Charles Sumner.

Validity and necessity of fundamental conditions on states online

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Validity aiul Ncc(!ssil) of Fiimhsmp'it;?! ('oiidilioiis on Slates.






The Senate having under consideration the bill
(H. R. No. 1058) to admit the States of North Caro-
lina, South Carolina, Louisiana, Georgia, and Ala-
bama to representation in Congress —

Mr. SUMNER said :

Mr. President: What I have to say to-day
•win be confined to a single topic. I shall
speak of the validity and necessity of funda-
mental conditions on the admission of States
into the body of the Nation; passing in review
olijections founded on the asserted Equality
of States and also founded on a misinterpret-
ation of the power to determine the "quali-
fications" of electors, and that other power to
make "regulations" for the election of cer-
tain officers. Here 1 shall encounter the fa-
miliar pretensions of another time, no longer
put forth by defiant slave-masters, but retailed
by conscientious Senators, who think they are
supporting the Constitution, when they are
only echoing the voice of slavery.

Fundamental conditions on the .admission of
States are olderthan our Constitution ; for they
appear in the Ordinance for the vast territory
of the Northwest, adopted anterior to the
Constitution itself. In that Ordinance there
are various conditions, of perpetual obligation,
as articles of compact. Among these is the
famous prohibition of slavery. In the early
days of our Nation, nobody thought of ques-
tioning the validity of these conditions. Scat-
tered efforts were made to carry slavery into
some portions of this region, and, unquestion-
ably, there were sporadic cases, as in Massa-
chusetts itself; but the Ordinance stood firm
and unimpeached.

One assurance of its authority will be found
in the historic fact that in 1820, on the admis-
sion of Missouri as a State of the Union, there
was a further provision that in all territory

of the United States north of 3G° 3(y north
latitude, "Slavery and involuntary servitude,
otherwise than in the punishment of crimes,
whereof the parties shall have been duly con-
victed, shall be and hereby is forever prohib-
ited.''^ This was the famous Missouri com-
promise. Missouri was admitted as a State
without any restriction of slavery, and all the
outlying territory west and north was subjected
to this condition fonxver. It will be observed
that the condition was in no respect temporary ;
but that it was "forever," thus outlasting any
territorial Government and constituting a fund-
amental law, irrepealable through all time.
Surely this condition, perpetual in form, would
not have been introduced had it been sup-
posed to be inoperative — had it been regarded
as a sham and not a reality. This statute,
therefore, testifies to the judgment of Congress
at that time.

It was only at a later day, and at the demand of
slavery, that the validity of the great Ordinance
of Freedom was called in question. Mr. Web-
ster, in his memorable debate with Mr. Hayno
in 1830, vindicated this measure in language
worthy of the cause and of himself, giving to
it a palm among the laws by which civilization
has been advanced, and asserting its enduring
character :

"AVo are accustomed, sir, to praise the lawgivers
of antiquity ; we help toperpetuate the fame of Solon
andLycurxus; but I doubt whether one single law
of any lawgiver, ancient or modern, has produced
effects of more distinct, mnrked, and lasting charac-
ter than the ordinance of 1787. It fixed forever the
character of the population inthe vast regions north-
west of tlie Ohio, by excluding from them involun-
tary servitude. It impressed on the soil itself, while
it was yol a wilderness, an incapacity to sustain any
other than freemen. It laid the interdict against per-
gonal servitude, in original compart, not only deeper
than all local law, but deeper alno than all local cyniiti-
tv.liovn."— WrhRter's Wovh;. vol. :>,, p. 2l> t.

/ ^'


Words of greater beauty and power cannot
be found anywhere in the writings or speeches
of our American orator. It would be difficult to
declare the perpetual character of this original
interdict more completely. The language is as
picturesque as truthful. Deeper than all local
law, deeper than all local constitutions, is this
fundamental law ; and such is its essential
quality, that the soil which it protects cannot
sustain any other than freemen. Of such a law
the orator naturally proceeded to say :

"We SCO its consequences at this moment, and we
shall never cease to see them, pcrhaps.while tha-Ohio
shall flow. It xoas a great and salutary measure of
prevention.'' — Ibid. *

In these last words the value of such a law
is declared. It is for prevention, which is an
essential object of all law. In this case it is
the more important, as the evil to be prevented
is the most comprehensive of all.

Therefore, on the authority of Mr. Webster,
in harmony with reason also, do I say, that
this original condition waS not only perpetual
in character, but beneficent also. It was benefi-
cence in perpetuity.

Mr. Chase, in his admirable argument Vje-
fore the Supreme Court of the United States,
in the Van Zandt case, is hardly behind Mr.
Webster in homage to this Ordinance or in a
sense of its binding character. In his opinion
it is a compact of perpetual obligation :

"I know not that history records a sublimer act.
The United Americnn States, haviner just ))rought
their perilous strussle for freedom and independ-
ence to a successful issue, proceeded to declare the
terms and conditions on which thcirvaeant territory
raisht be settled .and organized into States; and
these terms were : not tribute, not render of service,
not subordination of any kind; Jnit the perpctunl
mainlenance of the ijeixiiinc principles of Americnn
libertji, declared to be incompatible inith slavery; and
that thcpc principles might be in viol ably maintained,
they were made the articles of a solemn covenant be-
tween the original States, then the proprietors of the
territory and responsible for its future destiny, and
the people and the States who were to occupy it.
Every settler within the territory, by the very net of
settlement, became a party to this compact, bnuiid by
its perpetual obligalions, and entitled to the full bene-
fits of its excellent provisions for himself an<l his'
posterity. No subsequent act of the original States
could affect it, without his consent. No act of his,
nor of thepeople of the territory, nor of the States estab-
lished within it, could affect it, without the consent of
the original States."

According to these words, which I am sure
would not be disowned by the present Chief
Justice of the United States, the Ordinance
is a sublime act, having for its object nothing
less than the perpetual maintenance of the gen-
uine principles of American liberty. In i'orra
it is a compact, unalterable except by the con-
sent of the parties, and, therefore, /orewer.

If anything in our history is settled by
original authority, supported by tradition and
time, it is the binding character of the
Ordinance for the government of the North-
west Territory. Nobody presumed to call it

in question, until at last Slavery flung down its
challenge to everything that was settled for
Freedom. The great Ordinance, with its pro-
hibition of slavery, was not left unassailed.

All this makes a strange eventful passage of
history. The enlightened civilization of the age
was beginning to be felt against slavery, vi^hen its
representatives turned madly round to confront
the angel of light. The madness showed itself
by degrees. Point by point, it made itself
manifest in Congress. The slave-masters for-
got morals, history, and the Constitution. Their
manifold pretensions resolved themselves into
three, in which the others were absorbed ;
first, that slavery, instead of an evil to be
removed, was a blessing to be preserved ; sec-
ondly, that the right of petition could not be
exercised against slavery ; thirdly, that in all
that concerns slavery State Rights were every-
thing, while National Rights were nothing.
These three pretensions entered into Congress,
like so many devils, and possessed it;. The
first broke forth in eulogies of slavery and even
in blandishments lor the slave trade. The
se.cond broke forth in the "Atherton gag,"
under which the honest, earnest petitions,
from the national heart, against slavery, even
in the District of Columbia, were tabled with-
out reference, and the great right of petition,
promised by the Constitution, became a dead
letter. The third, beginning with the denial
of the power of the Nation to affix upon new
States the perpetual condition of Human Rights,
broke forth in the denial of the power of the
Nation over slavery in the Territories or any-
where else, even within the national jurisdic-
tion. These three pretensions all had a com-
mon origin, and one vv^as as offensive and
unreasonable as the other. The praise of
slavery and the repudiation of the right of
petition Ijy the enraged slave-masters was not
worse than the pretension of State Rights
against the power of the Nation to prohibit
slavery in the national jurisdiction, or to aflix
righteous conditions upon new States.

The first two pretensions have disappeared.
These two devils have been cast out. Nobody
dares to praise slavery ; nobody dares to deny
the right of petition. The third pretension has
disappeared, only so faF as it denied the power
of the Nation over slavery in the Territories;
and we are still doomed to hear, in the name
of State Rights, the old cry against conditions
upon new States. This devil is not yet en-
tirely cast out. Pardon me if I insist upon
putting the national rights over the Territories
and the national rights over new States before
their admission in the same category. These
rights not only go together ; but they are one
and the same. They are not merely compan-
ion and cognate ; but they are identical. The
one is necessarily involved in the other. Pro-
hibition in the Territories is prolonged in con-

' ditions upon new States. The Ordinance of

«)• 1787, which is the great example, asserts the

J perpetuity of all its prohibitions ; and this is

^ the rule alike of law and statesmanship. Vain

^ were its prohibitions, if they fell dead in

^presence of State Rights. The pretension

' is too irrational. The Missouri act takes up

i/the rule asserted in the Ordinance, and declares

^that, in certain territories, slavery shall be

"prohibited forever. A territorial existence,

terminating in State Rights is a short-lived

forever. Only by recognizing the power of

the Nation over the States formed out of the

Territory can this forever have a meaning

above the prattle of childhood or the vaunt of


The whole pretension against the proposed
condition is in the name of State Rights; but
it cannot be doubted that it may be traced
directly to slavery. Shall the pretension be
allowed to prevail, now that slavery has disap-
peared? The principal has fallen; why pre-
serve the incident? The wrong guarded by
this pretension has yielded ; why should not
the pretension yield also? Asserting as I now
do the validity and necessity of the proposed
condition, I would not seem indifferent to the
rights of the States in those proper spheres
appointed for them. Unquestionably States
have rights under the Constitution, which we
are bound to respect; nay more, which are a
source of strength and advantage. It is through
the States that the people everywhere govern
themselves, and our Nation is saved from a
central domination. Here is the appointed
function of the States. They supply the
machinery of local self-government for the
convenience of life, while they ward off the
attempts of an absorbing imperialism. But
there can he no State liights against Human
liights. Because a State, constituting part of
a Nation dedicated to Human Rights, may gov-
ern itself and supply the machinery of local
self-government, it does notfoltow that such a
State may deny Human Rights ivithin its bor-
ders. State Rights, when properly under-
stood, are entirely consistent with the main-
tenance of Human Rights by the Nation.
The State is not humbled when it receives the
mandate of the Nation to do no wrong; nor
can the Nation eiT when it asserts everywhere
within its borders the imperialism of Human
Rights. Against this righteous supremacy all
pretensions of States must disappear as dark-
ness before the King of Day.

The song of State Rights has for its constant
refrain the asserted Equality of the States.
Is it not strange that words so constantly em-
jiloyed, as a cover for pretensions against
Human Rights, cannot be found in the Consti-
tution ? It is true, that by the laws of nations,
all sovereign States, great or small, are equal ;
but this principle has been extended without

authority to States created by the Nation and
made a part of itself. There is but one active
provision in the Constitution which treats the
States as equal, and this provision shows how
this very Equality may be waived. Every
State, large or small, has two Senators, and
the Constitution places this Equality of States
under its safeguard by providing that "no State
without Us consent shall be deprived of its
equal suffrage in \.hQ Senate." But this very
text contains what lawyers might call a "ueg-
gative pregnant," being a negation of the right
to change this rule, with an affirmation that it
may be changed. The State with its consent
may be deprived of its equal suffrage in the
Senate. And this is the whole testimony of the
Constitution to that Equality of States, which is
now asserted in derogation of all compacts or
conditions. It is startling to find how con-
stantly the obvious conclusions from the text*
of the Constitution have been overlooked.
Even in the contemplation of the Constitution
itself, a State may waive its equal suffrage in
the Senate, so as to be represented by a single
Senator only. Of course, all this must depend
on its own consent, in concurrence with the
Nation. Nothing is said of the manner in
which this consent may be given or accepted
by the Nation. But if this important limita-
tion can in any way be made the subject of
agreement or compact, pray, sir, where will
you stop? What other power or prerogative
of the State may not be limited also, especially
where there is nothing in the Constitution
against any such limitation? All this I adduce,
simply by way of illustration. There is no
question now of any limitation in the just
sense of this term. A condition in favor of
Human Rights cannot be a limitation on a
State or on a citizen.

If we look further and see how the senatorial
equality of States obtained recognition in the
Constitution, we shall find now occasion to
admire that facility which has accorded to this
concession so powerful an influence ; and here
the record is explicit. The National Conven-
tion had hardly assembled, when the small
States came forward with their pretensions.
Not content with suffrage in the Senate, they
insisted upon equal suffrage in the House of
Representatives. They had in their favor tlio
rule of the Continental Congress and also of the
Confederation, under which each State enjoyed
one vote. Assuming to be independent sove-
reignties, they had also in tlieir liivor the rule
of International Law. Against tiiesc preten-
sions the large States pleaded the simple rule
of justice, and here the best minds concurred.
On this head the debates of the Convention
are interesting. At an early day, we find Mr.
Madison moving that "the equality of suffrage
established by the Confederation ought not to
prevail in the National Legislature." This

proposition, so consistent with reason, was
.seconded by Goiiverneur Morris, and accord-
ing to the report "being generally relished,"
was about being adopted, when Delaware, by
one of" her voices on the floor, protested, say-
ing, that, in case it were adopted, "it might
become the duty of her delegates to retire from
the Convention." Such was the earliest cry
of secession. GouverneurMorris, while observ-
ing that the valuable assistance of these dele-
gates could not be lost without real concern,
gave his testimony, that "the change pro-
posed was so fundamental an article in a iVcs-
tional Government, that it could not be dis-
pensed with." {Eliot. Debates, vol. 5, p.
135.) Mr, Madison followed by saying very
justly that "whatever reason might have
existed for the equality of suffrage when the
Union was Federal aviong sovereign States,
'it must cease, when a National government
should be put in its place." Franklin, in
similar spirit, reminded the Convention that
the equal suffrage of the States ' ' was submitted
to originally under a conviction of its im-
propriety, inequality, and injustice." {Ibid.,
p, 181.) This Is strong language from the
wise old man ; but very true. Eibridge Gerry,
after depicting the States as intoxicated with
the idea of their sovereignty, said that "the
injustice of allowing each an equal vote was
long insisted on ; that he voted for it ; but that
it was against his judgment and under the
pressure of publrc danger and the obstinancy
of the lesser States." {Ibid., p. 259.) Against
these overwhelming words of Madison, Morris,
Franklin, and Gerry, the delegates from Dela-
ware pleaded nothing more than that without an
equal suffrage, " Delaware would have about
one ninetieth for its share in the general coun-
cils, while Pennsylvania and Virginia would pos-
Gess one third of the whole ;" and New Jersey,
by her delegates, pleaded also that " it would
not be safe for Delaware to allow Virginia six-
teen times as many votes as hei'self." {Ibid.
p. 211.) On" the part of the small States, the
effort was for power disproportioucd to size.
On the part of the large States there was a
protest against the injustice and inequality of
these pretensions, especially in a Government
national in its character. The question was
settled by thegreat compromise of the Constitu-
tution, according to which representation in the
House of Representatives was proportioned to
population, while each State was entitled to
an equal suffrage in the Senate. To this extent
the small States prevailed, and the Senate
ever since has testilaed to the equality of States,
or, rather, according to the language of the
Federalist on this very point, it has been the
" palladium to the residuary sovereignty of
the States." (Federalist, No. 43.) Thus, by
the pertinacity of the small States, was this
concession extorted from the Convention, in

defiance of every argument of justice and
equity, and contrary to the judgment of the best
minds ; and now it is exalted into a universal
rule of constitutional law, before which justice
and equity must hide their faces.

This protracted and recurring conflict in the
Convention is compendiously set forth by our
great authority. Judge Story, when he says,
"it constituted one of the great struggles
between the large and the small States, which
was constantly renewed in the Convention and
impeded it in every step of its progress in the
formation of the Constitution. The struggle
applied to the organization of each branch of
the Legislature. The small States insisted
upon an equality of vote and representation in
each branch ; and the large States upon a vote
in proportion to their relative importance and
population. The small States at length yielded
the point, as to an equality of representation
in the House ; but they in.sisted upon an equal-
ity in the Senate. To this the large States
were unwilling to assent ; and for a time the
States were on this point equally divided."
(1 Story, Commentaries, Vol. 1 | 694.) This
summary is in substantial harmony with my
own abstract of the debates. I present it
because I would not seem in any way to over-
state the case. And here let me add most
explicitly, that I lend no voice to any com-


Online LibraryCharles SumnerValidity and necessity of fundamental conditions on states → online text (page 1 of 2)