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A Constitutional History of the United States
Chapter XXIX - The Missouri Compromise
by McLaughlin, Andrew C.

The peopling of the Mississippi valley proceeded so rapidly that in 1818 the territory of Missouri, beyond the river, was asking admission to the union. And now it was apparent that expansion of the republic was inextricably entangled with the slavery problem. Was slavery to be carried into the public domain and were new states to be formed in which slaveholding was to be perpetuated? Thus, even slavery as a moral and industrial question was complicated because of the opportunities of a new continent; the slavery problem was part of the western problem; slavery could not be dealt with as an institution fixed within narrow boundaries and not subject to a rapidly-developing civilization.

The wiser statesmen of earlier days appreciated to some extent the dangers resulting from the differences between the north and the south. It is true that when the Constitution was adopted there were slaves in most of the northern states;[1] but to no great extent was northern industry founded on slave labor; and steps had already been taken for gradual emancipation in nearly all of those states where the institution still existed.[2] Furthermore, in the early years there was, both north and south, a feeling of opposition or disapproval of slavery, a disapproval plainly exhibited by leaders of Virginia, though that state contained a quarter of a million of bondsmen on her semi-baronial estates. As the earlier years of the new century went by, the slavery problem did not play a large role in men's minds, nor were the early constitutional problems associated with the rights or wrongs of the matter. Opposition to slavery did not disappear; indeed it is evident that by 1820 it had grown rather than decreased at the north; and at the south opposition was neither quite dead nor silent.[3] It was not uncommon for southerners to deplore the institution as a burden under which they labored. And so, though the clash of interests and the bitterness of dispute are now seen to have been quite inevitable, the struggle arising over the admission of Missouri brought dismay; thirty years of national existence had not prepared men for the intensity and bitterness of sectional strife.

The intensity of feeling and the vehemence of discussion would have been less marked, no doubt, if there had not been certain sectional jealousies — though that may be too strong a word — which were not directly connected with the slavery question. When the federal Constitution was framed, the population of the states north of Mason and Dixon's line (the northern line of Delaware and Maryland) was nearly the same as that of the southern states. But the northern population had increased more rapidly than the southern; and, furthermore, as only three-fifths of the slaves were counted for determining representation in the House, that chamber was soon securely in the hands of the free states. After the admission of Alabama in 1819 the Senate was evenly divided between the sections, eleven free and eleven slave states.[4] If the balance were to be disturbed, one section would of course have the advantage in the Senate, and should the disturbance be caused by the admission of a free state, the north, as far as sectional interests went, would have a majority in both houses.

It is quite impossible to know just how much the south — or the north for that matter — was influenced in 1820 by a conscious desire to protect sectional interests by the preservation of an equal voice in the Senate. The south was not as yet a self-conscious section; that condition came later. The debates of 1819 strengthened the sense of solidarity of southern interests, but to what extent this feeling directed and governed the purposes of southern political leaders at that time, one cannot be sure. It seems probable that resistance to the admission of Missouri as a free state was due to a natural dislike of a restriction which would hem slavery within existing limits, and due also to an instinctive reaction against any step which would appear to deprive the southern slave-owner of what he deemed his rights; it appears improbable that, when the Missouri question arose, the southern politicians were already determined to maintain for all future time a protective balance in the Senate.[5]

A very brief story of the main facts is a sufficient background for understanding the constitutional problems. After the admission of Louisiana as a state in 1812, the territory of Missouri covered the remainder of the territory acquired from France in 1803. The people of the southern part of the territory asked for the division of the territory, and in 1819 that region was organized as the territory of Arkansas, but only after there had been a decided effort on the part of many members in the House to provide for the exclusion of slaves or the gradual disappearance of slavery. Meanwhile, steps were taken to admit another portion of the territory — Missouri — as a state in the union. When the bill came up in the House, Tallmadge of New York offered to the enabling act an amendment providing that there should be no further introduction of slavery, and that all children born within the state should be free at the age of twenty-five years. This amendment was agreed to by the House, February 16, 1819, with a small majority in its favor, and the next day the bill was passed. The Senate, however, dropped the amendment and passed the bill; the House refused to concur in the Senate's action. The end of the session was at hand, and when Congress assembled in December (1819) a new factor was added to the problem; Maine, hitherto a part of Massachusetts, had, with the consent of the parent state, formed a constitution and asked admission into the union — another free state. An act for admission was passed by the House; but the Senate joined the admission of Missouri to the act for admitting Maine and made no provision for the exclusion or emancipation of slaves. It did, however, add what is known as the Thomas amendment, which finally proved the basis of compromise: "in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, excepting only such part thereof as is included within the limits of the State contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes whereof the party shall have been duly convicted, shall be and is hereby forever prohibited".

The House, discussing the whole subject at length, finally passed a bill for admitting Missouri, but prohibiting slavery there (March 1, 1820). The Senate, considering the House bill, struck out the anti-slavery clause but attached the Thomas amendment. The Senate, in short, stood for the admission of Missouri without slavery restriction within the state. The House insisted on the exclusion of slavery. The outcome was the admission of Maine [6] and the passage by both houses of an enabling act for Missouri, not excluding slavery from the state when admitted, but dedicating to free labor the remainder of the Louisiana territory north of thirty-six thirty — the Thomas amendment, the famous Missouri Compromise. We should notice that it referred only to the Louisiana territory and that it did not constitute a condition or a limitation upon Missouri. By the bargain thus struck, while Missouri came in as a slave state, slavery was "forever prohibited" in the larger portion of the territory remaining.[7]

During the months of the debate the whole slavery question received an airing, both within and without the halls of Congress. The southerners did not on the whole defend the institution in the abstract, but they emphatically insisted that they should not be deprived of the right to move with their slaves into the west. Some of them, though deploring slavery, maintained the value of dispersion, of mitigating the evil by spreading it over a wider area. On the other hand, the opponents of slavery-extension insisted on preserving the western regions from the blight of slavery. Among the public-at-large there was deep interest, active debate, and intense feeling. An occasional southerner spoke of breaking up the union; at the north voices were heard denouncing the whole institution of slavery.

There was much able debating in Congress; men were sufficiently in earnest to give up mere wordy harangues; they were not content with tickling the ears of the groundlings and arousing partisan rancor. The main constitutional arguments were many times repeated. For directness, vigor of expression, and clarity of reasoning, the speeches of Rufus King of New York and William Pinkney of Maryland in the Senate are conspicuous. King, thirty-three years before, had been a delegate from Massachusetts at the Philadelphia convention, and was noted then as a speaker of grace and ability. He had long been opposed to slavery and he brought to the Missouri debate experience as a public man, knowledge of his subject, maturity of judgment, and profound convictions. Perhaps too, he represented in some measure the old-time Federalist and New-England jealousy of southern and western power. Pinkney was one of the leading lawyers in America — perhaps standing actually at the head of the bar — , a finished and effective speaker, a master of the old-fashioned oratory; probably even Webster was not quite his peer.

It was contended by opponents of restriction that the Louisiana treaty imposed the obligation to admit the inhabitants into the union as a state. The treaty provided that "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States...." This clause did not necessarily establish the right of the inhabitants at that time or later to be admitted into the union as a state.[8] If the treaty did so stipulate, it would be a far cry from such stipulation to the position that Congress was precluded from placing a condition on the admission of Missouri, provided that Congress had such constitutional authority. Furthermore, a treaty can be overridden by a law.[9] Taylor of New York not only pointed out that Congress had in the past made conditions for the admission of the state of Louisiana into the union, but exclaimed: "The unconstitutional doctrine had not then been broached, that the President and Senate could not only purchase a West Indian island or an African principality, but also impose upon Congress an obligation to make it an independent State, and admit it into the Union.... The treaty, therefore, has no operation on the question in debate." [10]

The main discussion and the most important argument arose concerning the right to place conditions upon the admission of a state. The discussion, it must be remembered, came up with reference to the prohibition of slavery in the state, not with reference to its exclusion from portions of the territory beyond the limits of the state. That the problem may be brought forward distinctly, let us first consider the argument of Rufus King. This we have in a condensed form in "The Substance of Two Speeches" [11] which he delivered in the Senate. He showed at length that Congress had exercised the power of placing conditions on admission, and had even made the exclusion of slavery a condition. The power to admit new states was conferred, he maintained, without limitation; the discretion of Congress was complete. After the state came into the union, it could not annul the article by which slavery was excluded; the judiciary of the United States would on proper application deliver from bondage any person held as a slave in the state.

William Pinkney's oration, as we read it to-day, appears as an impressive exhibition of dialectic cleverness. Flowing grace and ease of style are almost too evident, seeming to overshadow the argument;[12] but the argument is very able. Denying the power to place the proposed condition on admission, he exclaimed, "No man can contradict me when I say that, if you have this power, you may squeeze down a new-born sovereign State to the size of a pigmy, and then taking it between finger and thumb, stick it into some nitch of the Union, and still continue, by way of mockery, to call it a State in the sense of the Constitution." Congress, he said, was given power to admit new states into the union. "What is that Union? A confederation of States equal in sovereignty, capable of every thing which the Constitution does not forbid, or authorize Congress to forbid." Even if Congress has the power to admit and the power to refuse, such discretion does not necessarily involve a power to exact terms. "You must look to the result, which is the declared object of the power"; that result must be the preservation of the union of equal states and the establishment of new states in the constitutional sense of the word. He did not explicitly deny the right to impose restrictions or conditions, but he did declare, "You can prescribe no conditions which, if carried into effect, would make the new State less a sovereign State than, under the Union as it stands, it would be." [13]

By the aid of judicial decisions of later years,[14] we can now pass upon the validity of these arguments. Congress can prescribe conditions precedent — conditions that can be fulfilled before admission. But a congressional act purporting to impose a political obligation or restriction on the state after admission, to which other states are not subject, is in fact not a condition at all; it is an attempt to make a law which is beyond congressional competence.[15] The states of the union are equal in their possession of political authority.

That the framers intended to provide for the admission of new states on terms of equality with the old is open to doubt. In light of the discussions in the Convention, it is quite possible to look upon the words "New States may be admitted by the Congress into this Union" as a compromise between those delegates wishing to place limits on new states and those favoring complete equality; the resolution adopted by the Convention did not make equality mandatory.[16]

The compromise providing for Missouri's entrance into the union, with no restriction on her power over slavery but with a declaration against slavery in the remainder of the Louisiana purchase north of thirty-six thirty, probably appealed to the masses of people as settling the question of slavery-extension. After controversy and excitement, there is always a readiness to react and to accept a settlement as a release from emotional strain, even if the settlement be not entirely satisfactory. But probably some of the more ardent antislavery advocates felt as King did, that the banishing of slavery north of the prescribed line did not amount to anything, because the act in that particular could be revoked at pleasure and because the "Spanish Province of Texas" would be brought into the union as a slave state — two lugubrious prophecies which later years fulfilled.[17] The end was not yet.[18] The first crisis was passed, but the danger had been imminent; thinking men could see the difficulty of maintaining a union of sections differing in their conceptions of political and economic interests. The controversy sounded, said Jefferson, "like an alarm bell rung at midnight."

The exclusion of slavery from territories north and west of Missouri was not put forward by the determined advocates of the proposal to exclude slavery from Missouri; it was presented and used to obtain the support of the less aggressive opponents of slavery-extension. It was the price offered for the admission of the state with slavery and for the settlement of a wearying controversy.[19] Though the provision for exclusion found its place in the Missouri bill, it was not in any sense a condition on the state. It was a declaration of a policy, in the form of enactment, and was an exercise of the authority of Congress over the territories. Concerning that authority there was little real question.[20] When the bill came up for consideration in Monroe's cabinet, the members were asked their individual opinions concerning the constitutional right to prohibit slavery in a territory. No one of them denied the right. Three southerners in the cabinet, W. H. Crawford of Georgia, John C. Calhoun of South Carolina, and William Wirt of Virginia, signed statements declaring Congress possessed that power.[21]

The Missouri trouble was not altogether disposed of by the passage of the famous compromise; another struggle and another compromise lay immediately ahead. Authorized to form a constitution, the Missouri convention proceeded to do so, and incorporated in it a declaration that it should be the duty of the legislature to pass laws to prevent free negroes and mulattoes from coming to and settling in the state. If Missouri was intent on stirring up strife, she had her way. Were free negroes citizens in the state of their domicile? If they were, to prevent their entrance into Missouri would be a violation of the federal Constitution, which declares that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. The Constitution means that a citizen of one state is entitled to go into any other, and there, retaining his original citizenship, to enjoy the privileges and immunities of the citizens of the state into which he goes. But there is no need of our examining the question, for the status of free negroes was a matter discussed at length in later years.[22]

It is plainly the duty of Congress to refuse the admission of a state if its constitution is in conflict with the Constitution of the United States. Even William Pinkney would be logically bound to accept that verdict. But the outcome was another compromise; its passage was brought about by the persuasive management of Henry Clay. It provided for the admission of Missouri on an equal footing with the original states upon the fundamental condition that the objectionable clause should not be construed to authorize the passage of any law, and that no law ever should be passed, by which any citizen of a state in the union would be excluded from the enjoyment of any privileges or immunities to which he is entitled under the Constitution, and that the legislature should solemnly declare its assent to this fundamental condition (March 2, 1821). The legislature made the prescribed pledge, preceding it with an announcement that Congress could not legally place a condition on the admission of the state and that the Constitution of the United States and of the state would remain "as if the said resolution had never passed, and the desired declaration was never made...." [23]

While Congress was still debating the admission of Missouri in the winter of 1820-1821, a question arose concerning the counting of the electoral vote for president. Should Missouri's vote be counted? [24] If Missouri was a state, her vote must be counted. The result was a third compromise. The vote was counted in the alternative: the President of the Senate, pursuant to a resolution adopted by the two Houses, announced that, if the vote of Missouri was counted, Monroe had 231 votes; if not counted, he had 228; but in either event he was elected. The strife in the winter of 1821, involving the right of Missouri to exclude free negroes and the right of having her vote counted in the election, was more intense than the previous controversy.

Though some years passed before further angry controversy arose on slavery, the results of the dispute and the conclusions finally agreed upon were of much consequence. Slavery, it was apparent, was not gradually disappearing, and though as yet there was little open defense of the system, the basis for serious controversy endangering the union was evident to the anxious onlooker. Two labor systems faced each other across a definite line. "North" meant in common parlance, or soon came to mean, free labor; "south" meant slave labor. "The old schism of federal and republican threatened nothing," wrote Jefferson, "because it existed in every State, and united them together by the fraternism of party. But the coincidence of a marked principle, moral and political, with a geographical line, once conceived, I feared would never more be obliterated from the mind; that it would be recurring on every occasion and renewing irritations, until it would kindle such mutual and mortal hatred, as to render separation preferable to eternal discord." [25]

[1] A trifle over 40,000 north of Delaware, the largest number in New York (21,193). Virginia contained 292,627 out of a total of 697,624 in the whole union.

[2] No slavery in Vermont, New Hampshire, and Massachusetts. Gradual emancipation was provided for in Pennsylvania, Connecticut, and Rhode Island.

[3] In the congressional debates on the admission of Missouri, we find Reid of Georgia declaring, "For my own part, surrounded by slavery from my cradle to the present moment, I yet

'Hate the touch of servile hands;
'I loathe the slaves who cringe around:'

and I would hail that day as the most glorious in its dawning, which should behold, with safety to themselves and our citizens, the black population of the United States placed upon the high eminence of equal rights, and clothed in the privileges and immunities of American citizens!" But he denied the right of Congress to place a condition on the admission of Missouri assuring the disappearance of slavery in that state. Annals of Congress, 16 Cong., 1 sess., col. 1025 ff.

[4] The slave states were: Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Kentucky, Tennessee, Louisiana, Mississippi, Alabama. The free states were: New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, New Jersey, Ohio, Indiana, Illinois. The balance remained substantially equal until the admission of California in 1850, though there were short intervals of inequality: Arkansas was admitted in 1836 and Michigan in 1837; Florida in 1845 and Iowa in 1846; Texas in 1845 and Wisconsin in 1848.

[5] The distinctions, perhaps not made with sufficient sharpness in the text, are laid down for this reason: it must not be taken for granted that the south in 1820 — the south which contained Kentucky, Tennessee, and the newer states of the southern Mississippi valley — was consciously a section with sectional interests clearly envisaged. In one way it was a section; there was slavery in every state, and when slavery was touched there were likely to be similar reactions throughout the whole south; there was the basis, in other words, for the development of a large degree of sectional consciousness; on this basis of a common institution sectional self-consciousness grew, especially after 1835. New England also felt and had felt her particular interests and doubtless cherished them.

[6] Maine was admitted March 3, and an act authorizing Missouri to form a constitution was passed March 6, 1820.

[7] By treaty with Great Britain in 1818 the northern line of the territory westward to the mountains was fixed at 49, The treaty with Spain (1819-1821) fixed the southern and western limits as far as 42. The Louisiana region not included within the states of Louisiana, Arkansas, and Missouri may be roughly described as a large triangle with its apex at the south.

[8] Taylor of New York, in an able speech in the House, declared that without such a provision the inhabitants of the ceded territory would have stood as aliens in relation to the United States; and, if that assertion is too extreme, the following words are probably not: "The object of the article doubtless was to provide for their admission to the rights of citizens, and their incorporation into the American family. The treaty made no provision for the erection of new States in the ceded territory." Annals of Congress, 15 Cong., 2 sess., col. 1172. King, in the Senate, said there was want of precision in the treaty. But he held that the claim in question did constitute a stipulation for admission. This did not imply admission without condition. The whole subject of the status of annexed territories, the significance of incorporation, etc., is treated in Downes v. Bidwell, 182 U. S. 244 (1901). An analysis of the Louisiana treaty "fails to disclose any reference to a promise of statehood...." Ibid., 325. See also the chapter on the annexation of Louisiana in this volume.

[9] Chae Chan Ping v. United States, 130 U. S. 581 (1889); Head Money Cases, 112 U. S. 580 (1884).

[10] Annals of Congress, 15 Cong., 2 sess., cols. 1172-1173.

[11] The Life and Correspondence of Rufus King (C. R. King, ed.), VI, p. 690 ff.

[12] His speech is in Annals of Congress, 16 Cong., 1 sess., cols. 389-417. It is worth noticing that he adhered to the orthodox theory concerning sovereignty, i.e.. orthodox for the early decades of the century. "The parties [the states] gave up a portion of that sovereignty to insure the remainder." col. 397.

[13] We can easily see how much the hearts of the antislavery men were moved by the assertion that the power of the free states in Congress could not be exercised by placing limitations on new states and thus prevent the union from becoming a union of slaveholding states. "The territory of Missouri is beyond our ancient limits, and the inquiry whether slavery shall exist there, is open to many of the arguments that might be employed, had slavery never existed within the United States. It is a question of no ordinary importance. Freedom and slavery are the parties which stand this day before the Senate: and upon its decision the empire of the one or the other will be established in the new state which we are about to admit into the Union." The Life and Correspondence of Rufus King (C. R. King, ed.), VI. p. 702.

[14] Coyle v. Smith, 221 U. S. 559 (1911). The act (1906) admitting Oklahoma provided that the state capital should be at Guthrie until 1913, and that meanwhile no public money, except so far as necessary, should be voted for erection of buildings for capitol purposes. The Oklahoma convention adopted an ordinance to that effect, but in 1910 the state passed an act removing the capital and appropriating money for buildings. The Supreme Court emphatically denied the continuous binding effect of such a condition after admission. See also references to other opinions in the opinion cited above. In Hogg v. Zanesville Canal and Manufacturing Co., 5 Ohio 410 (1832), a certain provision in the Ordinance of 1787 was held binding as an article of compact. A later decision of the federal Supreme Court said, referring to Illinois, "Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a State of the Union." "She was admitted, and could be admitted, only on the same footing" with the original states. Escanaba Co. v. Chicago, 107 U. S. 678 688, 689 (1883).

[15] "As to requirements in such enabling acts as relate only to the contents of the constitution for the proposed new State, little need to be said. The constitutional provision concerning the admission of new States is not a mandate, but a power to be exercised with discretion. From this alone it would follow that Congress may require, under penalty of denying admission, that the organic laws of a new State at the time of admission shall be such as to meet its approval." Coyle v. Smith, 221 U. S. 559, 568.

[16] See Max Farrand, "Compromises of the Constitution," Am. Hist. Rev., IX, pp. 483-484. See also, Farrand, Records, II, pp. 454-455. King was a member of the Convention. If he had had Madison's Notes, he could have strengthened his position.

[17] I have given above but a word or two from King's letter to Oliver Wolcott, March 3, 1820. The whole is interesting. See The Life and Correspondence of Rufus King (C. R. King, ed.), VI, pp. 287-288.

[18] "... the struggle indicated," says Professor J. A. Woodburn, "a notable change in the southern mind on the slavery question, and that a slave power was forming which would attempt to control all legislation of the federal Union affecting slavery." "The Historical Significance of the Missouri Compromise," Am. Hist. Asso. Report for 1893, p. 292.

[19] Woodburn, who has made a thorough study of the whole debate, agrees with Greeley: "It was, in effect, an offer from the milder opponents of slavery restriction to the more moderate and flexible advocates of that restriction." Woodburn, op. cit., p. 264, quoting Greeley, Political Text Book, 1860, p. 63.

[20] "... no considerable body of opinion appeared to combat, with any approach to success, the sovereign power of the nation to control the Territories." Woodburn, op. cit., p. 291. It was asserted by extreme advocates of slavery that that kind of property must be protected like other kinds in the territories; but the precedents of previous years, the course of the debate, and finally the act itself were overwhelmingly against them.

[21] John Quincy Adams, Writings (W. C. Ford, ed.), VII, pp. 1-2.

[22] As a matter of fact, other states had on their statute books acts excluding free negroes, and still other states later made similar enactments. Free negroes were considered undesirable neighbors. For example, Delaware had such a law (1811), South Carolina (1820), North Carolina (1826), and Illinois (1853). Missouri in 1847 passed a statute to carry into effect the provision in her constitution against admission of free negroes, despite the condition prescribed twenty-seven years before.

The State v. Claiborne, 19 Tennessee 331 (1838) is an exceedingly interesting case. The Attorney-General in his argument states with accuracy the nature of the union as "a State", and proceeds to lay down the principle of the first clause of the first section of the fourteenth amendment adopted thirty years later. But having done this, he excludes negroes from citizenship and thus anticipates Taney's opinion in the Dred Scott case (1857). The court in its decision likewise excludes the negro from citizenship: "But in reference to the condition of the white citizen, his condition is still that of a degraded man...." He is not entitled to the protection of the "privileges and immunities" clause.

We ought also to note that at a later time there was the problem whether a state had the right in the exercise of its police powers to exclude all persons who were deemed likely to be injurious to the well-being of the state. See the Passenger Cases, 7 Howard 283 (1849), and the discussion in a later chapter of this work, especially the treatment post, pp. 469-471.

[23] June 26, 1821.

[24] There were some declamatory assertions to the effect that Missouri was already a state, waiting plaintively outside the pale. As to the question when a territory becomes a state, there is some information, though not elaborate or conclusive. See Scott v. Jones, 5 Howard 343 (1847). The proper principle would seem to be that the state does not exist as a member of the union until its admission is formally declared by Congress.

[25] Letter to William Short, April 13, 1820, in Jefferson, Writings (H. A. Washington, ed.), VII, p. 158. That Jefferson even in 1820 did not mean that the "old schism" amounted to nothing is plain from his letter to Charles Pinckney, September 30. In Ibid., VII, p. 180. He saw the old views of the Federalists in a new attack. His recognition of the unifying effect of national parties is interesting. Actually, the parties soon to be reconstituted were national parties; they crossed the geographic line; they helped to maintain nationalism and the union.


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