previous next

Chapter 2:

  • Meeting of Congress in December, 1849
  • -- the five Acts constituting the Compromise of September, 1850 -- effect of the Compromise in allaying excitement -- Whig and Democratic platforms indorse it -- President Pierce's happy reference to it in his message of December, 1858 -- the repeal of the Missouri Compromise reopens the slavery agitation -- its passage in March, 1820, and character -- its recognition by Congress in 1845, on the annexation of Texas -- the history of its repeal -- this repeal gives rise to the Kansas troubles -- their nature and history -- the Lecompton Constitution and proceedings of Congress upon it -- the Republican party greatly strengthened -- decision of the Supreme Court in the Dred Scott case -- repudiated by the Republican party and by the Douglas Democracy -- sustained by the old Democracy -- the Kansas and Nebraska Act -- the policy and practice of Congress toward the Territories -- abuse of President Buchanan for not adhering to the Cincinnati platform without foundation.

The thirty-first Congress assembled on the first Monday of December, 1849, and they happily succeeded in averting the present danger by the adoption of one of those wise compromises which had previously proved so beneficent to the country.

The first ray of light to penetrate the gloom emanated from the great and powerful State of Pennsylvania. Her House of Representatives refused to consider instructing resolutions in favor of the Wilmot Proviso. Soon thereafter, on the 4th of February, 1850, the House of Representatives at Washington, by a vote of 105 to 75, laid resolutions favoring this proviso upon the table.1 The way was now opened for compromising all the existing questions in regard to slavery.

The bold, eloquent, and patriotic Clay, who, thirty years before, had contributed so much to the passage of the Missouri [22] Compromise, was designated by the voice of the country as the leader in effecting this new Compromise. He did not, in his old age, shrink from the task. In this he was powerfully aided by several of our wisest and most conservative statesmen.

The necessary legislation for this purpose was accomplished in September, 1850, by the passage of five distinct acts of Congress These were: 1. ‘An Act to amend and supplementary to’ the old Fugitive Slave Law of the 12th of February, 1793.2 This provided for the appointment of as many Commissioners by the Courts of the United States as the public convenience might require to supply the place of the State magistrates who had, as heretofore explained, been forbidden to carry into effect the mandate of the Constitution for the restoration of fugitive slaves. The chief object was to make the Federal Government independent of State assistance in the execution of the law.

2. An Act for the admission of California, as a free State, into the Union, embracing its entire territory, as well that south as north of the Missouri Compromise line.3

3 and 4. Acts for establishing Territorial Governments in New Mexico and Utah, under which both these Territories were to be admitted as States into the Union, ‘with or without slavery as their respective Constitutions might provide.’4 From abundant but wise caution, the first of these Acts declared, in conformity with the Constitution, that ‘no citizen of the United States shall be deprived of his life, liberty, or property in said Territory, except by the judgment of his peers and the laws of the land.’ These two Acts, in addition to the old Missouri Compromise, embraced all our remaining Territories, whether derived from Mexico or France. They terminated the agitation on the Wilmot Proviso, by depriving it of any territory on which it could operate.

The Act establishing the Territory of New Mexico provided also for annexing to it all that portion of Texas lying [23] north of 36° 30′ thus withdrawing it from the jurisdiction of a slave State.

5. An Act was passed to abolish the domestic slave trade within the District of Columbia.5

These five Acts constituted the famous Compromise of September, 1850. At the first, this Compromise was condemned both by extreme abolitionists at the North and by extreme secessionists in the South. By the abolitionist, because it tolerated slavery in New Mexico, and provided for the due execution of the Fugitive Slave Law; and by the secessionists, because it admitted the great State of California as a free State into the Union, and this notwithstanding a considerable part of it lies south of the Missouri line. Nevertheless, it gradually made its way to public favor, and was hailed by the conservative masses, both North and South, as a wise and judicious arrangement. So far had it enlisted the general approval, that in June, 1852, the National Conventions of both the Democratic and Whig parties bestowed upon it their approbation, and expressed their determination to maintain it. They both resolved, to employ the language of the Democratic platform, that they would ‘resist all attempts at renewing, in Congress or out of it, the slavery agitation, under whatever shape or color the attempt maybe made.’6

On this subject the Whig platform is specific and emphatic. Its eighth and last resolution is as follows:7

‘That the series of Acts of the thirty-second Congress, the Act known as the Fugitive Slave Law included, are received and acquiesced in by the Whig party of the United States as a settlement in principle and substance of the dangerous and exciting questions which they embrace; and, so far as they are concerned, we will maintain them and insist upon their strict enforcement, until time and experience shall demonstrate the necessity of further legislation to guard against the evasion of the laws on the one hand, and the abuse of their powers on the other —not impairing their present efficiency; and we deprecate all further agitation of the question thus settled, as dangerous to [24] our peace, and will discountenance all efforts to continue or renew such agitation, whenever, wherever, or however the attempt may be made; and we will maintain the system as essential to the nationality of the Whig party and the integrity of the Union.’

When Congress assembled, after the election of President Pierce, on the first Monday of December, 1853, although the abolition fanatics had not ceased to agitate, crimination and recrimination between the sectional parties had greatly subsided, and a comparative political calm everywhere prevailed. President Pierce, in his annual message, felicitously referred to the ‘sense of repose and security to the public mind throughout the Confederacy,’ and pledged himself ‘that this repose should suffer no shock during his official term,’ if he had the power to avert it.

The Compromise of 1850 ought never to have been disturbed by Congress. After long years of agitation and alarm, the country, under its influence, had enjoyed a season of comparative repose, inspiring the people with bright hopes for the future.

But how short-lived and delusive was this calm! The very Congress which had commenced so auspiciously, by repealing the Missouri Compromise before the end of its first session, reopened the floodgates of sectional strife, which, it was fondly imagined, had been closed forever. This has ever since gone on increasing in violence and malignity, until it has involved the country in the greatest and most sanguinary civil war recorded in history.

And here it is necessary, for a correct understanding of the subject, to refer to the origin, the nature, and the repeal of this celebrated Compromise.

It was passed on the 6th of March, 1820, after a long and violent struggle in Congress between the friends and the opponents of what was then called the Missouri restriction.8 This proposed to require from Missouri, as a condition precedent to her admission as a State, that she should ‘ordain and establish that there shall be neither slavery nor involuntary servitude’ therein, except as a punishment for crime. [25]

Under the Compromise as finally effected, whilst the restrictionists were obliged to submit to the existence of slavery in Missouri, they obtained, on their part, a guarantee for perpetual freedom throughout the vast remaining territory north of the parallel of 36° 30′, which had been acquired from France under the Louisiana Treaty.9 These were the equivalents reciprocally granted and accepted by the opposing parties.

This guarantee is to be found in the 8th section of the Act authorizing the people of the then Missouri Territory to form a Constitution and State Government, preparatory to admission as a State into the Union.10 It is embraced in the following language: ‘That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of 36° 30′ north latitude, not included within the limits of the State [Missouri] 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 labor 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 labor or service as aforesaid.’

The Missouri Compromise finally passed Congress by large majorities. On a test question in the Senate on the 2d March, 1820, the vote in its favor was 27 against 15; and in the House, on the same day, it was 134 against 42. Its wisdom and policy were recognized by Congress, a quarter of a century afterwards, in March, 1845, when Texas, being a slave State, was annexed to the Union. Acting on the presumption that several new States might be formed out of her territory, one of the express conditions of her annexation was, that in such of these States as might lie north of the Missouri Compromise line, slavery shall be prohibited.11

The Missouri Compromise had remained inviolate for more than thirty-four years before its repeal. It was a covenant of peace between the free and the slaveholding States. Its authors [26] were the wise and conservative statesmen of a former generation. Although it had not silenced anti-slavery discussion in other forms, yet it soon tranquillized the excitement which for some months previous to its passage had convulsed the country in regard to slavery in the Territories. It is true that the power of a future Congress to repeal any of the Acts of its predecessors, under which no private rights had been vested, cannot be denied; still the Missouri Compromise, being in the nature of a solemn compact between conflicting parties, whose object was to ward off great dangers from the Union, ought never to have been repealed by Congress.

The question of its constitutionality ought to have been left to the decision of the Supreme Court, without any legislative intervention. Had this been done, and the Court had decided it to be a violation of the Constitution, in a case arising before them in the regular course of judicial proceedings, the decision would have passed off in comparative silence, and produced no dangerous excitement among the people.

Let us briefly sketch the history of this repeal, which was the immediate cause of our present troubles.

Senator Douglas, on the 4th January, 1854, reported a bill from the Committee on Territories, to establish a Territorial Government in Nebraska.12 This bill was silent in regard to the Missouri Compromise. It was nearly in the usual form, and would have doubtless passed, with but little, if any, opposition. Before it was reached in order, the Whig Senator Dixon, of Kentucky, on the 16th January, gave notice that when it should come before the Senate, he would move to add to it a section repealing the Missouri Compromise, not only in regard to Nebraska, but all other Territories of the United States.13 A few days thereafter, on the 23d January, the Committee on Territories, through Mr. Douglas, their chairman, offered a substitute for the original bill14. This, after dividing Nebraska into two Territories, the one still bearing that name, and the other the name of Kansas, proceeded to annul the Missouri Compromise in regard to these and all our other Territories. With this [27] Mr. Dixon expressed himself ‘perfectly satisfied.’15 Such is the origin of what has since been familiarly called ‘the Kansas and Nebraska Bill.’

On the question of repeal, a long and angry debate arose in both Houses of Congress. This consumed a large portion of tie session, and exasperated the contending parties to a degree never before witnessed. The opponents of the bill openly and violently predicted imminent danger to the peace of the Union from its passage, whilst its advocates treated any such danger with proud and indignant disdain.

The bill finally passed both Houses on the 25th, and was approved by President Pierce on the 30th May, 1854.

It was ominous of evil that every Southern Senator present, whether Whig or Democrat, without regard to past political distinctions, voted for the repeal, with the exception of Mr. Bell, of Tennessee, and Mr. Clayton, of Delaware, who voted against it; and that every Northern Democratic Senator present, uniting with the South, also voted for the repeal, with the exception of Messrs. Allen and James, of Rhode Island, and Mr. Walker, of Wisconsin, who voted against it.16

The repeal was accomplished in the following manner: The 14th section of this bill, whilst extending the laws of the United States over Kansas and Nebraska, excepts there from ‘the 8th section of the Act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which, being inconsistent with the principle of non-intervention by Congress with slavery in the States and Territories, as recognized by the legislation of 1850, commonly called the Compromise measures, is hereby declared inoperative and void; it being the true intent and meaning of this Act not to legislate slavery into any Territory or State, nor to exclude it there from, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.’

It is impossible to conceive how it could be inferred that the Compromise of 1850, on the question of slavery in the territories. Would be inconsistent with the long previous Missouri Compromise [28] of 1820; because each applied to distinct and separate portions of our territorial domain. Whilst the Missouri Compromise was confined to the territory acquired from France under the Louisiana purchase, that of 1850 provided only for the new territory long afterwards acquired from Mexico under the treaty of Guadalupe Hidalgo. The Compromise measures of 1850 contain no words to repeal or invalidate the Missouri Compromise. On the contrary, they expressly recognize it, as we have already seen, in the Act providing for the cession of a portion of Texas to New Mexico.

After a careful review of the history of the anti-slavery party, from its origin, the candid inquirer must admit that up till this period it had acted on the aggressive against the South. From the beginning it had kept the citizens of the slaveholding States in constant irritation, as well as serious apprehension for their domestic peace and security. They were the assailed party, and had been far more sinned against than sinning. It is true, they had denounced their assailants with extreme rancor and many threats; but had done nothing more. In sustaining the repeal of the Missouri Compromise, however, the Senators and Representatives of the Southern States became the aggressors themselves, and thereby placed the country in an alarming and dangerous condition from which it has never since been rescued.

The repeal of the Missouri Compromise having entirely removed the interdict against slavery in all our territories north of 36° 30′, the struggle immediately commenced in Kansas between the anti-slavery and pro-slavery parties. On this theatre the extreme men of both sections were brought into mortal conflict. Each party hurried emigrants to the Territory;—the one intent upon making it a free, the other, though in violation of the laws of climate, upon making it a slave State. The one strenuously contended that slavery, under the Constitution, was local in its character and confined to the States where it existed; and, therefore, if an emigrant passed into the Territory with his slaves, these became instantly free. The other maintained, with equal zeal, that slaves were recognized as property by the Constitution, and consequently their masters had a right to take them to Kansas and hold them there, under its guarantees, like [29] any other property. Besides, the South insisted that without this right the equality of the States within their common territory was destroyed, and they would be degraded from the rank of equals to that of inferiors.

It was not long until a fierce and vindictive war arose in Kansas between the opposing parties. In this, scenes of bloodshed and rapine were enacted by both parties, disgraceful to the American character. It is not our purpose to recapitulate these sad events.

Whilst the pro-slavery party in the Territory sustained the Government in all its branches which had been established over it by Congress, the anti-slavery party repudiated it. They contended that frauds and violence had been committed in the election of members to the Territorial Legislature sufficient to render its enactments a nullity. For this reason they had held a Convention at Topeka, had framed a State Constitution, had elected their own Governor and Legislature to take the place of those in the actual administration of. the Territorial Government, and had applied to Congress for admission into the Union.

Such were the first bitter fruits of repealing the Missouri interdict against slavery north of 36° 30′, and thus opening the Territory of Kansas to the admission of slaves.

It cannot be doubted that frauds and violence had been committed in this election; but whether sufficient to render it a nullity was a question for Congress to decide. After a long and violent struggle, Congress had decided this question by finally rejecting the application for the admission of Kansas as a State into the Union under the Topeka Constitution, and by recognizing the authority of the Territorial Government.

Such was the condition of Kansas when Mr. Buchanan entered upon the duties of the Presidential office. All these proceedings had taken place during the session of Congress (1856-7) which terminated immediately before his inauguration. It will be admitted that he possessed no power to go behind the action of Congress and adjudge it to be null and void. In fact, he had no alternative but to sustain the Territorial Government.

A new era was now commencing with the accession of President Buchanan, and he indulged the hope that the anti-slavery [30] party would abandon their hostility to the Territorial Government and obey the laws. In this he was encouraged by the fact, that the Supreme Court had just decided that slavery existed in Kansas under the Constitution of the United States, and consequently the people of that Territory could only relieve themselves from it by electing anti-slavery delegates to the approaching Lecompton Convention, in sufficient number to frame a free State Constitution preparatory to admission into the Union. They could no longer expect ever to be admitted as a State under the Topeka Constitution. The thirty-fourth Congress had just expired, having recognized the legal existence of the Territorial Legislature in a variety of forms which need not be enumerated.17 The Delegate elected under a Territorial law to the House of Representatives had been admitted to his seat, and had completed his term of service on the day previous to Mr. Buchanan's inauguration.

In this reasonable hope the President was destined to disappointment. The anti-slavery party, during a period of ten months, from the 4th of March, 1857, until the first Monday of January, 1858, continued to defy the Territorial Government and to cling to their Topeka organization. The first symptom of yielding was not until the latter day, when a large portion of them voted for State officials and a member of Congress under the Lecompton Constitution. Meanwhile, although actual war was suspended between the parties, yet the peace was only maintained by the agency of United States troops. ‘The opposing parties still stood in hostile array against each other, and any accident might have relighted the flames of civil war. Besides, at this critical moment, Kansas was left without a Governor, by the resignation of Governor Geary.’

Soon after the inauguration an occasion offered to Mr. Buchanan to define the policy he intended to pursue in relation to Kansas. This was in answer to a memorial presented to him by forty-three distinguished citizens of Connecticut, a number of them being eminent divines. The following we extract from his letter dated at Washington, August 15, 1857: 18 [31]

When I entered upon the duties of the Presidential office, on the fourth of March last, what was the condition of Kansas t This Territory had been organized under the Act of Congress of 30th May, 1854, and the government in all its branches was in full operation. A governor, secretary of the Territory, chief justice, two associate justices, a marshal, and district attorney had been appointed by my predecessor, by and with the advice and consent of the Senate, and were all engaged in discharging their respective duties. A code of laws had been enacted by the Territorial Legislature; and the judiciary were employed in expounding and carrying these laws into effect. It is quite true that a controversy had previously arisen respecting the validity of the election of members of the Territorial Legislature and of the laws passed by them; but at the time I entered upon my official duties Congress had recognized this Legislature in different forms and by different enactments. The delegate elected to the House of Representatives, under a Territorial law, had just completed his term of service on the day previous to my inauguration. In fact, I found the government of Kansas as well established as that of any other Territory. Under these circumstances, what was my duty? Was it not to sustain this government? to protect it from the violence of lawless men, who were determined either to rule or ruin? to prevent it from being overturned by force in the language of the Constitution, to “take care that the laws be faithfully executed” ? It was for this purpose, and this alone, that I ordered a military force to Kansas to act as a posse comitatus in aiding the civil magistrate to carry the laws into execution. The condition of the Territory at the time, which I need not portray, rendered this precaution absolutely necessary. In this state of affairs, would I not have been justly condemned had I left the marshal and other officers of a like character impotent to execute the process and judgments of courts of justice established by Congress, or by the Territorial Legislature. under its express authority, and thus have suffered the government itself to become an object of contempt in the eyes of the people? And yet this is what you designate as forcing “the people of Kansas to obey laws not their own, nor of the United States;” and for doing which you have denounced [32] me as having violated my solemn oath. I ask, what else could I have done, or ought I to have done I Would you have desired that I should abandon the Territorial government, sanctioned as it had been by Congress, to illegal violence, and thus renew the scenes of civil war and bloodshed which every patriot in the country had deplored? This would, indeed, have been to violate my oath of office, and to fix a damning blot on the character of my administration.

I most cheerfully admit that the necessity for sending a military force to Kansas to aid in the execution of the civil law, reflects no credit upon the character of our country. But let the blame fall upon the heads of the guilty. Whence did this necessity arise? A portion of the people of Kansas, unwilling to trust to the ballot-box—the certain American remedy for the redress of all grievances—undertook to create an independent government for themselves. Had this attempt proved successful, it would of course have subverted the existing government, prescribed and recognized by Congress, and substituted a revolutionary government in its stead. This was a usurpation of the same character as it would be for a portion of the people of Connecticut to undertake to establish a separate government within its chartered limits for the purpose of redressing any grievance, real or imaginary, of which they might have complained against the legitimate State government. Such a principle, if carried into execution, would destroy all lawful authority and produce universal anarchy.

And again: ‘I thank you for the assurances that you will “not refrain from the prayer that Almighty God will make my administration an example of justice and beneficence.” You can greatly aid me in arriving at this blessed consummation, by exerting your influence in allaying the existing sectional excitement on the subject of slavery, which has been productive of much evil and no good, and which, if it could succeed in attaining its object, would ruin the slave as well as his master. This would be a work of genuine philanthropy. Every day of my life I feel how inadequate I am to perform the duties of my high station without the continued support of Divine Providence yet, placing my trust in Him and in Him alone, I entertain [33] a good hope that He will enable me to do equal justice to all portions of the Union, and thus render me an humble instrument in restoring peace and harmony among the people of the several States.’

This answer, at the time, appeared to give general satisfaction.

Soon after the 4th of March, 1857, Mr. Robert J. Walker was appointed Governor, and Mr. Frederick P. Stanton Secretary of the Territory of Kansas. The great object in view was to prevail upon the Anti-Slavery party to unite with their opponents in framing a State Constitution for Kansas, leaving the question to be decided at the ballot-box whether it should enter the Union as a free or as a slave State. Accordingly the Governor was instructed to take care that the election for delegates to the convention should be held and conducted with perfect fairness to both parties, so that the genuine voice of the people might be truly heard and obeyed. This duty he performed with fidelity and ability, but unfortunately without success.

The laws which had been passed by the Territorial Legislature providing for this election are liable to no just exception. The President, speaking on this subject in his message of 2d of February, 1858, transmitting the Kansas Constitution to Congress, employs the following language:

It is impossible that any people could have proceeded with more regularity in the formation of a constitution than the people of Kansas have done. It was necessary, first, to ascertain whether it was the desire of the people to be relieved from their territorial dependence and establish a State government. For this purpose the Territorial Legislature, in 1855, passed a law “for taking the sense of the people of this Territory upon the expediency of calling a convention to form a State constitution” at the general election to be held in October, 1856. The “sense of the people” was accordingly taken, and they decided in favor of a convention. It is true that at this election the enemies of the territorial government did not vote, because they were then engaged at Topeka, without the slightest pretext of lawful authority, in framing a constitution of their own for the purpose of subverting the territorial government. [34]

In pursuance of this decision of the people in favor of a convention, the Territorial Legislature, on the 27th day of February, 1857, passed an act for the election of delegates on the third Monday of June, 1857, to frame a State constitution. This law is as fair in its provisions as any that ever passed a legislative body for a similar purpose. The right of suffrage at this election is clearly and justly defined. Every bona fideinhabitant of the Territory of Kansas' on the third Monday of June, the day of the election, who was a citizen of the United States, above the age of twenty-one, and had resided therein for three months previous to that date, was entitled to vote. In order to avoid all interference from neighboring States or Territories with the freedom and fairness of the election, provision was made for the registry of the qualified voters; and in pursuance thereof pine thousand two hundred and fifty-one voters were registered.

The great object was to convince these 9,251 qualified electors that they ought to vote in the choice of delegates to the convention, and thus terminate the controversy by the will of the majority.

The Governor urged them to exercise their right of suffrage; but in vain. In his Inaugural Address of the 27th of May, 1857, he informed them that, ‘Under our practice, the preliminary act of framing a State constitution is uniformly performed through the instrumentality of a convention of delegates chosen by the people themselves. That convention is now about to be elected by you under the call of the Territorial Legislature, created and still recognized by the authority of Congress, and clothed by it, in the comprehensive language of the organic law, with full power to make such an enactment. The Territorial Legislature, then, in assembling this convention, were fully sustained by the Act of Congress, and the authority of the convention is distinctly recognized in my instructions from the President of the United States.’ The Governor proceeded to warn them, clearly and distinctly, what would be the consequences, if they should not participate in the election. ‘The people of Kansas, then,’ he says, ‘are invited by the highest authority known to the Constitution, to participate, freely and fairly, in [35] the election of delegates to frame a Constitution and State Government. The law has performed its entire appropriate function when it extends to the people the right of suffrage, but cannot compel the performance of that duty. Throughout our whole Union, however, and wherever free government prevails, those who abstain from the exercise of the right of suffrage authorize those who do vote to act for them in that contingency; and the absentees are as much bound, under the law and Constitution, where there is no fraud or violence, by the act of the majority of those who do vote, as if all had participated in the election. Otherwise, as voting must be voluntary, self-government would be impracticable, and monarchy or despotism would remain as the only alternative.’

‘This was the propitious moment,’ said the President,

for settling all difficulties in Kansas. This was the time for abandoning the revolutionary Topeka organization, and for the enemies of the existing government to conform to the laws, and to unite with its friends in framing a State Constitution. But this they refused to do, and the consequences of their refusal to submit to lawful authority and vote at the election of delegates may yet prove to be of a most deplorable character. Would that the respect for the laws of the land which so eminently distinguished the men of the past generation could be revived I It is a disregard and violation of law which have for years kept the Territory of Kansas in a state of almost open rebellion against its government. It is the same spirit which has produced actual rebellion in Utah. Our only safety consists in obedience and conformity to law. Should a general spirit against its enforcement prevail, this will prove fatal to us as a nation. We acknowledge no master but the law; and should we cut loose from its restraints, and every one do what seemeth good in his own eyes, our case will indeed be hopeless.

The enemies of the territorial government determined still to resist the authority of Congress. They refused to vote for delegates to the convention, not because, from. circumstances which I need not detail, there was an omission to register the comparatively few voters who were inhabitants of certain counties of Kansas in the early spring of 1857, but because they had [36] predetermined, at all hazards, to adhere to their revolutionary organization, and defeat the establishment of any other constitution than that which they had framed at Topeka. The election was, therefore, suffered to pass by default; but of this result the qualified electors who refused to vote can never justly complain.

A large majority, therefore, of Pro-Slavery delegates were elected members of the convention.

‘From this review, it is manifest that the Lecompton Convention, notwithstanding the refusal of the Anti-Slavery party to vote, was legally constituted and was invested with power to frame a constitution.’

It has been urged that these proceedings were in violation of the sacred principle of popular sovereignty. ‘But in what manner,’ said the President, ‘is popular sovereignty to be exercised in this country, if not through the instrumentality of established law? In certain small republics of ancient times the people did assemble in primary meetings, passed laws, and directed public affairs. In our country this is manifestly impossible. Popular sovereignty can be exercised here only through the ballot-box; and if the people will refuse to exercise it in this manner, as they have done in Kansas at the election of delegates, it is not for them to complain that their rights have been violated.’

Throughout the intervening period, and for some time thereafter, Kansas was in a dreadful condition. To illustrate this, we shall transcribe several paragraphs from the President's Message.19 He says, that

A great delusion seems to pervade the public mind in relation to the condition of parties in Kansas. This arises from the difficulty of inducing the American people to realize the fact that any portion of them should be in a state of rebellion against the Government under which they live. When we speak of the affairs of Kansas, we Are apt to refer merely to the existence of two violent political parties in that Territory, divided on the question of slavery, just as we speak of such parties in the States. This presents no adequate idea of [37] the true state of the case. The dividing line there is not between two political parties, both acknowledging the lawful existence of the government, but between those who are loyal to this government, and those who have endeavored to destroy its existence by force and by usurpation—between those who sustain and those who have done all in their power to overthrow the territorial government established by Congress. This government they would long since have subverted, had it not been protected from their assaults by the troops of the United States. Such has been the condition of affairs since my inauguration. Ever since that period a large portion of the people of Kansas have been in a state of rebellion against the government, with a military leader at their head of a most turbulent and dangerous character. They have never acknowledged, but have constantly renounced and defied the government to which they owe allegiance, and have been all the time in a state of resistance against its authority. They have all the time been endeavoring to subvert it, and to establish a revolutionary government, under the so-called Topeka Constitution, in its stead. Even at this very moment the Topeka Legislature is in session. Whoever has read the correspondence of Governor Walker with the State Department, recently communicated to the Senate, will be convinced that this picture is not overdrawn. He always protested against the withdrawal of any portion of the military force of the United States from the Territory, deeming its presence absolutely necessary for the preservation of the regular government and the execution of the laws. In his very first despatch to the Secretary of State, dated June 2, 1857, he says: “The most alarming movement, however, proceeds from the assembling on the 9th of June of the so-called Topeka Legislature, with a view to the enactment of an entire code of laws. Of course it will be my endeavor to prevent such a result, as it would lead to inevitable and disastrous collision, and, in fact, renew the civil war in Kansas.” This was with difficulty prevented by the efforts of Governor Walker; but soon thereafter, on the 14th of July, we find him requesting General Harney to furnish him a regiment of dragoons to proceed to the city of Lawrence, and this for the reason that he had received authentic [38] intelligence, verified by his own actual observation, that a dangerous rebellion had occurred, “involving an open defiance of the laws and the establishment of an insurgent government in that city.”

In the Governor's despatch of July 15, he informs the Secretary of State “that this movement at Lawrence was the beginning of a plan, originating in that city, to organize insurrection throughout the Territory; and especially in all towns, cities, or counties where the Republican party have a majority. Lawrence is the hot-bed of all the abolition movements in this Territory. It is the town established by the abolition societies of the east; and whilst there are respectable people there, it is filled by a considerable number of mercenaries who are paid by abolition societies to perpetuate and diffuse agitation throughout Kansas, and prevent a peaceful settlement of this question. Having failed in inducing their own so-called Topeke State Legislature to organize this insurrection, Lawrence has commenced it herself, and, if not arrested, the rebellion will extend throughout the Territory.”

And again: “ In order to send this communication immediately by mail, I must close by assuring you that the spirit of rebellion pervades the great mass of the Republican party of this Territory, instigated, as I entertain no doubt they are, by eastern societies, having in view results most disastrous to the Government and to the Union; and that the continued presence of General Harney here is indispensable, as originally stipulated by me, with a large body of dragoons and several batteries.”

On the 20th July, 1857, General Lane, under the authority of the Topeka Convention, undertook, as Governor Walker informs us, “ to organize the whole so-called free State party into volunteers, and to take the names of all who refuse enrolment. The professed object is to protect the polls, at the election in August, of the new insurgent Topeka State Legislature. The object of taking the names of all who refuse enrolment is to terrify the free State conservatives into submission. This is proved by recent atrocities committed on such men by Topekaites. The speedy location of large bodies of regular troops here, with two batteries, is necessary. The Lawrence insurgents await the [39] development of this new revolutionary military organization, ” etc., etc.

In the Governor's despatch of July 27th, he says that “General Lane and his staff everywhere deny the authority of the territorial laws, and counsel a total disregard of these enactments.”

Without making further quotations of a similar character from other despatches of Governor Walker, it appears by a reference to Mr. Stanton's communication to General Cass, of the 9th of December last, that the “important step of calling the [Territorial] Legislature together was taken after I [he] had become satisfied that the election ordered by the Convention on the 21st instant [December] could not be conducted without collision and bloodshed.” So intense was the disloyal feeling among the enemies of the government established by Congress, that an election which afforded them an opportunity, if in the majority, of making Kansas a free State, according to their own professed desire, could not be conducted without collision and bloodshed!

The truth is, that, up till the present moment, the enemies of the existing government still adhere to their Topeka revolutionary constitution and government. The very first paragraph of the message of Governor Robinson, dated on the 7th of December, to the Topeka Legislature; now assembled at Lawrence, contains an open defiance of the Constitution and laws of the United States. The Governor says: “The Convention which framed the constitution at Topeka originated with the people of Kansas Territory. They have adopted and ratified the same twice by a direct vote, and also indirectly through two elections of State officers and members of the State Legislature. Yet it has pleased the administration to regard the whole proceeding as revolutionary.”

The Topeka government, adhered to with such treasonable pertinacity, is a government in direct opposition to the existing government prescribed and recognized by Congress. It is a usurpation of the same character as it would be for a portion of the people of any State of the Union to undertake to establish a separate government, within its limits, for the purpose of redressing [40] any grievance, real or imaginary, of which they might complain against the legitimate State Government. Such a principle, if carried into execution, would destroy all lawful authority and produce universal anarchy.

From this statement of facts, the reason becomes palpable why the enemies of the government authorized by Congress have refused to vote for delegates to the Kansas Constitutional Convention, and, also, afterwards on the question of slavery submitted by it to the people. It is because they have ever refused to sanction or recognize any other constitution than that framed at Topeka.

The Convention, thus lawfully constituted, met for the second time on the 4th of September, and proceeded to frame a constitution, and finally adjourned on the 7th day of November, 1857.20 A large majority of its members, in consequence of the refusal of the Anti-Slavery electors to vote for delegates, were in favor of establishing slavery. The Convention having refused to submit the whole constitution to the people, in opposition to the desire of the President, determined finally to submit to them only the all—important question whether slavery should or should not exist in the new State. This they were required to do under the true construction of the Kansas and Nebraska Act, and without this the constitution would have encountered his decided opposition. It was not, however, until the last moment, and this after an angry and excited debate, that the Convention, by a majority of only three, determined to submit this question to a popular vote. Acting on the authority of former precedents, and considering that all other parts of the constitution had been finally adopted, they therefore submitted the question of slavery alone to the people, at an election to be held on the 21st December, 1857. For this purpose they provided that, before the constitution adopted by the Convention ‘shall be sent to Congress asking for admission into the Union as a State,’ an election shall be held to decide this question, at which all the white male inhabitants of the Territory should be entitled to vote. They were to vote by ballot; and ‘the ballots [41] cast at said election shall be indorsed “Constitution with slavery,” and “Constitution with no slavery.” ’

‘Here, again,’ says the President, ‘a fair opportunity was presented to the adherents of the Topeka Constitution, if they were the majority, to decide this exciting question “in their own way,” and thus restore peace to the distracted Territory; but they again refused to exercise their right of popular sovereignty, and again suffered the election to pass by default.’ In consequence, the result, according to the report of J. Calhoun, the President of the Convention, was 6,226 votes in favor of slavery, and but 569 against it.

The constitution thus adopted bad provided for holding an election on the first Monday of January, 1858, for ‘a Governor, Lieutenant-Governor, Secretary of State, State Treasurer, and members of the Legislature, and also a member of Congress.’ The election was peaceably conducted under the instructions of the President. A better spirit now prevailed among the opponents of the Lecompton Constitution, and they no longer refrained from voting. A large majority of them, by a strange but happy inconsistency, recognized its existence by voting under its provisions.21

This election was warmly contested by the two political parties in Kansas, and a greater vote was polled than at any previous election. A large majority of the members of the Legislature elect belonged to that party which had previously refused to vote. The Anti-Slavery party were thus placed in the ascendant, and the political power of the State was in their hands,

The President hailed this evidence of returning reason as an auspicious event. It had been his constant effort from the beginning to induce the Anti-Slavery party to vote. Now that this had been accomplished, he knew that all revolutionary troubles in Kansas would speedily terminate. A resort to the ballot box, instead of force, was the most effectual means of restoring peace and tranquillity.

It was after all these events had transpired, that the President, [42] on the 30th January, 1858, received the Lecompton Constitution, with a request from the President of the Convention that it might be submitted to the consideration of Congress. This was done by the message of the 2d February, 1858, from which we have already made several extracts. In this the President recommended the admission of Kansas as a State under the Lecompton Constitution. He says:

The people of Kansas have, then, “in their own way,” and in strict accordance with the organic act, framed a constitution and State Government; have submitted the all-important question of slavery to the people, and have elected a governor, a member to represent them in Congress, members of the State Legislature, and other State officers. They now ask admission into the Union under this constitution, which is republican in its form. It is for Congress to decide whether they will admit or reject the State which has thus been created. For my own part, I am decidedly in favor of its admission, and thus terminating the Kansas question. This will carry out the great principle of non-intervention recognized and sanctioned by the organic act, which declares in express language in favor of non-intervention by Congress with slavery in the States or Territories, leaving “the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.” In this manner, by localizing the question of slavery and confining it to the people whom it immediately concerned, every patriot anxiously expected that this question would be banished from the halls of Congress, where it has always exerted a baneful influence throughout the whole country.

If Congress, for the sake of those men who refused to vote for delegates to the convention when they might have excluded slavery from the constitution, and who afterwards refused to vote on the 21st December last, when they might, as they claim, have stricken slavery from the constitution, should now reject the State because slavery remains in the constitution, it is manifest that the agitation on this dangerous subject will be renewed in a more alarming form than it has ever yet assumed.

As a question of expediency, after the right [of admission] has been maintained, it may be wise to reflect upon the benefits [43] to Kansas and to the whole country which would result from its immediate admission into the Union, as well as the disasters which may follow its rejection.. Domestic peace will be the happy consequence of its admission, and that fine Territory, which has hitherto been torn by dissensions, will rapidly increase in population and wealth, and speedily realize the blessings and the comforts which follow in the train of agricultural and mechanical industry. The people will then be sovereign, and can regulate their own affairs in their own way. If a majority of them desire to abolish domestic slavery within the State, there is no other possible mode by which this can be effected so speedily as by prompt admission. The will of the majority is supreme and irresistible when expressed in an orderly and lawful manner. They can make and unmake constitutions at pleasure. It would be absurd to say that they can impose fetters upon their own power which they cannot afterwards remove. If they could do this, they might tie their own hands for a hundred as well as for ten years. These are fundamental principles of American freedom, and are recognized, I believe, in some form or other, by every State constitution; and if Congress, in the act of admission, should think proper to recognize them, I can perceive no objection to such a course. This has been done emphatically in the constitution of Kansas. It declares in the bill of rights that all political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit, and therefore they have at all times an inalienable and indefeasible right to alter, reform, or abolish their form of government in such manner as they may think proper. The great State of New York is at this moment governed under a constitution framed and established in direct opposition to the mode prescribed by the previous constitution. If, therefore, the provision changing the Kansas constitution after the year one thousand eight hundred and sixty-four, could by possibility be construed into a prohibition to make such a change previous to that period, this prohibition would be wholly unavailing. The Legislature already elected may, at its very first session, submit the question to a vote of the people whether they will or will not have a convention to amend their [44] constitution, and adopt all necessary means for giving effect to the popular will.

Every patriot in the country had indulged the hope that the Kansas and Nebraska Act would put a final end to the slavery agitation, at least in Congress, which had for more than twenty years convulsed the country and endangered the Union. This act involved great and fundamental principles, and if fairly carried into effect will settle the question. Should the agitation be again revived, should the people of the sister States be again estranged from each other with more than their former bitterness, this will arise from a cause, so far as the interests of Kansas are concerned, more trifling and insignificant than has ever stirred the elements of a great people into commotion. To the people of Kansas, the only practical difference between admission or rejection depends simply upon the fact whether they can themselves more speedily change the present constitution if it does not accord with the will of the majority, or frame a second constitution to be submitted to Congress hereafter. Even if this were a question of mere expediency, and not of right, the small difference of time, one way or the other, is of not the least importance, when contrasted with the evils which must necessarily result to the whole country from a revival of the slavery agitation.

In considering this question, it should never be forgotten that, in proportion to its insignificance, let the decision be what it may, so far as it may affect the few thousand inhabitants of Kansas who have from the beginning resisted the constitution and the laws, for this very reason the rejection of the constitution will be so much the more keenly felt by the people of fourteen of the States of this Union, where slavery is recognized under the Constitution of the United States.


The speedy admission of Kansas into the Union would restore peace and quiet to the whole country. Already the affairs of this Territory have engrossed an undue proportion of public attention. They have sadly affected the friendly relations of the people of the States with each other, and alarmed the fears of patriots for the safety of the Union. Kansas once admitted into the Union, the excitement becomes localized, and [45] will soon die away for want of outside aliment. Then every difficulty will be settled at the ballot box.

have thus performed my duty on this important question, under a deep sense of responsibility to God and my country. My public life will terminate within a brief period; and I have no other object of earthly ambition than to leave my country in a peaceful and prosperous condition, and to live in the affections and respect of my countrymen. The dark and ominous clouds which now appear to be impending over the Union, I conscientiously believe may be dissipated with honor to every portion of it by the admission of Kansas during the present session of Congress; whereas, if she should be rejected, I greatly fear these clouds will become darker and more ominous than any which have ever yet threatened the Constitution and the Union.

This Message gave rise to a long, exciting, and occasionally violent debate in both Houses of Congress, between the Anti-Slavery members and their opponents, which lasted for nearly three months. In the course of it slavery was denounced in every form which could exasperate the Southern people and render it odious to the people of the North; whilst, on the other hand, many of the speeches of Southern members displayed characteristic violence. Thus two sessions of Congress in succession had been in a great degree occupied with the same inflammatory topics, in discussing the affairs of Kansas.

The debate was finally concluded by the passage of the ‘Act for the admission of the State of Kansas into the Union,’ of the 4th May, 1858.22 This act, which had been reported by a Committee of Conference of both Houses, was passed in the Senate by a vote of 31 to 22, and in the House by a vote of 112 to 103.23 This was strictly a party vote in both Houses, with the exception of Mr. Douglas, in the Senate, who voted with the minority, and a few so-called Anti-Lecompton Democrats who voted with the minority in the House. This act explicitly recognizes the validity of the proceedings in Kansas which had given birth to the Lecompton Constitution. The preamble re. cites that— [46]

Whereas, The people of the Territory of Kansas did, by a Convention of Delegates assembled at Lecompton, on the seventh day of November, one thousand eight hundred and fifty—seven, for that purpose, form for themselves a Constitution and State Government, which Constitution is republican,’ etc.; and it then proceeds to enact, ‘That the State of Kansas be, and is hereby, admitted into the Union on an equal footing with the original States in all respects whatever, but upon this fundamental condition precedent,’ etc.

The necessity for this condition precedent arose from the fact that the ordinance of the Convention accompanying the constitution, claimed for the State a cession of the public lands more than six times the quantity which had been granted to other States when entering the Union.24 The estimated amount was more than twenty-three million five hundred thousand acres. To such an exaction Congress could not yield. In lieu of this ordinance, therefore, they proposed to submit to a vote of the people of Kansas a proposition reducing the number of acres to be ceded, to that which had been granted to other States. Should this proposition be accepted by the people, then the fact was to be announced by the proclamation of the President; and ‘thereafter, and without any further proceedings on the part of Congress, the admission of the State of Kansas into the Union, upon an equal footing with the original States in all respects whatever, shall be complete and absolute.’

Such was the condition precedent, which was never fulfilled, because the people by their votes on the 2d of August, 1858, rejected the proposition of Congress, and therefore Kansas was not admitted into the Union under the Lecompton Constitution. Notwithstanding this, the recognition by Congress of the regularity of the proceedings in forming the Lecompton Constitution did much good, at least for a season. It diverted the attention of the people from fighting to voting, a most salutary change. The President, in referring to this subject in his next annual Message of December 6, 1858, uses the following language:

When we compare the condition of the country at the present [47] day with what it was one year ago, at the meeting of Congress, we have much reason for gratitude to that Almighty Providence which has never failed to interpose for our relief at the most critical periods of our history. One year ago the sectional strife between the North and the South on the dangerous subject of slavery had again become so intense as to threaten the peace and perpetuity of the confederacy. The application for the admission of Kansas as a State into the Union fostered this unhappy agitation, and brought the whole subject once more before Congress. It was the desire of every patriot that such measures of legislation might be adopted as would remove the excitement from the States and confine it to the Territory where it legitimately belonged. Much has been done, I am happy to say, towards the accomplishment of this object during the last session of Congress.

The Supreme Court of the United States had previously decided that all American citizens have an equal right to take into the Territories whatever is held as property under the laws of any of the States, and to hold such property there under the guardianship of the Federal Constitution, so long as the territorial condition shall remain. This is now a well-established position, and the proceedings of the last session were alone wanting to give it practical effect.

The principle has been recognized, in some form or other, by an almost unanimous vote of both Houses of Congress, that a Territory has a right to come into the Union either as a free or a slave State, according to the will of a majority of its people. The just equality of all the States has thus been vindicated, and a fruitful source of dangerous dissension among them has been removed.

While such has been the beneficial tendency of your legislative proceedings outside of Kansas, their influence has nowhere been so happy as within that Territory itself. Left to manage and control its own affairs in its own way, without the pressure of external influence, the revolutionary Topeka organization, and all resistance to the territorial government established by Congress, have been finally abandoned. As a natural consequence, that fine Territory now appears to be tranquil and prosperous, [48] and is attracting increasing thousands of immigrants to make it their happy home.

The past unfortunate experience of Kansas has enforced the lesson, so often already taught, that resistance to lawful authority, under our form of government, cannot fail in the end to prove disastrous to its authors.

It is unnecessary to pursue this subject further than to state that Kansas was finally admitted into the Union on the 29th January, 1861.

The series of events already enumerated had greatly strengthened and extended the Anti-Slavery party. It soon drew within its vortex all other political organizations in the free States, except that of the old Democratic party, and consolidated them under the name of the Republican party. This thenceforward became purely sectional, and was confined to the States north of Mason and Dixon's line.

The Kansas and Nebraska Act had referred all constitutional questions respecting slavery in the Territories, to the Supreme Court of the United States. It accordingly furnished the necessary facilities for bringing cases ‘involving title to slaves,’ or the ‘question of personal freedom,’ before that tribunal.

At the period of Mr. Buchanan's inauguration a case was pending before that Court (Dred Scott v. Sandford, 19 Howard's Reports, p. 393) involving all the contested questions in regard to slavery. This, at the time, presented to him a cheerful but delusive prospect. He confidently expected that the decision of the Court would settle all these questions and eventually restore harmony among the States. Accordingly, in his Inaugural Address, he had declared that to this decision, whatever it might be, he should, in common with all good citizens, cheerfully submit. This was his imperative duty. Our free form of government must soon be destroyed, should the Executive set up his judgment against that of the coordinate judicial branch, on a question clearly within its constitutional jurisdiction.

Two days after the inauguration, on the 6th of March, 1857, the Supreme Court pronounced its judgment. This was delivered by Chief Justice Taney, and embraced all the points in controversy. It established the following propositions: [49]

1. Congress has power to acquire territory, ‘to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States.’

2. This territory is ‘acquired by the General Government, as the representative and trustee of the people of the United States, and it must therefore be held in that character for their common and equal benefit; for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the territory in question, and the Government holds it for their common use, until it shall be associated with the other States as a member of the confederacy.’

3. Until that time should arrive, it was the duty of Congress to establish a government over the Territory, ‘best suited for the protection and security of the citizens of the United States, and other inhabitants who might be authorized to take up their abode there.’

4. But ‘the territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved.’

5. The Federal Government possesses no power to violate the rights of property within such Territory, because these ‘are united with the rights of persons, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, or property, without due process of law.’ ‘And the powers over persons and property of which we speak, are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole Territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, as far as these rights are concerned, [50] on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this—if it is beyond the powers conferred on the Federal Government—it will be admitted, we presume, that it could not authorize a territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.’

6. ‘It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States.’ ‘Now, as we have already said in an earlier part of this opinion, on a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.’

‘Upon these considerations it is the opinion of the Court that the Act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned [the Missouri Compromise line], is not warranted by the Constitution, and is therefore void.’

This decision, so full and explicit, established the right of the master to take his slaves into the Territories and hold them there in despite of all convicting Congressional or Territorial legislation, until the Territories should be prepared to assume the position of States. [51]

It might have been expected that this decision would have superseded all opposing political platforms, and ended the controversy in regard to slavery in the Territories. This expectation, notwithstanding, soon proved to be a delusion. Instead of yielding it obedience, its correctness and binding effect were instantly resisted by the Republican party. They denounced and repudiated it in every possible form from the first moment, and continued to maintain, in opposition to its express terms, that it was not only the right but the duty of Congress to abolish slavery in all the Territories. This became a cardinal principle in the Chicago platform on which Mr. Lincoln was nominated and elected, and to which his Inaugural proves he had determined to adhere. The agitation continued for years, just as though the Supreme Court had never decided the question, until at length Congress passed an Act, on the 19th June, 1862,25 declaring that from and after its passage, ‘there shall be neither slavery nor involuntary servitude in any of the Territories of the United States now exiting, or which may at any time hereafter be formed or acquired by the United States, otherwise than in punishment of crimes whereof the party shall have been duly convicted.’

This Act stands upon the Statute Book in direct conflict with the Constitution as expounded by the Supreme Coordinate Judicial Tribunal, and is therefore, according to the theory of our Government, a mere nullity.

On the other hand, a large and respectable portion of the old Democratic party of the North, best known as the Douglas Democracy, equally, disregarded the decision of the Supreme Court. For some years before it was pronounced, this party, whilst admitting that the Constitution authorizes the migration of slaves from the States into the Territories, had maintained that after their arrival it was competent for the Territorial Legislature to impair or destroy the rights of the master. They claimed this power by virtue of a supposed inherent attribute of popular sovereignty alleged to belong to the first settlers of a Territory, just as it exists in the people of one of the States. This doctrine [52] was appropriately, though not in good taste, called ‘squatter sovereignty.’ It involved, at least in appearance, an extension of popular rights, and was therefore well calculated to enlist public sympathy in its favor. It was presented and enforced by its advocates in such captivating colors, that before the date of the decision it had secured many enthusiastic adherents in the North, whilst it was utterly repudiated in the South. The Douglas Democracy contended that this their favorite theory had been recognized in May, 1854, by the Kansas and Nebraska Act, declaring it to be ‘the true intent and meaning of this Act not to legislate slavery into any Territory or State, nor to exclude it therefrom; but to leave the people thereof free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.’

They ought to have reflected that even if this provision had in plain language conferred upon the first settlers the power to abolish slavery, still, according to its very terms, it was ‘subject to the Constitution of the United States,’ and like all other laws it would be void if in conflict with this Constitution. What tribunal was to decide this question? Certainly the Supreme Court. Indeed the law itself had, in express terms, recognized this, by prescribing the appropriate method of bringing the question before that Court. After the Court, therefore, in March, 1857, had decided the question against their ideas of Territorial sovereignty, they ought to have yielded. They ought to have acquiesced in the doctrine that property, including that in slaves, as well in the Territories as in the States, is placed under the protection of the Constitution, and that neither a Territorial Legislature nor Congress possesses the power to impair or destroy it.

This decision ought surely to have ended the question; but not so. Instead of this, the Douglas Democracy disregarded the decision altogether. They treated it as though it had never been made, and still continued to agitate without intermission, and with powerful effect, until the very day of President Lincoln's election. Absolute non-interference with slavery in the Territories, on the part of any human power outside of them, was their watchword; thus leaving the people thereof entirely [53] free to regulate or destroy it according to their own discretion.

On the other hand, the old Democracy, true to its ancient and time-honored principles in support of law and order, at once yielded a willing obedience to the decision of the Supreme Court. Whatever differences of opinion previously existed among them in regard to the correctness of the decision, at once disappeared. Without being the advocates of domestic slavery, they held themselves bound by the compromises made and recorded in the Constitution by its illustrious authors, and sustained the decision from an imperious sense of public duty. It did not require the authority of the Supreme Court to convince a large majority of them that a Territorial Legislature had not power to deprive a citizen of his property which was denied both to a State Legislature and to Congress. This extreme power of sovereignty in the latter cases they knew could only be conferred by an amendment to the State or Federal Constitution.

The Douglas Democracy still placed their principal reliance, as they had done before the decision, on the language of the Kansas and Nebraska Act. The difference between them and the old Democracy related to the point of time intended by the act, when the people of the Territories were recognized to possess the power ‘to form and regulate their domestic institutions in their own way.’ Was this at any time they pleased after the arrival of the first settlers, or not until the people should assemble in convention to form a State government, when, in the language of the act, they were to be admitted into the Union ‘with or without slavery, as their constitution may prescribe at the time of their admission’? According to the construction of the Douglas Democracy, the act recognized their right to abolish slavery at any period of the Territorial existence; but according to the construction of the old Democracy, there was no recognition of this right, until the period when they should meet in convention to form a State constitution; and such was in accordance with the decision of the Supreme Court.

If the Douglas construction of the act be correct, it is morally certain that the Southern Senators and Representatives who [54] were warm advocates of its passage, could not possibly have so understood it. If they had, they would then have voluntarily voted away the rights of their own constituents. Indeed, such a construction of the act would be more destructive to the interests of the slaveholder, than the Republican doctrine of Congressional exclusion. Better, far better for him to submit the question to Congress, where he could be deliberately heard by his representatives, than to be deprived of his slaves, after he had gone to the trouble and expense of transporting them to a Territory, by a hasty enactment of a Territorial Legislature elected annually and freed from all constitutional restraints. Such a construction of the Kansas and Nebraska Act would be in direct opposition to the policy and practice of the Government from its origin. The men who framed and built up our institutions, so far from regarding the Territories to be sovereign, treated them as mere wards of the Federal Government. Congress, as a faithful and kind guardian, watched over their infancy and promoted their growth and prosperity until they attained their majority. During the period of their pupilage the persons and property of the inhabitants were protected by the Constitution and laws of the United States. When the population had so far increased as to render this expedient, Congress gave them a Territorial Government. But in conferring upon the settlers the privilege to elect members to the popular branch of the Territorial Legislature, they took care to reserve the appointment of the Governor and the members of the Council to the President and Senate. Moreover, they expressly provided, in the language of the compromise measures of 1850, ‘that all the laws passed by the Legislative Assembly and Governor shall be submitted to the Congress of the United States, and if disapproved, shall be null and of no effect.’ This limitation on their powers was intended to restrain them from enacting laws in conflict with the Constitution, the laws, or the established policy of the United States. It produced the happiest effect. The cases are rare, indeed, in which Congress found it necessary to exercise this disapproving power. It was not then foreseen that any political party would arise in this country, claiming the right for the majority of the first settlers of a Territory, under the plea of popular sovereignty, [55] to confiscate the property of the minority. When the population in the Territories had reached a sufficient number, Congress admitted them as States into the Union under constitutions framed by themselves, ‘with or without slavery,’ according to their own discretion.

Long experience had abundantly sanctioned the wisdom of this policy. Under its benign influence many powerful and prosperous States have been admitted into the Union. No serious difficulties had ever occurred until the attempt was made to abolish it under the construction in favor of ‘squatter sovereignty’ given to the Kansas and Nebraska Act.

The Southern people, who had expected that after the decision of the Supreme Court their equal rights in the Territories would be respected by the Northern Democracy, were deeply mortified and disappointed to find that a large portion of this party still persevered in assailing these rights. This exasperated them, and placed in the hands of Southern disunion agitators a powerful weapon against the Union.

President Buchanan, ever since the commencement of his administration, has been persistently denounced, especially by the Douglas Democracy, for sustaining the law as pronounced by the highest judicial authority of the country. He has been charged with proving faithless to the Cincinnati platform, which he accepted and on which he was elected. To prove this would be impossible, because it is altogether silent in regard to the power of a Territorial Legislature over the question of slavery. Nay, more; whilst affirming, in general terms, the provisions of the Kansas and Nebraska Act, it specifically designates a future time when slavery may be rightfully abolished, not by the Territorial Legislature, but by the people. This is when, ‘acting through the legally and fairly expressed will of a majority of actual residents, and whenever the number of their inhabitants justifies it, [they assemble] to form a constitution with or without domestic slavery, and be admitted into the Union upon terms of perfect equality with the other States.’ Before this period the Cincinnati platform is silent on the subject. The power is claimed by its advocates as a mere inference from the general language of the Kansas and Nebraska Act. But even if the [56] right of a Territorial Legislature to abolish slavery had been affirmed in express terms by the Cincinnati Convention, which was the President bound to obey?—a political platform, or the Constitution as expounded afterwards by the Supreme Court? the decree of a nominating convention, or the supreme law of the land? He could not hesitate in the choice under his oath faithfully and to the best of his ability ‘to preserve, protect, and defend the Constitution of the United States.’ Sad must be the condition of any country where an appeal can be taken from judicial decisions to excited popular elections! Under our free government all citizens are equal before the law. The law and the law alone is their master. When this is disregarded and defied by excited and exasperated popular majorities, anarchy and confusion must be the inevitable consequence. Public and private rights are sacrificed to the madness of the hour. The Government itself becomes helpless for their protection, and to avoid such evils history has taught us that the people will at last seek refuge in the arms of despotism. Let all free governments in future times profit by our example.. Let them take warning that the late disastrous civil war, unjustifiable as it was, would most probably never have existed had not the American people disobeyed and resisted the Constitution of their country as expounded by the tribunal which they themselves had created for this express purpose.

The great Democratic party might have maintained its ascendency and saved the Union, had it not been thus hopelessly divided at this critical period. Encouraged and emboldened by its irreconcilable divisions, the Abolition or Republican party no longer confined itself to an opposition to slavery in the Territories. It soon extended its agitation to the suppression of slavery within the States. At the first it sought to save appearances, but the veil was too transparent to conceal its purposes.

1 Con. Globe, 184-50, p. 276.

2 9 U. S. Laws, 462, Sept. 18.

3 Ibid., Sept. 9.

4 Ibid. 44 and 468, Sept. 9.

5 9 U. S. Laws, 48, Sept. 20.

6 Greeley's Political Text Book, 1860, p. 20.

7 Ibid. p. 19.

8 U. S. Laws, 545.

9 For its history, vide Appendix to Con. Globe, 1st session 83d Congress, p. 226.

10 3 U. S. Laws, 455.

11 5 U. S. Laws, 797.

12 Con. Globe, 1853-4,p.115.

13 Ibid, p.175.

14 Ibid v. 222.

15 P. 289.

16 Con. Globe, 1853-4, p. 1321.

17 Message to Congress transmitting the Constitution of Kansas.

18 Message of December, 1857, p. 18.

19 Page 1.

20 Senate Documents, 1857-58, vol VII., No. 21.

21 Message Dec. 6, 1858.

22 11 U. S. Laws, p. 269.

23 Con. Globe, 1857-8, pp. 1899 and 1205.

24 Con. Globe, 187-8, p. 1766.

25 Pamph. Laws, 1861-68, p. 432.

Creative Commons License
This work is licensed under a Creative Commons Attribution-ShareAlike 3.0 United States License.

An XML version of this text is available for download, with the additional restriction that you offer Perseus any modifications you make. Perseus provides credit for all accepted changes, storing new additions in a versioning system.

hide People (automatically extracted)
hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: