compromise of that year, in leaving the question of slavery to the
States to be formed from these Territories, had already set aside the
agreement of 1820. These assumptions were totally false. The act of 1850
gave Utah and New Mexico no power as Territories over the debatable
institution, and contained not the slightest suggestion of any rule in
the matter for territories in general.
But the hint was taken, and on January 16th notice given of intention to
move an out-and-out abrogation of the Missouri Compromise. Such
abrogation was at once incorporated in the Kansas-Nebraska bill reported
by Douglas, January 23, 1854. This separated Kansas from Nebraska, and
the subsequent struggle raged in reference to Kansas alone. The bill
erroneously declared it established by the acts of 1850 that "all
questions as to slavery in the Territories," no less than in the States
which should grow out of them, were to be left to the residents, subject
to appeal to the United States courts. It passed both houses by good
majorities and was signed by President Pierce May 30th. Its animus
appeared from the loss in the Senate of an amendment, moved by S. P.
Chase, of Ohio, allowing the Territory to prohibit slavery.
Franklin Pierce.
From a painting by Healy, in 1852, at the Corcoran Art Gallery.
Thus was first voiced by a public authority Judge Douglas's new and
taking heresy of "squatter sovereignty," that Congress, though
possessing by Article IV., Section iii., Clause 2 of the Constitution,
general authority over the Territories, is not permitted to touch
slavery there, but must leave it for each territorial populace "to vote
up or vote down." At the South this doctrine of Douglas's was dubbed
"nonintervention," and its real aim to secure Kansas a pro-slavery
character avowed. It was consequently popular there as useful toward the
repeal, although repudiated the instant its working bade fair to render
Kansas free.
Stephen A. Douglas.
[1855]
This was soon the prospect. Organizations had been formed to aid
anti-slavery emigrants from the northern States to Kansas. The first was
the Kansas Aid Society, another a Massachusetts corporation entitled the
New England Emigrant Aid Society. There were others still. Kansas began
to fill up with settlers of strong northern sympathies. They were in
real minority at the congressional election of November, 1854, and in
apparent minority at the territorial election the next March. The vote
against them on the last occasion, however, was largely deposited by
Missourians who came across the border on election day, voted, and
returned. This was demonstrated by the fact that there were but 2,905
legal voters in the Territory at the time, while 5,427 votes were cast
for the pro-slavery candidates alone. These early successes gave the
pro-slavery party and government in Kansas great vantage in the
subsequent congressional contest. The first Legislature convened at
Pawnee, July 2, 1855, enacted the slave laws of Missouri, and ordered
that for two years all state officers should be appointed by legislative
authority, and no man vote in the Territory who would not swear to
support the fugitive slave law.
The free-state settlers, now a majority, ignored this Legislature and
its acts, and at once set to work to secure Kansas admission to the
Union as a State without slavery. The Topeka convention, October 23,
1855, formed the Topeka constitution, which was adopted December 14th,
only forty-six votes being polled against it. This showed that
pro-slavery men abstained from voting. January 15, 1856, an election was
held under this constitution for state officers, a state legislature,
and a representative in Congress. The House agreed, July 3d, by one
majority, to admit Kansas with the Topeka constitution, but the Senate
refused. The Topeka Legislature assembled July 4th, but was dispersed by
United States troops.
[1856-1857]
This was done under command from Washington. President Pierce, backed by
the Senate with its steady pro-slavery majority, was resolved at all
hazards to recognize the pro-slavery authorities of Kansas and no other,
and, as it seemed, to force it to become a slave State; but fortunately
the House had an anti-slavery majority which prevented this. The friends
of freedom in Kansas had also on their side the history that was all
this time making in Kansas itself. During the summer of 1856 that
Territory was a theatre of constant war. Men were murdered, towns
sacked. Both sides were guilty of violence, but the free-state party
confessedly much the less so, having far the better cause. Nearly all
admitted that this party was in the majority. Even the governors, all
Democrats, appointed by Pierce, acknowledged this, some of them, to all
appearance, being removed as a punishment for the admission. Governor
Geary, in office from September, 1856, to March, 1857, and Governor
Walker, in office from May, 1857, were just and able men, and their
decisions, in most things favorable to the free-state cause, had much
weight with the country.
Walker's influence in the Territory led the free-state men to take part
in the territorial election of October, 1857, where they were entirely
triumphant. But the old, pro-slavery Legislature had called a
constitutional convention, which met at Lecompton, September, 1857, and
passed the Lecompton constitution. This constitution sanctioned slavery
and provided against its own submission to popular vote. It ordained
that only its provision in favor of slavery should be so submitted. This
pro-slavery clause was adopted, but only because the free-state men
would not vote. The Topeka Legislature submitted the whole constitution
to popular vote, when it was overwhelmingly rejected. The President and
Senate, however, urged statehood under the Lecompton constitution,
although popular votes in Kansas twice more, April, 1858, and March,
1859, had adopted constitutions prohibiting slavery, the latter being
that of Wyandotte. But the House still stood firm. Kansas was not
admitted to the Union till January 29, 1861, when her chief foes in the
United States Senate had seceded from the Union. She came in with the
Wyandotte constitution and hence as a free State.
It was during the debate upon Kansas affairs in 1856 that Preston S.
Brooks, a member of the House from South Carolina, made his cowardly
attack upon Charles Sumner. Sumner had delivered a powerful speech upon
the crime against Kansas, worded and delivered, naturally but
unfortunately, with some asperity. In this speech he animadverted
severely upon South Carolina and upon Senator Butler from that State.
This gave offence to Brooks, a relative of Butler, and coming into the
Senate Chamber while Sumner was busy writing at his desk, he fell upon
him with a heavy cane, inflicting injuries from which Sumner never
recovered, and which for four years unfitted him for his senatorial
duties. Sumner's colleague, Henry Wilson, in an address to the Senate,
characterized the assault as it deserved. He was challenged by Brooks,
but refused to fight on the ground that duelling was part of the
barbarism which Brooks had shown in caning Sumner. Anson Burlingame,
representative from Massachusetts, who had publicly denounced the
caning, was challenged by Brooks and accepted the challenge, but, as he
named Canada for the place of meeting, Brooks declined to fight him for
the ostensible reason that the state of feeling in the North would
endanger his life upon the journey. A vote to expel Brooks had a
majority in the House, though not the necessary two-thirds. He resigned,
but was at once re-elected by his South Carolina constituency.
Charles Sumner.
While the fierce Kansas controversy had been raging, the South had grown
cold toward the Douglas doctrine of popular sovereignty, and had
gradually adopted another view based upon Calhoun's teachings. This was
to the effect that Congress, not under Article IV., section iii., clause
2, but merely as the agent of national sovereignty, rightfully
legislates for the Territories in all things, yet, in order to carry out
the constitutional equality of the States in the Territories, is obliged
to treat slaves found there precisely like any other property. If one
citizen wishes to hold slaves, all the rest opposing, the general
Government must support him. It is obvious how antagonistic this thought
was to that of Douglas, since, according to the latter, a majority of
the inhabitants in a Territory could elect to exclude slavery as well as
to establish it.
The new southern or Calhoun theory assumed startling significance for
the Nation when, in 1857, it was proclaimed in the Dred Scott decision
of the United States Supreme Court as part of the innermost life of our
Constitution. Dred Scott was a slave of an army officer, who had taken
him from Missouri first into Illinois, a free State, then into
Wisconsin, covered by the Missouri Compromise, then back into Missouri.
Here the slave learned that by decisions of the Missouri courts his life
outside of Missouri constituted him free, and in 1848, having been
whipped by his master, he prosecuted him for assault. The decision was
in his favor, but was reversed when appeal was taken to the Missouri
Supreme Court. Dred Scott was now sold to one Sandford, of New York. Him
also he prosecuted for assault, but as he and Sandford belonged to
different States this suit went to the United States Circuit Court.
Sandford pleaded that this lacked jurisdiction, as the plaintiff was not
a citizen of Missouri but a slave.
It was this last issue which made the case immortal. The Circuit Court
having decided in the defendant's favor, the plaintiff took an appeal to
the Supreme Court. Here the verdict was against the citizenship of the
negro, and therefore against the jurisdiction of the court below. The
upper court did not stop with this simple dictum, hard and dubious as it
was, but proceeded to lay down as law an astounding course of
pro-slavery reasoning. In this it confined the ordinance of 1787 to the
old northwestern territory, declared the Missouri Compromise and all
other legislation against slavery in Territories unconstitutional, and
the slave character portable not only into all the Territories but into
all the States as well, slavery having everywhere all presupposition in
its favor and freedom being on the defensive. The denial of Scott's
citizenship was based solely upon his African descent, the inevitable
implication being that no man of African blood could be an American
citizen.
This decision rendered jubilant all friends of slavery, as also the
ultra Abolitionists, but correspondingly disheartened the sober friends
of human liberty. How, it was asked, is the cause of freedom to be
advanced when the supreme law of the land, as interpreted by the highest
tribunal existing for that purpose, virtually establishes slavery in New
England itself, provided any slave-master wishes to come there with his
troop? But anti-slavery men did not despair. Patriots had of course to
obey the court till its opinion should be reversed, yet its opinion was
at once repudiated as bad law. Men like Sumner, Wilson, Chase, Giddings,
Seward, and Lincoln, appealing to both the history and the letter of the
Constitution, and to the course of legislation and of judicial decisions
on slavery even in the slave States, had been elaborating and
demonstrating the counter theory, under which our fundamental law
appeared as anything but a "covenant with hell."
The pith of this counter theory was that slaves were property not by
moral, natural, or common law, but only by state law, that hence
freedom, not slavery, was the heart and universal presupposition of our
government, and that slavery, not freedom, was bound to show reasons for
its existence anywhere. This being so, while Calhoun and Taney were
right as against Douglas in ascribing to Congress all power over the
Territories, it was as impossible to find slaves in any United States
Territory as to find a king there. Slaves taken into Territories
therefore became free. Slaves taken into any free State became free.
Slaves carried from a slave State on to the high seas became free. Even
the fugitive slave clause of the Constitution must be applied in the way
least favorable to slavery.
On the other hand Douglas was right in his view that citizens and not
States were the partners in the Territories. As to the assertion of
incompatibility between citizenship and African blood, it would not
stand historical examination a moment. If it was true that the framers
of the Constitution did not consciously include colored persons in the
"ourselves and our posterity" for whom they purposed the "Blessings of
Liberty," neither did they consciously exclude, as is clear from the
fact that nearly everyone of them expected blacks some time to be free.
CHAPTER VI.
SLAVERY AND THE OLD PARTIES
[1841]
The Democratic Party was predominantly southern, the Whig northern. Both
sought to be of national breadth, but the democratic with much the
better success. Democracy would not give up its northern vote nor the
Whigs their southern; but a better party fealty, due to a longer and
prouder party history, rendered the Democrats far the more independent
and bold in the treatment of their out-lying wing. The consequence was
that while its rank and file at the North never loved slavery, they
tolerated it and became its apologists in a way to make the party as a
whole not only in appearance but in effect the pliant organ of the
slavocracy. This status became more pronounced with the progress of the
controversy and of the South's self-assertion. It was real under
Jackson, rigid under Van Buren, manifest and almost avowed under Polk,
Pierce, and Buchanan.
Whig temper toward slavery was throughout the North much better, but
whig party action was little better. Fear of losing southern supporters
permanently forbade all frank enlistment by the Whig Party for freedom.
The mighty leaders, Adams, Webster, even Clay, were well inclined, and
the party, as such, was at the South persistently accused of alliance
with the Abolitionists. This was untrue. Abolitionists, Liberal Party
men, and Free-soilers oftener voted with Democrats than with Whigs. Clay
complained once that Abolitionists denounced him as a slave-holder,
slave-holders as an Abolitionist, while both voted for Van Buren.
Compromise was the bane of this party as of the other; and each of the
resplendent chieftains named at one time or another seemed so reverent
to Belial that the record is painful reading.
When in 1841 the ship Creole sailed from Richmond with one hundred and
thirty-five slaves on board bound for the southern market, and one
Madison Washington, a recovered runaway on board, headed a dash upon
captain and crew, got possession of the vessel and took her into New
Providence, Clay was as loud as Calhoun or any southern senator in
demanding of the English Government the return of these slaves to
bondage or, at least, that of "the mutineers," as they were called.
Webster, Secretary of State at the time, instructed Edward Everett, our
English minister, to insist upon this, his arguments being sound and his
tone emphatic enough to please Mr. Calhoun. This was the time when
Giddings, of Ohio, brought into the House his resolutions to the effect
that slavery was a state institution only, and that hence any slave
carried on to the open ocean or to any other locality where only
national law prevailed, was free. He was censured in the House by a
large majority and resigned, but his Ohio constituency immediately
re-elected him.
[1836-1844]
Up to this time Giddings and Adams were the only pronounced anti-slavery
men in that body. Adams had acquiesced in the Missouri Compromise, but
all his subsequent career, especially his course in the House of
Representatives after 1830, is not only creditable to him so far as the
slavery question is concerned, but registers him as one of the most
influential opponents of slavery in our history. Refusing to be classed
with the Abolitionists, he was, in effect, the most efficient
Abolitionist of them all.
Previous to 1835, though petitions against slavery reached Congress in
great numbers and nettled many members, they had been received and
referred in the usual manner. But in February, 1836, the House created a
special committee to consider these petitions. It reported a resolution,
which passed under the previous question, that thereafter all papers of
the kind should be tabled without printing or reference. Adams declared
to the House: "I hold the resolution to be a direct violation of the
Constitution of the United States, the rules of this House, and the
rights of my constituents." In this rencounter Adams advanced the view
on which the Emancipation Proclamation by and by proceeded, that
slavery, even in States, was not beyond reach of the national arm, but
would be at the mercy of Congress the instant slave-masters should
rebel. This, the first of the gag laws, was, however, enacted. The
second, or Patton gag, was passed on December 21, 1837, and the third,
or Atherton gag, a year later. The principle of these, practically
cutting off all petitions to Congress respecting slavery, was taken up
in the twenty-first rule of the House in 1840.
Mr. Adams was from the first the resolute and uncompromising foe of the
gag policy. Wagon-loads of petitions came to him to offer, among them
one for his own expulsion from the House and one to dissolve the Union,
and he presented all.
February 6, 1837, he inquired of Mr. Speaker whether or not it would be
appropriate to offer a petition in his hand from slaves, whereupon the
pro-slavery members flew at him like vampires. After much uproar, in
which Adams gave as good as was sent him, he sarcastically reminded his
already infuriated assailants that the petition was in favor of slavery,
not against, and that he had emphatically not offered it, but only made
an innocent inquiry of the Speaker about doing so, the proper answer to
which was so far from obvious that the Speaker himself had signified his
intention to take the sense of the House upon it. Regularly, year after
year, Adams moved the abolition of the gag rule, was beaten as
regularly, long as a matter of course, sometimes after heated debate in