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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.

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 co÷peration 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) co÷peration 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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