Marbury v. Madison, 1803
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The Federalists lost Congress as well as the presidency in the elections of 1800, but before they handed over their seats and votes to the Jeffersonian Republicans, the Sixth Congress passed the Judiciary Act of 1801. Besides providing for a reduction in the number of Supreme Court justices, it also created sixteen circuit courts with a judge for each, and increased the number of attorneys, clerks, and marshals associated with the judicial branch. Before leaving office, President Adams named John Marshall as chief justice and appointed a significant number of Federalists to the newly established positions. These last-minute commissions became known as the "midnight appointments." Unfortunately for some of those selected for the new offices, their commissions were not delivered before Jefferson took office. Jefferson, resisting the Federalist power play and trying to contain Federalist entrenchment in the judiciary, made a power play of his own by directing his secretary of state, James Madison, not to deliver the remaining commissions. When William Marbury did not receive his letter of appointment to a justice of the peace position in the District of Columbia, he sued for a writ of mandamus (an order issued by a higher court to a lower one or to other government agencies and officials) to force its delivery. The Supreme Court, led by Marshall, in ruling on the case, not only exercised its own power but expanded it.
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Mr. Chief Justice Marshall delivered the opinion of the court.
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded.
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The first object of inquiry is,
1. Has the applicant a right to the commission he demands?
His right originates in an act of congress passed in February 1801, concerning the district of Columbia.
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It appears from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.
The second section of the second article of the constitution declares, "the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for."
The third section declares, that "he shall commission all the officers of the United States."
An act of congress directs the secretary of state to keep the seal of the United States, "to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the president, by and with the consent of the senate, or by the president alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the president of the United States."
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The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution.
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It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it.
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This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission: still the commission is not necessarily the appointment; though conclusive evidence of it.
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The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it.
This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued.It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. . . .
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It is therefore decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state.
Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable and cannot be annulled. It has conferred legal rights which cannot be resumed.
The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is thenin the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the president and sealed by the secretary of state, was appointed; and as the law creating the office gave the officer a right to hold for five years independent of the executive, the appointment was not revocable; but vested in the officer legal rights which are protected by the laws of his country.
To withhold the commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.
This brings us to the second inquiry; which is,
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. . . .
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The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.
It behoves us then to inquire whether there be in its composition any ingredient which shall exempt from legal investigation, or exclude the injured party from legal redress. . . .
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It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.
If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.
In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.
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. . . [W]here the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
If this be the rule, let us inquire how it applies to the case under the consideration of the court.
The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the president according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the president, then a new appointment may be immediately made, and the rights of the officer are terminated. But . . . if the officer is by law not removable at the will of the president, the rights he has acquired are protected by the law, and are not resumable by the president. . . .
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It is then the opinion of the court,
- That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice of peace for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.
- That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.
It remains to be inquired whether,
- He is entitled to the remedy for which he applies. This depends on,
- The nature of the writ applied for. And,
- The power of this court.
- The nature of the writ.
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This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone,1 "to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined or at least supposes to be consonant to right and justice." Or, in the words of Lord Mansfield,2 the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed: and the person applying for it must be without any other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate: . . . [I]t is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. . . . The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, . . . if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law?
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This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,
Whether it can issue from this court.
The act [Judiciary Act of 1789] to establish the judicial courts of the United States authorizes [via Section 13] the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."
The secretary of state, being a person, holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.
The constitution [Article III] vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case because the right claimed is given by a law of the United States.
In the distribution of this power it is declared that "the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction."
It has been insisted at the bar, that as the original grant of jurisdiction to the supreme and inferior courts is general, and the clause [Section 2] assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.
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When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate: in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised.
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. . . .
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. . . . The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limimit [sic] a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
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If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
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The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.
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"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
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Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.
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It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
1. Sir William Blackstone (d. 1780): lawyer, historian, judge, and author of Commentaries on the Laws of EnglandEd. (Return to text)
2. William Murray, first Earl of Mansfield (d. 1793): Lord Chief Justice of the King's Bench, 17561788Ed. (Return to text)
[From William Cranch, ed.,
Reports of Cases Argued and Adjudged in the Supreme Court of the United States, in August and December Terms, 1801, and February Term, 1803, 3rd ed., vol. I (Philadelphia: Carey & Lea, 1830), pp. 4972. [Editorial insertion appear in square brackets
Ed.]]
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McCulloch v. Maryland (1819)
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Among the important reflections of nationalism in this era were the decisions of the United States Supreme Court under Chief Justice John Marshall. One of the strongest of these assertions of nationalism was the case of McCulloch v. Maryland (1819), in which the Maryland statute taxing the branch of the Bank of the United States in that state was declared unconstitutional. This opinion further clearly upheld the constitutionality of the bank, a matter of some dispute earlier between Hamilton and Jefferson/
Is it true, that this in the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without the other? We think it does not....To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense....It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense -in that sense which common usage justifies. The word "necessary" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensable necessary. To no mind would the same idea be conveyed, by these several phrases....This word, then, like others, is used in various sensed; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.
Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confining the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, and which were conducive to the end. The provision is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of caring the mail along the post-road, from one post-office, or rob the mail. It may be said, with some plausibility , that the right to carry mail, and to punish those who rob it, is not indispensable necessary to the establishment of a post-office and post-road. This right is, indeed, essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or perjury in such court.
But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the convention, as manifested in the whole clause. To waste time and argument in providing that, without it, congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun.
That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confidence which is essential to all government.
But is this a case of confidence? Would the people of any one State trust those of another, with a power to control the most insignificant operation of their state government? W3e know they would not. Why, then, should we suppose that the people of any one State would be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused.
If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the customhouse; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States.
This is not all. If the controlling power of the States be established; if their supremacy as to taxation be acknowledged; what is to restrain their exercising this control in any shape they may please to give it? Their sovereignty is not confined to taxation. That is not the only mode in which it might be displayed. The question, in truth, is a question of supremacy; and if the right of the States to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation.
[From
McCulloch v. The State of Maryland et al. (4 Wheaton ).]
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Reflections on the Missouri Question (1820), John Quincy Adams
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As Monroe mentioned to Jackson in his 23 May 1820 letter, the nation was wrestling not only with matters of state but with matters within the states as well. The question of Missouri's admittance to the union had "excited feelings & raised difficulties, of an internal nature, which did not exist before." Actually the difficultiesthose concerning the extension of slavery, the corresponding expansion of slaveholder power, and the respective rights of the people, states, and Congresswere not totally new, but while they had been subdued in the "Era of Good Feelings," they now burst forth in greater vigor and viciousness. The debate began in early 1819 when there were enough people in the territory around and including the town of St. Louis to constitute a new state. Considering how the nation had celebrated the admittance of each new state up to this time as a confirmation of America's power and prosperity, there should not have been a problem. One developed, however, when Representative James Tallmadge, Jr., of New York proposed that Congress make a prohibition on the future importation of slaves into the area and introduce a system of gradual manumission as a condition of admission. Slaveowners in Missouri and elsewhere countered by arguing that Congress did not have the right to so restrict a state's power and an individual's right to control his property. John Quincy Adams, because of personal inclination as well as his professional responsibility to advise the president, observed and commented on the "Missouri question" as Congress and country debated the issue for over a year.
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Jan.24.I walked with R. M. Johnson to the Senate chamber and heard Mr. Pinkney close his Missouri speech. There was a great crowd of auditors. Many ladies, among whom several seated on the floor of the Senate. His eloquence was said to be less overpowering than it had been last Friday. His language is good, his fluency without interruption or hesitation, his manner impressive, but his argument weak, from the inherent weakness of his cause.
Feb.11.I went up to the Capitol and heard Mr. King in the Senate, upon what is called the Missouri question. He had been speaking perhaps an hour before I went in, and I heard him about an hour. His manner is dignified, grave, earnest, but not rapid or vehement. There was nothing new in his argument, but he unravelled with ingenious and subtle analysis many of the sophistical tissues of the slave-holders. He laid down the position of the natural liberty of man, and its incompatibility with slavery in any shape. He also questioned the Constitutional right of the President and Senate to make the Louisiana Treaty; but he did not dwell upon those points, nor draw the consequences from them which I should think important in speaking to that subject. He spoke, however, with great power, and the great slave-holders in the House gnawed their lips and clenched their fists as they heard him . . . We attended an evening party at Mr. Calhoun's, and heard of nothing but the Missouri question and Mr. King's speeches. The slave-holders cannot hear of them without being seized with cramps. They call them seditious and inflammatory, when their greatest real defect is their timidity. Never since human sentiments and human conduct were influenced by human speech was there a theme for eloquence like the free side of this question now before Congress of this Union. By what fatality does it happen that all the most eloquent orators of the body are on its slavish side? There is a great mass of cool judgment and plain sense on the side of freedom and humanity, but the ardent spirits and passions are on the side of oppression. Oh, if but one man could arise with a genius capable of comprehending, a heart capable of supporting, and an utterance capable of communicating those eternal truths that belong to this question, to lay bare in all its nakedness that outrage upon the goodness of God, human slavery, now is the time, and this is the occasion, upon which such a man would perform the duties of an angel upon earth!
Feb.13.Attended the divine service at the Capitol, and heard Mr. Edward Everett, the Professor of the Greek language at Harvard University, a young man of shining talents and of illustrious promise. His text was from I Cor. vii. 29: "Brethren, the time is short," and it was without comparison the most splendid composition as a sermon that I ever heard delivered. . . . Mr.Clay, with whom I walked, after the service, to call upon Chief-Justice Marshall, told me that although Everett had a fine fancy and a chaste style of composition, his manner was too theatrical, and he liked Mr. Holley's manner better.
Clay started, however, immediately to the Missouri question, yet in debate before both Houses of Congress, and, alluding to a strange scene at Richmond, Virginia, last Wednesday evening, said it was a shocking thing to think of, but he had not a doubt that within five years from this time the Union would be divided into three distinct confederacies. I did not incline to discuss the subject with him. We found Judges Livingston and Story with the Chief Justice.
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February23.A. Livermore and W. Plumer, Junr, members of the House of Representatives from New Hampshire, called upon me, and, conversing on the Missouri slave question, which at this time agitates Congress and the Nation, asked my opinion of the propriety of agreeing to a compromise. The division in Congress and the nation is nearly equal on both sides. The argument on the free side is, the moral and political duty of preventing the extension of slavery in the immense country from the Mississippi River to the South Sea. The argument on the slave side is, that Congress have no power by the Constitution to prohibit slavery in any State, and, the zealots say, not in any Territory. The proposed compromise is to admit Missouri, and hereafter Arkansas, as States, without any restriction upon them regarding slavery, but to prohibit the future introduction of slaves in all Territories of the United States north of 36º 30' latitude. I told these gentlemen that my opinion was, the question could be settled no otherwise than by a compromise.
Feb.24.I had some conversation with Calhoun on the slave question pending in Congress. He said he did not think it would produce a dissolution of the Union, but, if it should, the South would be from necessity compelled to form an alliance, offensive and defensive, with Great Britain.
I said that would be returning to the colonial state.
He said, yes, pretty much, but it would be forced upon them. I asked him whether he thought, if by the effect of this alliance, offensive and defensive, the population of the North should be cut off from its natural outlet upon the ocean, it would fall back upon its rocks bound hand and foot, to starve, or whether it would not retain its powers of locomotion to move southward by land. Then, he said, they would find it necessary to make their communities all military. I pressed the conversation no further: but if the dissolution of the Union should result from the slave question, it is as obvious as anything that can be foreseen of futurity, that it must shortly afterwards be followed by the universal emancipation of the slaves. A more remote but perhaps not less certain consequence would be the extirpation of the African race on this continent, by the gradually bleaching process of intermixture, where the white portion is already so predominant, and by the destructive progress of emancipation, which, like all great religious and political reformations, is terrible in its means though happy and glorious in its end. Slavery is the great and foul stain upon the North American Union, and it is a contemplation worthy of the most exalted soul whether its total abolition is or is not practicable: if practicable, by what it may be effected, and if a choice of means be within the scope of the object, what means would accomplish it at the smallest cost of human suffering. A dissolution, at least temporary, of the Union, as now constituted, would be certainly necessary . . . [.] The Union might then be reorganized on the fundamental principle of emancipation. This object is vast in its compass, awful in its prospects, sublime and beautiful in its issue.
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Washington, March2, 1820.The compromise of the slave question was this day completed in Congress. The Senate have carried their whole point, barely consenting to the formality of separating the bill for the admission of the State of Maine into the Union from that for authorizing the people of the Territory of Missouri to form a State Government. The condition that slavery should be prohibited by their Constitution, which the House of Representatives had inserted, they have abandoned. Missouri and Arkansas will be slave States, but to the Missouri bill a section is annexed, prohibiting slavery in the remaining part of the Louisiana cession north of latitude 36º 30'. This compromise, as it is called, was finally carried this evening by a vote of ninety to eighty-seven in the House of Representatives, after successive days and almost nights of stormy debate.
March3.When I came this day to my office, I found there a note requesting me to call at one o'clock at the President's house. It was then one, and I immediately went over. He expected that the two bills, for the admission of Maine, and to enable Missouri to make a Constitution, would have been brought to him for his signature, and he had summoned all the members of the Administration to ask their opinions in writing, to be deposited in the Department of State, upon two questions: 1, Whether Congress had a Constitutional right to prohibit slavery in a Territory: and 2, Whether the eighth section of the Missouri bill (which interdicts slavery forever in the Territory north of thirty-six and a half latitude) was applicable only to the Territorial State, or could extend to it after it should become a State.
As to the first question, it was unanimously agreed that Congress have the power to prohibit slavery in the Territories . . . [.] I had no doubt of the right of Congress to interdict slavery in the Territories, and urged that the power contained in the term "dispose of" included the authority to do everything that could be done with it as mere property, and that the additional words, authorizing needful rules and regulations respecting it, must have reference to persons connected with it, or could have no meaning at all. As to the force of the term needful, I observed, it was relative, and must always be supposed to have reference to some end. Needful to what end? Needful in the Constitution of the United States to any of the ends for which that compact was formed. Those ends are declared in its preamble: to establish justice, for example. What can be more needful for the establishment of justice than the interdiction of slavery where it does not exist? . . [.]
After this meeting, I walked home with Calhoun, who said that the principles which I had avowed were just and noble: but that in the Southern country, whenever they were mentioned, they were always understood as applying only to white men. Domestic labor was confined to the blacks, and such was the prejudice, that if he, who was the most popular man in his district, were to keep a white servant in his house, his character and reputation would be irretrievably ruined.
I said that this confounding of the ideas of servitude and labor was one of the bad effects of slavery: but he thought it attended with many excellent consequences. It did not apply to all kinds of labornot, for example, to farming. He himself had often held the plough: so had his father. Manufacturing and mechanical labor was not degrading. It was only manual laborthe proper work of slaves. No white person could descend to that. And it was the best guarantee to equality among the whites. It produced an unvarying level among them. It not only did not excite, but did not even admit of inequalities, by which one white man could domineer over another.
I told Calhoun I could not see things in the same light. It is, in truth, all perverted sentimentmistaking labor for slavery and dominion for freedom. The discussion of this Missouri question has betrayed the secret of their souls. In the abstract they admit that slavery is an evil, they disclaim all participation in the introduction of it, and cast it all upon the shoulders of our old Grandam Britain. But when probed to the quick upon it, they show at the bottom of their souls pride and vainglory in their condition of masterdom. They fancy themselves more generous and noble-hearted than the plain freemen who labor for subsistence. They look down upon the simplicity of a Yankee's manners, because he has no habits of overbearing like theirs and cannot treat negroes like dogs. It is among the evils of slavery that it taints the very sources of moral principle. It establishes false estimates of virtue and vice: for what can be more false and heartless than this doctrine which makes the first and holiest rights of humanity to depend upon the color of the skin? . . [.]
I have favored this Missouri compromise, believing it to be all that could be effected under the present Constitution, and from extreme unwillingness to put the Union at hazard. But perhaps it would have been a wiser as well as a bolder course to have persisted in the restriction upon Missouri, till it should have terminated in a convention of the States to revise and amend the Constitution. This would have produced a new Union of thirteen or fourteen States unpolluted with slavery, with a great and glorious object to effect, namely, that of rallying to their standard the other States by the universal emancipation of their slaves. If the Union must be dissolved, slavery is precisely the question upon which it ought to break. For the present, however, this contest it laid asleep.
* * *
[From Allan Nevins, ed.,
The Diary of John Quincy Adams, 17941845 (1928. New York: Charles Scribner's Sons, 1951), pp. 22532. [Editorial insertions appear in square brackets
Ed.]]
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The Missouri Compromise (1820)
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As the debaters raged on about Missouri, the inhabitants of the territory of Maine submitted their application for statehood. This application provided Congress with a way by which to resolve a major part of the problem, that of balancing slave versus anti-slave state representation in the national legislature. In 1819 the country had eleven slave and eleven free states, and each of these blocks did not want to see the other gain seats and power at their expense. Adams was not the only one to see that such sectional interests threatened the stability and perpetuity of the union: those in Congress who recognized this potential problem grabbed Maine's application and used it to ensure the continuation of the balance that was one part of the compromise. The other part was spelled out in the acts passed that brought Missouri into the union.
MISSOURI ENABLING ACT
March 6, 1820
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An Act to authorize the people of the Missouri territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states, and to prohibit slavery in certain territories.
Be it enacted That the inhabitants of that portion of the Missouri territory included within the boundaries hereinafter designated, be, and they are hereby, authorized to form for themselves a constitution and state government, and to assume such name as they shall deem proper; and the said state, when formed, shall be admitted into the Union, upon an equal footing with the original states, in all respects whatsoever.
SEC. 2. That the said state shall consist of all the territory included within the following boundaries, to wit: Beginning in the middle of the Mississippi river, on the parallel of thirty-six degrees of north latitude; thence west, along that parallel of latitude, to the St. Francois river; thence up, and following the course of that river, in the middle of the main channel thereof, to the parallel of latitude of thirty-six degrees and thirty minutes; thence west, along the same, to a point where the said parallel is intersected by a meridian line passing through the middle of the mouth of the Kansas river, where the same empties into the Missouri river, thence, from the point aforesaid north, along the said meridian line, to the intersection of the parallel of latitude which passes through the rapids of the river Des Moines, making the said line to correspond with the Indian boundary line; thence east, from the point of intersection last aforesaid, along the said parallel of latitude, to the middle of the channel of the main fork of the said river Des Moines; thence down and along the middle of the main channel of the said river Des Moines, to the mouth of the same, where it empties into the Mississippi river; thence, due east, to the middle of the main channel of the Mississippi river; thence down, and following the course of the Mississippi river, in the middle of the main channel thereof, to the place of beginning: . . .
SEC. 3. That all free white male citizens of the United States, who shall have arrived at the age of twenty-one years, and have resided in said territory three months previous to the day of election, and all other persons qualified to vote for representatives to the general assembly of the said territory, shall be qualified to be elected, and they are hereby qualified and authorized to vote, and choose representatives to form a convention. . . .
SEC. 8. That 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, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid.
RESOLUTION FOR THE ADMISSION
OF MISSOURI
March 2, 1821
* * *
Resolution providing for the admission of the State of Missouri into the Union, on a certain condition.
Resolved, That Missouri shall be admitted into this union on an equal footing with the original states, in all respects whatever, upon the fundamental condition, that the fourth clause of the twenty-sixth section of the third article of the constitution [that is, "To permit the owners of slaves to emancipate them, saving the right of creditors, where the person so emancipating will give security that the slave so emancipated shall not become a public charge. It shall be their duty, as soon as may be, to pass such laws as may be necessary1. To prevent free negroes end (and) mulattoes from coming to and settling in this State, under any pretext whatsoever; . . ."] submitted on the part of said state to Congress, shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen, of either of the states in this Union, shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the constitution of the United States: Provided, That the legislature of the said state, by a solemn public act, shall declare the assent of the said state to the said fundamental condition, and shall transmit to the President of the United States, on or before the fourth Monday in November next, an authentic copy of the said act; upon the receipt whereof, the President, by proclamation, shall announce the fact; whereupon, and without any further proceeding on the part of Congress, the admission of the said state into this Union shall be considered as complete.
[From
United States Statutes at Large, 3:545ff, 645.]
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