The Purpose and Powers of the Senate, Part XXXXI: “A Fire Which All the Waters of the Ocean Cannot Put Out”

    As 1819 gave way to 1820, the final straw which broke the camel’s back that was the Era of Good Feelings was finally laid in the form of a petition by the inhabitants of the Missouri Territory. Slavery had been legal in Missouri since shortly after the region’s purchase by the United States as the upriver portion of the Louisiana Purchase in 1803, and it was widely assumed, in 1819, that the any state(s) formed from the same would likewise seek to protect the institution of human bondage. It was also assumed, with good reason, that this would not present any cause for controversy. States had been admitted on the same terms on a number of occasions since 1789 – namely, Kentucky in 1792, Tennessee in 1796, Louisiana in 1812, and Mississippi in 1817 – and the opening phase of debate on the motion showed no indication that the present matter would proceed otherwise. That is, until New York Congressman James Tallmadge (1778-1853) decided to submit an amendment. The Missouri Territory, it read, could and would become a state, 

Provided, that the further introduction of slavery or involuntary servitude be prohibited, except for the punishment of crimes, whereof the party shall have been fully convicted; and that all children born within the said State after the admission thereof into the Union, shall be free at the age of twenty-five years.

Coming from Tallmadge, this was not the most surprising proposal imaginable. Prior to entering Congress in 1817, he had been a vocal advocate for the speedy emancipation of his home state’s remaining population of enslaved peoples. And while serving in Congress in 1818, he had attempted to hold up Illinois’s admission to the union over what he perceived to be its shallow guarantees that slavery would not at some point be introduced. That being said, Tallmadge’s cited amendment did still represent the first instance in which a United States Congressmen attempted to explicitly make the eventual abolition of slavery a condition for accession to statehood. Understandably – and also to no one’s shock – Tallmadge’s Southern colleagues took umbrage.

    In fairness, within the contemporary Southern planter class, there existed a reasonably wide spectrum of opinions on both the economic necessity and the moral defensibility of slavery as an institution. Whereas, at the time that the Constitution had been drafted at the end of the 1780s, the difficult financial realities of plantation agriculture had made it seem as though slavery was bound for a course of slow but inevitable extinction – hence the willingness of the Southern Framers, as per Article I, Section 9, to countenance federal restrictions on the slave trade – the creation of the cotton gin in the early 1790s and the resulting global uptick in demand for raw cotton wholly revitalized slavery’s economic prospects within less than a generation. The result was a somewhat schismatic outlook on the part of the Southern slave-owning class. Whereas many planters – especially those who had lived through the 1770s and 1780s – had grown accustomed to thinking about and speaking about slavery as though it was a substantially unfortunate practice that was rightly bound to disappear – and were accordingly forced by the institution’s changing fortunes to begin characterizing it as a regrettable but increasingly necessary evil – the younger generation who had been raised knowing nothing but slavery as ascendant were inclined to defend the practice as both an economic and moral good. Internally, the result was a great deal of handwringing, and navel-gazing, and progressively more virulent racial essentialism. Externally, however, in the face of Northern efforts – like those of Tallmadge – to turn federal power to the task of limiting slavery’s expansion, the Southern political class closed ranks. However much certain of its members might have sympathized with a moral critique of slavery, none of them were willing to tolerate what they perceived to be a Northern-led violation of the inviolable sovereignty of either their own states or any prospective state.

    Thus it was, in 1819, that the Republican Party rapidly split along factional lines over the issue of Missouri statehood. Northerners in the House, who had historically suffered at the hands of the so-called “Federal Ratio” – whereby, according to Article I, Section 2 of the Constitution, states where slavery was legal received a proportional boost to their representation in Congress to the tune of sixty percent – and who had come to regard the ownership of human beings as fundamentally incompatible with the Jeffersonian ideal of egalitarianism, aligned with what little remained of the Federalist Party to vehemently oppose to the creation of another slave state. Southern Congressmen, meanwhile, many of whom claimed to depend upon slavery in their lives as landowners and planters and all of whom regarded federal meddling with state institutions to be a violation of the Jeffersonian ideal of strict constructionism, came out strongly in favor of accepting the Missouri proposal without amendments and allowing the territory to become a state. The stakes of the resulting debate were both practically and philosophically significant. If Congress could prohibit slavery in prospective states seeking admission to the union, how much of a leap would it really have been for that selfsame body to attempt the same in an existing state? For the moment, of course, this seemed substantially unlikely, in large part thanks to the aforementioned Federal Ratio and the stable balance of power between slave and free states in the Senate. But if the anti-slavery forces in Congress ever gained sufficient advantage so as to ensure that every new state admitted thereafter was a free state, the slave-holding South would eventually lose the ability to defend its defining economic institution. Given enough time, the anti-slavery North might even cobble together enough legislative support to prohibit slavery nationwide via constitutional amendment. And what, on that day, would become of the agrarian South?  

    Bearing the existential nature of the relevant controversy in mind, a series of very highly charged arguments began to be lobbed back and forth over the course of the two congressional sessions that followed. Those in favor of Tallmadge’s amendment pointed out that there was already precedent for Congress setting conditions upon federal territories which the inhabitants thereof were required to adhere to even after achieving statehood. Slavery had famously been forbidden in the Northwest Territory – established by Congress in 1787 – which status had been carried forward when Indiana and Illinois were carved out of the same. And while Illinois had thereafter come close to codifying a form of slavery regardless, the territory-wide prohibition had thus far held fast. If Congress could thus decide – albeit indirectly – to set conditions upon prospective states, then it was also perfectly legitimate for Tallmadge to so limit Missouri’s admission. Speaking somewhat more philosophically, anti-slavery Republicans also asserted that Congress should rightly have been forbidden from allowing new slave states to be admitted to the union under the contemporary American definition of republicanism. According to the Constitution, they said – pointing specifically to Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government [.]” If, as Jefferson had first articulated in the Declaration of Independence (1776) and as he and his followers had reaffirmed during the rise of the Democratic-Republican Party in the 1790s, the essence of republicanism in the American sense was a recognition of the inherent equality of all men under the law, then any prospective state whose inhabitants intended it to enter the union with slavery in full force must, of necessity, have its petition rejected. Slavery, the Northerners avowed, because it recognized the civil and political rights of only some men rather than all men, was inherently un-republican. Thus, under the cited terms of Article IV, Section 4, no state could legitimately enter the union with laws protecting slavery on its books.

    The admirable sentiment notwithstanding – namely, that slavery was inherently incompatible with the American definition of republicanism – this was plainly a very specious claim. Not only had slavery been a part of the established law canons of every state at the time of the American republic’s formation – being gradually phased out in most Northern states only in the years and decades thereafter – but at least three slave state had already been admitted to the union between the 1790s and the 1810s. The most recent of which, Louisiana, had even been a part of the same territorial acquisition as the prospective state of Missouri, thus seeming to nullify any further claim that states formed from lands which were added to the American republic after its formation somehow ought to have been subject to different requirements than their predecessors. Pro-slavery Southerners naturally seized upon this inconsistency, arguing in counter to their Northern counterparts that the basic principles of federalism – upon which the Constitution itself rested – prohibited the federal government from interfering in what were plainly the internal political affairs of the various states. Just as the people of Virginia could choose to adopt, modify, abolish, and re-establish slavery as they saw fit to do so, so were the inhabitants of the Missouri Territory entitled to take any of these actions of their own volition and without external interference. They were not the inhabitants of a state, it was true, and so were not entitled to certain rights under the Constitution – the exercise of voting rights in Congress, for example – but they were still American citizens, and so were entitled to enter into statehood under the same conditions as those of every other state.

    Bearing the nature of the relevant subject in mind – i.e. the existence or prohibition of slavery in a prospective state – it warrants noting the degree to which none of the arguments cited above touched upon the moral dimension of the same. Granting that advocates of slavery would not begin to speak openly about what they perceived to be its positive moral dimensions until sometime in the 1850s, it is nevertheless rather conspicuous how completely the Northern Congressmen involved in the Missouri debate avoided characterizing the subject in explicitly moral terms. Clearly, some of them did want to prevent slavery from spreading without limitation for more than economic or political reasons. Tallmadge, as aforementioned, had helped accelerate the process of emancipation in his native New York, an action which plainly had nothing to do with either curbing Southern economic advantage or reducing the political influence of the slave-holding states in Congress. And yet, in spite of the fact that the instigator of the controversy was almost certainly motivated to limit the practice of slavery in Missouri by a sense of moral revulsion, neither he nor his followers appeared inclined to argue in favor of the same in anything other than strictly legal or constitutional terms. To be sure – and as cited above – the did feel that slavery was in some way incompatible with the republican form of government, particularly as it violated the principle of equality under the law. But their assertions to this end were made specifically in reference to the aforementioned clause in Article IV, Section 4. It wasn’t just that they believed that slavery was incompatible with the republican form of government, but that it was incompatible with the form of republican government which the Constitution specifically guaranteed to the states.

    The reason for this very likely had something to do with the lingering vestiges of Era of Good Feelings. It was, as aforementioned, a time of widespread conciliation and comity during which political disagreement tended to take a backseat to accommodation. The Federalists having – arguably – been vanquished and the entire country having – arguably – embraced the fundamental tenets of the Democratic-Republican Party, there no longer seemed any need to discuss matters of public policy in aggressively moral terms. And few subjects benefitted more from this sense of détente than that of slavery, its legitimacy, and its future prospects within the American republic. Granted, even in the wild and wooly 1790s, when public insults were hurled freely and often and many a disagreement between statesmen was settled by a literal exchange of fire, the propriety of slavery and its place in American society tended not to be a topic of political discourse, owing in large part to the sectional compromise that had given rise to the Constitution. But the Era of Good Feelings in many ways served to deepen this sense of quiescence by disincentivizing rigorous moral critique in the public space in favor of cooperation and political stability. Northerners whose state governments had opted to abolish slavery in the 1780s still had reason to regard their Southern counterparts with a degree of disdain for the latter’s continued insistence on the necessity of institutional human bondage, of course. But with virtually everyone interested in pursuing a career in public service forced to become part of the same single party apparatus, what was to be gained from expressing negative opinions about slavery within the context of the public sphere? So long as the different wings of the triumphant Democratic-Republican Party agreed on certain fundamental principles, slavery could be reduced to a regional peculiarity which not everyone agreed was morally defensible but whose existence everyone was willing to accept for the sake of party unity.

    The fact that, during the Missouri Crisis, no one in Congress who opposed Missouri’s statues as a potential slave state seemed inclined to directly criticize slavery in unambiguously moral terms would seem to be among the last vestiges of this “live and let live” mentality. The propriety of slavery – or lack thereof – was definitely on many people’s minds as the relevant debate unfolded, but the likes of Tallmadge and his supporters declined to say as much almost certainly out of some lingering sense of political decorum. Such discretion, however, made little difference in the long run. Though not yet forced to defend slavery itself in positive terms, the Southern members of the contemporary Democratic-Republican Party nevertheless resented being forced into the position of advocating on behalf of the institution at all. Chattel slavery, as aforementioned, was a somewhat sensitive topic within the contemporary Southern political class, and not one which its members would have preferred to be discussed in a national forum like that of Congress. It was an exceptionally brutal practice, as many a planter would willingly admit, but it also formed the lynchpin of the entire Southern economy. By calling the desirability of its propagation into question, Northern Congressmen might accordingly have been accused of both seeking to cast aspersions upon the character of their Southern counterparts in the House and of seeking to undermine the essential foundation of personal wealth in the slaveholding South.

    Owing to the rancor which resulted from Tallmadge’s aforementioned amendment, the relevant session of Congress was adjourned after only three days of debate. On February 16^th, the final day, the matter was finally put to a vote. On the question of whether or not to link the Tallmadge Amendment to Missouri’s petition for statehood, the Committee of the Whole voted 79-67 in favor. Then, after discussing each of its two provisions in turn, the House proceeded to vote in favor of restricting the importation of more enslaved peoples into Missouri (87-76) and of ensuring that the offspring of enslaved people would be emancipated at the age of twenty-five (82-78). The sectional breakdown of the final tallies was entirely in keeping with expectations. As of 1819, there were one hundred and five Congressmen representing Northern states in the House and eighty-one Congressmen representing the slave states of the South. Excepting a handful of abstentions on both sides, everyone voted according to their regional origins and interests. The Senate, as it happened, voted no less predictably. By a vote of 22-16, the upper house of Congress chose to reject the cited restriction of further importation of enslaved peoples, and by a vote of 31-7, rejected the emancipation provision as well. At that time, it bears noting, there were twenty-one states represented by forty-two Senators. Of that total, slavery was legal in ten states and illegal in eleven, with Illinois – the newest state, having acceded to the union only in December of 1818 – splitting the difference by declining to recognize the institution while sending men to the Senate who nonetheless regarded it favorably. Both of Illinois’s Senators accordingly voted to reject the Tallmadge Amendment, sending the lot back to the House for reconsideration. Having only just voted to approve, however, and with the so-called “Restrictionists” very much in control, the House declined to even discuss a path forward and instead adjourned until December.

    The next several months gave rise to a number of complicating developments. The first was a sense of suspicion among certain conspiracy-minded Southerners that there was more to the Tallmadge Amendment than a simple a desire on the part of Northerners to arrest the expansion of slavery into the West. What if, these men began to speculate, rather than actually stop the spread of slavery, the likes of Tallmadge and his supporters were trying to foment sectional unrest? One of their most noteworthy supporters in the Senate, it was said, was Rufus King (1755-1827), one of the last self-identified Federalists still serving in Congress. What if King, along with anti-slavery Northerners like Tallmadge and fellow New York Congressmen John W. Taylor (1784-1854), were only seeking to use Missouri’s status as a potential slave state to split the Republicans along sectional lines and either resurrect the Federalist Party or form a “Free State” party in its place? In quiet retirement in Monticello, Thomas Jefferson grew to believe that this was exactly what the country was witnessing. Eager to regain their former prominence at any cost, he quickly became certain that the Federalists would not hesitate at engineering sectional discord, or even civil war. In fairness, during the previous session of Congress, representatives of the two sides had given voice to such possibilities. Addressing himself to the Restrictionists on behalf of his fellow Southerners, Georgia Congressman Thomas W. Cobb (1784-1830) had ominously declared that, “You have kindled a fire which all the waters of the ocean cannot put out, which seas of blood can only extinguish.” Seemingly not to be outdone in the realm of breathtakingly imprudent political rhetoric, James Tallmadge himself responded in kind by stating that, “If a dissolution of the Union must take place, let it be so! If civil war, which gentlemen so much threaten, must come, I can only say, let it come!”

    Meanwhile, during the summer of 1819, the inhabitants of the Alabama Territory – formerly the eastern half of the Mississippi Territory – successfully organized a statehood convention and drafted a constitution. Accordingly, when Congress convened again in December, a second petition for statehood – from a potential slave state, no less – was immediately added to its agenda. In consequence, the balance of power in the Senate was set to be changed quite significantly. While, as it then stood, there were twenty-two Senators representing free states and only twenty representing slave states, the admissions of Missouri and Alabama would tip the balance in favor of the latter. The sympathy which the Senators from Illinois tended to show towards slavery had previously nullified any theoretical Northern advantage, but there was virtually no chance that Senators from either of the two new states would vote otherwise than in favor the same. The House was not in a position to also place conditions on Alabama’s accession; an enabling act had already been approved allowing its inhabitants to draft a constitution. In consequence, its admission was approved pro forma on December 14^th. The Missouri petition, on the other hand, remained in a kind of limbo. What the territory’s inhabitants were requesting was the same kind of enabling act that had allowed the people of the Alabama Territory to organize a statewide convention and draft a constitution. Without such an act – which could only be approved by Congress – the people of Missouri could not lawfully pursue the creation of a state government. The Restrictionists in the House could not hold out indefinitely, of course. So long as they continued to block Missouri’s path to statehood, their counterparts from the slaveholding South would assuredly do the same to any free territory seeking admission. The result – a stalemate of indefinite duration during which no new states would be added to the union – was plainly unsustainable. True as that might have been, however, no solution immediately presented itself.

    It was at that point in time, at the end of a long series of events stretching back to the 1780s, that the campaign for Maine statehood finally reached its climax. Previously the northernmost portion of the proprietary colony of New York, the lands which now constitute the State of Maine were allocated to the colony of Massachusetts Bay after the collapse of the Dominion of New England – a kind of 17^th century colonial federation – at the end of the 1680s. From that point on, Maine had been an integral part of both colonial Massachusetts and the State of Massachusetts, though its remote location made it somewhat difficult to administer from far-distant Boston. Indeed, it often seemed as though authorities in Massachusetts proper were inclined to forget about Maine entirely or else were willing to sacrifice the interests of its inhabitants in order to protect their own. This tendency toward neglect was made particularly obvious during the War of 1812 when officials in Massachusetts – disinclined, as a class, to pursue hostilities with Britain with any vigor – responded ambivalently and belatedly to the prospect of an immanent British invasion. The resulting occupation of eastern Maine by British and Canadian forces severely depressed the local economy and resulted in costly raids on local communities nearest the frontlines. While the captured territory was ultimately returned to the United States per the terms of the Treaty of Ghent (1814) – notwithstanding Britain’s initial intention to transform the region into the colony of New Ireland – Mainers were left more convinced than ever that statehood was the only means by which they might ensure their own good governance. Though as many as five polls had previously been taken on the subject, all of which were returned in the negative, a sixth ballot was nevertheless authorized in June of 1819, the result of which, finally, was an affirmative vote for statehood. A constitutional convention was accordingly held during the proceeding October, and by January of 1820, Maine’s admission to the union was functionally a done deal.

    Or, rather, it would have been a done deal were it not for the impasse that unfolded over the course of the winter session of Congress as 1819 gave way to 1820. With Alabama having gained admission in December, the tally now stood at eleven slave states and eleven free states. Admitting Missouri would have tipped the balance in favor of the slave states. Admitting Maine would have done the same for the free states. Having witnessed, over the previous year, the degree of hostility which existed on both sides surrounding the issue – the disdain which certain Northerners seemed to hold towards slavery, the suspicion which certain Southerners seemed to hold towards their Northern brethren – neither cohort in Congress was willing to grant any such advantage to their opponents. And so, initially, as aforementioned, the result was a functional impasse. While two states, at that moment in time, were prepared to join the union, the two major factions within Congress were disinclined to allow either. That is, until Senator Jesse Thomas (1777-1853) – one of the legislators from free Illinois who was nevertheless sympathetic to slavery – came forward with an ingeniously simple proposal. Rather than allow the impasse to extend indefinitely, he opined, why not simply admit Missouri and Maine at the same time? Not precisely at the same time – the two initiatives were at different stages, with Maine prepared to enter the union immanently and the people of Missouri having yet to write a state constitution. But as long as the two were admitted within a reasonable amount of time of one another – close enough together, that is, so that their representatives in Congress would make their first appearance at the same session – then the sectional balance might accordingly be preserved.

    Fortunately for all involved, the two sides ultimately agreed to back Thomas’s proposal. This was doubtless helped to a large extent – particularly on the Northern side – by the inclusion of an additional provision blocking the creation of further slave states within the bulk of the former Louisiana Purchase. One of the objections that had been levelled by the supporters of the original Tallmadge Amendment in 1819 was that territory acquired following the ratification of the Constitution should necessarily have been prohibited from having slavery introduced therein. This was, as aforementioned, a demonstrably specious argument, but it was evidently one which the Restrictionists were nevertheless loath to abandon. The compromise which Thomas proposed intended to effectively split the difference. South of a line running parallel to the southern border of Missouri, slavery would be permissible in all American territories and states. North of that same line, meanwhile, with the exception of Missouri itself, slavery would be forbidden in all state or federal jurisdiction. This was not a policy, to be sure, which favored both sides equally. There was far more land north of the land than there was to the south. But since the Northern states held the advantage in the House at that point in time – and since there still remained a significant portion of territory from which new slave states might be formed – the Southerners in Congress found themselves cautiously agreeing. The Senate voted thus voted in favor of the “Missouri Compromise” by a (terrifyingly narrow) margin of 24-20, after which the House followed suit by a tally of 90-87. The House then voted to approve the whole bill under consideration – that being the original Missouri petition and the amendment proposed by Thomas – by a count of 134-42. After a little more wrangling to sort out the proper procedure for admitting one state to the union while passing an enabling act for another, the final tranche of bills was approved on March 5^th, 1820 and then signed by President Monroe the next day. But while a full-scale crisis was thus averted, a good deal of damage had already been done.