopoly of the offices of government, and of the partialities of congress, by the means of this artificial and fanciful geographical balance of power. This must ensure, unless the balance be kept perfectly even, and if it was kept even, the federal machine could not move at all; but it cannot be kept even, because it will be disordered by a single vote, and the votes will be influenced by avarice, ambition and local calculations. If we find it extremely difficult to sustain a division of power between the federal and state governments, defined by the federal constitution; what hope can exist of sustaining an undefined balance, dependant upon the caprices and selfishness of fluctuating individuals? Let us suppose, that one of these balances should acquire a preponderance, which would be certain, and contemplate the consequences. It would absorb the offices of government, and the favours of congress. Well, what good would this do to the inhabitants of the preponderating balance? It might indeed gratify the avarice and ambition of a few individuals among them for a short space; but the people would have the same sum to pay for the support of government, and in the end much more, because by substituting personal avarice and ambition for general good, an oppressive political principle is introduced, of the bitterness of which, the people of the preponderating balance would very soon taste. It would also tend strongly towards the dissolution of the union, in the effects of which the people of both balances would share. It is therefore very plain, that the interest of the people in every state of the union will be more advanced, by leaving appointments to be made by a labyrinth of interests and opinions, as at present, than by transferring them to a preponderating balance for the purpose of gratifying personal avarice and ambition.
The end of monopolizing the favours of congress, wounds more deeply the true principles of the union. These were intended to disable congress from granting internal favours, and committing internal partialities; but the design of obtaining them by means of a preponderating balance, positively expresses an opinion, that congress has a power of exercising internal partialities; and this opinion expunges from the federal constitution the distinction between delegated and reserved powers, for which the construction I have endeavoured to support, contends. The opposite construction, by its baleful success, has already established the doctrine, that congress does possess this power, and suggested the idea of a preponderating balance, not to correct it, but to aggravate its operation; and to gather from it the fruits it can yield, without controul. The policy clearly meditates an extension of internal usurpations, and is itself one. If a lust of power, natural to man, has been sufficient to induce congress, unmoulded into two diplomatick bodies, to assume internal powers over persons and property, what will be the consequence, when a preponderating geographical balance shall be able to play the whole game, and win of the lightest, even by a single vote, under no restraint but that of its own conscience? Is there no difference between constitutional restraints upon the frailties of human nature, and the boundless liberty they will derive from commuting these restraints for the contemplated preponderating balance? Let us recite the succession of events. The great pecuniary favour granted by congress to certificate-holders, begat banking; banking begat bounties to manufacturing capitalists; bounties to manufacturing capitalists begat an oppressive pension list; these partialities united to beget the Missouri project; that project begat the idea of using slavery as an instrument for effecting a balance of power; when it is put in operation, it will beget new usurpations of internal powers over persons and property, and these will beget a dissolution of the union. The genealogy is strictly consanguineous, and the prolificacy of the family obviously natural. It furnishes complete materials for a comparison between the construction of the federal constitution, which excludes congress from exercising internal powers over persons and property, not expressly delegated; and one which lets it into this boundless field by inferences at enmity with the meditated division and limitation of powers. A field, thick set with modes of transferring money from balance to balance, from states to states, and from persons to persons, cannot be entered at all by congress, without provoking those feelings which never fail to embroil nations with each other. The federal constitution proposed to shut out both the federal and state governments from this perilous field, by excluding the former from a power of bestowing money on some states and individuals at the expense of others, and the latter from a power of exercising any stratagems to get money from a sister state. It contemplated a political garden of Eden, planted with principles yielding fruit nourishing to the community, and did not design to invest either the federal or state governments with a power to eradicate them, and substitute a parasitical shrubbery, enfeebling the good principles, and only nourishing serpents. If the division of powers between the state and federal governments be rooted out of the federal constitution, and the freedom of labour or of property should be lost, by the temptations of the two devils, avarice and ambition, to induce legislatures to meddle with forbidden fruit, the essence of our political system will be destroyed, and with it our vaunted residence in a region of political felicity.
The scheme for creating the proposed balance of power, considered as addressed to the states, evidently required some stupifying preparative to induce them to swallow it. Their inclination and interest to keep their reserved powers was too manifest to venture upon a proposition in direct terms, advising them to surrender to congress a power of distributing internal partialities; and to divide themselves into two combinations, to try which should be able to get the most of these partialities. It was too absurd plainly to say to the states, “yield to congress your internal rights, for the sake of a chance to get some of them back.” The spectacle of slavery was therefore a cunning device to draw their attention from home; but let them remember, that those who forget their own pockets in a fray, often lose their money.
I might stop here, and rest the constitutionality of the Missouri question upon the positive prohibition of compacts or agreements between the states; and its policy, upon the very visible consequences which would follow the notion of the proposed balance of power between two great combinations of states: but I will proceed with the subject, because it ought to be considered in all its bearings, by a great community, the happiness of which it will materially affect.
The extremities of the union can never be made by law, to think alike upon the subject of slavery, because the evidence respectively contemplated is entirely different in different states; and therefore the idea of consolidating the union by coercions of opinion as to this affair, is as preposterous as the exploded idea of consolidating religion, by legal coercions upon conscience. Compulsion in both cases is so evidently tyrannical, that it never fails to be met by resistance, whenever it is practicable. Missouri has no right to compel Maine to admit of slavery, nor Maine any right to compel Missouri to prohibit it, because each state has a right to think for itself. A southern majority in congress has no right to compel the northern states to permit slavery, nor a northern majority to compel the southern states to abolish it, because it is a subject of internal state regulation prohibited to congress, and reserved to the states. One and the same principle applies to the two rights of suffering or abolishing slavery, and to assert and deny its efficacy, will never operate any conviction upon the party whose rights under it are invaded, by a party who claims and uses its protection. It has been handled as a religious question, and zeal, even in these modern times, has forgotten the freedom of conscience, and adopted the antiquated plan of effecting conversion by violence. The French nation, actuated at first by an honest but intemperate enthusiasm, attempted to compel the other nations of Europe to be free and happy; and the events produced by the fanatical undertaking were such as may be expected, should a combination of states attempt to administer by force the same medicines to another combination of states. Nothing can be more offensive than such attempts, because they assail natural rights; nor more presumptuous, because the dictators are infinitely worse informed upon the subject, than those who have the right of determination. To prevent this dictatorial and absurd exercise of power by a majority of states, as being an infallible cause of civil war and disunion, congress was not made a representation of any internal powers, those few excepted necessary for common safety; and all internal powers, except a few specified prohibitions, were reserved to the states. The reasons for this policy which then existed, still exist, and will exist forever. The members of congress could never be well informed of local concerns, and therefore could never decide upon them correctly. Vanity cannot supply the place of knowledge. They would not feel the effects of their local laws, and therefore congress as to local subjects would not possess the best quality of a representative body. Above all, they would not decide like local representatives; this is so true, that if all the members of congress now opposed to slavery in Missouri, should emigrate to that state, there is no doubt but that most of them would soon change their opinion. Indeed, this is the reason of the difference of opinion between the eastern and southern states upon the question; and if either placed in the circumstances of the others, would have adopted opinions the reverse of those now held, it forcibly displays the injustice of a dictatorial power to be exercised by either party.
It is highly edifying, in computing probable consequences, to recollect similar cases. The society of Amis des Noirs in France, zealous for amending the condition of the free people of colour, and believing that a conscious philanthrophy was local information, invested them with unqualified citizenship, wrote the slaves into rebellion, finally liberated them, and these friends of the blacks turned out to be the real murderers of the whites. An intemperate zeal, united with an ignorance of local circumstances, had to bewail the massacre of about forty thousand white men, women or children, of about thirty thousand mulattoes, after they had united with the blacks in that atrocity, of about one hundred thousand of the blacks themselves, and of dividing the residue into tyrants, and slaves to tyrannical laws, always more oppressive than any other species of slavery. These friends of the blacks in France disavowed at first the design of emancipation; but yet their speeches and writings gradually awakened the discontents of the slaves, and excited efforts which terminated in a catastrophe proving them to have been the worst enemies of the whites. This awful history engraves in the moral code the consequences of a legislation exercised by those who are ignorant of local circumstances, and the wisdom of our distinction between internal and external powers. The people of St. Domingo pressed upon the general assembly of France, its ignorance of local circumstances, and consequent incapacity to judge of the case; but as St. Domingo had representatives in that assembly, it persisted in its fanatical philanthrophy, and lost the finest island in the world of its size. The eastern states have as little knowledge of the Mississippi states, as the general assembly of France had of St. Domingo, and therefore the writings of the friends of the blacks in the United States are almost exactly the same, with those which they uttered in France.
The next case is the memorable controversy between Great Britain and her colonies. She insisted upon legislating for them locally and internally. They replied, that her parliament had not a sufficient knowledge of their local circumstances, to do this with any propriety, and that they were not represented in that body. She at length proposed to remove the last objection, and offered them a representation. But they declined it upon the ground, that the same species of ignorance, so obviously objectionable, would still prevail over a majority of the members. And the disunion between Great Britain and her colonies was caused by a claim of internal legislation for a body of men, whose internal knowledge of the countries, which were to suffer it, was too imperfect to produce good laws. But there was another cogent reason for rejecting a compromise with England, upon the condition of a representation in parliament. It was impossible that the essential qualities of representation could ever be annexed to it by that project. These are, as we all agree, that the representative should feel his own laws, and that those, upon whom those laws operate, should have a periodical power to remove him. Now, the people of the colonies would have had no power to remove a member of parliament, elected in Great Britain; nor would the laws passed by a majority in that country, but operating exclusively in this, affect any individual of that majority. Such a representation was therefore viewed as a mere mockery of representation, and credulity itself laughed at the clumsiness of the device. These projects, however, of Great Britain suggested our distinction between internal and external powers, and the necessity of a genuine representation for the exercise of each class, impressively illustrated by the question of slavery, although it is equally applicable to roads, canals, the encouragement of manufactures, and other laws operating locally, passed by congress. The proposed law as to slavery was to operate exclusively upon Missouri. She had no representation in congress. If she had, it would be nugatory; for, the majority necessary to pass the law, would neither feel it, nor would it have been liable to be rejected at any time, by the electors who did feel it. Such is the case with respect to all local laws passed by congress. The majorities which pass them, must be insensible of their operation. The 8th section of the federal constitution is both an illustration of this reasoning, and a test which forcibly confirms the construction for which I have contended. All the powers, bestowed upon congress, are such as will, in their execution, operate generally both upon the members of that body, and also upon the people of all the states. Thus the legislators would feel their own laws, the electors will be influenced by a common interest, and the essential principles of representation are preserved. If the principles of representation are thus carefully preserved, by the nature of the powers delegated, a construction which supposes that they are destroyed by a tacit permission of means, inconsistent with the design expressed, is, in my view, both literally and morally incorrect; literally, by the care to delegate such powers only as would operate equally upon all the members of the union; morally, by the equal care taken to preserve the essential principles of representation. Some years ago, much was said about virtual representation. Under this idea, it has even been contended, that hereditary kings and nobles were national representatives. And it must be admitted, that they participate more largely of that character, than a body of legislators elected by one of our states, whilst making local regulations to be imposed upon another; because, kings and nobles of the same state may feel their own laws to a great extent. We have however an exact parallel of the local powers claimed on behalf of our congress, in the recent congress of European kings for settling the affairs of that quarter of the globe, hardly larger than our share of this. These kings, as representatives of some states, undertake to make local regulations for others, which, far from feeling themselves, were dictated by their avarice and ambition. If our congress can also make local regulations, which may gratify the avarice or ambition of particular states at the expense of others, I do not discern any difference between the cases.
But, though the exercise of local legislation by congress may be evidently inconsistent with reason, with the essential characters of representation, and with the principles deemed by us indispensably necessary for the preservation of liberty, yet in this slave question, as in some others, the pure and invigorating spirit of the constitution has been assailed by the science of construction; and its words are turned into worms for eating up its vitals. A sect called pharisees, by preferring ceremony to essentials, and signs to substance, contributed largely towards the corruption and ruin even of a theocracy; and therefore this species of sophistry demands all the attention, which its capacity to do mischief deserves.
“New states may be admitted by congress into this union.” Such is the whole power. But then this power is a spherical sovereignty, and it is an appendage of sovereignty to annex conditions to its grants. Such is the recent construction of the words quoted. The meaning of the word “state” is first to be settled. We have understood it to mean “a political association of people, able to confederate with similar associations.” It was never before imagined, that congress could make a state. The power is to admit, not to make. If congress cannot mould, it cannot modify a state. It must be the work of the sovereignty of the people, associating by their title to self-government. Do congress participate of this sovereignty with the people of Missouri, or is its supposed spherical sovereignty paramount to the sovereignty of nature? The parties to the association composing a state, are the individuals by whom it is formed. By what principle can a body of men, neither collectively nor individually parties to this association, dictate its terms, except that of arbitrary power? The constitution abounds with instances to prove, that it did not mean by the term “states,” a moral being capable of being created or modelled by congress, but we will confine ourselves to the special power under consideration. “New states.” Old being the relative to new, both words are predicates of the same subject. A new state was, therefore, literally contemplated by the constitution, as exactly the same moral being, created and moulded by the same right to self-government, with the old. There was a good reason, why congress should be only entrusted with the naked power “to admit.” Had it been empowered to annex conditions to this admission, it might easily have enlarged its own powers, and obtained an authority dangerous to the thirteen original states. It was foreseen, that the new would in time exceed the old states, in number and population; and the old states, therefore, for their own security, withheld from congress the dangerous power of modifying the new, by conditions; as such a power might easily be brought to bear upon themselves, and might be used materially to alter the constitution. Suppose the naked power of admission had been given to the president. Would he also have had the power of annexing conditions, by virtue of executive spherical sovereignty? If it would have been in his hands a mere personal power of rejection or admission, without conveying to him a power of annexing to admission a local law for the government of the state, it must be the same in the hands of congress; for the nature of a trust is not changed by the name of the trustee. Congress have frequently conferred upon the president certain trusts. Could he have annexed conditions not warranted by these laws? As in the cases of his being empowered by proclamation to abrogate a law, upon the performance of some specified act by a foreign nation. Could he have enacted a new law, by annexing a condition to the execution of this trust? The power of appointment or nomination is exactly similar to the power of admitting new states into the union. No conditions can be annexed to the execution of such trusts. Congress are intrusted eventually with appointing a president, as well as with admitting states into the union. Does the power involve a right to annex conditions, in one, in both or in neither of these cases?
The reason for intrusting congress with the power of admitting new states, was not to enlarge the powers of that body, nor to bestow on it a species of legislation, purely local, but to avoid the inconveniences which would have resulted from the reservation of the right by the parties who held it. Hence, as a mere naked power or trust was conferred, there exists a precise description in a few words, of the body politick to be admitted, and also of the compact of which it was to become a member. New states were to be admitted into “this union.” I do not discern any words which could more exactly have described parties and rights. The new parties were to be the same as the old, and the rights received were to be those conferred or secured by “this union.” If, therefore, “this union” does not empower congress to legislate exclusively in relation to the internal civil government of each old state, it cannot so legislate as to those admitted. In fact, “this union” would never have existed, had such a power been proposed by the constitution. The people of no one state claimed any power of local regulation over another. They neither thought of, nor does there exist any compact, conveying such a power to a majority of states. There existed no primitive power by which one state or several possesses a right to form a constitution, or to enact internal laws for the government of another state; and it is a sound principle, that a delegated power cannot exceed the power from which it was derived.
A power in congress of annexing conditions to the admission of states into the union would be in its nature monarchical, and analogous to the feudal systems. Chiefs established that system upon the principle, that conquests were made for them; and thus obtained the right of annexing conditions to grants. But with us, conquests are made for the community, and not for congress; and the principle which sustained the right of annexing conditions, in the case of feudal chiefs, fails in the case of congress. The community, therefore, prescribed the rule by which conquered lands were to be erected into states, in doing which they have not invested congress with a power of annexing feudal conditions to this disposition.
But, this feudal power of annexing conditions to the settlement of a conquered or acquired territory, by the government of the country making the acquisition, has even been exploded as tyrannical both here and in England. One of our principles in the colonial state was, that emigrants to such territories carried with them their native rights. The colonies claimed the rights of Englishmen, and not only obtained them, but have I hope greatly extended them. But this would not be the case, if our emigrants should be subjected to a diminution of their native rights, by the pleasure of congress. All of them enjoyed the right of forming local constitutions and laws before their emigration. If congress cannot legislate over the states from whence they removed, and may do so by annexing conditions to a trust, over that which the emigrants from these states may create, it is obvious that these citizens must have lost some very important native rights, by an emigration from one part of our country to another. If the colonists emigrating from England were correct in asserting by force of arms, that they brought with them all the rights conferred by the English system of government, our emigrants may also contend, that they carry with them all the rights conferred by our system. Among these, the unconditional right to make their own local constitutions and laws, without being subject to any conditions imposed by an extraneous authority, has been the most important; and universally exercised by every state in the union.
The same principle has been judicially decided in England. Some of the kings of England (of the Stuart family I believe,) in admitting several West India islands to establish representative governments, annexed the condition to their grants, that these islands should pay to the crown a perpetual revenue of four and a half per centum on all exports; and several of the legislatures were so weak as to pass laws confirming the condition, which soon became excessively oppressive, and greatly impeded the prosperity of the islands upon which it was inflicted. Grenada alone both claimed a right to representative government, and disputed the validity of the condition. And an English judge, even lord Mansfield, no enthusiast for liberty, no enemy to the crown, decided in favour of the island, which retained its government, annulled the condition, and prospered far beyond its paler-livered comrades. This decision was founded upon the rights of Englishmen, which adhered to these emigrants, and which being rights, could not be subjected to conditions.
In answer to a precedent, so fully up to the point, it is supposed that congress possess an arbitrary power to refuse the admission of new states into the union, the language being permissive and not imperative. I consider even this objection as only literally plausible, and as substantially flimsy. Had congress attempted to retain our wide-spreading new states under its government, it would have been an enormous grasp at power, not intended to be bestowed upon that body, but intended to be prevented by the provision for multiplying states, as territories extended. The old states would, by an attempt on the part of congress, so flagrantly adverse to the principles of the constitution, have been instantaneously excited; and have united with the new territories in preserving their own rights, and vindicating those of their fellow citizens. Whilst the constitution limited the local powers of congress to ten miles square, it hardly intended to invest that body with perpetual and unlimited local powers over a country more extensive, and likely to become more numerous, than the thirteen states which adopted it. The reason of the case was considered as sufficiently mandatory, and has hitherto proved to be so; and if the constitution has not provided for a violation of the trust, it must have been upon the same ground, that the laws of Rome provided no punishment for a son who should murder his father.
But, the decision of Lord Mansfield discloses a sufficient reason, why the framers of the constitution thought it unnecessary to subjoin to the trust, a prohibition upon congress to annex conditions. They knew that the execution of the trust would be valid, and that all conditions would be void. An affirmative power does not require any prohibition against its being exceeded. Suppose then Missouri should have been admitted into the union upon the condition proposed. Her membership would be perfect, and the condition would be void. She might at any time adopt a new constitution. Every state retains that right; and may, in that mode, abolish or re-establish slavery at its own pleasure. The proposal of this condition was therefore an invitation to congress to rush over rocks and precipices in pursuit of a phantom.
The conditions, annexed to the grants of kings, were founded on the fictions of an absolute sovereignty over persons and property. If a similar power here can be engrafted upon our new stems, called spherical sovereignty, no restraints would exist upon its exercise, as in the case of kings. Congress, by conditions, might mould states into as many varieties as it chose, as kings did colonies; and render one as little like another, as an eagle is like a buzzard. It might create forfeitures of lands by annexing conditions to patents, or even forfeitures of membership in the union, and revive the principles of the Boston port bill, enacted by the English parliament. And indeed, feudal might be substituted for allodial principles to an incomputable extent. If a trustee for the sale and conveyance of lands should annex conditions to the deed, suggested either by his interest or benevolence, and not specified by the trust, it must be admitted that the title of the purchaser would be good, and the conditions void; because it would be derived from the principal, by whom no such conditions were required. But if the conditions annexed should be prejudicial to the interest of the principal, the case would become infinitely stronger; as no power to perform a special act for his benefit was ever construed either in law or equity, as an unlimited or general power, to do that which was injurious to him. Now a power in congress of exercising a concurrent right with the states, both as to their constitutions and laws, is obviously injurious to all the states in the union, from which, as principals, the trust of admitting new states is derived.
Ramsay’s United States, vol. 3, p. 8, “In these arrangements the difference between American and European principles in colonizing is strongly marked. In the latter, the object has been pre-eminently the benefit of the parent state: In the former, the joint benefit of both, by a free communication of equal rights and common privileges. In the one case, some commercial advantages of the mother state has been pursued; in the other, the good of mankind, by extending the benefits of civil government, on terms of equality and independence. Congress give no charters to their colonies; but sell lands in absolute property to settlers, who, from the gift of God, were in the actual possession of the rights of man, and invite them as such to join in a common, equal, social compact. The Sovereigns of Europe gave lands to their colonists; but reserved by charters a right to controul their property, privileges and liberties.” This quotation is too explicit to need much comment. It is however remarkable, that the power claimed for congress of colonizing by conditional charters, exceeds the similar power exercised by the kings of England. The kings gave away the lands as their own absolute property. Congress sells the lands, not as no owner, but as a trustee for the proprietors; a power of annexing conditions to the sale of property belonging to the United States far exceeds a power of annexing conditions to a gift of property belonging to the king. The trustee by the first power might depreciate the value to the injury of the owner. The receiver under the second may reject the donation, if he dislikes the conditions. When the doctrines of spherical sovereignty and law charter shall have reached an entire state, and comprised more than the charters of the king of England could do in the case of Grenada, it will be impossible to foresee how far they may be extended.
The last argument, (for I exclude declamations addressed to our passions or prejudices,) in favour of the proposed condition to the admission of Missouri into the union, is deduced from the fourth section of the fourth article of the constitution, which is this: “The United States shall guarantee to every state in this union, a republican form of government; and shall protect each of them against invasion, and on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestick violence.” It has been contended, that this duty to guarantee a republican form of government to each state is by this section imposed upon congress; that to discharge it, that body must determine what is a republican form; and that this obligation comprises a power of imposing conditions on a new state, necessary to fulfil the guarantee. Admitting this construction, the argument either fails, or proves too much. It fails, if negro slavery does not destroy a republican form of government. And it proves too much, supposing that it does, by investing congress under the powers of a guarantee, with a power to emancipate all the slaves in the union. All the states in the first confederation were slave-holding states, when they formed their constitutions. If slave-holding states possessed the contemplated republican forms of government, then that circumstance is not inconsistent with such forms, and if not, it cannot justify an imposition of conditions upon Missouri under the authority of the section quoted, though it shall be so construed as to invest congress with the guarantee expressed. But even this in my view is an evident misconstruction. The 8th section of the first article is devoted to the enumeration of the powers bestowed upon Congress; and the fourth article is chiefly employed in stipulating duties to be performed by states to states. Among these, the fourth section declares, that the United States shall guarantee to every state in the union a republican form of government. The terms “United States” are frequently used in the constitution, to convey a different idea from “congress.” “We the people of the United states.” “A constitution for the United States.” “A congress of the United States.” “The senate of the United States.” “A citizen of the United States.” “A president of the United States.” And in the section immediately preceding, “United States” is twice used. A substitution of “congress” for the “United States” in all these instances would be manifestly absurd, and, therefore, I am unable to discern how it can be consistently done in that under consideration. But the section is internally unequivocal. The plural and the singular are grammatically of the same genus. One arrow in the talons of our emblematical eagle represents one state, and nobody ever suspected that all the arrows were emblematical of congress. “The United States shall protect each of them against invasion.” “Each” is singular and relative, and “them” is plural and antecedent. The relative and antecedent are “every state and the United States,” unequivocally recognizing the stipulation of guarantee, as entered into by the contracting parties for the preservation of their mutual liberty. What is a guarantee? Undoubtedly a compact or undertaking. Now how could congress, neither in existence nor a party to the compact between the states, enter into any engagement whatsoever to preform a guarantee for the mutual safety of these States? It is by no means rare or useless, for independent states to enter into engagements for the sake of individual safety; but, if the United States of America, by endeavouring to guard themselves against arbitrary power, with the bulwark of a mutual guarantee, have conveyed to congress an absolute power over the forms of their governments, they have not only committed a mistake which is rare, but one, which is, I think, solitary in the annals of mankind. The article proceeds, “and shall protect each of them against invasion, “and on application of the legislature or of the executive (when the legislature cannot be convened) against domestick violence.” “Legislature and executive,” terms applicable to states, are used because the whole section is speaking in reference to states. And “congress and president,” terms applicable to the federal government, are not used, because the section has no reference to that government. The mutual protection here stipulated for, is by an assistance to be rendered by states to states upon such emergencies, as would make contiguity and dispatch important. General powers for defending the whole union has been previously bestowed upon congress. It was empowered to declare war, to raise armies and navies, to call forth the militia, to suppress insurrections and repel invasions. These powers are not subjected to any special restriction, and the two last cases, “insurrection and invasion” are entirely tantamount to “invasion and domestick violence,” mentioned in the section containing the guarantee. Now, it would have been absurd, after bestowing an unrestricted power on congress in the first article of the constitution, to have conferred the same power upon it, to be exercised only “on application of the legislature, or of the executive.” The reasons are obvious, why congress are not to withhold assistance in all cases of invasion and insurrection, until applied to by the legislature or executive of the suffering state, and why the states are. It is the duty of the federal government to provide for the common defence of the whole union, but it would not have been the duty of particular states to defend an invaded state, except for this stipulation; and a previous application for assistance is required, to prevent one state from obtruding itself into the affairs of another. “The United States shall guarantee and protect on application.” The same power was to do both, and if I have proved that the latter undertaking referred to states, it follows that the former has no reference to, nor confers any power on congress, as to the constitution or form of government of any state. It would have been a tremendous power, considering the scope given by the unsettled signification of the word “republican,” and quite sufficient to lash any state into an humble subserviency to the will of congress. Between the states themselves, an agreement in interest rendered such a power both safe and useful; but between congress and the states, who would be often in collision, it would be a scourge in the hands of a rival. The United States must be the parties, both to the guarantee and to the union, or to neither, as the United States constituted both.
But it is not in this particular case very important, whether the guarantee is a duty imposed upon the states, which contracted to perform, or upon congress, which did not contract to perform. Its end is “a republican form of government,” The meaning of this expression is not so unsettled here as in other countries, because we agree in one descriptive character, as essential to the existence of a republican form of government. This is representation. We do not admit a government to be even in its origin republican, unless it is instituted by representation, nor do we allow it to be so, unless its legislation is also founded upon representation. Now, this condition prohibiting slavery, both as constitutional and legislative, destroys these radical and necessary qualities, without which no government can be republican. Congress is not a representation of Missouri, either for legislation or forming a constitution. If, therefore, the guarantee be imposed on the states, it is the duty of all to resist an obvious violence to republican principles; if on congress, it can never be its duty, or its right, to commit an act, which the guarantee was intended to prevent.
One other argument remains, apparently sufficiently strong of itself to settle the question. Even allowing to congress a degree of sovereignty, equal to the regal, yet the plenary sovereignty of kings did not empower them to annex conditions subsequent to gifts or grants of land, much to sales for a pecuniary consideration. Such arbitrary attempts have been frequently adjudged to be void in the English courts. Had the English kings, after having granted or sold lands upon specified terms, prescribed new conditions as to the mode of their cultivation, their own courts would have decided it to be an unwarrantable imposition. Does congress possess a higher species of sovereignty than the kings of England, able subsequently to controul the mode to cultivating lands previously sold, and to diminish their value to the purchaser, after having received the price? Whatever may be the power of a state legislature in this case, the same power does not extent to congress. The power given to it by the constitution is “to dispose of the territory of the United States.” Having disposed of it by sales, the power is at an end, because it is executed; and no power remains with congress in relation to the lands sold, beyond what they posses over the lands, or the mode of their cultivation in the oldest state of the union. Ex post facto laws, and laws impairing contracts, are recognized as contrary to republican principles, because they are inconsistent with the freedom of property or of labour, the preservation of which is an essential object of those principles; and thence arose the positive prohibition upon both the federal and state governments to enact them. Thence also the powers delegated to congress are all prospective. I cannot, therefore, believe, that it will persevere in legislating retrospectively, locally, and contrary to the genuine principles of representation, as preferable to that republican moderation, which never withholds from others the rights enjoyed by itself.
In contending for political liberty, I have not meddled with the subjects of slavery and emancipation, because it was sufficient to prove, that they belong to the local powers reserved to the states, and have been so considered by every state in the union. Inheritances and the regulation of property are not powers more local than slavery, and if congress can legislate as to the last, and also regulate property by corporations, it may as correctly insist, than an uniform system of inheritances, and for distributing wealth, is comprised within the scope of its powers. But, although the absurd enthusiasm as to the subjects of slavery and emancipation, recently excited, needs no fuel, an endeavour to abate it is not reprehensible; and for this purpose it would be well for moderate men to consider, whether emancipation in the slave-holding states does not appear by the census to the proceeding as fast as their circumstances will justify, and as the general interest of the community of states can require.
There remains a right, anterior to every political power whatsoever, and alone sufficient to put the subject of slavery at rest; the natural right of self-defence. Under this right, societies imprison and put to death. By this right, nations are justified in attacking other nations, which may league with their foes to do them an injury. And by this right, they are justified, if they see danger at a distance, to anticipate it by precautions. It is allowed on all hands, that danger to the salve-holding states lurks in their existing situation, however it has been produced; and it must be admitted, that the right of self-defence applies to that situation, of the necessity for which the parties exposed to the danger are the natural judges: Otherwise this right, the most sacred of all possessed by men, would be no right at all. I leave to the reader the application of these observations.