Daily National Intelligencer

DEBATE
ON THE
ADMISSION OF MISSOURI INTO THE UNION.
[CONTINUED.]

HOUSE OF REPRESENTATIVES,
DECEMBER.

On the question "shall the joint resolution for the admission of Missouri into the Union be engrossed and read a third time?"

Mr. STRONG, New-York, said, the magnitude and importance of the subject under consideration must be his apology for claiming a small share of the attention and patience of honorable members, while he submitted the reasons for the vote he was about to give. I shall endeavor, said he, to be brief and plain in what I have to say.

The people of the territory of Missouri were, by a law of Congress, authorized to form "a constitution and state government, provided that the same, whenever formed, should be republican, and not repugnant to the constitution of the United States." They have formed a constitution, presented it for the approbation of Congress, and asked admission into the Union. If it violates the plain provisions of the federal constitution, ought it not to be disapproved, and the resolution under consideration be rejected? The constitution of Missouri contains, among other things, this remarkable clause—"it shall be the duty of the Legislature to pass laws to prevent free negroes and mulattoes from coming to, and settling in, the state, under any pretext whatsoever." Here permit me to remark that the authority is express and positive, and is in restraint of personal liberty, and of the means of contesting personal rights. But are the persons here described citizens of the United States, or of a state; or of both; or of neither? If citizens, then the repugnancy is plain and palpable. But the honorable member (Mr. Smyth, of Virginia,) on my right, who has just resumed his seat, has attempted, ingeniously, to prove, that free negroes and mulattoes are either aliens or denizens and, consequently, not citizens.

The honorable gentleman will pardon me for differing from him. I cannot assent to the proposition that this description of persons are aliens. An alien is one who owes allegiance to some sovereign government other than that under which he lives. Allegiance to a foreign power enters into the very essence of the term alien. To what foreign power, or to what government, other than that of the United States, do these persons owe allegiance? If to none—then what are they, if not citizens? "But, if they be not aliens, it is insisted that they are denizens."

Is it so? No one can be a denizen who has not been an alien. Denization is the modification of alienage. But Congress can pass laws of naturalization only, and not of denization. I would seem to follow, therefore, that these persons cannot be denizens.

He has argued, too, at some length, to prove that a state possesses the right, not only of banishing her citizens, but excluding from her limits paupers, lepers, and persons infected with pestilential diseases; and hence inferred that each state might exclude all the citizens of the other states; and, consequently, that Missouri had a right to prohibit free negroes and mulattoes from coming to, and settling in, Missouri.

I have never understood that a state, town, or city, could prevent the admission of a pauper as such. In many of the states, and I do not know but in all of them, a pauper may be removed if likely to become a public charge, and every person, whether pauper or prince, may be prevented from gaining what the lawyers call a legal settlement.

That a state may banish for crime, and guard herself against pestilence, need not be denied. The rights and privileges of peaceable, unoffending citizens, for whom we are expounding the law, do not depend upon the principles which determine the disabilities & punishment of criminals. Because a state can banish a traitor, does it follow that she can deport every or any harmless, unsuspicious citizen? Because Pennsylvania may exclude from the city of Philadelphia persons infected with the leprosy, or the plague, can she, therefore, exclude all the tars and troops of the federal government?

Or any uninfected, peaceable citizen of any state or place? If not, Missouri remains undefended. She must seek some other mode of justifying the exceptionable provisions of her constitution.

It is, moreover, contended by the honorable gentleman, (Mr. Smyth,) that Missouri became a member of this Union in fact, and of right, on the 19th of July last, the day on which her constitution was formed; and I understood him to say that, if the constitution of Missouri, now before us, had contained the provisions of a monarchical, instead of a republican form of government, Congress, by an act of legislation, could change it and make it republican. I cannot agree that Missouri is a member of this Union; or that Congress, by the silent operation of a law, could remedy the supposed evil. These shall be subjects for future consideration. But, does not the honorable gentleman in this concede to Congress, the right of making a constitution for a state, whether such state be out of, or in the Union? This is a broad concession, and yielding more than I am willing to take; whatever may be the powers of Congress in supervising the formation of a state government; I have no hesitation in saying, and I think gentlemen will go with me, that when a state is in the Union, and one of the United States, her constitution and law are beyond the inspection, or revision, or control of Congress. They must be referred, for adjudication and correction to other tribunals.

The general proposition has been urged by the same honorable member, (Mr. Smyth,) that, if any clause in the constitution of Missouri be repugnant to the constitution of the United States, which is the supreme law of the land, such clause is utterly null and void. This is true in law, not in fact. But, shall we sanction a wrong, which, until remedied, we know will produce injustice and evil? This constitution is submitted to us. For what purpose, unless it be for our approbation? If this submission and approbation are necessary, can it acquire the force and effect of a law, until Congress has approved it?

But if approved and put into operation, when, by whom, and how are its repugnant provisions to be adjudged null and void? I think one must have some skill in the calculation of chances to determine. This proposition proves too much. It proves that every law or other matter, which requires the revision and sanction of Congress to give it validity, may be passed with impunity, our paths to the contrary notwithstanding, however flagrantly it may impugn the constitution of the U. States.

The question whether, if the resolution under consideration be rejected Missouri will remain a sovereign independent state, or revert to her territorial condition? has been so fully and ably examined, by my honorable friends, the member from Pennsylvania, (Mr. Sergeant,) and my colleague, (Mr. Storrs,) that I shall not trespass upon your patience with any further discussion of it.

And the more especially, since the honorable member from Virginia, (Mr. Smyth,) has admitted that Missouri cannot be a sovereign state, and independent in the United States. If she cannot, and if she be not now in full union and communion with the sister states, it seems to follow that her condition is territorial.

But it has been earnestly contended, that Missouri is now a member of this Union—one of the United States. This view of the subject has been pressed upon our attention with much feeling and eloquence, by the honorable chairman of the committee, (Mr. Lowndes,) who reported the resolution, as well as by the honorable members (Mr. Barbour and Mr. Smyth,) from Virginia. And is Missouri a component part of this Union? Is she one of the United States? Do not the submission of her constitution to Congress, its reference to a committee of this House, the report of that committee, and the resolution we are now discussing—all admit that she is not?

But if in truth she be a member of the federal family, why is her constitution on our desks? We have no business with it. The time has gone by. Congress has no more right to approve or condemn it, than it has the constitution of Maine, or Virginia.

When did Missouri become a member of this Union? It is said, from the time she formed her constitution. I shall not enter into a verbal criticism upon the language of the law which authorized her to form a constitution.

A more interesting question presents itself. It is this: can Congress admit a state, (to be formed from its territory,) into this Union, prospectively? As for instance, suppose Congress, in the law authorizing the people of Missouri to form a constitution, had enacted that, on the 1st of July, 1820, the state of Missouri will have become a member of this Union and from that day she is hereby declared to be one of the United States. The question is not so much what Congress has done, as what Congress has a right to do. The powers of Congress, although sovereign, are limited. These powers cannot be exceeded. A portion of this sovereignty may be delegated to the people of Missouri. But not unqualifiedly, as to the form and manner of its exercise. Because, if unqualifiedly, they might extort the sanction of Congress to a form of government which notoriously violated the constitution of the United States.

This will be more distinctly seen by examining the necessary powers and requisites in the admission of new states, and the obligation of the nation towards them when admitted. The federal constitution provides, "that new states may be admitted by the Congress into this Union;" and that "the United States shall guarantee to every state in this Union a Republican form of government."

There must be a state formed, or to be formed. If from the territory of the United States, as was the case of Missouri, it is to be formed, and this formation can only be by the permission and authority of Congress. As Congress cannot rightfully execute a given power, so as to violate the constitution of the United States, it would appear to follow, that the same power could not be rightfully executed by any other body of men so as to conflict with the provisions of the federal constitution. But every state, howsoever formed when admitted, must have a republican form of government. Is it not necessary that we should have the means of judging of this form?

Yet how can we judge, in our legislative capacity, unless the instrument be submitted to us? And if submitted, it must be done before the state becomes a member of the Union. Suppose, then, that Missouri had in fact become one of the United States in July last, and that you now discovered that her constitution, instead of containing provisions for a Governor and Senators to be elected by the people, bore on its frontispiece a crown and sceptre, and contained provisions for a King and an hereditary Senate? This is a possible case. It is one of the cases provided for by the constitution. For the United States, the faith, honor, and strength of the nation, are pledged to guarantee a republican form of government.

What could you do? Shake hands with royalty? This would be anti-republican. Would you remit it to the Judiciary? The Judiciary could afford no relief. What then? Legislate it right? This would be constitution-making. No, sir, your parchment would not do. Force must be applied—and the decision left to the sword. If such possible state of things may happen, although it may not disprove the power of Congress to admit a state prospectively, yet, does it not utterly discountenance the policy, and go very far to deny the right of prospective admission?

In speaking of a resort to the sword, I beg to be understood as referring exclusively to the supposed case. I do not mean to intimate that serious consequences are to follow the rejection of this resolution. I have no such apprehensions. If I had still I would preserve, inviolate, the federal constitution as my only political hope.

But the constitution of Missouri is before us, and, in my judgment, properly; for I cannot bring myself to believe, that Missouri is now one of the United States. She could not be one without the assent of Congress. I cannot learn that this assent has ever been given: or, indeed, that it could have been given, consistently with the principles and safety of the federal constitution. Is it proper for us, then, and are we bound, to examine the constitution thus presented to us, and to determine whether it be, or be not, repugnant to the constitution of the United States? I think this matter is cognizable by us, because we are sworn to support the federal constitution.

What more effectual or permanent support can we give than to take care that no person, high or low, shall be deprived of a single privilege or immunity which this constitution secures to him? If then the Missouri constitution, sanctioned by us, should, intermediate the time of its going into operation and the decision of the federal courts upon it, deprive any citizen, or other person, of his federal rights, or privileges, or immunities, would it not be in consequence of our sanction? For without that, could it have any operation? The right to determine does not depend upon the degree of repugnancy, or upon the extent and magnitude of the injury which may be produced, but upon the question, is it repugnant, and will it injure and oppress the citizen in his operations?

Some cases of palpable and flagrant repugnancy have been mentioned. I will not trouble the House with the repetition of them in this place—particularly, as my honorable friend (Mr. Lowndes) from South Carolina has, in the liberality of his mind, justly conceded that there might be cases in which it would become the duty of Congress to reject a constitution: and he supposed the case of Senators and Representatives to Congress, whose term of service should be different from that prescribed by the constitution of the United States. This concession was necessary in the supposed case, because it would manifestly impugn the powers and privileges of the Senate and House of Representatives, and the Judiciary could afford no relief.

I am entirely opposed, sir, to remitting this matter to the Judiciary. Why send it to the Judiciary for adjudication? It may be years or ages before it reaches that tribunal. In the mean time, hundreds of American citizens may be deprived of their rights, oppressed, and persecuted. Who is to take their part? It requires money and friends to regain lost rights. Many sound objections have been urged by those who have preceded me against this inference. I shall content myself with stating one further objection. It is this: A free negro or mulatto of the District of Columbia may take, and hold real estate in Missouri. This, I think, will not be denied; and, to make the case the stronger, suppose he derives the title to his land directly from the United States. Now, by the constitution of Missouri, he is not only excluded from the possession of his land, but is prevented from coming into the state, and contesting his claims in the courts there, and the doors of the federal courts are barred against him. They cannot entertain his claim, and afford him relief, because he is not a citizen of a state.

How is this to be answered? Or is the sufferer to be turned off remediless? And will you thus permit individual wrong to accumulate? Or will you rather prevent it, by staying the operation of the only cause which can produce it?

Are our free negroes and mulattoes citizens? This is a deeply interesting question, both as it respects them and the nation. The report of the committee seems to admit that some of them are citizens, because it says, that a large class of them "cannot be considered as citizens of any state." The honorable members (Mr. Barbour and Mr. Smyth) from Virginia, deny that they are citizens. But the gentleman (Mr. Barbour) from Virginia who first spoke, will permit me to say, that I think his definition of a citizen proves too much; for it proves that the Jews of Maryland are not citizens of Maryland, although their fathers and their ancestors have resided there since the days of Lord Baltimore. A definition may destroy a right, but never can create a right.

Facts and experience in politics and morals are better than definitions. What, therefore, are some of the peculiar and distinctive characteristics of a citizen of a state?

They are, the right of passing freely and unmolested, from town to town, and place to place, within the state, and the right of residing, at pleasure, in any part of the state. That these rights belong to every one entitled to the high privilege of citizen, I think, will not be denied.

But these rights are also common to all free persons, of every age and sex, within the state, except aliens, lunatics, vagabonds, and criminals; because their possession and exercise are indispensably necessary to the social relations of life, and to the preservation of the state.

Indeed, vastly the greatest proportion of the citizens of a state have no other external mark of their citizenship. Females and minors cannot be elected to office, or vote, or sit on juries, or be subjected to taxes, as a general rule.

These persons enjoy the privilege of citizenship, and the immunity of the laws of the state, to which they must demean themselves as completely as the man who has, in addition, the qualification of a voter, or a juryman.

What, then, is the meaning of that great clause in the federal constitution, which declares, that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states?" This has been called the basis of the Union. As I understand this clause, it does away the disability of all men. Without it, the citizens of each state would be aliens to every other state, and could not of right enter another state without a passport. It confers the same common privileges and immunities upon the citizens of Maryland, for instance, in reference to the United States, as the citizens of Maryland possess in reference to that state.

Hence, a citizen of Maryland may pass into and abide in the state of Virginia, and reside there, subjecting himself to the laws of Virginia, as he was bound to do to the laws of Maryland; because in Maryland he possessed these rights and owed this obedience. But it does not follow, nor is it at all necessary, that, because he was a voter or a juryman in Maryland, he must be either the one or the other in Virginia. If his reasoning be correct, then these essential rights of citizenship are secured, and each state left in full possession of its obligation and power to protect its peaceable citizens and defend itself against violence and crime.

From what has been said, I think it may be fairly concluded, that free negroes and mulattoes are citizens, unless some positive act of disfranchisement can be shown. But I beg leave, sir, to examine this matter in another point of view. I am constrained to believe that those persons are citizens of the United States, and, as such, have a right peaceably to pass through, or reside in, any part of the United States.

The federal constitution, so far as I can understand it, recognizes and knows but two descriptions of freemen for the question under discussion concerns freemen only and I shall avoid, if possible, any mention of the other class of persons. These descriptions are citizens and aliens. I shall not go into an examination of the laws or practice of ancient or modern nations to ascertain their national character of their inhabitants. Their constitutions are unlike ours, and if in ours there be any other designation of the national character of freemen than that of citizens or aliens, what is it? I have said that Congress only could naturalize aliens—that is, persons who owe allegiance to a foreign government. But a slave has no country, and owes no allegiance, except to his master. How, then, is he an alien? If restored to his liberty, and made a freeman, what is his national character? It must be determined by the federal constitution, and without reference to policy; for it respects personal liberty. Is it not that of citizen or alien? But it has been shown that he is not an alien. May we not, therefore, conclude; nay, are we not bound to conclude, that he is a citizen of the United States? Now, permit me to say that it is one of the inestimable privileges of a citizen of the United States to pass, unmolested, through the several states, and to reside where it may best suit his health and convenience. Indeed, sir, this is the essential feature in the federal character of an American citizen. If, therefore, free negroes and mulattoes are citizens of the United States, does not the constitution of Missouri conflict with the federal constitution, although they may not be citizens of a state? But some of them, at least, are citizens of a state.

Facts are better than theories. In many of the states they are recognized as citizens, and, among other things, are eligible to office, entitled to hold real estate, to vote, to sue and be sued. In some of the states, their fathers, with ours, fought the battles of the revolution. Vermont was not one of the original thirteen states: she was admitted into the Union in 1791, and had then, and still has, free negroes and mulattoes, whose citizenship, by the citizens of that state, I believe, has never been doubted or denied. These are facts within the knowledge of honorable gentlemen who hear me. But I beg leave, sir, to refer to the case of Louisiana. By the third article of the treaty which ceded to the United States the territory of Louisiana it is stipulated, that "the inhabitants of the ceded territory shall be admitted, &c. to all the rights, advantages, and immunities, of citizens of the United States." The term inhabitants is used. It is a comprehensive term; and whether it includes slaves, is not necessary for me to inquire. It clearly includes free men, and consequently free negroes and mulattoes, unless excepted. And, if excepted, permit me to say, it belongs to gentlemen opposed to me to show where and how they are excepted. The state of Louisiana was formed from a part of the ceded territory, and admitted into the Union: and are not the free negroes and mulattoes in that state citizens of Louisiana? They were made citizens of the United States by the treaty; and, in my judgment, they became citizens of the state when the state became a member of this Union.

As connected with the question, who is a citizen of a state?—I will refer again to the federal constitution. It is there declared, that the judicial power shall extend (among other cases) to controversies "between citizens of different states." Now, any person in the state of Maryland, who can prosecute a citizen of Virginia, under this clause, must be a citizen of Maryland; and so of every other state. Is not this a sure criterion of citizenship? Who, then, can prosecute? Is there a freeman in the nation, not an alien, and domiciled in a state, who cannot prosecute and be prosecuted in the federal courts?

If there be one, it must be owing to some legal disability. Are free negroes and mulattoes, domiciled in a state, under any such disability? The federal constitution interposes none; and I know of no law or judicial decision which does. The fair presumption is, that they have the right to prosecute; and it devolves upon those who deny the right, to prove the disability. But, if they can prosecute in the federal courts, under this clause in the federal constitution, then they are citizens of the states, and the constitution of Missouri is repugnant to the constitution of the United States, because it acts directly upon the citizen and does not add to, but takes away, his existing rights and privileges.

But, assuming that there are free negroes and mulattoes who are not citizens of any state, it is said by my friend (Mr. Lowndes) from South Carolina, that the exceptionable clause in the constitution of Missouri is to be so construed as to apply to them only. The power given to the legislature is mandatory; the language of the clause is general, and, in terms, applies to all, and may be executed upon all, free negroes and mulattoes. I cannot assent to that exposition of a power which would establish one rule in Maine and another in Missouri. No, sir, this is constitutional law, and does not speak a language official, and a language confidential. It means what it says; and should be construed as it reads. How do you expound other similar constitutional powers?

Take the treaty-making power, for example. Will you say that you have a right to make a treaty with England, but that you have no right to make a treaty with President Boyer—with the Republic of Hayti? Take also the power to naturalize. Does it include the subjects of England and France, and exclude those of Persia and China? How, then, under a positive grant of power to prevent free negroes and mulattoes from coming into a state, will you admit some and exclude others?

I must solicit your indulgence, sir, for a few minutes more while I examine this subject in reference to existing treaties, and the laws of Congress. These treaties and laws if made pursuant to the constitution of the U. States, are the supreme law of the land. Does not the constitution of Missouri plainly violate the provisions and stipulations of existing treaties? I have already had occasion to refer, for another purpose, to the third article of the treaty for the cession of Louisiana to the United States. Has the time gone by when the stipulation in that article is no longer binding? How are the free negroes and mulattoes in the territory of Arkansas to be excluded from the state of Missouri? Does Missouri possess the power of disfranchising a citizen of the United States—of destroying the federal rights of an American citizen?

If not; are we at liberty to sanction an instrument, the operation of which, until arrested by the tardy arm of the law, will impair and may destroy these federal rights?

But this, sir, is not all. By the existing treaty between the United States and Great Britain, it is stipulated that "the inhabitants of the two countries respectively shall have liberty freely and securely to come, &c. and to remain and reside in any parts of the said territories respectively." The substance of this provision is found in the treaty between us and Sweden; and I believe in nearly all the commercial treaties which we have made with the nations of Europe. Indeed, sir, provisions of this sort are essential to the successful operations of commerce, and to the preservation of our commercial relations. The Missouri constitution infringes this provision in the treaty, by excluding from her limits the free negroes and mulattoes of the Canadas and of the other British possessions, who may wish to go and reside in the state of Missouri for commercial purposes. It does more—the principle of it strikes at the foot of the commercial relations between the several states; and between the United States and foreign nations.

Once more and I have done. Congress has passed laws, offering bounties in land, to induce persons to enter into the army of the United States. They have entered, done their duty, and received a title to their land—among them are many free negroes and mulattoes. Suppose they are not citizens of a state. Missouri says they shall not enjoy the bounty of their government. Nay more, they shall not have the humble privilege of contesting their rights in her courts of justice. Did not the federal government, in giving the title, pledge its faith and honor to secure the possession and the enjoyment? I humbly conceive it did; and that these, as well as the proudest American citizens, are eminently entitled to our protection—for they have endured war and peril; have wasted their strength, and shed their blood, in fighting the battles of their country.