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SOUTHERN RECORDER. VOL. I. MILLEDGEVILLE, TUESDAY, MARCH 21, 1820. No. 6. MR. VAN DYKE'S SPEECH ON THE MISSOURI QUESTION. FRIDAY,JANUARY 28. Mr. President—Conscious that I can not aild to th e force °f arguments which Lave been already urged against the pro posed amendment, with unrivalled pow ers of eloquence, nothing but a sense of duty, growing out of the peculiar situa tion in which I stand in relation to this question, could induce me to trespass on the patience ofthe Senate. This sub ject, sir, 1ms produced much excitement in different sections of the union ; that excitement has pervaded the state which I have the honor in part to represent; there, too, public meetings have been called; opinions in favor of the propos ed restriction have been expressed, and are published under the sanction of names deservedly esteemed for talents and integrity. The legislature of that state also, in their wisdom, have resolv ed that the proposed restriction is com patible with the constitution, and ought to be adopted as a measure of sound po licy, That resolution is now upon your table. The opinion of that honorable legislature justly merits, and will ever command my sincere rospect. To their confidence in me I am indebted for a place in this dignified assembly: to de serve and retain the good opinion of that honorable body will ever be my highest ambition. But, sir, as it is my misfor tune to differ from them in sentiment on this great constitutional question, 1 am not satisfied to give a silent vote. The honorable gentleman from Penn sylvania who moved the amendment, re marked that it was a question of great importance between the people of the Uuited States and those of Missouri. It is sir, a question of importance, because it involves the construction of the great charter of our liberties. The zeal with which the amendment has been urged and opposed evinces that it excites more than common interest. A question touch ing the extent of powers delegated to Congress bv the constitution iuu3t ever be deeply interesting; for in its decision are implicated the rights reserved to the people, and the sovereignty ofthe states, it is not, however, anticipated that the declaration of independence w ould be resorted to as furnishing a key to the construction of the constitution of 1787, or that arguments would be drawn from that'tource to give color to a claim of power under the latter instrument.— Much less was it expected that the re cital of abstract theoretic principles, in a national manifesto in ’76, would be gravely urged at this day to prove that involuntary servitude does not lawfully exist within the United States. To these principles the honorable gentlema^ has referred, with an air of triumphant con fidence, reminding us that the whole people then united in proclaiming to the world, '‘that all men are created equal; that they are endowed by their Creator With certain unalienable rights ; that a- mong these are life, liberty, and the pur suit of happiness.” Sir, these princi ples are correct, and intelligible in the political sense in which they were used by the statesmen who signed that mani festo. They are the received doctrines of the schools, in relation to man as he i3 supposed to exist in the fancied state of nature. But that individuals, enter ing into society, must give up a share of liberty to preserve the rest, is a truth that requires no demonstration. Those principles formed correct premises from from which to draw the conclusion, 41 That to secure these rights, govern meats are instituted among men, deriving their just powers from the consent of the governed; that the people have a right to alter or abolish one form of govern ment and to institute new government.” They also formed correct premises from which (under existing oppression) was drawu the inference, “that these United Colonies are, and of right out to be, free and independent states.” But, Mr. President, the distinguished statesmen who pledged to each other “theirlives their fortunes, and their sacred honor,’ in support of that declaration, were not visionary theorists; they are men of sound, practical, common sense, and from the premises assumed, arrived at sound practical conclusions. When we call to mind the state'of this young conn try at that awful moment, struggling for the right of self-government, engaged in war with the most powerful nation of Eu rope, pressed on all sides with accumu- tiiiing difficulties and dangers, can it be credited that the declaration of indepen dence was designed to dissolve the bonds of social order throughout the states—to reduce all men to a state of nature, and to set at large a host of slaves, the readi est instruments to be employed by the enemy in the work of destruction, in the very bosom of the nation? Think you, ® ,r » that it was meant to invoke the gen- lus of universal emancipation, and to Proclaim liberty and equality to every human being who breathed the air, and * r °d the soil of this new republic ? The a ‘th of that man who can believe this is tunch stronger than mine. No, sir, that j^anifesto was not intended, was not nn- ergtood to abolish or to alter any law then existing in any state for the security of property, or for the regulation of their internal concerns. Self-preservation, a regard for their own personal safety and that of their families, and a regard for the best interests of the nation, forbade those sages to do such an act. But, sir, were slaves liberated in any state ofthe union by virtue of the declaration of in dependence? Never. On the contrary, wherever emancipation has beeu effect ed, it has been by the authority of state laws ; and every state has assumed, and invariably exercised, at its discretion, the right of legislating about this class of persons, down to the present day. Penn sylvania, so justly npplnuded for her be nevolence towards these persons, did not admit that they obtained freedom under the declaration of independence, for she undertook to loose their chains gradual ly, by her own legislative authority, in 1780; and, even at this moment, sonic are held in involuntary servitude in that state. In truth, sir, we cannot advance a step in the history of the revolution without meeting evidence that there were in the nation two separate classes —freemen, and those who were not free. Consult the articles of confederation, emanating immediately from the act of independence and signed by many of the same men who signed that declaration, and, in article 4, “free inhabitants of each state,” and “ free citizens,” desig nate the persons who were to enjoy pri vileges and immunities under that go vernment, plainly indicating that there was another class of persons in the coun try, who were not free, and not entitled to those privileges. Consult the treaty of 1783, which acknowledged the inde pendence of these states, and you will read a stipulation, on the part of the Bri tish, for the restoring “ negroes or other property ofthe American inhabitants.” Another war with the same power has been recently waged, and is happily ter minated by the treaty of Ghent, in which you again find a stipulation for the res toration of “slaves or other property.” Sir, the federal constitution, whose pow ers are now under examination, in pro viding for the delivering up of fugitives from labour, held to service under the laws of a state, recognizes as well the existence of such a class of persons, as that they are held under the laws of the state. Open your statute book, examide the different acts which have been passed at different periods, in which it became necessary to notice this class of persons, and you shall be forced to acknowledge that Congress lias enact ed laws recognizing them as property ; sometimes describing them as fugitives from labour, at oihers, calling them slaves. Thus, sir, the act of February 1703, provides for executing il e con stitutional provision relative to fugitives from labour. The statute erecting Lou isiana into two territories, in 1804, in the same 10th section, which was read by the honorable gentleman from Penn svlvauia, speaks in plainer language where it provides, “that no slave slaves shall directly or indirectly be in troduced into said territory, except by a citizen of the Uuited States, re mono into said territory for actual settlement, and being at the time of such removal, bona fide owner of such slave or slaves.” This section, sir, establishes two facts : First, that a citizen ofthe United States may be bona tide owner of slaves. Se cond, that such citizen had the right of removing with his slaves from any state, into the newly acquired territory of Lou isiana. By the act ofthe 2d March, 1807, to prohibit the slave trade after the first of January following, the 9th section regu lates the carrying of slaves coastwise, from one port to another in the United States, and prescribes the form of an oath to be taken by the captain ofthe vessel and the owner or shipper ofthe slave; a part of which oath is, “that under the laws ofthe state they are held to service or labour.” From this cursory review, Mr. President, l am justified in assuming that the articles of confederation, public treaties, the federal constitution, repeat ed declarations of Congress in statutes passed under that constitution, connect ed with the history of the country, and the uniform course ol state legislation establish incontrovertibly that involun tary servitude has existed, and yet exists in the United States, and has ever been universally acknowledged to be a subject of state jurisdiction. Yes, sir, however painful the reflection, truth compels us to acknowledge that the evil still exists ; it has been entailed upon the nation by the avarice of Britain, forcing upon her infant colonies a slave population, against their will, against their humble petitions, against their spirited remonstrances. ' [Mr. Roberts rose to explain, and said he should not contend that slavery does not exist in the old United States, but should insi-t that Congress had a right to prohibit it in the territories, and to impose on Missouri the terms proposed by the amendment.] Mr. President, the honorable gentle man in opening the debate, did assume the declaration of independence as the broad ground of Lis argument. From his course of reasoning, I was impress ed with the belief that he meant to en force those principles in their full ex tent, and his declaration to me person ally a few minutes since, that he intend ed to go the whole length of those prin ciples, confirmed the impression. But, sir, as such intention is now disavowed, I forbear to press the argument further. I proceed, sir, to examine the consti tutional question which the amendment presents. Happily, Mr. President, we are not investigating the principles of a government whose origin is buried in the rubbish of antiquity—whose powers are to be collected from history or tradition —which relies on precedent and usage to give color to the usurpation of power in every emergency: acquiring new vi gor from every succeeding precedent; and often from precedents created in times of foreign war and domestic vio lence. Happily for this nation, its con stitution is a written instrument, framed in a time of peace, with care and delibe ration, by the most enlightened men, and penned with all the accuracy and precision that serious thought and calm reflection could ensure. Its history is brief, and known to all: the time and manner of its creation, the circumstances attending its adoption are recent and fa miliar. Many ofthe enlightened states men whose talents and labors were de voted to this great work, yet live to share the honors which their grateful country bestows, as a reward due to their distin guished merit. We must remember, then, Mr. Provi dent, that it is a written compact, thus created, thus adopted, whose powers we examine. To ensure a correct result, it is proper to bring into view certain rules of reason and common sense, ap plicable to the construction of all writ ten instruments. That we must look to the intention of the parties, as the polar star, is the great leading rule of construc tion. This rule applies with equal force to the contracts of individuals in private life—to compacts between sovereign, in dependent states, as public treaties, and to a compact between the people and go vernment, in the form of a constitution. To ascertain the intention ofthe parties, and to execute the compact in good faith, the duty of an honest statesman. The intention, sir, is most naturally and safe ly collected from the language and ex pressions used in relation to the subject matter. If the expressions he so indefi nite or inartificial as to leave the inten tion doubtful, a comparison maybe made of different parts of the instrument for elucidation, and from that comparison an intention may he inferred, not incom patible with what is plainly and certain ly expressed. Should doubts still remain, the mind recurs to the situation ofthe parties at the time of the compact, and judges, from the known condition ofthe parties, how far the proposed construc tion may comport with reason and good sense. These arc means used, under different circumstances, to arrive at truth. In examining a claim of power under this constitution, when we recur to the specific enumeration of powers, attend to the prohibitions there written, and read that jealous dec'aration ol the tenth amendment, that all powv.i nut granted is reserved, the conclusion is ir resistible, that the United States' govern ment is one of limited powers ; that, al though supreme and sovereign as to all matters within its legitimate sphere of action, yet it cannot claim a general, un limited sovereignty. '! lie people have created state governments also, and have delegated to them other portions of pow er within the state limits, for the regu lation and management ol their internal domestic concerns. A British states man may boast of the omnipotence of a British parliament; but an American statesman will never claim the attribute of omnipotence lor an American Con gress. Need 1 adduce any authority to establish this position ? 1 refer to the opinion of ihe highest judicial tribunal in Ibis nation. “ This government (say the Supreme Court in the celebrated United States’ Bank cause,) is acknowl edged by all to be one of enumerated powers. The principle that it ran ex ercise only the powers granted to it, would seem too apparent to have requir ed to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is universally admitted.” And, again: “ We admit, as all must admit, that the powers of the government are limited, and that its limits arc uot to be trans cended.” With this agree the opinion of distinguished statesmen, addressed to the people, while the constitution w under consideration. Mr. Madison, in No. 45 of the Federalist, says, “The powers delegated by the proposed con stitution to the federal government, are few and defined ; those which are to re main to the state governments, are nu merous and indefinite.” To the advocates of power, in any in stance, the people may with propriety say, shew the grant of the power in the constitution. It is incumbent on you to shew either that it is gruuted as a sub stantive, independent power, or that it is incidental to such a power, by being ue ccssary and proper to be used ns a mean to curry such power into execution. If you cannot shew this, your claim is had, your prevention must fail. In the pre sent instance you search in vain among the enumerated powers of Congress: examine the whole catalogue, with the the most scrutinizing eye, it is not found there: proceed to the section which enumerates all that is prohibited to tho states, nothing there written can furnish a plausible ground to infer that such a power was intended to be delegated to Congress. Itisnotthena substantive, independent power, specified and defin ed in the general enumeration of powers ; nor can it, in my view, be raised by ne cessary implication. Can it with anyco- lor of right be asserted, as a power ne cessary arid proper for carrying into ef fect any of the specified powers ? Here, sir, the advocates ofthe amendment are equally embarrassed. With which of ofthe specified powers is it connected ■ which of them calls upon it for aid, or which of them can receive any aid from it? Is it necessary to aid in laying and collecting taxes, borrowing money, or regulating commerce ? Sir, you shall name, in succession, every power enu merated in this instrument, examine and consider them in all their various bear ings and relations to the interests and concerns of this nation, and reason and cundor shall compel you to acknow ledge that the power now claimed to impose this restriction, has not the remotest con nection with any of them. But, Mr. President, it is contended that, though not expressly granted, yet the power may be fairly inferred. It is somewhat unfortunate, however, that the friends of this amendment cannot agree among themselves as to the article ami section of the constitution from which it may be inferred. One honorable gen tleman points to the 9th section of the 1st article: “ The migration or importation of such persons as any of the states now existing shall think proper to admit shall not he prohibited by Congress prior to the year 1UU8.” lie contends that the persons here referred to are slaves, and that, as the prohibition was limited to a period of time now past, Congress may now interdict the migration of citizens, with their slaves, from one state to ano ther, or from the old states to the new state of Missouri. The attempt to infer so important a power from this prohibit ory clause, is novel, unprecedented, and dangerous; and, in my humble opinion, is contrary to the genius ofthe constitu tion, containing uu enumeration ol' the delegated powers, which was penned with care and precision, and cannot rea sonably be presumed to leave such a power to be extracted from a prohibition. Such inference is, therefore, denied.— Further, sir, it is not granted that, “ tni gration” was intended to apply to 1 slaves,’ though ‘ importation’ does ; having a re ference to the general power of regulat ing commerce, by virtue of which Con gress might have imposed a prohibitory dutv i n the importation ot slaves, at their discretion. This right was, there fore, restrained, lor a certain time, at the instance ofthe southern slates. But the permitted duty is confined to the “ importation,” leaving the “migration” free. Migration also, as was justly re marked by au honorable gentleman from Georgia, "implies free agency, and the exercise of will, in the persons migrat ing, which cannot correctly be predicat ed of a slave. But, sir, even if the word “ migration” be construed to apply to slaves, as well as the word “importa tion” in that clause, yet 1 deny that it was intended to refer to the several states, or to give Congress the power at will to prevent the removal of a citizen, with his family and property, (and slaves may come under both descriptions,) from one state to another. The term migration, associated with importation, must be tak en to refer to a foreign country or terri tory, as the “ terminus n quo:” the mi gration begins, and therefore applies on ly to foreigners, not to inhabitants of the United States. In this sense it is used in the declaration ofindependence, which furnishes u standard construction in a prior state paper, to which we may safe ly refer, and most probably the term was transplanted from that instrument into this constitution. In the recital there of grievances which the colonies had suffered at the hands of the king, we read : “He has endeavored to prevent the population of these states ; for that purpose obstructing the laws for the na turalization of foreigners—refusing to pass others to encourage their migration hither ;” evidently meaning the migra tion of foreigners from a foreign country to the states, and as evidently excluding slaves, who were not persons to whom naturalization laws applied. Surely, sir, a power to prohibit free men from removing trom one state to an other, with their families and property, ought not to depend on abtruse reason ing, or uncertain inference, or be raised bv implication in a written constitution. \Vh:: is it, but a power to create a state- prison of a slave-holding state ; to incar cerate the citizens of the southern states with their black population, to reduce them to the ruinous alternative of aban doning their lands, as the only means of escaping from a state of confinement the mostodious that can be imagined ? Think you, sir, that such wus the intention of those who signed that instrument and re commended it to their fellow citizens ? Think you, sir, that the people of the southern states, in adopting the constitu tion, meant to delegate such a power to Congress? It would be a waste of time to reason upon the question. Sir, it is incredible that such could be the inten tion of the parties to that compact; and strangely w ill it he distorted and pervert ed, if the term “ migration,” in this pro hibitory clause, can be made the basis on which to raise this colossal power.— Should such a construction prevail, la mentably short, indeed, I fear will he the duration of this boasted palladium of American liberty. Other honorable gentlemen imagine they can find a warrant for imposing this restriction in the third section ofthe 4th article: “Congress shall have power to dispose of, and make all needful rules &. regulations respecting the territory or other property of the United States.” In uisivering this pretension, it is not ne cessary to deny to Congtess all the pow er there expressed over the territory of the United Stales ; and if Congress were now engaged in making rules and regu lations respecting such territory, this clause would supportthcclaitu of power. But, sir, so far from legislating, to dis pose of, or make regulations respecting territory, the bid on your table provides for relinquishing the territorial govern ment ; raises the people of Missouri to the dignity of self government; empow ers them to form a constitution ; to as sume the character of an independent state, and, as such, to take equal rank with the other states of this Union.— Such a hill is directly opposed to the last recited clause, and therefore that clause can give no color to the exercise of a power, designed to operate not on the territory, but on the state, at and from tlie moment of its birth. It has been further insisted, Mr. Pre sident, that the provison, that “new states tilay he admitted by the Congress into this Union,” vests Congress with a discretionary power to admit or refuse, and, therefore, that Congress may pre scribe terms and conditions of admission. Sir, the premises may be true, the con clusion may be false. It is not denied that the word “ may,” in its ordinary sense, imports a discretion to act or not; but in this clause it can give no power beyond the exercise of the will to admit or refuse admission ; and cannot, by fair, reasonable construction, confer a power to impose terms which impair the sove reignty ofthe slate to be admitted. In the exercise of a power derived from a political compact, or created by law, in the use of which others besides the actor have an interest, it is the rule of reason and sense, that, to be exercised fairly, it must he exercised not capriciously, but with sound discretion ; always regard ing the just rights ofthose who are inte rested. The people of Missouri-having an immediate interest in the exercise of tins power, claim udmission under the guarantee of a solemn treaty of cession, which provides that “ the inhabitants of the ceded territory shall he incorporat ed in the Union of the United States;” and admitted, as soon as possible, accor ding to the principles of the federal con stitution, to the enjoyment of all the rights, advantages, and immunities of ci tizens of the United States. Under this treaty, part of the ceded territory has been admitted as a state, without such restriction as is now attempted to be im posed on Missouri ; ami, so far, the trea ty bus been expounded and executed in good faith. This treaty, solemnly ratifi ed, appeals to the honor and justice of the nation for faithful execution, as soon as possible. The United States stand in the character of a trustee for the people of the ceded territory, and, whenever they attain a capacity to accept asurren der of the trust, the surrender should be promptly made, and the estate deliver ed up, unimpaired and unfettered by conditions and restriction.! not contem plated in the deed by which the trust was created. If, then, sir, Missouri has attained the competent degree of popu lation and strength to entitle her to self- government, according to the principles ofthe federal constitution, as the bill on your tabic admits, Congress is bound to admit, her into the Union without delay, as freely as other parts of the ceded ter ritory has been admitted, without impos ing a restriction that impairs her state sovereignty; since neither the constitu tion nor the treaty grants power to im pose that restriction. This power then, so strenuously con tended for, is not found among the spe cified or enumerated powers delegated to Congress ; it is not a power which can be claimed as necessary and proper to carry into execution any specified the different parts of the Constitutiofi oil which its advocates rely. But, Mr. President, instead of being surprised that such a power is not founa in the charter, it would be cause of in expressible surprise if it were found there ; for 1 am convinced the people never designed to grant it. This char ter was designed to govern and regulate the great political national concerns of the Union, not to interfere with the in ternal regulations, the private or domes tic concerns of the states, Such is the opinion of the distinguished statesmen, to whom I before referred. Mr. Madi son, in the same number of the Federal ist before cited, after informing the peo ple that the powers delegated to the fe deral government are few and defined— those that remain to the states numerous and indefinite, adds, “ the former will be exercised principally on external objects, ns war, peace, negociation, and foreign commerce, witli which Inst, the powers of taxation will for the most part be con nected. The power reserved to the se veral states will extend to nil the objects, which, in the ordinary course of affairs, concern the lives, liberties, and proper ties ofthe people, and the internal order, improvement. &. prosperity of the state;” and, in the succeeding number, speaking of the stale governments, he adds, “By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provid ed for.” The same distinction is repeat ed by Mr; Hamilton, in No. 84. “ But a minute detail of particular rights is cer tainly far less applicable to a Constituti on like that under consideration, which is merely intended to regulate the gene ral political interests of the nation, than to a Constitution which has the regula tion of every species of personal and pri vate concerns.” Sir, it must he admitted by every states man, that this Constitution never was design- d to have, jurisdiction over the domestic con cerns of the people, in the several slates. No, air, these are wisely left exclusively to th« state sovereignties, as their natural guardians, The proposed amendment, if adopted, will regulate, by an irrevocable provision in a sta tute, one of the domestic relations of tho people of the state of Missouri. Can this ho denied ? Need ! name to this Senate, what are appropriately termed the domestic rela tions of civil life? They are those of hus- nnd and wife—to which happily succeeds that of parent and child, too often followed by that oLe.tia.ndLc.n-.V.-a's.rd^-.’i.iih. sJl .edt-i-efe- - is connected that of master and servant; ei ther by voluntary ,or involuntary servitude. These, sir, with peculiar propriety and truth, are denominated “ the domestic relations.’' They exist in the bosom of the family—in the bumble walks of private life, and have no connection with the general political inte rests of the Union. If Congress can rcgtilaUj one, why notall of these domestic relations'? They all stand on the same level, and if one he within the grasp of your power, what shall exempt or protect the rest ? Even the con tract of marriage and the period of reieas* from guardianship may become the subject of discussion in some future Congress, on the admission of some future state. If such a power exist, who shall stay its hand, or prescribe its limits ? Sir, the proposed re striction, is a direct invasion of the sovereign ty of the state; it will wrest from Missouri that pow er which belongs to every state in the Union, to regulate its domestic con cerns, according to the will of the peo ple. But further, Mr. President, it can not escape observation, that, to accom plish the proposed object, Congress must invent a new mode of legislation— a legislation in perpetuity. In the com mon course of legislation, every law is subject to be altered, or repealed, ac cording to the wisdom and discretion of any future legislature. Here you tran scend the power of any legislative body known to a republic—you impose by sta tute a restriction to be and r-main irre vocable forever. To such a dilemma the u- surpation of power leads. What then, Mr. President, is the true character of this bill, with such an amendment? Not simply a law—hut a law to make, in part, a Constitu tion for the future state, of Missouri: nay, more, to make her Constitution in that point unalterable forever, and place it beyond the power of the |>cople. Is not this depriving the people of their : cknowledged rights, and the state of part of its legitimate sovereignty? If Congress can thus, by anticipation, make part of a Constitution for a state, and force it upon her as a condition precedent to her admission, why may not Congress make o- tlier parts of her Constitution under the form of other conditions—the power is the same, the right is equal. If, sir, the people of Mis souri be thus compelled to mould their state Constitution according to the mandate of Congress, must not Missouri enter the Union shorn of Borne of those beams of sovereignty that encircle her sister states—can she be said to stand upon an equal footing with them ? Let truth and candor answer. But, sir, to this objection it is replied that similar terms were prescribed to the states of Ohio, Indiana, and Illinois. True. Re collect, however, that the condition of those states was, in every respect, different from the condition of Missouri. The ordinance of 1787, passed by Congress, under the articles of confederation, was tendered to the setticiS in the North-Western Territory, (whether with or without authority, is immaterial now) as a compact and agreement. The settlers there knew of this compact—made their ar rangements accordingly—society ([here waa formed and moulded on the principles of that ordinance, and was thus gradually pre pared to adopt the same principles in the power, and, in my opinion cannot yea- sonablj ho raised by implication h' oin [ stances, the terms were proposed, withoqp