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A Constitutional History of the United States
Chapter XXXIX - The Election of 1852 and the Repeal of the Missouri Compromise
by McLaughlin, Andrew C.
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In the election of 1852 both of the main parties announced their
adherence to the Compromise. The Free Soilers, still devoted to the antislavery
program, cast a smaller vote than they had cast four years before. Franklin
Pierce, the Democratic candidate, received an overwhelming electoral majority,
so large indeed that it rang the death-knell of the Whigs. A party cannot
thrive without offices; neither can it long survive without principles. The
Democrats were now. looked upon, in the south at least, as sounder than the
Whigs on the slavery question; the Whigs, tainted by antislavery doctrine at
the north, no longer had a helpful principle for prolonging their life —
only an economic policy and a constitutional theory more or less adequately
supporting their economic interests; they had no war cries or slogans to arouse
and hold enthusiasm. Their greatest leaders had passed from the scene; Clay and
Webster died in the election year. The party had, on the whole, represented the
conservative tendencies and interests of the nation, and at the south it had
taken, in general, an attitude of opposition to the disintegration of the
union. But what was to be done now that slavery, the most important of all
economic interests, had found shelter under Democratic banners?
The influence of slavery as a dissolvent had already become obvious;
religious denominations had broken asunder, and thus an important national bond
had been severed.[1] With the disappearance of the Whig party, which
after 1854 had few adherents and little vitality, a great political institution
holding men together in a common loyalty was gone. But the Democratic party,
largely because the northern wing could and would work with the southern,
continued to live.
If the time should come when this party should split asunder, the union
would be without the support of a national institution for which men felt
affection and for which they had been willing to check or restrain local and
provincial tendencies. The political parties were the tangible expression of
coöperation and common purpose; they had been not only national in scope
but also nationalizing in effect. No small number of men in both sections began
to flock into the American or Know Nothing party, a secret organization, which
gave them a chance to change their colors in the dark.
The most significant fact of all was that the Democratic party stood for
the moment in a position of towering supremacy. But what kind of a Democratic
party? — a party now considered sound in its readiness to support,
indirectly if not directly, a great economic and social interest. What had
become of the old party which embraced the common man, the small landowner, the
backwoodsman, the man who believed primarily in freedom and opportunity and
resented the airs of the superior beings? One of the most impressive facts in
American history is this transformation. The reader may well deny that the
party after 1852 stood forth as the champion of slavery; but in reality, as far
as it had a consistent tendency, its influence was directed to the maintenance
of slavery interests, because it discountenanced agitation and was satisfied
with compromise on the territorial question. The spell of the old party name,
hallowed by the shades of Jefferson and Jackson, helped to hold the party
together; but, as events were soon to show, many of the plain people of the
north were escaping from the fold. How could the plain workmen at the north
look placidly at a system of labor which recognized the right of one man to
own a hundred laborers? The party still held at the north many thousands
who wished to work in harmony with southern members and were willing to rely
upon the skillful management of Douglas and others who continued to proclaim
the principles of free government for territories and states; they found solace
and support in a policy which freed them from affirmative support of slavery
and assured their faith, or seemed to assure their faith, in the essentials of
popular government.
The Congress which was elected in 1852, amid the earnest clamors for the
sanctity of the Compromise, assembled thirteen months after the election. And
one of the first specters to appear on the horizon was the slavery question
which had just been solemnly interred. It was actually proposed to repeal the
Missouri Compromise. And one advocate of repeal was Stephen A. Douglas of
Illinois. No one could have expected from his previous career that, of all men,
he would take a stand reflecting upon the wisdom or the sanctity of the measure
which had stood for more than three decades. We shall present in a moment a
brief statement of the legislative history of the Kansas-Nebraska bill and
notice the changes made in its provisions as the months went by. But it is
sufficient to say here that it was passed in the spring of 1854. It provided
for two territories west and northwest of Missouri and Iowa — portions of
the Louisiana purchase as yet not admitted as states or given territorial
government. It repealed the Missouri Compromise explicitly and announced, or
appeared to announce, the doctrine of popular sovereignty.
There has been much discussion [2] in recent years concerning
the authorship of this movement, and especially concerning the motives of
Douglas in advocating, if not originating, the proposal to discard the old
Compromise of 1820. In constitutional history it is not a matter of supreme
importance whether or not we find the master mind to have been Senator
Atchison, or Senator Douglas, or someone else; nor is it of peculiar importance
to us that we discover whether Douglas planned to bestow loving favors on the
south, secure southern eulogies and win the presidency, or was chiefly
enraptured with the prospect of a railroad connecting his own state with the
newer regions and tracing its way over the western prairies — even the
Pacific railroad question was now a sectional question. That Douglas was quite
as much a railroad man as he was a statesman, we must acknowledge; but if there
is a problem of bestowing commendation or abuse, one motive appears no holier
than the other. Nor is it quite plain that he could not have had both motives,
neither interfering with the other. If Douglas was illustrating the propensity
of politicians to fish in troubled waters, he soon found the waters turbid and
troubled enough to suit the most ambitious angler. It is probably fair to say
that he was seriously guided, as was Cass, by his western or frontier
inclination to allow people to manage their own affairs; he would let the
people of a territory look after their own interests without molestation by the
federal government. Certainly he could speak with passion and fervor on that
topic. He must retain the allegiance of the common man whose economic interests
would be furthered by the opportunities of an open west; he must hold the
westerners of his own region. Farmers of the old northwest, it seems, were
restless and uneasy and were beginning to think their salvation would lie in
the possession of cheap lands beyond the Missouri. But the south must not be
antagonized lest everything be lost. The task of reconciling the conflicting
interests and sections was enough to test the skill of the most astute
political leader.
A bill for the organization of Nebraska had been passed by the House
early in 1853, and its passage was advocated by Douglas in the Senate, where it
was not adopted. No one, however, supposed the passage of the bill would affect
the Missouri Compromise.[3] In December of that year a bill,
identical in all respects with the one just mentioned, was introduced into the
Senate and referred to the committee on territories — and this meant
referring it to Douglas. On January 4 Douglas presented a report accompanied by
a bill providing for the organization of the territory of Nebraska.
The report is a curious affair. We find in it a fairly clear statement
of the differences of opinion concerning the constitutional status of slavery
in the territories. The controverted questions were said to involve the same
grave issues as those producing "the fearful struggle of 1850. As Congress
deemed it wise and prudent to refrain from deciding the matters in controversy
then, either by affirming or repealing the Mexican laws, or by an act
declaratory of the true intent of the Constitution and the extent of the
protection afforded by it to slave property in the territories, so your
committee are not prepared now to recommend a departure from the course pursued
on that memorable occasion, either by affirming or repealing the 8th section of
the Missouri act, or by any act declaratory of the meaning of the Constitution
in respect to the legal points in dispute." Having thus asserted the intention
to follow the noncommittal policy of 1850, the report declared the Compromise
measures of that year to rest on three propositions. The first and most
important declared that all questions relating to slavery in the territories
should be left to the people residing in them; the second, that cases involving
the title to slaves and questions of personal freedom should be referred to the
adjudication of local tribunals, with right of appeal to the Supreme Court of
the United States; the third, that the fugitive slave clause of the
Constitution should be carried into execution in all the organized
territories.
The bill to organize Nebraska, which accompanied the report, was, when
first printed in the Washington Sentinel, January 7, practically
identical in form and content with the Utah and New Mexico acts of 1850, but
three days after publication it was explained that by a "clerical error" a
portion had been omitted; and this portion provided for territorial control of
slavery in accordance with the terms of the report.[4] This
principle, however, was too clearly stated, it would seem, to satisfy the
proslavery leaders; it really appeared to be a frank acknowledgment of the
right of the people of the territories to decide. The southerners wished to see
a recognition of the principle of non-intervention, bearing the meaning of no
interference with their constitutional right to carry their slaves into the
national domain. There was now a demand for the explicit repeal of the Missouri
Compromise.
What was Douglas to do? Whatever may have been the cause of his
eagerness for territorial organization, he doubtless wished to maintain unity
in his party, or (if "unity" be too strong a word) coöperation between the
southern and northern wings. Under pressure from southern proslavery interests,
but desirous also of meeting the wishes of his western constituents who were
eager to have the Nebraska region organized, would he now turn his back upon
the famous Compromise? And what induced the southerners to go so far as to
demand the repeal? One reason, of course, was their determination to receive
from Congress a recognition of their constitutional right. They valued that
abstract right, and no wonder, for in their opinion anything less seemed to
brand them and their institution as inferior; they resented discrimination.
They were now far enough along toward their ultimate goal, they were
sufficiently irritated, to demand a principle, even if it should be useless and
even though it should overthrow a Compromise which nearly everyone had supposed
to be final and unchangeable. But their policy was dangerous and aggressive,
and as we all know, its end was disaster to the cause they had at heart. Here
again, however, the burden cannot be placed upon the south alone. Without
northern votes, this attack upon the Compromise would have been hopeless.
Senator Dixon of Kentucky proposed the explicit repeal of the Missouri
Compromise (January 16, 1854) and the announcement of the distinct right to
take slaves into any of the territories of the United States. A few days later
(January 23) a reconstructed measure was presented by Douglas. A form had been
hit upon which would allow northern and southern Democrats to defend the act.
Jefferson Davis later said that it admitted of an interpretation in agreement
with southern views of non-intervention.[5] Two territories were
provided for instead of one, as in the original measure — the lower one,
south of forty degrees and north of thirty-seven, was to be called Kansas; the
upper one, Nebraska, ran to the northern boundary of the United States and west
to the mountains. Perhaps the south could get possession of Kansas and people
it with slaves and supporters of slavery, though to charge Douglas with
planning to bring this about is unwarranted.[6] The Missouri
Compromise was now declared "inoperative" on the ground that it had been
superseded by the Compromise of 1850. And there was also a declaration of what
certainly appeared to be a definite pronouncement of the doctrine of
territorial sovereignty, or, as Douglas now called it, the doctrine of popular
sovereignty.
That the Compromise of 1850 had superseded the Compromise of thirty
years before was a statement too preposterous not to arouse intense and
declamatory opposition.[7] There were no frank declarations of
definite doctrine in the Compromise of 1850..So to smooth out the discontent
— to use a mild word — "superseded" was changed to "inconsistent
with", but the phrase was almost equally objectionable. The resolution,
therefore, as now proposed and adopted declared that the eighth section of the
act for the admission of Missouri, "being inconsistent with the principle of
non-intervention by Congress with slavery in the States and Territories, as
recognized by the legislation of eighteen hundred and fifty, ... 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
therefrom, 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...."
Of course, it may be said that "the principle of non-intervention"
should be interpreted as meaning that Congress should do nothing, leave the
matter to the people of the territories, and, avoiding all theories of
constitutional power, allow the question to be passed upon by the Court; and
this interpretation may receive some support from the fact that the act
included the provision appearing in the Clayton Compromise and in the
Compromise of 1850, allowing cases involving the title to slaves to be carried
to the Supreme Court of the United States without regard to the value of the
matter in controversy. Possibly even the words "subject only to the
Constitution of the United States" implied an intention or an agreement to shun
the problem and let the judiciary settle it.[8] That there was this
intention and that there was an understanding between the southern advocates of
slavery-extension and others was later positively declared; and it seems more
than probable that such was the fact. But the debates show a strange absence of
an explicit declaration of any such agreement.
Two years after the passage of the Kansas-Nebraska bill, Douglas said,
"My opinion ... has been well known to the Senate for years.
... I told them it was a judicial question.... My answer then was, and
now is, that if the Constitution carries slavery there let it go, and no power
on earth can take away; but, if the Constitution does not carry it there, no
power but the people can carry it there. Whatever may be the true decision of
that constitutional point, would not have affected my vote for or against the
Nebraska bill.... If my colleague [Senator Trumbull] will examine my speeches,
he will find that declaration. He will also find, that I stated I would not
discuss this legal question, for by the bill we referred it to the courts."
[9] Thus, according to Douglas, he did not believe his much-lauded
popular sovereignty contained any constitutional principle. By this
interpretation, what became of what Benton called a "stump speech, injected in
the belly of the bill," as an announcement of popular sovereignty?
At all events, there stood the declaration which appeared on its face to
be an announcement of popular sovereignty: the right of the people to decide
— or the apparent right — , and that was an idea certain to win
applause. In a speech of wrath, Douglas, heaping abuse upon Charles Sumner and
Salmon P. Chase, opponents worthy of his steel, vehemently defended the bill,
insisted upon his own consistency and apparently advocated the territorial
right of self-determination.[10]
Legislative candor never was more thoroughly obscured; it is practically
impossible to-day, with letters and biographies of politicians and with the
interminable pages of the Congressional Globe to be ransacked and
studied, to know just what was intended by this child of misfortune born in the
"Stygian cave forlorn", the secret gathering of the faithful. Once more, that
was the beauty of the whole measure; the most conspicuous feature of the
landscape was the haze in which it was shrouded. At the north it was
represented to be what, indeed, it appeared to be — an enactment
distinctly recognizing the principle of territorial sovereignty. The
southerners might well accept the bill as better for them than the Missouri
Compromise. If they accepted the "stump speech" at all, it may have meant to
the shrewdest among them only the right of the people to exercise their will
when forming a constitution for admission into the union. How it could have
carried that meaning it is difficult to see, because the measure dealt
distinctly with the territories, and the subject in controversy was the extent
of congressional authority over slavery in the territories. But the act used
the blessed word "non-intervention", and that could mean what it might mean. If
anyone can believe that Douglas thought the bill announced a distinct
constitutional principle, and if anyone can reconcile his defense of popular
sovereignty — i.e. territorial sovereignty — with the intention of
allowing the Supreme Court to determine the proper constitutional principle, he
is entitled to do so; but his intellectual acumen will be heavily drawn upon.
The bill passed the Senate early in March by a vote of thirty-seven to
fourteen. For a time it seemed as if it was to be smothered in the House, where
it was referred to the committee of the whole; but, thanks to the cleverness of
Douglas and to the pressure of party discipline, the bill was extricated from
the mass of other bills and was passed by a vote of 113 to 100. In the Senate,
two southerners voted against the bill. It was carried by the southern votes
with the aid of fourteen northern votes, all cast by Democrats. In the House,
nine southern votes were cast in the negative and sixty-nine in the
affirmative, while the northern Democratic vote was divided almost equally. No
northern Whig voted for the bill in either house.[11] Amendments of
no great consequence necessitated its return to the Senate where the bill as
amended was passed. On May 30 it received the President's approval.
The measure, after all, was plainly largely a southern measure. Had
Douglas held his party together? The result might well fill him with
misgivings. At the south, the party was fairly well united, and on the one
critical question of slavery it was now supplemented by accretions from the
Whigs. At the north, its condition was perilous. Stragglers by the thousands
were drifting from its ranks. But perhaps even there it might be held in
working order, for the old loyalty to the party was still strong and the
leadership of Douglas was potent. The Democratic party could still pride itself
on being a national party as long as Democrats in sufficient numbers voted with
the south to insure southern interests.
The Kansas-Nebraska bill aroused furor at the north. The Compromise of
1820 had been looked upon for a generation as dedicating an extensive region to
free institutions; it had been looked upon, as Benton said, not as "a mere
statute, to last for a day", but as a measure "intended for perpetuity...."
Benton was a Democrat from a slaveholding state; his scorn of the fateful bill
was intense and bitter; a bill, he said, which was a "bungling attempt to
smuggle slavery into the Territory, and all the country out to the Canada line
and up the Rocky Mountains."
In the winter, while the Kansas-Nebraska measures were under discussion,
a movement was inaugurated to cast aside old party affiliations and to
reorganize a new party definitely and unequivocally opposed to the extension of
slavery. The first steps were taken at Ripon, Wisconsin. In July, a convention
at Jackson, Michigan, made up of former Whigs and Free Soilers, or Free
Democrats, adopted the name "Republican"; a state ticket was nominated and a
general convention was proposed for the adoption of "measures in resistance to
the encroachments of slavery." The movement spread. The old Whig party was
practically gone: its members were in great numbers attracted into the new
order. The nature of the Republican party of early days can be seen in the fact
of the accession of Free Soil Democrats, of men especially in the old northwest
believing profoundly in the old watchwords of freedom and the rights of the
common man, and of many Whigs with their economic and constitutional
inclinations.
[1] No one saw this or stated it more clearly than Calhoun.
Speaking in 1850 he said, "The cords that bind the States together are not only
many, but various in character. Some are spiritual or ecclesiastical; some
political; others social.... The ties which held each denomination together
formed a strong cord to hold the whole Union together; but, powerful as they
were, they have not been able to resist the explosive effect of slavery
agitation." Works, IV, p. 557.
[2] See especially P. O. Ray, The Repeal of the Missouri
Compromise; F. H. Hodder, "Genesis of the Kansas-Nebraska Act," Wis. Hist.
Society Proceedings for 1912, pp. 69-86; F. H. Hodder, "The Railroad
Background of the Kansas-Nebraska Act," Miss. Valley Hist. Rev., XII,
pp. 3-22.
[3] "The only reference in the debate to the slavery question
was in a speech made by Atchison of Missouri.... Atchison was a zealous
pro-slavery man and he had hitherto opposed the organization of Nebraska
Territory because of the existence of the compromise restriction upon slavery.
He now said he favored the passage of the bill. He had investigated the matter
and found 'no prospect, no hope of a repeal' of that restriction." M. M.
Quaife, The Doctrine of Non-intervention With Slavery in the
Territories, pp. 100-101.
[4] "All evidence points to the conclusion that Douglas added
this hastily, after the bill had been twice read in the Senate and ordered to
be printed; but whether it was carelessly omitted by the copyist or appended by
Douglas as an afterthought, it is impossible to say." Allen Johnson, Stephen
A. Douglas, p. 233.
[5] The Rise and Fall of the Confederate Government,
I, p. 29.
[6] See Johnson, Stephen A. Douglas, p. 238. Johnson
points out that the provision for two territories was associated with the
project for the Pacific railroad. Ibid., pp. 238-239. There is no doubt
also that Iowa leaders believed that the establishment of two territories would
be an advantage to that state, "... otherwise the seat of government and
leading thoroughfares must have all fallen south of Iowa." Ray, op.
cit., p. 178, note 251, quoting Senator A. C. Dodge of Iowa.
[7] Seward was doubtless right when he said, "I now throw my
gauntlet at the feet of every Senator now here, who was in the Senate in 1850,
and challenge him to say that he then knew, or thought, or dreamed, that, by
enacting the compromise of 1850, he was directly or indirectly abrogating, or
in any degree impairing, the Missouri compromise?" Frederic Bancroft, Life
of Seward, I, p. 347.
[8] That this interpretation was the one in the minds of the
men behind the scenes seems possible. Speaking of the days before the
reconstructed bill was drafted, Quaife says: "The Democratic Senators met
repeatedly in party caucus in the effort to adjust their differences of opinion
and agree upon a common course of action. The former proved impossible of
attainment; but the latter was realized through following the precedent set by
the Clayton Compromise and by the Adjustment measures of 1850. Just as on those
occasions, so now, it was agreed to frame the bill in such shape that both
Northern and Southern men could support it.... The advocates of the
Constitutional extension of slavery over the territories on the one hand, the
supporters of the doctrine of Territorial Sovereignty on the other, agreed to
pass a bill with the understanding that their differences of opinion as to the
effect it would have were to be adjudicated by the Courts; when so settled, all
were to abide by the decision." Quaife, op. cit., p. 111. Quaife seems
to rely for direct testimony chiefly on the statement made by Senator Judah P.
Benjamin of Louisiana, in 1860. But to strengthen such testimony one must add
the strong likelihood on general principles that the party leaders would
discuss the matters many times, seek to reach a compromise, and prepare a
measure which was sufficiently ambiguous to obtain support. Benjamin said, "We
could not agree. Morning after morning we met, for the purpose of coming to
some understanding upon that very point; and it was finally understood by all,
agreed to by all, made the basis of a compromise by all the supporters of that
bill, that the Territories should be organized with a delegation by Congress of
all the power of Congress in the Territories, and that the extent of the power
of Congress should be determined by the courts." May 8, 1860. Congressional
Globe, 36 Cong., 1 sess., p. 1966. See in addition, Douglas's statement in
1859. Ibid., 35 Cong., 2 sess., p. 1258. For Jefferson Davis's
interpretation of the measure, see The Rise and Fall of the Confederate
Government, I, p. 29. "What was in the background of Southern consciousness
was expressed bluntly by Brown of Mississippi, who refused to admit that the
right of the people of a Territory to regulate their domestic institutions,
including slavery, was a right to destroy. 'If I thought in voting for the bill
as it now stands, I was conceding the right of the people in the territory,
during their territorial existence, to exclude slavery, I would withhold my
vote.... It leaves the question where I am quite willing it should be left
— to the ultimate decision of the courts.'" Johnson, Stephen A.
Douglas, p. 247.
[9] Congressional Globe, 34 Cong., 1 sess., appendix,
p. 797.
[10] March 3, 1854. Congressional Globe, 33 Cong., 1
sess., appendix, p. 325 ff. See Cass's defense of popular sovereignty,
Ibid., p. 270 ff.
[11] See the classification of votes given by J. F. Rhodes,
History of the United States, I, pp. 475, 489.
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