Varina Davis, Jefferson Davis: Ex-President of the Confederate States of America, A Memoir by his Wife, Volume 1

Chapter 43: thirty-sixth Congress — Squatter sovereignty, 1859-61.

A pestilent, forceful man, who had courage with an insane prejudice to urge him, added to total disregard of the rights of any except the colored race, organized a conspiracy, an account of which, written by President Buchanan,¹ is subjoined.

John Brown was a man violent, lawless, and fanatical. Amid the troubles in Kansas he had distinguished himself, both by word and by deed, for boldness and cruelty. His ruling passion was to become the instrument of abolishing slavery by the strong hand, throughout the slave-holding States. With him this amounted almost to insanity. Notwithstanding all this, he was so secret in his [645] purposes that he had scarcely any confidants. This appears in a striking manner from the testimony taken before the Senate Committee. Several abolitionists had contributed money to him in aid of the anti-slavery cause generally, but he had not communicated to them for what particular purpose this was to be employed. He had long meditated an irruption in Virginia, to excite and to aid a rising of the slaves against their masters; and for this he had prepared. He had purchased two hundred Sharp's carbines, two hundred revolver pistols, and about one thousand pikes, with which to arm the slaves. These arms he had collected and deposited in the vicinity of Harper's Ferry. When the plot was ripe for execution, a little before midnight on Sunday evening, October 16, 1859, he, with sixteen white and five negro confederates, rushed across the Potomac to Harper's Ferry, and there seized the armory, arsenal, and rifle factory belonging to the United States. When the inhabitants awoke in the morning they found, greatly to their terror and surprise, that these places, with the town itself, were all in the possession of John Brown's force. It would be a waste of time to detail the history of this raid. Suffice it to say that, on Tuesday morning, eighteenth, the whole band, with the exception [646] of two who had escaped, were either killed or captured. Among the latter was John Brown himself, badly wounded. In the mean time, however, his party had murdered five individuals, four of them unarmed citizens, and had wounded nine others. It is proper to observe that John Brown, after all his efforts, received no support from the slaves in the neighborhood. The news of this attack on Harper's Ferry spread rapidly over the country. All were at first ignorant of the strength of the force, and public rumor had greatly exaggerated it. The President immediately sent a detachment of marines to the spot, by which John Brown and his party were captured in the engine-house, where they had fled for shelter and defence. Large numbers of volunteers from Virginia and Maryland had also hastened to the scene of action. John Brown and several of his party were afterward tried before the appropriate judicial authorities in Virginia, and were convicted and executed.

In the already excited condition of public feeling throughout the South, this raid of John Brown made a deeper impression on the Southern mind against the Union than all former events. Considered merely as the isolated act of a desperate fanatic, it would have had no lasting effect. It was the enthusiastic [647] and permanent approbation of the object of his expedition by the abolitionists of the North which spread alarm and apprehension throughout the South. We are told by Fowler, in his ‘ Sectional Controversy,’ that on the day of Brown's execution bells were tolled in many places, cannon fired, and prayers offered up for him as if he were a martyr; he was placed in the same category with Paul and Silas, for whom prayers were made by the church, and churches were draped in mourning. Nor were these honors to his memory a mere transient burst of feeling. The Republican party have ever since honored him as a saint or a martyr in a cause which they deemed so holy. According to them, while his body moulders in the dust, his spirit is still ‘marching on’ in the van to accomplish his bloody purposes. Even blasphemy, which it would be improper to repeat, has been employed to consecrate his memory.

The members of the Senate and House who were implicated in any degree in giving John Brown “aid and comfort” were interrogated by a committee of each house in a secret examination, and Mr. Seward was proved to have subscribed money; but he asserted that he had no idea that Brown intended to use it for such purposes as his raid unveiled. [648]

In the height of this turmoil, while peace and war trembled in the balance, Hinton Helper, a man formerly from North Carolina, wrote and published a book called The impending crisis, of which Mr. Buchanan said,

No book could be better calculated for the purpose of intensifying the mutual hatred between North and South. This book, in the first place, proposes to abolish slavery in the slave-holding States by exciting a revolution among those called the “poor whites” against their rich slave-holding neighbors. The plan urged upon the non-slave-holding citizens of the South was, omitting atrocious minor details:

1st. Thorough organization and independent political action on the part of the non-slave-holding whites of the South.

2d. Ineligibility of pro-slavery slave-holders. Never another vote to anyone who advocates the retention and perpetuation of human slavery.

3d. No co-operation with pro-slavery politicians; no fellowship with them in religion; no affiliation with them in society.

4th. No patronage to pro-slavery merchants; no guestship in slave-waiting hotels; no fees to pro-slavery lawyers; no employment to pro-slavery physicians; no audience to proslavery parsons. [649]

5th. No more hiring of slaves by non-slave-holders.

6th. Abrupt discontinuance of subscription to pro-slavery newspapers.

7th. The greatest possible encouragement to free white labor .. .

To this sweeping “bull of excommunication” recommended to the Free Soil party, Helper added a vulgar address to the South; he wrote:

But, sirs, slave-holders, chevaliers, and lords of the lash, we are unwilling to allow you to cheat the negroes out of all the rights and claims to which, as human beings, they are most sacredly entitled. . .

What are you going to do about it? Something dreadful, of course. Perhaps you will dissolve the Union again. Do it, if you dare. Our motto, and we would have you understand it, is, ‘The abolition of slavery and the perpetuation of the American Union.’ If, by any means, you do succeed in your treasonable attempts to take the South out of the Union to-day, we will bring her back tomorrow; if she goes away with you, she will return without you.

Do not mistake the meaning of the last clause of the last sentence. We could elucidate it so thoroughly that no intelligent person could fail to comprehend it; but, for reasons [650] which may hereafter appear, we forego the task.

Incredible as it may seem, this book was bought in large numbers and issued by the Northern senators and members of Congress as campaign documents. They signed a paper recommending the disgraceful fanfaronade as a true exposition of the issue. All these acts aggravated the irritation of the Southern men, and society in Washington began to be divided by sectional lines.

The Thirty-sixth Congress opened December 7, 1859. The political outlook was gloomy, and threatening storms were lowering everywhere. The whole country was greatly excited, and armed factions were carrying on a guerilla warfare on the plains of Kansas--the factions there being divided on sectional lines. They were the shadows of the coming war.

The minds of men, both in and out of Congress, had become fixed, with feverish interest, on this petty but tragically significant conflict in the Territory. Its import was too plain to be misconstrued. It was the herald of early coming disaster to the Union. Yet, notwithstanding the impending peril, the advocates of abolition neither faltered nor moderated their unconstitutional demands and policy. On the contrary they became more aggressive. [651]

They ignored the decision of the Supreme Court, that the Federal Government possesses no power to violate the rights of property within Territories, because these “are united with the rights of persons, and placed on the same ground by the fifth amendment of 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 it is forbidden to exercise them.”

The abolitionists affiliated with Judge Douglas's party, who maintained that at any time the people present in the Territory, voting, had a right by a majority to forbid the entrance of slave property into the Territory; while the Supreme Court decided that the only time at which this division could be a legal one, was when made by the legally authorized votes for a convention to form a State. Judge Douglas's theory was called squatter sovereignty, and was a heresy so eminently dangerous to the rights of the States to occupy without a sacrifice of their property any territory to be acquired in future, that it met with stubborn resistance from a large portion of the Southern Democracy and conservative Northern Democrats. [652]

It may not be out of place here to give figures which reveal the steady march of the war waged, within the Union, against slavery. Although public opinion on that question was practically solidified in the Eastern States, and wholly so in the South, it had been hitherto only formative in the Middle and Western States.

About this time Mr. Seward came forward into greater prominence, and became the most noted leader of the Republican party. Mr. Buchanan said: “He was much more of a politician than a statesman, without strong convictions; he understood the art of preparing in his closet and uttering before the public, antithetical sentences, well calculated both to inflame the ardor of his anti-slavery friends and to exasperate his pro-slavery opponents. . . . He thus aroused passions, probably without so intending, which it was beyond his power to control.”

New York, with two Republicans in the Senate, had sent to the House twenty-one Republicans out of a delegation of thirty-three. Pennsylvania, intent on getting rid of her fealty to the Democratic party as quickly as she could, had chosen one Republican for the Senate, and ten out of twenty-five representatives-these latter to be augmented in the Thirty-sixth Congress to twenty. Ohio [653] had furnished an anti-slavery majority to the House, while Indiana and Illinois were, each, within one of a Republican majority. Missouri elected one Republican (Francis P. Blair, Jr.); Michigan, Iowa, and Wisconsin contributed unbroken delegations against slavery.

The results of the contests for the Speakership in these two Congresses were significant.

In the Thirty-fifth Congress, James L. Orr, Democrat, of South Carolina, had been elected on a single ballot, by 128 votes against 84 for Galusha A. Grow, the Republican candidate.

In the Thirty-sixth Congress, at the opening of the first session, the roll stood, 109 Republicans to 101 Democrats — a gain ominous for those who had hoped against hope to obtain, within the Union, the justice guaranteed by the Constitution. The Republicans, however, could not boast of a decided majority, the balance of power being held by a few members still adhering to the virtually extinct Whig and American (or “Know-nothing” ) organizations, and a smaller number whose position was doubtful or irregular. The contest for Speaker was memorable both for its length and the fierce passions it aroused. John Sherman, of Ohio, carried his party [654] with him-except three votes-through more than seven weeks, from the second to the fortieth ballot. On January 30th, finding his election impossible, he withdrew. His withdrawal set free the dead-lock. Two days afterward, in the forty-fourth ballot — William Pennington, a Republican of New Jersey, accepted as a compromise candidate, was elected by a majority of one vote.

Besides the Kansas question, another cause had contributed to the rapid growth of the Republican party. This was, as Mr. Davis has elsewhere explained,

the dissension among the Democrats occasioned by the introduction of the doctrine called by its inventors and advocates ‘popular sovereignty,’ or ‘non-intervention,’ but more generally and more accurately known as ‘squatter sovereignty.’ Its origin is generally attributed to General Cass, who is supposed to have suggested it in some general expressions of his celebrated ‘ Nicholson letter,’ written in December, 1847. On the 16th and 17th of May, 1860, it became necessary for me, in a debate in the Senate, to review that letter of Mr. Cass. From my remarks then made the following extract is taken:

The Senator (Mr. Douglas) might have remembered, if he had chosen to recollect so unimportant a thing, that I once had to explain [655] to him, ten years ago, the fact that I repudiated the doctrine of that letter at the time it was published, and that the Democracy of Mississippi had well-nigh crucified me for the construction which I placed upon it. There were men mean enough to suspect that the construction I gave to the Nicholson letter was prompted by the confidence and affection I felt for General Taylor. At a subsequent period, however, Mr. Cass thoroughly reviewed it. He uttered (for him) very harsh language against all who had doubted the true construction of his letter, and he construed it just as I had done during the canvass of 1848. It remains only to add that I supported Mr. Cass, not because of the doctrine of the Nicholson letter, but in despite of it; because I believed that a Democratic President, with a Democratic Cabinet and Democratic counsellors in the two Houses of Congress, and he as honest a man as I believed Mr. Cass to be, would be a safer reliance than his opponent, who personally possessed my confidence as much as any man living, but who was of, and must draw his advisers from, a party the tenets of which I believed to be opposed to the interests of the country, as they were to all my political convictions.

I little thought, at that time, that my advocacy [656] of Mr. Cass upon such grounds as these, or his support by the State of which I am a citizen, would at any future day be quoted as an endorsement of the opinions contained in the Nicholson letter, as those opinions were afterward defined. But it is not only upon this letter, but equally upon the resolutions of the Convention as constructive of that letter that the Senator rested his argument.

But this letter entered into the canvass; there was a doubt about its construction, there were men who asserted that they had positive authority for saying that it meant that the people of a Territory could only exclude slavery when the Territory should form a constitution and be admitted as a State. This doubt continued to hang over the construction, and it was that doubt alone which secured Mr. Cass the vote of Mississippi. If the true construction had been certainly known, he would have had no chance to get it.

Whatever meaning the generally discreet and conservative statesman, Mr. Cass, may have intended to convey, it is not at all probable that he foresaw the extent to which the suggestions would be carried and the consequences that would result from it.

Of Mr. Douglas and his claim to the doctrine of “squatter sovereignty,” Mr. Davis says: [657]

In the organization of a government for California, in 1850, the theory was more distinctly advanced, but it was not until after the passage of the Kansas-Nebraska Bill, in 1854, that it was fully developed, under the plastic and constructive genius of the Honorable Stephen A. Douglas, of Illinois. The leading part which that distinguished Senator had borne in the authorship and advocacy of the Kansas-Nebraska Bill, which affirmed the right of the people of the Territories “to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States,” had aroused against him a violent storm of denunciation in the State which he represented and other Northern States. He met it very manfully in some respects, defended his action resolutely, but in so doing was led to make such concessions of principle, and to attach such an interpretation to the bill, as would have rendered it practically nugatory — a thing to keep the promise of peace to the ear and break it to the hope.

Reviewing the power of Congress under the Constitution, he adds:

The Constitution expressly confers upon Congress the power to admit new States into the Union, and also to ‘dispose of and make all needful rules and regulations respecting [658] the territory or other property belonging to the United States.’ Under these grants of power, the uniform practice of the Government had been for Congress to lay off and divide the common territory by convenient boundaries for the formation of future States; to provide executive, legislative, and judicial departments of government for such territories during their temporary and provisional period of pupilage; to delegate to these governments such authority as might be expedient-subject always to the supervision and controlling government of the Congress. Finally, at the proper time, and on the attainment by the territory of sufficient strength and population for self-government, to receive it into the Union on a footing of entire equality with the original States-sovereign and self-governing. All this is no more inconsistent with the true principles of ‘popular sovereignty,’ properly understood, than the temporary subjection of a minor to parental control is inconsistent with the doctrines of the Declaration of Independence, or the exceptional discipline of a man-of-war or a military post with the principles of republican freedom.

The usual process of transition from a territorial condition to that of a State was, in the first place, by an act of Congress authorizing the inhabitants to elect representatives to a [659] convention to form a State Constitution, which was then submitted to Congress for approval and ratification. On such ratification the supervisory control of Congress was withdrawn, and the new State authorized to assume its sovereignty, and the inhabitants of the Territory became citizens of a State. In the cases of Tennessee in 1796, and Arkansas and Michigan in 1826, the failure of the inhabitants to obtain an ‘enabling act’ of Congress, before organizing themselves, very nearly caused the rejection of their applications for admission as States, though they were eventually granted on the ground that the subsequent approval and consent of Congress could heal the prior irregularity. The entire control of Congress over the whole subject of territorial government had never been questioned in earlier times. Necessarily conjoined with the power of this protectorate, was of course the duty of exercising it for the safety of the persons and property of all citizens of the United States, permanently or temporarily resident in any part of the domain belonging to the States in common.

Logically carried out, the new theory of ‘popular sovereignty’ would apply to the first adventurous pioneers settling in the wilderness before the organization of any Territorial government by Congress, as well as [660] afterward. If ‘ sovereignty’ is inherent in a thousand or five thousand persons, there can be no valid ground for denying its existence in a dozen, as soon as they pass beyond the limits of State governments. The advocates of this novel doctrine, however, if rightly understood, generally disavowed any claim to its application prior to the organization of a Territorial government.

The Territorial Legislatures, to which Congress delegated a portion of its power and duty to ‘ make all needful rules and regulations respecting the Territory,’ were the mere agents of Congress, exercising an authority subject to Congressional supervision and control — an authority conferred only for the sake of convenience, and liable at any time to be revoked and annulled. Yet it is proposed to recognize in these provisional, subordinate, and temporary legislative bodies, a power not possessed by Congress itself. This is to claim that the creature is endowed with an authority not possessed by the creator, or that the stream has risen to an elevation above that of its source.

Furthermore, in contending for a power in the Territorial Legislatures permanently to determine the fundamental, social, and political institutions of the Territory, and thereby virtually to prescribe those of the future [661] State, the advocates of ‘ popular sovereignty’ were investing those dependent and subsidiary bodies with powers far above any exercised by the Legislatures of the fully organized and sovereign States. The authority of the State Legislatures is limited, both by the Federal Constitution and by the respective State constitutions from which it is derived. This latter limitation did not and could not exist in the Territories.

On February 2, 1860, Mr. Davis submitted a series of important resolutions, which were afterward slightly modified to read as follows:

1. Resolved, That, in the adoption of the Federal Constitution, the States adopting the same acted severally as free and independent sovereignties, delegating a portion of their powers to be exercised by the Federal Government, for the increased security of each against dangers, domestic as well as foreign; and that any intermeddling by any one or more States, or by a combination of their citizens, with the domestic institutions of the others, on any pretext whatever, political, moral, or religious, with the view to their disturbance or subversion, is in violation of the Constitution, insulting to the States so interfered with, endangers their domestic peace and tranquillity-objects for which the Constitution [662] is formed; and, by necessary consequence, tends to weaken and destroy the Union itself.

2. Resolved, That negro slavery, as it exists in fifteen States of this Union, composes an important portion of their domestic institutions, inherited from our ancestors, and existing at the adoption of the Constitution, by which it is recognized as constituting an important element in the apportionment of powers among the States; and that no change of opinion or feeling on the part of the non-slave-holding States of the Union in relation to this institution can justify them or their citizens in open or covert attacks thereon, with a view to its overthrow; and that all such attacks are in manifest violation of the mutual and solemn pledge to protect and defend each other, given by the States respectively, on entering into the constitutional compact which formed the Union, and are a manifest breach of faith and a violation of the most solemn obligations.

3. Resolved, That the Union of these States rests on the equality of rights and privileges among its members, and that it is especially the duty of the Senate, which represents the States in their sovereign capacity, to resists all attempts to discriminate either in relation to persons or property in the Territories, [663] which are the common possessions of the United States, so as to give advantages to the citizens of one State which are not equally assured to those of every other State.

4. Resolved, That neither Congress nor a Territorial Legislature, whether by direct legislation or legislation of an indirect and unfriendly character, possesses power to annul or impair the constitutional right of any citizen of the United States to take his slave property into the common Territories, and there hold and enjoy the same while the Territorial condition remains.

5. Resolved, That if experience should at any time prove that the judiciary and executive authority do not possess means to insure adequate protection to constitutional rights in a Territory, and if the Territorial government shall fail or refuse to provide the necessary remedies for that purpose, it will be the duty of Congress to supply such deficiency.²

6. Resolved, That the inhabitants of a Territory of the United States, when they rightfully form a constitution to be admitted as a State into the Union, may then, for the first time, like the people of a State when forming a new constitution, decide for themselves [664] whether slavery, as a domestic institution, shall be maintained or prohibited within their jurisdiction; and shall be received into the Union with or without slavery, as their constitution may prescribe at the time of their admission.

7. Resolved, That the provision of the Constitution for the rendition of fugitives from service or labor, “ without the adoption of which the Union could not have been formed,” and that the laws of 1793 and 1850, which were enacted to secure its execution, and the main features of which, being similar, bear the impress of nearly seventy years of sanction by the highest judicial authority, should be honestly and faithfully observed and maintained by all who enjoy the benefits of our compact of union; and that all acts of individuals or of State Legislature to defeat the purpose or nullify the requirements of that provision, and the laws made in pursuance of it, are hostile in character, subversive of the Constitution, and revolutionary in their effect.

These resolutions led to a protracted and earnest debate. They were finally-Mr. Davis writes--“adopted seriatim, on the 24th and 25th of May, by a decided majority of the Senate (varying from thirty-three to thirty-six yeas against from two to twenty-one [665] nays), the Democrats, both Northern and Southern, sustaining them unitedly, with the exception of one adverse vote (that of Mr. Pugh, of Ohio) on the fourth and sixth resolutions. The Republicans all voted against them or refrained from voting at all, except that Mr. Tenyck, of New Jersey, voted for the fifth and seventh of the series. Mr. Douglas, the leader if not the author of ‘ popular sovereignty,’ was absent on account of illness, and there were a few other absentees.”

While the resolutions were pending, Mr. Davis made every effort personally, and through others supposed to have more influence with Mr. Douglas, to induce him to sanction, or initiate some policy which would reconcile the two extremes upon this question, as the following letter, kindly furnished me by the Hon. Cabell R. Breckenridge, will attest: