A Constitutional History of the United States Chapter XLII - The Lincoln-Douglas Debates byMcLaughlin, Andrew C.
The outstanding event of 1858 was the series of debates between Lincoln
and Douglas, in a contest to secure the senatorship in Illinois. After his
nomination at Springfield by the Republicans, Lincoln made a famous and
oft-quoted speech; its most startling announcement — startling to those
opponents of slavery who wished to put on the soft pedal and not shout aloud
any principle that might work mischief to party policy or politics — was
contained in the opening paragraph: " 'A house divided against itself cannot
stand.' I believe this government cannot endure permanently half slave and half
free. I do not expect the Union to be dissolved — I do not expect the
house to fall — but I do expect it will cease to be divided. It will
become all one thing, or all the other. Either the opponents of slavery will
arrest the further spread of it, and place it where the public mind shall rest
in the belief that it is in the course of ultimate extinction; or its advocates
will push it forward rill it shall become alike lawful in all the States, old
as well as new, North as well as South." This speech contains within itself the
kernel of Lincoln's undeviating belief and the center of his unswerving
purpose: slavery must not be allowed to expand. It must be placed, as he more
elaborately declared at a later time, where the fathers left it, in the belief
and the hope that it would in time disappear.[1]
But as far as the "house divided" principle or prophecy is concerned,
there was not really much, if anything, new in it — little except its
clarity and its peculiar applicability to the existing situation — , for
what had Calhoun talked about for years save the irreconcilable enmity between
slavery and the fell spirit of abolitionism, the danger to the union if slavery
were condemned? [2] Lincoln's use of the Biblical quotation and his
clear pronouncement of the essential hostility between slavery and freedom were
impressive because of their solemn simplicity. They must have left on the minds
of hearers and readers the assurance that mere palliatives or subterfuges could
not unite a nation thus divided.[3] He believed that a movement was
on foot for unifying the nation by making slavery national. His recognition of
the essential strength of conflicting principles is proof of his
statesmanship.
The Lincoln-Douglas debates had all the qualities of a stirring drama.
Douglas was the leader of his party, still its most conspicuous man despite his
quarrel with the administration. He was looked upon with favor by no small
number of Republican politicians who were appreciative of his courage and tried
to believe that he was their ally.[4] He was impressive by the very
force of a strangely dominating personality, and was — to use Harriet
Beecher Stowe's words — "the very ideal of vitality." Though prominent in
state politics, Lincoln was comparatively unimpressive. But, as Douglas well
knew, he could strike hard blows and had unusual skill in insisting upon
critical and crucial points, and he could not easily be confounded and lost in
the mists with which Douglas loved to enshroud an antagonist. But it is
impossible for us to cover those debates or even briefly to outline them. We
must content ourselves with one or two main matters of constitutional
interest.
In doing this, we may first call attention to Lincoln's announcement of
an essential difference between the Democrats and the Republicans: the
Democrats did not say slavery was wrong. This may seem a matter quite without
the field of constitutional history, but it was, of course, the center and the
kernel of the great controversy that ended in the attempted disruption of the
union. It would be folly to consider legislative disputes and not to recognize
at all the warfare between moral principles and social beliefs. The heart of
southern hostility to "Black Republicanism" was the Republican belief in the
wrongfulness of slavery. "If there be a man in the Democratic party", said
Lincoln, "who thinks it is wrong, and yet clings to that party, I suggest to
him in the first place that his leader don't [sic] talk as he does, for
he never says that it is wrong. In the second place, I suggest to him that if
he will examine the policy proposed to be carried forward, he will find that he
carefully excludes the idea that there is anything wrong in it.... When Judge
Douglas says that whoever or whatever community wants slaves, they have a right
to have them, he is perfectly logical if there is nothing wrong in the
institution; but if you admit that it is wrong, he cannot logically say that
anybody has a right to do wrong." [5]
Doubtless among the Democrats there were many who believed slavery a
misfortune, if not morally wrong, but who preferred to let matters drift,
dreaded sectional agitation, were influenced by the charges of "abolitionism"
constantly heaped upon the Republicans, and were persuaded that at the bottom
of Republican doctrine was the belief in the social equality of the black and
white races. In appraising Lincoln's statement, we must remember he was
debating against a party leader who did not announce his opposition to slavery;
if there were Democrats who disagreed with Douglas, they were in the wrong
party.
No words of mine can so clearly set forth Lincoln's party principles as
does his own declaration: "Because we think it [slavery] wrong, we propose a
course of policy that shall deal with it as a wrong. We deal with it as with
any other wrong, in so far as we can prevent its growing any larger, and so
deal with it that in the run of time there may be some promise of an end to it.
We have a due regard to the actual presence of it amongst us, and the
difficulties of getting rid of it in any satisfactory way, and all the
constitutional obligations thrown about it. I suppose that in reference both to
its actual existence in the nation, and to our constitutional obligations, we
have no right at all to disturb it in the States where it exists, and we
profess that we have no more inclination to disturb it than we have the right
to do it. We go further than that: we don't propose to disturb it where, in one
instance, we think the Constitution would permit us. We think the Constitution
would permit us to disturb it in the District of Columbia.
Still we do not propose to do that, unless it should be in terms which I
don't suppose the nation is very likely soon to agree to — the terms of
making the emancipation gradual and compensating the unwilling owners. Where we
suppose we have the constitutional right, we restrain ourselves in reference to
the actual existence of the institution and the difficulties thrown about it.
We also oppose it as an evil so far as it seeks to spread itself. We insist on
the policy that shall restrict it to ' its present limits. We don't suppose
that in doing this we violate anything due to the actual presence of the
institution, or anything due to the constitutional guaranties thrown around
it." [6]
To charge a man presenting such principles with being an abolitionist
and advocating social equality between blacks and whites might be good tactics
for winning votes, especially in southern Illinois, which had been peopled
largely from the south; but such charges or insinuations were appeals to
prejudices and passions. The people of the southern states saw in Republicanism
all that was obnoxious to them in antislavery doctrine; the purpose of the
"Black Republicans" was to stop at nothing in their zeal for social upheaval
and the equalizing of the races. Was Douglas in any measure responsible for
strengthening this conception of Republican doctrine? With this belief which
the southerners held — doubtless because by 1858 their passions were so
aroused that the time for calm questioning of purpose was passed — , they
might well think their only salvation was in breaking the union and building
bulwarks against the tide of fanaticism.
The Dred Scott decision naturally entered into the debates. To both
combatants it presented difficulties. Lincoln had to find ground for refusing
to be bound by the principle of a decision which he held false, for, if the
Republicans accepted the decision as a legitimate statement of constitutional
right, their calling was gone; their main purpose was no longer a legal
purpose, if they advocated opposition to law and authority. On that matter
Lincoln's position was as follows: "We do not propose that when Dred Scott has
been decided to be a slave by the court, we, as a mob, will decide him to be
free. We do not propose that, when any other one, or one thousand, shall be
decided by that court to be slaves, we will in any violent way disturb the
rights of property thus settled; but we nevertheless do oppose that decision as
a political rule, which shall be binding on the voter to vote for nobody who
thinks it wrong, which shall be binding on the members of Congress or the
President to favor no measure that does not actually concur with the principles
of that decision. We do not propose to be bound by it as a political rule in
that way, because we think it lays the foundation not merely of enlarging and
spreading out what we consider an evil, but it lays the foundation for
spreading that evil into the States themselves. We propose so resisting it as
to have it reversed if we can, and a new judicial rule established upon this
subject."[7]
Is it necessary to discuss the legitimacy of this doctrine as a
constitutional principle? From the acknowledgment of the Court's right and duty
to interpret and apply the Constitution, as the Court views the Constitution,
to the declaration that the Court by its decision fixes upon the Constitution
an interpretation that must last forever and beyond, is a far cry. As a matter
of practical and righteous politics, to "pack" a court in order to obtain a
particular decision is, or may be, constitutionally immoral; to make the Court
the plaything of party politics would be to vitiate much of what is sound and
wholesome in our constitutional system. But can we deny also the right of the
people — if necessary, by party agitation — to bring about an
amendment to the Constitution? Some aspects of this subject we considered when
speaking of Jackson's veto of the Bank bill. The Supreme Court has changed its
mind — rarely, it is true, openly reversing a decision, but not so rarely
by gradual and almost imperceptible modifications. Is it a constitutional
necessity that such change should always be made without any manifest pressure
from popular opinion? The result of popular sovereignty in Kansas appeared to
demonstrate that the people there would practically outlaw slavery; if the
principle of the Dred Scott decision were accepted, Congress would be under
obligation to protect slavery in Kansas. Could no congressman, believing the
Dred Scott principle false, refuse to vote for legislation affirmatively
protecting slavery in Kansas? The question answers itself; and the answer
justifies the assertion of a party's right to support congressmen opposing the
spread of slavery. Whether the reader accepts this reasoning or not, it was
asking a good deal of Lincoln, as matters then stood, to accept the decision,
given in the manner we have described, as an unchanging and unchangeable
constitutional principle.
Lincoln's position, then, was difficult: he must allay the anxiety of
those who respected the Court and were naturally, above all, law-abiding; and
he must at the same time announce the right of himself and his party to refuse
recognition of a principle which they believed constitutionally unsound and
politically unwholesome and perilous. It is unnecessary to take up his attack
on the fateful decision as part of a conspiracy,[8] a conspiracy
which might be aimed even at the authority of free states to maintain freedom.
Portions of this attack now seem groundless or unimportant. But despite all
Douglas's denials of intrigue, perhaps he was thinking, as he listened to
Lincoln's telling indictment, of the fact (or probable fact) that the leaders
of the Democratic party in 1854 had agreed on one thing — that the
question of slavery in the territories should be relegated to the Court. If
this meant that these leaders north and south would abide by a Court decision
and accept the principle, the doctrine of popular sovereignty, as announced in
the Nebraska bill and vehemently proclaimed by Douglas, was not a party
declaration of fixed constitutional principle.[9] Perhaps Douglas
had in mind — he might well have had — that the southern leaders
would have an excuse for their bitterness, if they found him opposing the Dred
Scott decision or so interpreting it as to deprive them of its effect.
If Lincoln and the Republicans were confronted with trouble because of
the Dred Scott case, Douglas and the Democrats were in even greater difficulty.
To make that difficulty plain to the voters was Lincoln's task. The Court's
decision was in direct conflict with the doctrine of territorial sovereignty:
the existence of slavery in the territories was legal; no territorial
government, the creature of Congress, could do more than Congress itself, and
Congress could not invalidate slavery. There followed as a logical consequence
the duty of the territorial legislature to protect slavery by positive
legislation as it would other property, and the duty of Congress to act
similarly, if need be.
The year before the debates began, Douglas had taken a position on this
matter: the right to hold slaves in any territory could not be taken away by
act of Congress, but it remained "a barren and worthless right, unless
sustained, protected, and enforced by appropriate police regulations and local
legislation, prescribing adequate remedies for its violation. These regulations
and remedies must necessarily depend entirely upon the will and wishes of the
people of the Territory, as they can only be prescribed by the local
legislatures." [10] Lincoln succeeded in getting Douglas to make
this statement again, and the statement is commonly called the Freeport, or
"unfriendly legislation", doctrine. Lincoln asked: "Can the people of a
Territory in any lawful way, against the wishes of any citizen of the United
States, exclude slavery from their limits prior to the formation of a State
constitution?" The reply was almost indignant: "I answer emphatically, as Mr.
Lincoln has heard me answer a hundred times from every stump in Illinois, that
in my opinion the people of a Territory can, by lawful means, exclude slavery
from their limits prior to the formation of a State constitution.... It matters
not what way the Supreme Court may hereafter [!] decide as to the abstract
question whether slavery may or may not go into a Territory under the
Constitution, the people have the lawful means to introduce it or exclude it as
they please, for the reason that slavery cannot exist a day or an hour anywhere
unless it is supported by local police regulations."[11] If the
people, he said, are opposed to slavery, they will elect representatives to the
local legislature who will by "unfriendly legislation" prevent its
introduction. An interesting example this, of a method of debate; for why did
Douglas say "hereafter"? And how clever the choice of the word
"unfriendly"![12] This doctrine of "unfriendly legislation" Lincoln
attacked in his speech at Jonesboro, but his most telling assault was made
later, at Columbus, Ohio (September 16, 1859), when he exposed it free from
"the trash, the words, the collateral matter" as "a bare absurdity: — no
less than that a thing may be lawfully driven away from where it has a lawful
right to be." [13] Douglas's doctrine of "unfriendly legislation" is
commonly considered the death-knell of his prospects for southern support, and
that may be true, but his reply to Lincoln's question at Quincy, October 13,
was in fact equally damaging, if he hoped to maintain party agreement on
slavery. He had been asked, if "a slaveholding citizen of one of the
Territories should need and demand a slave code to protect his slaves", he
would vote for such a measure. His reply was: "I answered him that a
fundamental article in the Democratic creed, as put forth in the Nebraska bill
and the Cincinnati platform, was non-intervention by Congress with slavery in
the States and Territories, and hence that I would not vote in Congress for any
code of laws either for or against slavery in any Territory. I will leave the
people perfectly free to decide that question for themselves."
[14]
As we have already seen, the vital question for six years after the
repeal of the Compromise was the question whether or not the Democratic party
could be maintained as an effective body. Douglas had defied the administration
on the Lecompton issue; now Lincoln was successful in bringing home to the
people the impossibility of reconciling the Dred Scott decision and popular
sovereignty; not even the agile Douglas could ride two horses, going in
different directions. The southerners were wroth with him. Lincoln stood forth
as a national character, associated at the south with the menace of "Black
Republicanism", abolition, and racial equality. He was recognized at the north
as one able to meet the redoubtable Douglas in debate and as a clear exponent
of the resolve not to allow the further spread of slavery. He had perhaps
overemphasized the danger of slavery's inundating the free states or bringing
them under the domination of slaveholding purposes and ideals; but he accepted
the constitutional duty of upholding the fugitive slave law, and disclaimed all
aim of interfering with slavery where it already existed. He made no
announcement of social equality of white and black, quite the contrary; but he
asserted that no man could rightly be made a chattel because of his color. He
summoned to his aid such Democrats as believed slavery wrong, and he made an
appeal to the old-time Whigs by proclaiming Henry Clay his "beau ideal of a
statesman".[15] He thus gained adherents for his party and helped
also to place it, in a certain degree at least, on a conservative basis. It was
a liberal party because it was arrayed against the extension and towering
influence of a great economic interest, because it appealed to the primary
sources of liberal sentiment and asked for a recognition of fundamental human
rights, and because it tended also to frighten the conservative business
interests of the north which dreaded disturbing contests. But it was
conservative because it made little or no appeal to the extreme antislavery
men, and because it placed emphasis on one practical idea — opposition to
the spread of slavery, but obedience to law. It was conservative because it
summoned to its standard the great body, probably, of northern Whigs, and the
Whigs had been socially and temperamentally conservative in their attitude
toward authority, finance, and business stability.
Douglas won the election in Illinois. The legislature chose him as his
own successor in the senatorship. But in electing the lower house of the
legislature, some sixteen thousand more votes were cast by the supporters of
Lincoln than were cast by the Douglas supporters. The vote for the state senate
disclosed a similar condition, and the Republican candidates for the state
offices were elected. Douglas might well have exclaimed with Pyrrhus, "Another
such victory and we are lost!" In the autumn after the election, Douglas,
traveling in the south, gave even there his doctrine of "unfriendly
legislation" or the practical equivalent. He adhered to the decision of the
Supreme Court, he said, and that decision allowed the southerner to take his
slave property into a territory, but once there, his property was dependent on
local law; if the legislature failed to protect the property, the ownership was
of little or no value — "Non-action is exclusion." [16] His
apparently frank statements were nothing less than pathetic; and in the
following months his failure to reconcile incompatibles became daily more
apparent. Brown of Mississippi in the Senate declared the legislature of Kansas
must protect slavery, and if it did not do so, Congress must act. Jefferson
Davis, now the leader of the southern Democracy, the heir of Calhoun but with a
larger and more united constituency, and like the great master a man of
intellectual vigor, pointed out plainly the duty of Congress: a territorial
legislature, the creature of Congress and its agent, could not exclude slavery,
and if slavery was in jeopardy, Congress must see that such property was
protected by affirmative legislation.
But there was much more than this mere conflict between theories;
Douglas and Davis, one the northern leader, the other the southern Democratic
leader, now declared the impossibility of further coöperation. "I tell
you, gentlemen of the South," said Douglas, "in all candor, I do not believe a
Democratic candidate can ever carry any one Democratic State of the North on
the platform that it is the duty of the Federal Government to force the people
of a Territory to have slavery when they do not want it." [17] "I
should have been glad," Davis declared, "if the Senator, when he appeared in
the Senate, had answered the expectation of many of his friends, and by a
speech here have removed the doubt which his reported speeches in the last
canvass of Illinois created.... He has confirmed me, however, in the belief
that he is now as full of heresy as he once was of adherence to the doctrine of
popular sovereignty, correctly construed...." [18] Driven along by
the persistent questioning of Davis, Douglas answered in much the same way as
he had previously answered Lincoln.[19] "... I will vote against any
law by Congress attempting to interfere with a regulation made by the
Territories, with respect to any kind of property whatever, whether horses,
mules, negroes, or anything else." [20] The "Little Giant", though
clad in heavy armor, was in no enviable position when attacked by Lincoln on
one side and Davis on the other.
Lincoln's campaign, as well as the attitude of Douglas on the Lecompton
question, was producing results. Douglas was deposed from his position as
chairman of the committee on territories. The south saw in him a traitor to the
cause. He still could count upon the support of northern admirers, but as a
national leader of a united party his reign was over. He continued to write and
speak with an impressive cleverness that need not be termed sagacity. The
constitutional fact is just this: however Douglas might reason, if the Dred
Scott decision were good law, then southerners had the right to carry their
slave property into the territories; Congress had full authority over the
territories — organized or not — subject to the limitations set down
in the Constitution; one of these limitations — the fifth amendment —
provided protection for property.
He continued to defend his interpretation of the Kansas-Nebraska Act:
"It was agreed [1854] that while we might differ as to the extent of the power
of the Territorial Legislature on these questions, we would make a full grant
of legislative authority to the Legislature of the Territory, with the right to
pass such laws as they chose, and the right of anybody to appeal to the court
to decide upon the validity and constitutionality of such laws, but not to come
to Congress for their annulment." [21] Douglas (February 23, 1859)
quoted at length a speech of Senator Benjamin of Louisiana, made in 1856, in
which that Senator pointed to the disagreements between the northern and
southern Democrats concerning the Kansas-Nebraska bill, and declared that they
had " 'agreed that every question touching human slavery or human freedom
should be appealable to the Supreme Court of the United States for its
decision.' " [22]
There is no use in wearying the reader with an account of how
persistently the "Little Giant" struggled. One or two things are plain:
congressmen are not under legal obligation to provide legislation for carrying
out a principle of a judicial decision of which they disapprove. But if the
Kansas-Nebraska bill really referred the question of territorial slavery to the
Supreme Court, it is reasonable to infer that the men who concocted the bill
hoped in that way to settle the controversy which threatened the party, and
expected that, if judicial determination upheld the legality of slavery in the
territories, the makers of the bill would act accordingly. Any assertion of
Douglas to the contrary leaves one cold, the prey of consuming skepticism.
[1] In his reply to Douglas at Quincy, October 13, 1858. See
Abraham Lincoln, Complete Works (J. G. Nicolay and John Hay, editors),
I, p. 480. This contention is especially elaborated in the Cooper Institute
speech of February 27, 1860 — a very astute, adroit, and sound use of
historical evidence, directed in part to establish that the fathers believed
the national government could exclude slavery from national territory.
Ibid., I, p. 599 ff.
[2] Calhoun wrote in 1850: "Nothing short of the terms I
propose, can settle it [the great question of the day] finally and permanently.
Indeed, it is difficult to see how two peoples so different and hostile can
exist together in one common Union." Letter to T. G. Clemson, March 10, 1850.
Correspondence of John C. Calhoun, Am. Hist. Asso. Report for
1899, II, p. 784.
[3] Lincoln's speech was made June 16, 1858. Seward's
"irrepressible conflict" speech (October 25, 1858) contained the same sentiment
and attracted much attention: "It is an irrepressible conflict between opposing
and enduring forces, and it means that the United States must and will, sooner
or later, become either entirely a slaveholding nation or entirely a free-labor
nation."
[4] A brief, clear statement is given in Allen Johnson,
Stephen A. Douglas, pp. 348-349.
[5] Speech at Quincy, October 13, 1858. Abraham Lincoln,
Complete Works (J. G. Nicolay and John Hay, editors), I, p. 464.
[6]Ibid., I, pp. 462-463.
[7]Ibid., I, p. 463.
[8] Referred to in his speech at Springfield, June 16, 1858,
and later.
[9] Notice Douglas's speech (July 2, 1856), Congressional
Globe, 34 Cong., 1 sess., appendix, p. 797, which has been already referred
to in the chapter on the repeal of the Missouri Compromise. Speaking of the
Nebraska bill, he said: "I should have supported it just as readily if I
thought the decision would be one way as the other." "... I stated I would not
discuss this legal question, for by the bill we referred it to the
courts." Italics mine. If the reader can discover what this statement makes
out of popular sovereignty as a principle of constitutional authority, he will
do well. See also the speech of J. P. Benjamin in the Senate (May 2, 1856),
Ibid., 34 Cong., 1 sess., p. 1093.
[10] Quoted in Johnson, op. cit., p. 322.
[11] Abraham Lincoln, Complete Works (J. G. Nicolay
and John Hay, editors), I, p. 315. Trumbull had in 1856 tried to get Douglas to
say positively whether in his opinion a territorial legislature had a right to
establish or exclude slavery. Douglas replied that it was a "judicial question,
left by the bill to the courts for decision." Congressional Globe, 34
Cong., 1 sess., pp. 1371, 1374.
[12] This "hereafter" arose to make trouble in the Democratic
convention of 1860. See also the platform of the Douglas Democrats in that
year. It is interesting to note that a few days later (at Jonesboro, September
15) Douglas said: "I wish to say to you. fellow-citizens, that I have no war to
make on that decision, or any other ever rendered by the Supreme Court. I am
content to take that decision as it stands delivered by the highest judicial
tribunal on earth, a tribunal established by the Constitution of the United
States for that purpose, and hence that decision becomes the law of the land,
binding on you, on me, and on every other good citizen, whether we like it or
not." Abraham Lincoln, Complete Works (J. G. Nicolay and John Hay,
editors), I, p. 343.
[13]Ibid., I, pp. 551-552. It is worthy of note that
Douglas, in a speech at Alton, October 15, 1858, quoted the "able and eloquent
statesman", Jefferson Davis, as upholding the Freeport doctrine. Davis, it
should be pointed out, said that if the inhabitants of a territory should
refuse to pass laws and police regulations for securing their property, "it
would be rendered more or less valueless in proportion to the difficulties of
holding it without such protection." If the property were slave property, "the
insecurity would be so great that the owner could not ordinarily retain it.
Therefore, though the right would remain, the remedy being withheld, it would
follow that the owner would be practically debarred, by the circumstances of
the case, from taking slave property into a Territory where the sense of the
inhabitants was opposed to its introduction." See Ibid., I, p. 494. We
have no right to suppose the south would calmly accept the nullification of a
legal right. And we should notice that Douglas's Freeport doctrine was in
answer to Lincoln's question whether the exclusion of slavery could be secured
in any lawful way.
[14]Ibid., I, p. 475.
[15] For example: "Henry Clay ... once said of a class of men
who would repress all tendencies to liberty and ultimate emancipation, that
they must, if they would do this, go back to the era of our independence, and
muzzle the cannon which thunders its annual joyous return ... !" Again, he
quoted Clay as lamenting slavery and as ' saying, "If a state of nature
existed, and we were about to lay the foundations of society, no man would be
more strongly opposed than I should be, to incorporating the institution of
slavery among its elements." Ibid., I, pp. 299, 502.
[16] Johnson, op. cit., pp. 393-394.
[17]Congressional Globe, 35 Cong., 2 sess., p.
1247.
[18]Ibid., p. 1257.
[19] Abraham Lincoln, Complete Works (J. G. Nicolay
and John Hay, editors), I,
p. 367.
[20]Congressional Globe, 35 Cong., 2 sess., p. 1259.
Davis said in reply, "Then, as I understand the Senator, ... it is that he
offers to us the proposition that the constitutional rights shall be submitted
to the Supreme Court, and now announces that, whatever may be the decision of
the Supreme Court, he will not legislate for the protection of the rights thus
guarantied." Ibid. Further light (or darkness) is thrown on Douglas's
position by his statement in Ibid., p. 1244.
