Abraham Lincoln, A History, Volume 2
by
John George Nicolay and John Hay
Part 2 out of 8
act, and comment. In result the incident was extremely damaging to the
South, for it tended more than any single Border-Ruffian crime in
Kansas to unite hesitating and wavering opinion in the North against
the alarming flood of lawlessness and violence, which as a rule found
its origin and its defense in the ranks of the pro-slavery party.
Certainly no phase of the transaction was received by the North with
such popular favor as some of the bolder avowals by Northern
Representatives of their readiness to fight, and especially by
Burlingame's actual acceptance of the challenge of Brooks.
The shock of the attack, and the serious wounds received by Mr.
Sumner, produced a spinal malady, from which he rallied with great
difficulty, and only after severe medical treatment and years of
enforced abstinence from work. As the constituents of Brooks sent him
back to the House, so also the Legislature of Massachusetts, in
January, 1857, with but few dissenting votes, reelected Sumner to a
new senatorial term, beginning the 4th of March. He came to Washington
and was sworn in, but within a few days sailed for Europe, and during
the greater part of the long interim between that time and the
succeeding Presidential campaign his seat in the Senate remained
vacant.
It was on the 4th of June, 1860, that he again raised his voice in
debate. Some changes had occurred: both Butler and Brooks were
dead;[1] the Senate was assembled in its new hall in the north wing
of the Capitol extension. But in the main the personnel and the spirit
of the pro-slavery party still confronted him. "Time has passed," he
said, "but the question remains." A little more than four years
before, he had essayed to describe "The Crime against Kansas"; now, in
an address free from offensive personalities but more unsparing in
rhetoric and stronger in historical arraignment, he delineated what he
named the "Barbarism of Slavery." Picturing to ourselves the orator,
the circumstances, and the theme, we can comprehend the exaltation
with which he exclaimed in his exordium: "Slavery must be resisted not
only on political grounds, but on all other grounds, whether social,
economical, or moral. Ours is no holiday contest; nor is it any strife
of rival factions--of White and Red Roses; of theatric Neri and
Bianchi; but it is a solemn battle between Right and Wrong, between
Good and Evil.... Grander debate has not occurred in our history,
rarely in any history; nor can this debate close or subside except
with the triumph of Freedom."
With this speech Sumner resumed his place as a conspicuous figure and
an indefatigable energy in national politics and legislation, tireless
in attacking and pursuing slavery until its final overthrow.
----------
[1] Preston S. Brooks died in Washington, January 27, 1857; Andrew P.
Butler died in South Carolina, May 25, 1857.
CHAPTER IV
THE DRED SCOTT DECISION
[Sidenote] 1854.
[Sidenote] March 6, 1857.
Deep and widespread as hitherto had been the slavery agitation created
by the repeal of the Missouri Compromise and by the consequent civil
war in Kansas, an event entirely unexpected to the public at large
suddenly doubled its intensity. This was the announcement, two days
after Buchanan's inauguration, of the decision of the Supreme Court of
the United States in the Dred Scott case. This celebrated case had
arisen as follows:
Two or three years before the Nebraska bill was thought of, a suit was
begun by a negro named Dred Scott, in a local court in St. Louis,
Missouri, to recover the freedom of himself and his family from
slavery. He alleged that his master, one Dr. Emerson, an army surgeon,
living in Missouri, had taken him as his slave to the military post at
Rock Island, in the State of Illinois, and afterwards to Fort
Snelling, situated in what was originally Upper Louisiana, but was at
that time part of Wisconsin Territory, and now forms part of
Minnesota. While at this latter post Dred Scott, with his master's
consent, married a colored woman, also brought as a slave from
Missouri, and of this marriage two children were born. All this
happened between the years 1834 and 1838. Afterwards Dr. Emerson
brought Dred Scott and his family back to Missouri. In this suit they
now claimed freedom, because during the time of residence with their
master at these military posts slavery was there prohibited by
positive law; namely, at Bock Island by the ordinance of 1787, and
later by the Constitution of Illinois; at Fort Snelling by the
Missouri Compromise acts of 1820, and other acts of Congress relating
to Wisconsin Territory.
The local court in St. Louis before which this action was brought
appears to have made short work of the case. It had become settled
legal doctrine by Lord Mansfield's decision in the Somersett case,
rendered four years before our Declaration of Independence, that "the
state of slavery is of such a nature that it is incapable of being
introduced on any reasons, moral or political, but only positive
law.... It is so odious that nothing can be suffered to support it but
positive law." The learned chief-justice therefore ordered that
Somersett, being claimed as a Virginia slave brought by his master
into England, when it was attempted to carry him away against his
will, should be discharged from custody or restraint, because there
was no positive law in England to support slavery. The doctrine was
subsequently modified by another English chief-justice, Lord Stowell,
in 1827, to the effect that absence of positive law to support slavery
in England only operates to suspend the master's authority, which is
revived if the slave voluntarily returns into an English colony where
slavery does exist by positive law.
The States of the Union naturally inherited and retained the common
law of England, and the principles and maxims of English jurisprudence
not necessarily abrogated by the change of government, and among
others this doctrine of Lord Mansfield. Unlike England, however, where
there was no slavery and no law for or against it, some of the
American States had positive laws establishing slavery, others
positive laws prohibiting it. Lord Mansfield's doctrine, therefore,
enlarged and strengthened by American statutes and decisions, had come
to be substantially this: Slavery, being contrary to natural right,
exists only by virtue of local law; if the master takes his slave for
permanent residence into a jurisdiction where slavery is prohibited,
the slave thereby acquires a right to his freedom everywhere. On the
other hand, Lord Stowell's doctrine was similarly enlarged and
strengthened so as to allow the master right of transit and temporary
sojourn in free-States and Territories without suspension or
forfeiture of his authority over his slave. Under the complex American
system of government, in which the Federal Union and the several
States each claim sovereignty and independent action within certain
limitations, it became the theory and practice that towards each other
the several States occupied the attitude of foreign nations, which
relation was governed by international law, and that the principle of
comity alone controlled the recognition and enforcement by any State
of the law of any other State. Under this theory, the courts of slave
States had generally accorded freedom to slaves, even when acquired by
the laws of a free-State, and reciprocally the courts of free-States
had enforced the master's right to his slave where that right depended
on the laws of a slave-State. In this spirit, and conforming to this
established usage, the local court of Missouri declared Dred Scott and
his family free.
The claimant, loath to lose these four human "chattels," carried the
case to the Supreme Court of the State of Missouri, where at its March
term, 1852, it was reversed, and a decree rendered that these negroes
were not entitled to freedom. Three judges formed the court, and two
of them joined in an opinion bearing internal evidence that it was
prompted, not by considerations of law and justice, but by a spirit of
retaliation growing out of the ineradicable antagonism of freedom and
slavery.
[Sidenote] Scott, J., 15 Mo. Reports, pp. 582-6.
Every State [says the opinion] has the right of determining how
far, in a spirit of comity, it will respect the laws of other
States. Those laws have no intrinsic right to be enforced beyond
the limits of the State for which they were enacted. The respect
allowed them will depend altogether on their conformity to the
policy of our institutions. No State is bound to carry into effect
enactments conceived in a spirit hostile to that which pervades
her own laws.... It is a humiliating spectacle to see the courts
of a State confiscating the property of her own citizens by the
command of a foreign law.... Times now are not as they were when
the former decisions on this subject were made. Since then not
only individuals but States have been possessed with a dark and
fell spirit in relation to slavery, whose gratification is sought
in the pursuit of measures whose inevitable consequence must be
the overthrow and destruction of our Government. Under such
circumstances it does not behoove the State of Missouri to show
the least countenance to any measure which might gratify this
spirit. She is willing to assume her full responsibility for the
existence slavery within her limits, nor does she seek to share or
divide it with others.
To this partisan bravado the third judge replied with a dignified
rebuke; in his dissenting opinion he said:
[Sidenote] Gamble, J., 15 Mo. Reports, pp. 589-92.
As citizens of a slave-holding State, we have no right to complain
of our neighbors of Illinois, because they introduce into their
State Constitution a prohibition of slavery; nor has any citizen
of Missouri who removes with his slave to Illinois a right to
complain that the fundamental law of the State to which he
removes, and in which he makes his residence, dissolves the
relation between him and his slave. It is as much his own
voluntary act as if he had executed a deed of emancipation....
There is with me nothing in the law relating to slavery which
distinguishes it from the law on any other subject, or allows any
more accommodation to the temporary public excitements which are
gathered around it.... In this State it has been recognized from
the beginning of the government, as a correct position in law,
that a master who takes his slave to reside in a State or Territory
where slavery is prohibited thereby emancipates his slave. [Citing
cases.] ... But the Supreme Court of Missouri, so far from
standing alone on this question, is supported by the decisions of
other slave-States, including those in which it may be supposed
there was the least disposition to favor emancipation. [Citing
cases.] ... Times may have changed, public feeling may have
changed, but principles have not and do not change; and in my
judgment there can be no safe basis for judicial decision but in
those principles which are immutable.
These utterances, it must be remembered, occurred in the year 1852,
when all slavery agitation was supposed to have been forever settled.
They show conclusively that the calm was superficial and delusive, and
that this deep-reaching contest was still, as before the adjustment of
1850, actually transforming the various institutions of society.
Gradually, and as yet unnoticed by the public, the motives disclosed
in these opinions were beginning to control courts of justice, and
popular discussion and excitement were not only shaping legislation,
but changing the tenor of legal decisions throughout the country.
Not long after the judgment by the Supreme Court of Missouri, Dred
Scott and his family were sold to a man named Sandford, who was a
citizen of New York. This circumstance afforded a ground for bringing
a similar action in a Federal tribunal, and accordingly Dred Scott
once more sued for freedom, in the United States Circuit Court at St.
Louis.[1] The case was tried in May, 1854, and a decree rendered that
they "were negro slaves, the lawful property" of Sandford. As a final
effort to obtain justice, they appealed by writ of error to the
Supreme Court of the United States, the highest judicial tribunal of
the nation.
Before this court of last resort the case was argued a first time in
the spring of 1856. The country had been for two years in a blaze of
political excitement. Civil war was raging in Kansas; Congress was in
a turmoil of partisan discussion; a Presidential election was
impending, and the whole people were anxiously noting the varying
phases of party politics. Few persons knew there was such a thing as
the Dred Scott case on the docket of the Supreme Court; but those few
appreciated the importance of the points it involved, and several
distinguished lawyers volunteered to take part in the argument.[2] Two
questions were presented to the court: First, Is Dred Scott a citizen
entitled to sue? Secondly, Did his residence at Rock Island and at
Fort Snelling, under the various prohibitions of slavery existing
there, work his freedom?
The Supreme Court was composed of nine justices; namely, Chief-Justice
Taney and Associate Justices McLean, Wayne, Catron, Daniel, Nelson,
Grier, Curtis, and Campbell. There was at once manifested among the
judges not only a lively interest in the questions presented, but a
wide difference of views as to the manner of treating them.
Consultations of the Supreme Court are always shrouded in inviolable
secrecy, but the opinions afterwards published indicate that the
political aspects of slavery, which were then convulsing the country,
from the very first found a certain sympathy and reflection in these
grave judicial deliberations. The discussions yet turned upon certain
merely technical rules to be applied to the pleadings under review;
and ostensibly to give time for further examination, the case was
postponed and a re-argument ordered for the next term. It may,
however, be suspected that the nearness of the Presidential election
had more to do with this postponement than did the exigencies of the
law.[3]
[Illustration: ROGER B. TANEY.]
The Presidential election came, and Mr. Buchanan was chosen. Soon
after, the court met to begin its long winter term; and about the
middle of December, 1856, the Dred Scott case was once more
elaborately argued. Again occupying the attention of the court for
four successive days, as it had also done in the first hearing, the
eminent counsel, after passing lightly over mere technical subtleties,
discussed very fully what was acknowledged to be the leading point in
the controversy; namely, whether Congress had power under the
Constitution to prohibit slavery in the Federal Territories, as it had
done by the Missouri Compromise act and various other laws. It was
precisely the policy, or impolicy, of this and similar prohibitions
which formed the subject of contention in party politics. The question
of their constitutional validity was certain to take even a higher
rank in public interest.
When after the second argument the judges took up the case in
conference for decision, the majority held that the judgment of the
Missouri Federal tribunal should simply be affirmed on its merits. In
conformity to this view, Justice Nelson was instructed to prepare an
opinion to be read as the judgment of the Supreme Court of the United
States. Such a paper was thereupon duly written by him, of the
following import: It was a question, he thought, whether a temporary
residence in a free-State or Territory could work the emancipation of
a slave. It was the exclusive province of each State, by its
Legislature or courts of justice, to determine this question for
itself. This determined, the Federal courts were bound to follow the
State's decision. The Supreme Court of Missouri had decided Dred Scott
to be a slave. In two cases tried since, the same judgment had been
given. Though former decisions had been otherwise, this must now be
admitted as "the settled law of the State," which, he said, "is
conclusive of the case in this court."
This very narrow treatment of the points at issue, having to do with
the mere lifeless machinery of the law, was strikingly criticised in
the dissenting opinion afterwards read by Justice McLean, a part of
which, by way of anticipation, may properly be quoted here. He denied
that it was exclusively a Missouri question.
[Sidenote] 19 Howard, pp. 555-64.
It involves a right claimed under an act of Congress and the
Constitution of Illinois, and which cannot be decided without the
consideration and construction of those laws.... Rights sanctioned
for twenty-eight years ought not and cannot be repudiated, with any
semblance of justice, by one or two decisions, influenced, as
declared, by a determination to counteract the excitement against
slavery in the free-States.... Having the same rights of
sovereignty as the State of Missouri in adopting a constitution, I
can perceive no reason why the institutions of Illinois should not
receive the same consideration as those of Missouri.... The
Missouri court disregards the express provisions of an act of
Congress and the Constitution of a sovereign State, both of which
laws for twenty-eight years it had not only regarded, but carried
into effect. If a State court may do this, on a question involving
the liberty of a human being, what protection do the laws afford?
[Sidenote] Campbell to Tyler, Samuel Tyler. "Life of Taney," pp.
383-4.
Had the majority of the judges carried out their original intention,
and announced their decision in the form in which Justice Nelson,
under their instruction, wrote it, the case of Dred Scott would, after
a passing notice, have gone to a quiet sleep under the dust of the law
libraries. A far different fate was in store for it. The nation was
then being stirred to its very foundation by the slavery agitation.
The party of pro-slavery reaction was for the moment in the ascendant;
and as by an irresistible impulse, the Supreme Court of the United
States was swept from its hitherto impartial judicial moorings into
the dangerous seas of polities.
[Sidenote] Campbell to Tyler, Tyler, p. 384.
Before Judge Nelson's opinion was submitted to the judges in
conference for final adoption as the judgment of the court a movement
seems to have taken place among the members, not only to change the
ground of the decision, but also greatly to enlarge the field of
inquiry. It is stated by one of the participants in that memorable
transaction (Justice Campbell) that this occurred "upon a motion of
Mr. Justice Wayne, who stated that the case had created public
interest and expectation, that it had been twice argued, and that an
impression existed that the questions argued would be considered in
the opinion of the court." He further says that "the apprehension had
been expressed by others of the court, that the court would not
fulfill public expectation or discharge its duties by maintaining
silence upon these questions; and my impression is, that several
opinions had already been begun among the members of the court, in
which a full discussion of the case was made, before Justice Wayne
made this proposal."
The exact time when this movement was begun cannot now be ascertained.
The motives which prompted it can be inferred by recalling
contemporaneous political events. A great controversy divided public
opinion, whether slavery might be extended or should be restricted.
The Missouri Compromise had been repealed to make such an extension
possible. The terms of that repeal were purposely couched in ambiguous
language. Kansas and Nebraska were left "perfectly free to form and
regulate their domestic institutions in their own way, subject only to
the Constitution of the United States." Whether under the Constitution
slavery could be excluded from the Federal Territories was affirmed by
Northern and denied by Southern Democrats. Northern and Southern
Democrats, acting together in the Cincinnati National Convention, had
ingeniously avoided any solution of this difference.
A twofold interpretation had enabled that party to elect Mr. Buchanan,
not by its own popular strength, but by the division of its opponents.
Notwithstanding its momentary success, unless it could develop new
sources of strength the party had only a precarious hold upon power.
Its majority in the Senate was waning. In Kansas free-State emigration
was outstripping the South in numbers and checkmating her in border
strife. According to the existing relative growth in sectional
representation and sectional sentiment, the balance of power was
slowly but steadily passing to the North.
Out of this doubt and difficulty there was one pathway that seemed
easy and certain. All the individual utterances from the Democratic
party agreed that the meaning of the words "subject to the
Constitution" was a question for the courts. This was the original
compact between Northern and Southern Democrats in caucus when Douglas
consented to repeal. Douglas, shorn of his prestige by his defeat for
the Presidential nomination, must accept conditions from his
successful rival. The Dred Scott case afforded the occasion for a
decision. Of the nine judges on the Supreme Bench seven were
Democrats, and of these five were appointed from slave-States. A
better opportunity for the South to obtain a favorable dictum could
never be expected to arise. A declaration by the Supreme Court of the
United States that under the Constitution Congress possessed no power
to prohibit slavery in the Federal Territories would by a single
breath end the old and begin a new political era. Congress was in
session and the political leaders were assembled at Washington.
Political topics excluded all other conversation or thought. Politics
reddened the plains of Kansas; politics had recently desecrated the
Senate chamber with a murderous personal assault; politics contended
greedily for the spoils of a new administration: politics nursed a
tacit conspiracy to nationalize slavery. The slavery sentiment ruled
society, ruled the Senate, ruled the Executive Mansion. It is not
surprising that this universal influence flowed in at the open door of
the national hall of justice--that it filtered through the very walls
which surrounded the consulting-room of the Supreme Court.
[Sidenote] Wayne, J., Opinion in the Dred Scott case, 19 Howard,
pp. 454-5.
The judges were, after all, but men. They dined, they talked, they
exchanged daily personal and social courtesies with the political
world. Curiosity, friendship, patriotism, led them to the floors of
Congress to listen to the great debates. Official ceremony called
them into the presence of the President, of legislators, of diplomats.
They were feasted, flattered, questioned, reminded of their great
opportunity, tempted with the suggestion of their supreme authority.[4]
They could render their names illustrious. They could honor their
States. They could do justice to the South. They could perpetuate
their party. They could settle the slavery question. They could end
sectional hatred, extinguish civil war, preserve the Union, save their
country. Advanced age, physical feebleness, party bias, the political
ardor of the youngest and the satiety of the eldest, all conspired to
draw them under the insidious influence of such considerations. One of
the judges in official language frankly avowed the motive and object
of the majority of the court. "The case," he wrote, "involves private
rights of value, and constitutional principles of the highest
importance, about which there had become such a difference of opinion
that the peace and harmony of the country required the settlement of
them by judicial decision." This language betrays the confusion of
ideas and misconception of authority which tempted the judges beyond
their proper duty. Required only to decide a question of private
rights, they thrust themselves forward to sit as umpires in a quarrel
of parties and factions.
[Sidenote] Campbell to Tyler, Tyler, p. 384.
[Sidenote] Nelson to Tyler, Tyler, p. 385.
In an evil hour they yielded to the demands of "public interest," and
resolved to "fulfill public expectation." Justice Wayne "proposed that
the Chief-Justice should write an opinion on all of the questions as
the opinion of the court. This was assented to, some reserving to
themselves to qualify their assent as the opinion might require.
Others of the court proposed to have no question, save one, discussed."
The extraordinary proceeding was calculated to touch the pride of
Justice Nelson. He appears to have given it a kind of sullen
acquiescence. "I was not present," he wrote, "when the majority
decided to change the ground of the decision, and assigned the
preparation of the opinion to the Chief-Justice; and when advised of
the change I simply gave notice that I should read the opinion I had
prepared as my own, and which is the one on file." From this time the
pens of other judges were busy, and in the inner political circles of
Washington the case of Dred Scott gradually became a shadowy and
portentous _cause celebre_.
The first intimation which the public at large had of the coming new
dictum was given in Mr. Buchanan's inaugural. The fact that he did
not contemplate such an announcement until after his arrival in
Washington[5] leads to the inference that it was prompted from high
quarters. In Congressional and popular discussions the question of the
moment was at what period in the growth of a Territory its voters
might exclude or establish slavery. Referring to this Mr. Buchanan
said: "It is a judicial question, which legitimately belongs to the
Supreme Court of the United States, before whom it is now pending, and
will, it is understood, be speedily and finally settled. To their
decision, in common with all good citizens, I shall cheerfully submit,
whatever this may be."
The popular acquiescence being thus invoked by the Presidential voice
and example, the court announced its decision two days afterwards--March
6, 1857. The essential character of the transaction impressed itself
upon the very form of the judgment, if indeed it may be called at all
by that name. Chief-Justice Taney read the opinion of the court.
Justices Nelson, Wayne, Daniel, Grier, Catron, and Campbell each read a
separate and individual opinion, agreeing with the Chief-Justice on
some points, and omitting or disagreeing on others, or arriving at the
same result by different reasoning, and in the same manner differing
one from another. The two remaining associate justices, McLean and
Curtis, read emphatic dissenting opinions. Thus the collective
utterance of the bench resembled the speeches of a town meeting rather
than the decision of a court, and employed 240 printed pages of learned
legal disquisition to order the simple dismissal of a suit. The opinion
read by Chief-Justice Taney was long and elaborate, and the following
were among its leading conclusions:
That the Declaration of Independence and the Constitution of the
United States do not include nor refer to negroes otherwise than as
property; that they cannot become citizens of the United States nor
sue in the Federal courts. That Dred Scott's claim to freedom by
reason of his residence in Illinois was a Missouri question, which
Missouri law had decided against him. That the Constitution of the
United States recognizes slaves as property, and pledges the Federal
Government to protect it; and that the Missouri Compromise act and
like prohibitory laws are unconstitutional. That the Circuit Court of
the United States had no jurisdiction in the case and could give no
judgment in it, and must be directed to dismiss the suit.
This remarkable decision challenged the attention of the whole people
to a degree never before excited by any act of their courts of law.
Multiplied editions were at once printed,[6] scattered broadcast over
the land, read with the greatest avidity, and earnestly criticised.
The public sentiment regarding it immediately divided, generally on
existing party lines--the South and the Democrats accepting and
commending, the North and the Republicans spurning and condemning it.
The great anti-slavery public was not slow in making a practical
application of its dogmas: that a sweeping and revolutionary
exposition of the Constitution had been attempted when confessedly
the case and question had no right to be in court; that an evident
partisan dictum of national judges had been built on an avowed
partisan decision of State judges; that both the legislative and
judicial authority of the nation had been trifled with; that the
settler's "sovereignty" in Kansas consisted only of a Southern
planter's right to bring his slaves there; and that if under the
"property" theory the Constitution carries slavery to the Territories,
it would by the same inevitable logic carry it into free-States.
But much more offensive to the Northern mind than his conclusions of
law were the language and historical assertions by which Chief-Justice
Taney strove to justify them.
[Sidenote] 19 Howard, p. 407.
In the opinion of the court [said he] the legislation and
histories of the times, and the language used in the Declaration
of Independence, show, that neither the class of persons who had
been imported as slaves, nor their descendants, whether they had
become free or not, were then acknowledged as a part of the
people, nor intended to be included in the general words used in
that memorable instrument. It is difficult at this day to realize
the state of public opinion in relation to that unfortunate race
which prevailed in the civilized and enlightened portions of the
world at the time of the Declaration of Independence and when the
Constitution of the United States was framed and adopted. But the
public history of every European nation displays it in a manner
too plain to be mistaken. They had for more than a century before
been regarded as beings of an inferior order, and altogether unfit
to associate with the white race, either in social or political
relations; and so far inferior, that they had no rights which the
white man was bound to respect; and that the negro might justly
and lawfully be reduced to slavery for his benefit. He was bought
and sold, and treated as an ordinary article of merchandise and
traffic, whenever a profit could be made by it.
Quoting the provisions of several early slave codes, he continued:
[Sidenote] Ibid., p. 409.
They show that a perpetual and impassable barrier was intended to
be erected between the white race and the one which they had
reduced to slavery and governed as subjects with absolute and
despotic power, and which they then looked upon as so far below
them in the scale of created beings that intermarriages between
white persons and negroes or mulattoes were regarded as unnatural
and immoral, and punished as crimes, not only in the parties, but
in the person who joined them in marriage. And no distinction in
this respect was made between the free negro or mulatto and the
slave, but this stigma, of the deepest degradation, was fixed upon
the whole race.
Referring to the phrase in the Declaration of Independence, which
asserts that all men are created equal, he remarked:
[Sidenote] 19 Howard, p. 410.
The general words above quoted would seem to embrace the whole
human family, and if they were used in a similar instrument at
this day would be so understood. But it is too clear for dispute,
that the enslaved African race were not intended to be included,
and formed no part of the people who framed and adopted this
declaration; for if the language, as understood in that day, would
embrace them, the conduct of the distinguished men who framed the
Declaration of Independence would have been utterly and flagrantly
inconsistent with the principles they asserted, and instead of the
sympathy of mankind, to which they so confidently appealed, they
would have deserved and received universal rebuke and reprobation.
He then applied the facts thus assumed as follows:
[Sidenote] Ibid., pp. 425-6.
The only two provisions which point to them and include them treat
them as property, and make it the duty of the Government to
protect it; no other power in relation to this race is to be found
in the Constitution.... No one, we presume, supposes that any
change in public opinion or feeling in relation to this
unfortunate race, in the civilized nations of Europe or in this
country, should induce the court to give to the words of the
Constitution a more liberal construction in their favor than
they were intended to bear when the instrument was framed and
adopted.... It is not only the same in words, but the same in
meaning, and delegates the same powers to the Government, and
reserves and secures the same rights and privileges to the
citizen; and as long as it continues to exist in its present form,
it speaks not only in the same words but with the same meaning and
intent with which it spoke when it came from the hands of its
framers and was voted on and adopted by the people of the United
States.
This cold and pitiless historical delineation of the bondage,
ignorance, and degradation of the unfortunate kidnaped Africans and
their descendants in a by-gone century, as an immutable basis of
constitutional interpretation, was met by loud and indignant protest
from the North. The people and press of that section seized upon the
salient phrase of the statement, and applying it in the present tense,
accused the Chief-Justice with saying that "a negro has no rights
which a white man is bound to respect." This was certainly a
distortion of his exact words and meaning; yet the exaggeration was
more than half excusable, in view of the literal and unbending rigor
with which he proclaimed the constitutional disability of the entire
African race in the United States, and denied their birthright in the
Declaration of Independence. His unmerciful logic made the black
before the law less than a slave; it reduced him to the status of a
horse or dog, a bale of dry-goods or a block of stone. Against such a
debasement of any living image of the Divine Maker the resentment of
the public conscience of the North was quick and unsparing.
Had Chief-Justice Taney's delineation been historically correct, it
would have been nevertheless unwise and unchristian to embody it in
the form of a disqualifying legal sentence and an indelible political
brand. But its manifest untruth was clearly shown by Justice Curtis in
his dissenting opinion. He reminded the Chief-Justice that at the
adoption of the Constitution:
[Sidenote] 19 Howard, p. 582.
In five of the thirteen original States colored persons then
possessed the elective franchise, and were among those by whom the
Constitution was ordained and established. If so, it is not true
in point of fact that the Constitution was made exclusively by the
white race, and that it was made exclusively for the white race is
in my opinion not only an assumption not warranted by anything in
the Constitution, but contradicted by its opening declaration that
it was ordained and established by the people of the United States
for themselves and their posterity; and as free colored persons
were then citizens of at least five States, and so in every sense
part of the people of the United States, they were among those for
whom and whose posterity the Constitution was ordained and
established.
Elsewhere in the same opinion he said:
[Sidenote] Ibid., pp. 574-5.
I shall not enter into an examination of the existing opinions of
that period respecting the African race, nor into any discussion
concerning the meaning of those who asserted in the Declaration of
Independence that all men are created equal; that they are endowed
by their Creator with certain inalienable rights; that among these
are life, liberty, and the pursuit of happiness. My own opinion
is, that a calm comparison of these assertions of universal
abstract truths, and of their own individual opinions and acts,
would not leave these men under any reproach of inconsistency;
that the great truths they asserted on that solemn occasion they
were ready and anxious to make effectual; wherever a necessary
regard to circumstances, which no statesman can disregard without
producing more evil than good, would allow; and that it would not
be just to them, nor true in itself, to allege that they intended
to say that the Creator of all men had endowed the white race
exclusively with the great natural rights which the Declaration of
Independence asserts.
Justice McLean, in his dissenting opinion, completed the outline of
the true historical picture in accurate language:
[Sidenote] 19 Howard, pp. 537-8.
I prefer the lights of Madison, Hamilton, and Jay, as a means of
construing the Constitution in all its bearings, rather than to
look behind that period into a traffic which is now declared to be
piracy, and punished with death by Christian nations. I do not
like to draw the sources of our domestic relations from so dark a
ground. Our independence was a great epoch in the history of
freedom; and while I admit the Government was not made especially
for the colored race, yet many of them were citizens of the New
England States, and exercised the rights of suffrage when the
Constitution was adopted, and it was not doubted by any
intelligent person that its tendencies would greatly ameliorate
their condition.
Many of the States on the adoption of the Constitution, or shortly
afterwards, took measures to abolish slavery within their
respective jurisdictions; and it is a well-known fact that a
belief was cherished by the leading men, South as well as North,
that the institution of slavery would gradually decline until it
would become extinct. The increased value of slave labor, in the
culture of cotton and sugar, prevented the realization of this
expectation. Like all other communities and States, the South were
influenced by what they considered to be their own interests. But
if we are to turn our attention to the dark ages of the world, why
confine our view to colored slavery? On the same principles white
men were made slaves. All slavery has its origin in power and is
against right.
To the constitutional theory advanced by the Chief-Justice, that
Congress cannot exercise sovereign powers over Federal Territories,
and hence cannot exclude slave property from them, Justices McLean and
Curtis also opposed a vigorous and exhaustive argument, which the most
eminent lawyers and statesmen of that day deemed conclusive. The
historical precedents alone ought to have determined the issue. "The
judicial mind of this country, State and Federal," said McLean, "has
agreed on no subject within its legitimate action with equal unanimity
as on the power of Congress to establish Territorial governments. No
court, State or Federal, no judge or statesman, is known to have had
any doubts on this question for nearly sixty years after the power was
exercised."
[Sidenote] 19 Howard, p. 619.
And Curtis added: "Here are eight distinct instances, beginning with
the first Congress, and coming down to the year 1848, in which
Congress has excluded slavery from the territory of the United States;
and six distinct instances in which Congress organized governments of
Territories by which slavery was recognized and continued, beginning
also with the first Congress, and coming down to the year 1822. These
acts were severally signed by seven Presidents of the United States,
beginning with General Washington, and coming regularly down as far as
Mr. John Quincy Adams, thus including all who were in public life when
the Constitution was adopted. If the practical construction of the
Constitution, contemporaneously with its going into effect, by men
intimately acquainted with its history from their personal
participation in framing and adopting it, and continued by them
through a long series of acts of the gravest importance, be entitled
to weight in the judicial mind on a question of construction, it would
seem to be difficult to resist the force of the acts above adverted
to."
[Illustration: SAMUEL NELSON.]
----------
[1] The declaration in the case of Dred Scott vs. John F.A. Sandford
was filed in the clerk's office of the Circuit Court of the United
States for the district of Missouri on the second day of November,
1853. The trespass complained of is alleged to have occurred on the
first day of January, 1853.--Manuscript Records of the Supreme Court
of the United States.
[2] At the first hearing Montgomery Blair argued the case for Dred
Scott, and Senator Geyer, of Missouri, and ex-Attorney-General Reverdy
Johnson, of Maryland, for the claimant. At the second hearing Mr.
Blair and George Ticknor Curtis, of Boston, argued the case on behalf
of Dred Scott, and Mr. Greyer and Mr. Johnson again made the argument
for the claimant. All of them performed the service without
compensation.
[3] "The court will not decide the question of the Missouri Compromise
line--a majority of the judges being of opinion that it is not
necessary to do so. (This is confidential.) The one engrossing subject
in both Houses of Congress and with all the members is the Presidency;
and upon this everything done and omitted, except the most ordinary
necessities of the country, depends."--[Letter of Justice Curtis to
Mr. Ticknor, April 8, 1856. G.T. Curtis, "Life of B.R. Curtis," Vol.
I., p. 180.]
[4] A striking example may be found in the utterance of Attorney-General
Caleb Cushing, of the retiring Pierce Administration, in a little
parting address to the Supreme Court, March 4, 1857:
"Yours is not the gauntleted hand of the soldier, nor yours the
voice which commands armies, rules cabinets, or leads senates; but
though you are none of these, yet you are backed by all of them.
Theirs is the external power which sustains your moral authority;
you are the incarnate mind of the political body of the nation. In
the complex institutions of our country you are the pivot point
upon which the rights and liberties of all, government and people
alike, turn; or, rather, you are the central light of constitutional
wisdom around which they perpetually revolve. Long may this court
retain the confidence of our country as the great conservators,
not of the private peace only, but of the sanctity and integrity
of the Constitution."--"National Intelligencer," March 5, 1857.
[5] "Mr. Buchanan was also preparing his inaugural address with his
usual care and painstaking, and I copied his drafts and recopied them
until he had prepared it to his satisfaction. It underwent no alteration
after he went to the National Hotel in Washington, except that he there
inserted a clause in regard to the question then pending in the Supreme
Court, as one that would dispose of a vexed and dangerous topic by the
highest judicial authority of the land."--Statement of James Buchanan
Henry (President Buchanan's private secretary) in the "Life of James
Buchanan," by George Ticknor Curtis, Vol. II., p. 187.
[6] "It may not be improper for me here to add that so great an
interest did I take in that decision, and in its principles being
sustained and understood in the Commonwealth of Kentucky, that I took
the trouble at my own cost to print or have printed a large edition of
that decision to scatter it over the State; and unless the mails have
miscarried, there is scarcely a member elected to the Legislature who
has not received a copy with my frank."--Vice-president Breckinridge,
Frankfort Speech, December, 1859.
CHAPTER V
DOUGLAS AND LINCOLN ON DRED SCOTT
Manifestly, when the educated intellects of the learned judges
differed so radically concerning the principles of law and the facts
of history applicable to the Dred Scott question, the public at large
could hardly be expected to receive the new dogmas without similar
divergence of opinion. So far from exercising a healing influence,
the decision widened immensely the already serious breach between
the North and the South. The persons immediately involved in the
litigation were quickly lost sight of;[1] but the constitutional
principle affirmed by the court was defended by the South and
denounced by the North with zeal and acrimony. The Republican party
did not further question or propose to disturb the final judgment in
the case; but it declared that the Dred Scott doctrines of the Supreme
Court should not be made a rule of political action, and precisely
this the South, together with the bulk of the Northern Democrats,
insisted should be done.
[Sidenote] 19 Howard, pp. 460-1.
A single phase of the controversy will serve to illustrate the general
drift of the discussion throughout the Union. Some three months after
the delivery of the opinion of the court, Senator Douglas found
himself again among his constituents in Illinois, and although there
was no political campaign in progress, current events and the roused
state of public feeling seemed to require that he should define his
views in a public speech. It marks his acuteness as a politician that
he already realized what a fatal stab the Dred Scott decision had
given his vaunted principle of "Popular Sovereignty," with which he
justified his famous repeal of the Missouri Compromise. He had ever
since argued that Congressional prohibition of slavery was obsolete
and useless, and that the choice of slavery or freedom ought to be
confided to the local Territorial laws, just as it was confided to
local State constitutions. But the Dred Scott decision announced that
slaves were property which Congress could not exclude from the
Territories, adding also the inevitable conclusion that what Congress
could not do a Territorial Legislature could not.
Difficult as this made his task of reconciling his favorite theory
with the Dred Scott decision, such was his political boldness, and
such had been his skill and success in sophistry, that he undertook
even this hopeless effort. Douglas, therefore, made a speech at
Springfield, Illinois, on the 12th of June, 1857, in which he broadly
and fully indorsed and commended the opinion of Chief-Justice Taney
and his concurring associates, declaring that "Their judicial
decisions will stand in all future time, a proud monument to their
greatness, the admiration of the good and wise, and a rebuke to the
partisans of faction and lawless violence. If unfortunately any
considerable portion of the people of the United States shall so far
forget their obligations to society as to allow the partisan leaders
to array them in violent resistance to the final decision of the
highest judicial tribunal on earth, it will become the duty of all the
friends of order and constitutional government, without reference to
past political differences, to organize themselves and marshal their
forces under the glorious banner of the Union, in vindication of the
Constitution and supremacy of the laws over the advocates of faction
and the champions of violence."
Proceeding then with a statement of the case, he continued: "The
material and controlling points in the case, those which have been
made the subject of unmeasured abuse and denunciation, may be thus
stated: 1st. The court decided that under the Constitution of the
United States, a negro descended from slave parents is not and cannot
be a citizen of the United States. 2d. That the act of March 6, 1820,
commonly called the Missouri Compromise act, was unconstitutional and
void before it was repealed by the Nebraska act, and consequently did
not and could not have the legal effect of extinguishing a master's
right to his slave in that Territory. While the right continues in
full force under the guarantees of the Constitution, and cannot be
divested or alienated by an act of Congress, it necessarily remains a
barren and a 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. Hence the great principle of popular sovereignty
and self-government is sustained and firmly established by the
authority of this decision."
It is scarcely possible that Douglas convinced himself by such a
glaring _non sequitur_; but he had no other alternative. It was a
desperate expedient to shield himself as well as he might from the
damaging recoil of his own temporizing statesmanship. The declaration
made thus early is worthy of historical notice as being the substance
and groundwork of the speaker's famous "Freeport doctrine," or theory
of "unfriendly legislation," to which Lincoln's searching interrogatories
drove him in the great Lincoln-Douglas debates of the following year.
Repeated and amplified at that time, it became in the eyes of the South
the unpardonable political heresy which lost him the Presidential
nomination and caused the rupture of the Democratic National
Convention at Charleston in the summer of 1860. For the moment, however,
the sophism doubtless satisfied his many warm partisans. He did not
dwell on the dangerous point, but trusted for oratorical effect rather
to his renewed appeals to the popular prejudice against the blacks, so
strong in central Illinois, indorsing and emphasizing Chief-Justice
Taney's assertion that negroes were not included in the words of the
Declaration of Independence, and arguing that if the principle of
equality were admitted and carried out to its logical results, it
would necessarily lead not only to the abolition of slavery in the
slave-States, but to the general amalgamation of the two races.
The Republican party of Illinois had been greatly encouraged and
strengthened by its success in electing the State officers in the
previous autumn; and as their recognized leader and champion, Lincoln
made a reply to this speech some two weeks later, June 26, 1857, also
at Springfield. Though embracing other topics, the question of the
hour, the Dred Scott decision, was nevertheless its chief subject. The
extracts here presented from it will give the reader some idea of its
power of statement and eloquence:
And now [said Mr. Lincoln] as to the Dred Scott decision. That
decision declares two propositions--first, that a negro cannot sue
in the United States courts; and secondly, that Congress cannot
prohibit slavery in the Territories. It was made by a divided
court--dividing differently on the different points. Judge Douglas
does not discuss the merits of the decision, and in that respect I
shall follow his example, believing I could no more improve on
McLean and Curtis, than he could on Taney. He denounces all who
question the correctness of that decision, as offering violent
resistance to it. But who resists it? Who has, in spite of the
decision, declared Dred Scott free, and resisted the authority of
his master over him? Judicial decisions have two uses--first, to
absolutely determine the case decided, and, secondly, to indicate
to the public how other similar cases will be decided when they
arise. For the latter use they are called "precedents" and
"authorities." We believe as much as Judge Douglas (perhaps more)
in obedience to and respect for the judicial department of
government. We think its decisions on constitutional questions,
when fully settled, should control, not only the particular cases
decided, but the general policy of the country, subject to be
disturbed only by amendments of the Constitution as provided in
that instrument itself. More than this would be revolution. But we
think the Dred Scott decision is erroneous. We know the court that
made it has often overruled its own decisions, and we shall do
what we can to have it overrule this. We offer no resistance to
it. Judicial decisions are of greater or less authority as
precedents according to circumstances. That this should be so,
accords both with common sense and the customary understanding of
the legal profession. If this important decision had been made by
the unanimous concurrence of the judges, and without any apparent
partisan bias, and in accordance with legal public expectation,
and with the steady practice of the departments throughout our
history, and had been in no part based on assumed historical facts
which are not really true; or, if wanting in some of these, it had
been before the court more than once, and had there been affirmed
and reaffirmed through a course of years, it then might be,
perhaps would be, factious, nay, even revolutionary, not to
acquiesce in it as a precedent. But when, as is true, we find it
wanting in all these claims to the public confidence, it is not
resistance, it is not factions, it is not even disrespectful, to
treat it as not having yet quite established a settled doctrine
for the country.
Rising above all questions of technical construction to the broad and
universal aspects of the issue, Mr. Lincoln continued:
The Chief-Justice does not directly assert, but plainly assumes as
a fact, that the public estimate of the black man is more
favorable now than it was in the days of the Revolution. This
assumption is a mistake. In some trifling particulars the
condition of that race has been ameliorated; but as a whole, in
this country, the change between then and now is decidedly the
other way; and their ultimate destiny has never appeared so
hopeless as in the last three or four years. In two of the five
States--New Jersey and North Carolina--that then gave the free
negro the right of voting, the right has since been taken away;
and in a third--New York--it has been greatly abridged; while it
has not been extended, so far as I know, to a single additional
State, though the number of the States has more than doubled. In
those days, as I understand, masters could, at their own pleasure,
emancipate their slaves; but since then such legal restraints have
been made upon emancipation as to amount almost to prohibition. In
those days, legislatures held the unquestioned power to abolish
slavery in their respective States; but now it is becoming quite
fashionable for State constitutions to withhold that power from
the legislatures. In those days, by common consent, the spread of
the black man's bondage to the new countries was prohibited; but
now Congress decides that it will not continue the prohibition,
and the Supreme Court decides that it could not if it would. In
those days, our Declaration of Independence was held sacred by
all, and thought to include all; but now, to aid in making the
bondage of the negro universal and eternal, it is assailed, and
sneered at, and construed and hawked at, and torn, till if its
framers could rise from their graves they could not at all
recognize it. All the powers of earth seem rapidly combining
against him. Mammon is after him, ambition follows, philosophy
follows, and the theology of the day is fast joining the cry. They
have him in his prison house, they have searched his person and
left no prying instrument with him. One after another they have
closed the heavy iron doors upon him; and now they have him, as it
were, bolted in with a lock of a hundred keys, which can never be
unlocked without the concurrence of every key; the keys in the
hands of a hundred different men, and they scattered to a hundred
different and distant places; and they stand musing as to what
invention, in all the dominions of mind and matter, can he
produced to make the impossibility of his escape more complete
than it is....
There is a natural disgust in the minds of nearly all white people
at the idea of an indiscriminate amalgamation of the white and
black races; and Judge Douglas evidently is basing his chief hope
upon the chances of his being able to appropriate the benefit of
this disgust to himself. If he can by much drumming and repeating
fasten the odium of that idea upon his adversaries, he thinks he
can struggle through the storm. He therefore clings to this hope
as a drowning man to the last plank. He makes an occasion for
lugging it in, from the opposition to the Dred Scott decision. He
finds the Republicans insisting that the Declaration of
Independence includes _all_ men, black as well as white, and
forthwith he boldly denies that it includes negroes at all, and
proceeds to argue gravely that all who contend it does, do so only
because they want to vote, and eat, and sleep, and marry with
negroes. He will have it that they cannot be consistent else. Now
I protest against the counterfeit logic which concludes that
because I do not want a black woman for a slave I must necessarily
want her for a wife. I need not have her for either. I can just
leave her alone. In some respects she certainly is not my equal;
but in her natural right to eat the bread she earns with her own
hands, without asking leave of any one else, she is my equal and
the equal of all others.
Chief-Justice Taney, in his opinion in the Dred Scott case, admits
that the language of the Declaration is broad enough to include
the whole human family; but he and Judge Douglas argue that the
authors of that instrument did not intend to include negroes, by
the fact that they did not at once actually place them on an
equality with the whites. Now this grave argument comes to just
nothing at all by the other fact that they did not at once or ever
afterwards actually place all white people on an equality with one
another. And this is the staple argument of both the Chief-Justice
and the Senator, for doing this obvious violence to the plain,
unmistakable language of the Declaration.
I think the authors of that notable instrument intended to include
all men; but they did not intend to declare all men equal in all
respects. They did not mean to say all were equal in color, size,
intellect, moral development, or social capacity. They defined
with tolerable distinctness in what respects they did consider all
men created equal--equal with "certain inalienable rights, among
which, are life, liberty, and the pursuit of happiness." This they
said, and this they meant. They did not mean to assert the obvious
untruth that all were then actually enjoying that equality, nor
yet that they were about to confer it immediately upon them. In
fact they had no power to confer such a boon. They meant simply to
declare the right, so that the enforcement of it might follow as
fast as circumstances should permit. They meant to set up a
standard maxim for free society, which should be familiar to all,
and revered by all; constantly looked to, constantly labored for,
and even though never perfectly attained, constantly approximated,
and thereby constantly spreading and deepening its influence and
augmenting; the happiness and value of life to all people of all
colors everywhere. The assertion that "all men are created equal"
was of no practical use in effecting our separation from Great
Britain; and it was placed in the Declaration, not for that but
for future use. Its authors meant it to be, as, thank God, it is
now proving itself, a stumbling-block to all those who in after
times might seek to turn a free people back into the hateful paths
of despotism. They knew the proneness of prosperity to breed
tyrants, and they meant when such should reappear in this fair
land and commence their vocation, they should find left for them
at least one hard nut to crack.
----------
[1] The ownership of Dred Scott and his family passed by inheritance
to the family of a Massachusetts Republican member of Congress. The
following telegram, copied from the "Providence Post" into the
"Washington Union," shows the action of the new owner: "St. Louis, May
26 [1857]. Dred Scott with his wife and two daughters were emancipated
to-day by Taylor Blow, Esq. They had been conveyed to him by Mr.
Chaffee for that purpose."
CHAPTER VI
THE LECOMPTON CONSTITUTION
The year 1857 brings us to a decided change in the affairs of Kansas,
but with occurrences no less remarkable. Active civil war gradually
ceased in the preceding autumn--a result due to the vigorous and
impartial administration of Governor Geary and the arrival of the
inclement winter weather.
[Sidenote] Geary to Marcy, Jan. 19, 1857. Senate Ex. Doc. No. 17,
1st Sess. 35th Cong. Vol. VI., p. 131.
[Sidenote] Geary, Veto Message, Feb. 18, 1857. Senate Ex. Doc.
No. 17, 1st Sess. 35th Cong. Vol. VI., p. 167.
On the evening of the day the Legislature met (January 12, 1857), the
pro-slavery party held a large political convention, in which it was
confessed that they were in a hopeless minority in the Territory, and
the general conclusion was reached that it was no longer worth while
to attempt to form a slave-State in Kansas.[1] Many of its hitherto
active leaders immediately and definitely abandoned the struggle. But
the Missouri cabal, intrenched in the various territorial and county
offices, held to their design, though their labors now assumed a
somewhat different character. They denounced Governor Geary in their
resolutions, and devised legislation to further their intrigues. By
the middle of February, under their inspiration, a bill providing for
a convention to frame a State constitution was perfected and enacted.
The Governor immediately sent the Legislature his message, reminding
them that the leading idea of the organic act was to leave the actual
_bona fide_ inhabitants of the Territory "perfectly free to form and
regulate their domestic institutions in their own way," and vetoing
the bill because "the Legislature has failed to make any provision to
submit the constitution when framed to the consideration of the people
for their ratification or rejection." The Governor's argument was
wasted on the predetermined legislators. They promptly passed the act
over his veto.
The cabal was in no mood to be thwarted, and under a show of outward
toleration, if not respect, their deep hostility found such means of
making itself felt that the Governor began to receive insult from
street ruffians, and to become apprehensive for his personal safety.
In such a contest he was single-handed against the whole pro-slavery
town of Lecompton. The foundation of his authority was gradually
sapped; and finding himself no longer sustained at Washington, where
the private appeals and denunciations of the cabal were more
influential than his official reports, he wrote his resignation on
the day of Buchanan's inauguration, and a week later left the Territory
in secrecy as a fugitive. Thus, in less than three years, three
successive Democratic executives had been resisted, disgraced, and
overthrown by the political conspiracy which ruled the Territory; and
Kansas had indeed become, in the phraseology of the day, "the
graveyard of governors."
The Kansas imbroglio was a political scandal of such large
proportions, and so clearly threatened a dangerous schism in the
Democratic party, that the new President, Buchanan, and his new
Cabinet, proceeded to its treatment with the utmost caution. The
subject was fraught with difficulties not of easy solution. The South,
to retain her political supremacy, or even her equality, needed more
slave-States to furnish additional votes in the United States Senate.
To make a slave-State of Kansas, the Missouri Compromise had been
repealed, and a bogus legislature elected and supported by the
successive Missouri invasions and the guerrilla war of 1856. All these
devices had, however, confessedly failed of their object. Northern
emigration and anti-slavery sentiment were clearly in possession of
Kansas, and a majority of voters stood ready upon fair occasion to
place her in the column of free-States. It had become a game on the
chess-board of national politics. The moving pieces stood in Missouri
and Kansas, but the players sat in Washington. In reality it was a
double game. There was plot and under-plot. Beneath the struggle
between the free-States and the slave-States were the intrigue and
deception carried on between Northern Democrats and Southern
Democrats. The Kansas-Nebraska act was a double-tongued statute, and
the Cincinnati platform a Janus-faced banner. Momentary victory was
with the Southern Democrats, for they had secured the nomination and
election of President Buchanan--"a Northern man with Southern
principles."
[Sidenote] Walker to Cass, July 15, 1857. Senate Ex. Doc. No. 8,
1st Sess. 35th Cong. Vol. I., p. 32.
[Sidenote] Walker to Cass, Dec. 15, 1857. Ibid., p. 122.
Determined to secure whatever prestige could be derived from high
qualification and party influence, Buchanan tendered the vacant
governorship of Kansas to his intimate personal and political friend,
Robert J. Walker, of Mississippi, a man of great ability and national
fame, who had been Senator and Secretary of the Treasury. Walker,
realizing fully the responsibility and danger of the trust, after
repeated refusals finally accepted upon two distinct conditions: first,
that General Harney should be "put in special command in Kansas with a
large body of troops, and especially of dragoons and a battery," and
retained there subject to his military directions until the danger
was over; and second, that he "should advocate the submission of the
constitution to the vote of the people for ratification or rejection."
[Sidenote] March 7, 1856. June 25, 1856.
This latter had now become a vital point in the political game. The
recent action of the Territorial Legislature and Geary's already
mentioned veto message were before the President and his Cabinet.[2]
But much more important than these moves in Kansas was the prior
determination of prominent Washington players. During the Kansas civil
war and the Presidential campaign of the previous year, by way of
offset to the Topeka Constitution, both Senator Douglas and Senator
Toombs wrote and introduced in the Senate bills to enable Kansas to
form a State constitution. The first by design, and the second by
accident, contained a clause to submit such constitution, when formed,
to a vote of the people. Both these bills were considered not only by
the Senate Committee on Territories, of which Douglas was chairman,
but also by a caucus of Democratic Senators. Said Senator Bigler: "It
was held, by those most intelligent on the subject, that in view of
all the difficulties surrounding that Territory, [and] the danger of
any experiment at that time of a popular vote, it would be better that
there should be no such provision in the Toombs bill; and it was my
understanding, in all the intercourse I had, that that convention
would make a constitution and send it here without submitting it to
the popular vote."[3]
[Sidenote] Douglas, Milwaukee Speech, October 13, 1860.
This Toombs bill was, after modification in other respects, adopted by
Douglas, and duly passed by the Senate; but the House with an
opposition majority refused its assent. All these preliminaries were
well known to the Buchanan Cabinet, and of course also to Douglas. It
is fair to assume that under such circumstances Walker's emphatic
stipulation was deliberately and thoroughly discussed. Indeed,
extraordinary urging had been necessary to induce him to reconsider
his early refusals. Douglas personally joined in the solicitation.
Because of the determined opposition of his own family, Walker had
promised his wife that he would not go to Kansas without her consent;
and President Buchanan was so anxious on the point that he personally
called on Mrs. Walker and persuaded her to waive her objections.[4]
Under influences like these Walker finally accepted the appointment,
and the President and Cabinet acquiesced in his conditions without
reserve. He wrote his inaugural address in Washington, using the
following language: "I repeat then as my clear conviction that unless
the convention submit the constitution to the vote of the actual
resident settlers, and the election be fairly and justly conducted,
the constitution will be and ought to be rejected by Congress."
[Sidenote] Douglas, Milwaukee Speech, October 13, 1860.
He submitted this draft of his inaugural to President Buchanan, who
read and approved the document and the promise. Secretary Cass wrote
his official instructions in accordance with it. On Walker's journey
West he stopped at Chicago and submitted his inaugural to Douglas, who
also indorsed his policy. The new Governor fondly believed he had
removed every obstacle to success, and every possibility of
misunderstanding or disapproval by the Administration, such as had
befallen his predecessors. But President Buchanan either deceived him
at the beginning, or betrayed him in the end.
[Sidenote] Walker, Testimony, Covode Committee Report, p. 109.
With Governor Walker there was sent a new Territorial secretary.
Woodson, who had so often abused his powers during his repeated
service as acting Governor, was promoted to a more lucrative post to
create the vacancy. Frederick P. Stanton, of Tennessee, formerly a
representative in Congress, a man of talent and, as the event proved,
also a man of courage, was made secretary. Both Walker and Stanton
being from slave-States, it may be presumed that the slavery question
was considered safe in their hands. Walker, indeed, entertained
sentiments more valuable to the South in this conjuncture. He believed
in the balance of power; he preferred that the people of Kansas should
make it a slave-State; he was "in favor of maintaining the equilibrium
of the Government by giving the South a majority in the Senate, while
the North would always necessarily have a majority in the House of
Representatives." Both also entered on their mission with the feelings
entertained by the President and Democratic party; namely, that the
free-State men were a mischievous insurrectionary faction, willfully
disturbing the peace and defying the laws. Gradually, however, their
personal observation convinced them that this view was a profound
error.
[Sidenote] Walker to Buchanan, June 28, 1857. Ibid., p. 115.
[Sidenote] Walker, Testimony. Ibid., p. 107.
[Sidenote] Walker, Inaugural, May 27, 1857. Senate Ex. Doc. No. 8,
1st Sess. 35th Cong. Vol. I., p. 11.
Governor Walker arrived in the Territory late in May, and it required
but short investigation to satisfy him that any idea of making Kansas
a slave-State was utterly preposterous. Had everything else been
propitious, climate alone seemed to render it impossible. But popular
sentiment was also overwhelmingly against it; he estimated that the
voters were for a free-State more than two to one. All the efforts of
the pro-slavery party to form a slave-State seemed to be finally
abandoned. If he could not make Kansas a slave-State, his next desire
was to make her a Democratic State. "And the only plan to accomplish
this was to unite the free-State Democrats with the pro-slavery party,
and all those whom I regarded as conservative men, against the more
violent portion of the Republicans." He, therefore, sought by fair
words to induce the free-State men to take part in the election of
delegates to the constitutional convention. His inaugural address,
quoting the President's instructions, promised that such election
should be free from fraud and violence; that the delegates should be
protected in their deliberations; and that if unsatisfactory, "you may
by a subsequent vote defeat the ratification of the constitution."
[Illustration: ROBERT J. WALKER.]
[Sidenote] Walker, Topeka Speech, June 6, 1857, in "Washington
Union" of June 27, 1857.
This same policy was a few weeks later urged at Topeka, where a mass
meeting of the free-State men was called to support and instruct
another sitting of the "insurrectionary" free-State Legislature
elected under the Topeka Constitution. The Governor found a large
assemblage, and a very earnest discussion in progress, whether the
"Legislature" should pursue only nominal action, such as would in
substance amount to a petition for redress of grievances, or whether
they should actually organize their State government, and pass a
complete code of laws. The moderate free-State men favored the former,
the violent and radical the latter, course. When their mass meeting
adjourned, they called on the Governor at his lodgings; he made a
speech, in which he renewed the counsels and promises of his inaugural
address. "The Legislature," said he, "has called a convention to
assemble in September next. That constitution they will or they will
not submit to the vote of a majority of the then actual resident
settlers of Kansas. If they do not submit it, I will join you,
fellow-citizens, in lawful opposition to their course. And I cannot
doubt, gentlemen, that one much higher than I, the Chief Magistrate
of the Union, will join you in that opposition." His invitation to
them to participate in the election of a convention produced no
effect; they still adhered to their resolve to have nothing to do
with any affirmative proceedings under the bogus laws or Territorial
Legislature. But the Governor's promise of a fair vote on the
constitution was received with favor. "Although this mass convention,"
reports the Governor, "did not adopt fully my advice to abandon the
whole Topeka movement, yet they did vote down by a large majority the
resolutions prepared by the more violent of their own party in favor
of a complete State organization and the adoption of a code of State
laws."
[Sidenote] Walker to Cass, July 15, 1857. Senate Ex. Doc. No. 8,
1st Sess. 35th Cong. Vol. I., p. 27.
[Sidenote] Ibid., p. 29.
[Sidenote] Walker to Cass, July 15, 1857. Senate Ex. Doc. No. 8,
1st Sess. 35th Cong. Vol. I., p. 30.
If the Governor was gratified at this result as indicative of probable
success in his official administration, he rejoiced yet more in its
significance as a favorable symptom of party politics. "The result of
the whole discussion at Topeka," he reported, "was regarded by the
friends of law and order as highly favorable to their cause, and as
the commencement of a great movement essential to success; viz., the
separation of the free-State Democrats from the Republicans, who had
to some extent heretofore cooperated under the name of the free-State
party." Another party symptom gave the Governor equal, if not greater,
encouragement. On the 2d and 3d of July the "National Democratic" or
pro-slavery party of the Territory met in convention at Lecompton. The
leaders were out in full force. The hopelessness of making Kansas a
slave-State was once more acknowledged, the Governor's policy
indorsed, and a resolution "against the submission of the constitution
to a vote of the people was laid on the table as a test vote by
forty-two to one." The Governor began already to look upon his
counsels and influence as a turning-point in national destiny.
"Indeed," he wrote, "it is universally admitted here that the only
real question is this: whether Kansas shall be a conservative,
constitutional, Democratic, and ultimately free-State, or whether it
shall be a Republican and abolition State; and that the course pursued
by me is the only one which will prevent the last most calamitous
result, which, in my opinion, would soon seal the fate of the
republic."
[Sidenote] F.P. Stanton's Speech, Philadelphia, February 8, 1858.
Pamphlet.
In his eagerness to reform the Democratic party of Kansas, and to
strengthen the Democratic party of the nation against the assaults and
dangers of "abolitionism," the Governor was not entirely frank; else
he would at the same time have reported, what he was obliged later to
explain, that the steps taken to form a constitution from which he
hoped so much were already vitiated by such defects or frauds as to
render them impossible of producing good fruit. The Territorial law
appointing the election of delegates provided for a census and a
registry of voters, to be made by county officers appointed by the
Territorial Legislature. These officers so neglected or failed to
discharge their duty, that in nearly half the organized counties of
the interior no attempt whatever was made to obtain the census or
registration; and in the counties lying on the Missouri border, where
the pro-slavery party was strong, the work of both was exceedingly
imperfect, and in many instances with notorious discrimination against
free-State voters. While the disfranchised counties had a comparatively
sparse population, the number of voters in them was too considerable
to be justly denied their due representation.[5] The apportionment of
delegates was based upon this defective registration and census, and
this alone would have given the pro-slavery party a disproportionate
power in the convention. But at the election of delegates on the 15th
of June, the free-State men, following their deliberate purpose and
hitherto unvarying practice of non-conformity to the bogus laws,
abstained entirely from voting. "The consequence was that out of the
9250 voters whose names had been registered ... there were in all
about 2200 votes cast, and of these the successful candidate received
1800."
[Sidenote] Walker to Buchanan, June 28, 1857. Report Covode
Committee, p. 118.
"The black Republicans," reported the Governor, "would not vote, and
the free-State Democrats were kept from voting by the fear that the
constitution would not be submitted by the convention, and that by
voting they committed themselves to the proceeding of the convention.
But for my inaugural, circulated by thousands, and various speeches
all urging the people to vote, there would not have been one thousand
votes polled in the Territory, and the convention would have been a
disastrous failure."
But this was not the only evil. The apportionment of the members of
the Territorial Legislature to be chosen the ensuing autumn was also
based upon this same defective registry and census. Here again
disproportionate power accrued to the pro-slavery party, and the
free-State men loudly charged that it was a new contrivance for the
convenience of Missouri voters. Governor Walker publicly deplored all
these complications and defects; but he counseled endurance, and
constantly urged in mitigation that in the end the people should have
the privilege of a fair and direct vote upon their constitution. That
promise he held aloft as a beacon-light of hope and redress. This
attitude and policy, frequently reported to Washington, was not
disavowed or discouraged by the President and Cabinet.
The Governor, however, soon found a storm brewing in another quarter.
When the newspapers brought copies of his inaugural address, his
Topeka speech, and the general report of his Kansas policy back to the
Southern States, there arose an ominous chorus of protest and
denunciation from the whole tribe of fire-eating editors and
politicians. What right had the Governor to intermeddle? they
indignantly demanded. What call to preach about climate, what business
to urge submission of the constitution to popular vote, or to promise
his own help to defeat it if it were not submitted; what authority to
pledge the President and Administration to such a course! The
convention was sovereign, they claimed, could do what it pleased, and
no thanks to the Governor for his impertinent advice. The Democratic
State Convention of Georgia took the matter in hand, and by resolution
denounced Walker's inaugural address, and asked his removal from
office. The Democratic State Convention of Mississippi followed suit,
and called the inaugural address an unjust discrimination against the
rights of the South, and a dictatorial intermeddling with the high
public duty intrusted to the convention.
Walker wrote a private letter to Buchanan, defending his course, and
adding: "Unless I am thoroughly and cordially sustained by the
Administration here, I cannot control the convention, and we shall
have anarchy and civil war. With that cordial support the convention
(a majority of whose delegates I have already seen) will do what is
right. I shall travel over the whole Territory, make speeches, rouse
the people in favor of my plan, and see all the delegates. But your
cordial support is indispensable, and I never would have come here,
unless assured by you of the cordial cooeperation of all the Federal
officers.... The extremists are trying your nerves and mine, but what
can they say when the convention submits the constitution to the
people and the vote is given by them? But we must have a slave-State
out of the south-western Indian Territory, and then a calm will
follow; Cuba be acquired with the acquiescence of the North; and your
Administration, having in reality settled the slavery question, be
regarded in all time to come as a re-signing and re-sealing of the
constitution.... I shall be pleased soon to hear from you. Cuba! Cuba!
(and Porto Rico, if possible) should be the countersign of your
Administration, and it will close in a blaze of glory."[6]
The Governor had reason to be proud of the full and complete
reendorsement which this appeal brought from his chief. Under date of
July 12, 1857, the President wrote in reply: "On the question of
submitting the constitution to the _bona fide_ resident settlers of
Kansas I am willing to stand or fall. In sustaining such a principle
we cannot fall. It is the principle of the Kansas-Nebraska bill; the
principle of popular sovereignty; and the principle at the foundation
of all popular government. The more it is discussed the stronger it
will become. Should the convention of Kansas adopt this principle, all
will be settled harmoniously, and with the blessing of Providence you
will return triumphantly from your arduous, important, and responsible
mission. The strictures of the Georgia and Mississippi Conventions
will then pass away and be speedily forgotten. In regard to Georgia,
our news from that State is becoming better every day; we have not yet
had time to hear much from Mississippi. Should you answer the
resolution of the latter, I would advise you to make the great
principle of the submission of the constitution to the _bona fide_
residents of Kansas conspicuously prominent. On this you will be
irresistible."[7]
The delegates to the constitutional convention, chosen in June, met
according to law at Lecompton, September 7, and, having spent five
days in organization, adjourned their session to October 19. The
object of this recess was to await the issue of the general election
of October 5, at which a full Territorial Legislature, a delegate to
Congress, and various county officers were to be chosen.
[Sidenote] Wilder, p. 133.
By the action of the free-State men this election was now made a
turning-point in Kansas politics. Held together as a compact party
by their peaceful resistance to the bogus laws, emigration from the
North had so strengthened their numbers that they clearly formed a
majority of the people of the Territory. A self-constituted and
self-regulated election held by them for sundry officials under their
Topeka Constitution, revealed a numerical strength of more than seven
thousand voters. Feeling that this advantage justified them in
receding from their attitude of non-conformity, they met in convention
towards the end of August, and while protesting against the "wicked
apportionment," resolved that "whereas Governor Walker has repeatedly
pledged himself that the people of Kansas should have a full and fair
vote, before impartial judges, at the election to be held on the first
Monday in October, ... we the people of Kansas, in mass convention
assembled, agree to participate in said election."
[Sidenote] Oct. 5, 1857.
Governor Walker executed his public promises to the letter. A movement
of United States troops to Utah was in progress, and about two
thousand of these were detained by order until after election day.
Stationed at ten or twelve different points in the Territory, they
served by their mere presence to overawe disorder, and for the first
time in the history of Kansas the two opposing parties measured their
strength at the ballot-box. The result was an overwhelming triumph for
the free-State party. For delegate in Congress, Ransom, the Democratic
candidate, received 3799 votes; Parrott, the Republican candidate,
7888--a free-State majority of 4089. For the Legislature, even under
the defective apportionment, the council stood 9 free-State members
to 4 Democrats, and the House 24 free-State members to 15 Democrats.
[Sidenote] Stanton, Speech at Philadelphia, February 8, 1858.
[Sidenote] Walker, Proclamation, October 19, 1857. Senate Ex. Doc.
No. 8, 1st Sess. 35th Cong. Vol. I., p. 103.
[Sidenote] Walker, Proclamation, Oct. 22, 1857. Ibid., pp. 104-6.
[Sidenote] Walker, Proclamation, October 19, 1857. Senate Ex. Doc.
No. 8, 1st Sess. 35th Cong. Vol. I., p. 104.
That the pro-slavery cabal would permit power to slip from their grasp
without some extraordinary effort was scarcely to be expected. When
the official returns were brought from the various voting-places to
the Governor's office, there came from Oxford, a single precinct in
Johnson County, "a roll of paper, forty or fifty feet long, containing
names as thickly as they could be written," and a large part of which
were afterwards discovered to have been literally copied from an old
Cincinnati directory. This paper purported to be a return of 1628
votes for the eleven pro-slavery candidates for the Legislature in
that district, and if counted it would elect eight members of the
House and three of the council by a trifling majority, and thereby
change the political complexion and power of the Legislature.
Inspection showed the document to be an attempt to commit a stupendous
fraud; and after visiting the locality ("a village with six houses,
including stores, and without a tavern") and satisfying himself of the
impossibility of such a vote from such a place, Governor Walker
rejected the whole return from Oxford precinct for informality, and
gave certificates of election to the free-State candidates elected as
appeared by the other regular returns. A similar paper from McGee
County with more than 1200 names was treated in like manner. Judge
Cato issued his writ of mandamus to compel the Governor to give
certificates to the pro-slavery candidates, but without success. The
language of Governor Walker and Secretary Stanton in a proclamation
announcing their action deserves remembrance and imitation. "The
consideration that our own party by this decision will lose the
majority in the legislative assembly does not make our duty in the
premises less solemn and imperative. The elective franchise would be
utterly valueless, and free government itself would receive a deadly
blow, if so great an outrage as this could be shielded under the cover
of mere forms and technicalities. We cannot consent in any manner to
give the sanction of our respective official positions to such a
transaction. Nor can we feel justified to relieve ourselves of the
proper responsibility of our offices, in a case where there is no
valid return, by submitting the question to the legislative assembly,
and in that very act giving the parties that might claim to be chosen
by this spurious vote the power to decide upon their own election."
The decisive free-State victory, the Oxford and McGee frauds,[8] and
the Governor's fearless action in exposing and rejecting them, called
forth universal comment; and under the new political conditions which
they revealed, created intense interest in the further proceedings of
the Lecompton Constitutional Convention. That body reassembled
according to adjournment on the 19th of October. Elected in the
preceding June without any participation by free-State voters, the
members were all of the pro-slavery party, and were presided over by
John Calhoun, the same man who, as county surveyor of Sangamon County,
Illinois, employed Abraham Lincoln as his deputy in 1832.
At the June election, while he and his seven colleagues from Douglas
County were yet candidates for the convention, they had circulated a
written pledge that they would submit the constitution to the people
for ratification. This attitude was generally maintained by them till
the October election. But when by that vote they saw their faction
overwhelmed with defeat, they and others undertook to maintain
themselves in power by an unprecedented piece of political jugglery.
Calhoun, who was surveyor-general of the Territory, employed a large
number of subordinates, and was one of the most able and unscrupulous
leaders in the pro-slavery cabal. A large majority of the convention
favored the establishment of slavery; only the question of a popular
vote on ratification or rejection excited controversy.
An analysis shows that the principle of delegated authority had become
attenuated to a remarkable degree. The defective registration excluded
a considerable number (estimated at about one-sixth) of the legal
voters. Of the 9250 registered, only about 2200 voted, all told. Of
these 2200, only about 1800 votes were given for the successful
candidates for delegate. Of the whole sixty delegates alleged to have
been chosen, "but forty-three," says a Committee Report, "participated
in the work of the convention. Sessions were held without a quorum,
and the yeas and nays often show that but few above thirty were
present. It is understood, and not denied, that but twenty-eight of
these--less than half of a full house of sixty--decided the
pro-slavery or free-State question; and upon the question of
submission of their work to the will of the people, the pro-slavery
party carried the point by a majority of two votes only. It is quite
in keeping with the character of this body and its officers to find
the journal of its proceedings for the last days missing."[9]
Their allotted task was completed in a short session of about three
weeks; the convention adjourned November 7, forty-three of the fifty
delegates present having been induced to sign the constitution. When
the document was published the whole country was amazed to see what
perversity and ingenuity had been employed to thwart the unmistakable
popular will. Essentially a slave-State constitution of the most
pronounced type, containing the declaration that the right of property
in slaves is "before and higher than any constitutional sanction," it
made the right to vote upon it depend on the one hand on a test oath
to "support this constitution" in order to repel conscientious
free-State voters, and on the other hand on mere inhabitancy on the
day of election to attract nomadic Missourians; it postponed the right
to amend or alter for a period of seven years; it kept the then
existing territorial laws in force until abrogated by State
legislation; it adopted the late Oxford fraud as a basis of
apportionment; it gave to Calhoun, the presiding officer, power to
designate the precincts, the judges of election, and to decide finally
upon the returns in the vote upon it, besides many other questionable
or inadmissible provisions. Finally the form of submission to popular
vote to be taken on the 21st of December was prescribed to be,
"constitution with slavery" or "constitution with no slavery," thus
compelling the adoption of the constitution in any event.
[Sidenote] Walker, Testimony, Report Covode Committee, p. 110.
[Sidenote] Martin, Testimony, Report Covode Committee, p. 159.
[Sidenote] Ibid., pp. 170-1.
There is a personal and political mystery underlying this transaction
which history will probably never solve. Only a few points of
information have come to light, and they serve to embarrass rather
than aid the solution. The first is that Calhoun, although the friend
and protege of Douglas, and also himself personally pledged to
submission, came to the Governor and urged him to join in the new
programme as to slavery,--alleging that the Administration had changed
its policy, and now favored this plan,--and tempted Walker with a
prospect of the Presidency if he would concur. Walker declared such a
change impossible, and indignantly spurned the proposal. The second is
that one Martin, a department clerk, was, after confidential
instructions from Secretary Thompson and Secretary Cobb, of Buchanan's
Cabinet, sent to Kansas in October, ostensibly on department business;
that he spent his time in the lobby and the secret caucuses of the
convention. Martin testifies that these Cabinet members favored
submission, but that Thompson wished it understood that he was
unwilling to oppose the admission of Kansas "if a pro-slavery
constitution should be made and sent directly to Congress by the
convention." A wink was as good as a nod with that body, or rather
with the cabal which controlled it; and after a virtuous dumb-show of
opposition, it made a pretense of yielding to the inevitable, and
acted on the official suggestion. This theory is the more plausible
because Martin testifies further that he himself drafted the slavery
provision which was finally adopted. The third point is that the
President inexcusably abandoned his pledges to the Governor and
adopted this Cobb-Thompson-Calhoun contrivance, instead of keeping his
word and dismissing Calhoun, as honor dictated. This course becomes
especially remarkable in view of the fact that the change did not
occur until after Walker's rejection of the fraudulent Oxford returns,
which action placed the legislative power of the Territory in the
hands of the newly elected free-State Legislature, as already related.
On the same day (October 22, 1857) on which Walker and Stanton issued
their proclamation rejecting the fraudulent returns, President
Buchanan wrote another highly commendatory letter to Governor Walker.
As it has never before been published, its full text will have special
historical interest.
WASHINGTON CITY,
22d October, 1857.
MY DEAR SIR: I have received your favor of the tenth instant by
Captain Pleasonton and am rejoiced to learn from you, what I had
previously learned from other less authentic sources, that the
convention of Kansas will submit the constitution to the people.
It is highly gratifying that the late election passed off so
peacefully; and I think we may now fairly anticipate a happy
conclusion to all the difficulties in that Territory. Your
application for a month's leave of absence has been granted to
commence after the adjournment of the convention. During its
session your presence will be too important to be dispensed with.
I shall be glad to see you before you publish anything. The whole
affair is now gliding along smoothly. Indeed, the revulsion in the
business of the country seems to have driven all thoughts of
"bleeding Kansas" from the public mind. When and in what manner
anything shall be published to revive the feeling, is a question
of serious importance. I am persuaded that with every passing day
the public are more and more disposed to do you justice. You
certainly do injustice to Harris, the editor of the "Union." In
the beginning I paid some attention to the course of the paper in
regard to yourself, and I think it was unexceptionable: I know he
stood firm amidst a shower of abuse from the extremists. I never
saw nor did I ever hear of the communication published in the
"Union" to which you refer, and Harris has no recollection of it.
I requested him to find me the number and send it to me; but this
he has not done. He is not responsible in any degree for the
non-publication of the letters to which you refer.[10] I knew
nothing of them until after the receipt of yours; and upon inquiry
I found their publication had been prevented by Mr. Cobb under a
firm conviction that they would injure both yourself and the
Administration.
Whether he judged wisely or not I cannot say, for I never saw
them. That he acted in fairness and friendship I have not a doubt.
He was anxious that General Whitfield should publish a letter and
prepared one for him, expecting he would sign it before he left.
He sent this letter after him for his approval and signature; but
it has not been returned. I know not what are its contents.
General W. doubtless has the letter in his possession. Beyond all
question, the motives of Mr. Cobb were proper. Mrs. Walker and
Mrs. Bache have just left me after a half hour's very agreeable
conversation. Mrs. Walker desires me to inform you the family are
all well and sends her love.
From your friend, very respectfully,
JAMES BUCHANAN.
Hon. ROBERT J. WALKER.[11]
[Sidenote] Report Covode Committee, p. 111.
The question naturally occurs, for whom did Calhoun speak when he
approached Governor Walker, offering him the bribe of the Presidency
and assuring him that the Administration had changed its mind? That
was before, or certainly not long after, the probable receipt of this
letter in Kansas, for the Governor left the Territory (November 16)
about one week after the adjournment of the Lecompton Convention. The
question becomes still more pressing owing to Governor Walker's
testimony that when he reached Washington, "the President himself
distinctly and emphatically assured me that he had not authorized
anybody to say that he had approved of that [Lecompton] programme." On
whose authority, then, did Calhoun declare that the Administration had
changed its mind?
[Illustration: FREDERICK P. STANTON.]
[Sidenote] John Bell, Senate Speech, March 18, 1858.
This query brings us to another point in President Buchanan's letter
of October 22, in which he mentions that Secretary Cobb, of his
Cabinet, had without his knowledge suppressed the publication of
certain letters in the "Washington Union." These were, as we learn
elsewhere, the letters in which some of the Kansas pro-slavery leaders
repeated their declaration of the hopelessness of any further contest
to make Kansas a slave-State. Why this secret suppression by Secretary
Cobb? There is but one plausible explanation of this whole chain of
contradictions. The conclusion is almost forced upon us that a Cabinet
intrigue, of which the President was kept in ignorance, was being
carried on, under the very eyes of Mr. Buchanan, by those whom he
himself significantly calls "the extremists"--a plot to supersede his
own intentions and make him falsify his own declarations. As in the
case of similar intrigues by the same agents a few years later, he had
neither the wit to perceive nor the will to resist.
[Sidenote] Stanton, Philadelphia Speech, Feb. 8, 1858.
The protest of the people of the Territory against the extraordinary
action of the Lecompton Convention almost amounted to a popular
revolt. This action opened a wide door to fraud, and invited Missouri
over to an invasion of final and permanent conquest. Governor Walker
had quitted the Territory on his leave of absence, and Secretary
Stanton was acting Governor. "The people in great masses," he says,
"and the Legislature that had been elected, with almost a unanimous
voice called upon me to convene the Legislature, in order that they
might take such steps as they could to counteract the misfortune which
they conceived was about to befall them in the adoption of this
constitution," As already stated, Stanton had come to Kansas with the
current Democratic prejudices against the free-State party. But his
whole course had been frank, sincere, and studiously impartial, and
the Oxford fraud had completely opened his eyes. "I now discovered for
the first time to my entire satisfaction why it was that the great
mass of the people of the Territory had been dissatisfied with their
government, and were ready to rebel and throw it off."
Having, like Walker, frequently and earnestly assured the people of
their ultimate right to ratify or reject the work of the convention,
he was personally humiliated by the unfairness and trickery of which
that body was guilty. Under the circumstances he could not hesitate in
his duty. By proclamation he convened the new Legislature in extra
session.
The members respected the private pledge they had given him to engage
in no general legislation; but provided by law for an investigation of
the Oxford and McGee frauds, and for an election to be held on January
4, 1858 (the day fixed by the Lecompton Constitution for the election
of State officers and a State legislature), at which the people might
vote for the Lecompton Constitution or against it. Thus in the course
of events two separate votes were taken on this notorious document.
The first, provided for in the instrument itself, took place on the
21st of December, 1857. Detachments of troops were stationed at
several points; the free-State men abstained from voting; the election
was peaceable; and in due time Calhoun proclaimed that 6143 ballots
had been cast "for the constitution with slavery," and 589 "for the
constitution with no slavery." But the subsequent legislative
investigation disclosed a gross repetition of the Oxford fraud, and
proved the actual majority, in a onesided vote, to have been only
3423. The second election occurred on January 4, 1858, under authority
of the legislative act. At this election the pro-slavery party voted
for the State officers, but in its turn abstained from voting on the
constitution, the result being--against the Lecompton Constitution,
10,226; for the Lecompton Constitution with slavery, 138; for the
Lecompton Constitution without slavery, 24.[12]
This emphatic rejection of the Lecompton Constitution by a direct vote
of the people of Kansas sealed its fate. We shall see further on what
persistent but abortive efforts were made in Congress once more to
galvanize it into life. The free-State party were jubilant; but the
pro-slavery cabal, foiled and checked, was not yet dismayed or
conquered. For now there was developed, for the first time in its full
proportions, the giant pro-slavery intrigue which proved that the
local conspiracy of the Atchison-Missouri cabal was but the image and
fraction of a national combination, finding its headquarters in the
Administration, first of President Pierce, and now of President
Buchanan; working patiently and insidiously through successive efforts
to bring about a practical subversion of the whole theory and policy
of the American Government. It linked the action of Border Ruffians,
presidential aspirants, senates, courts, and cabinets into efficient
cooeperation; leading up, step by step, from the repeal of the Missouri
Compromise, through the Nebraska bill, border conquest, the Dred Scott
decision, the suppression of the submission clause in the Toombs bill,
and the extraordinary manipulation and machinery of the Lecompton
Constitution, towards the final overthrow of the doctrine that "all
men are created equal," and the substitution of the dogma of property
in man; towards the judicial construction that property rights in
human beings are before and above constitutional sanction, and that
slavery must find protection and perpetuity in States as well as in
Territories.
[Sidenote] Cass to Stanton, December 2, 1857. Senate Ex. Doc.
No. 8, 1st Sess. 35th Cong. Vol. I., pp. 112-13.
[Sidenote] Cass to Stanton, December 8, 1857. Ibid., p. 113.
[Sidenote] Cass to Denver, December 11th, 1857. Senate Ex. Doc. No.
8, 1st Sess. 35th Cong. Vol. I., p. 120.
The first weather-sign came from Washington. On the day after Acting
Governor Stanton convened the October Legislature in special session,
and before news of the event reached him, Secretary Cass transmitted
to him advance copies of the President's annual message, in which the
Lecompton Constitution was indorsed in unqualified terms. A week later
he was admonished to conform to the views of the President in his
official conduct. At this point the State Department became informed
of what had taken place, and the acting Governor had short shrift. On
December 11 Cass wrote to J.W. Denver, Esq.: "You have already been
informed that Mr. Stanton has been removed from the office of
Secretary of the Territory of Kansas and that you have been appointed
in his place." Cass further explained that the President "was
surprised to learn that the secretary and acting Governor had, on the
1st of December, issued his proclamation for a special session of the
Territorial Legislature on the 7th instant, only a few weeks in
advance of its regular time of meeting, and only fourteen days before
the decision was to be made on the question submitted by the
convention. This course of Mr. Stanton, the President seriously
believes, has thrown a new element of discord among the excited people
of Kansas, and is directly at war, therefore, with the peaceful policy
of the Administration. For this reason he has felt it his duty to
remove him."
Walker, already in Washington on leave of absence, could no longer
remain silent. He was as pointedly abandoned and disgraced by the
Administration as was his subordinate. In a dignified letter
justifying his own course, which, he reminded them, had never been
criticized or disavowed, he resigned the governorship. "From the
events occurring in Kansas as well as here," he wrote, "it is evident
that the question is passing from theories into practice; and that as
governor of Kansas I should be compelled to carry out new
instructions, differing on a vital question from those received at the
date of my appointment. Such instructions I could not execute
consistently with my views of the Federal Constitution, of the Kansas
and Nebraska bill, or with my pledges to the people of Kansas." "The
idea entertained by some that I should see the Federal Constitution
and the Kansas-Nebraska bill overthrown and disregarded, and that,
playing the part of a mute in a pantomime of ruin, I should acquiesce
by my silence in such a result, especially where such acquiescence
involved, as an immediate consequence, a disastrous and sanguinary
civil war, seems to me most preposterous."[13]
The conduct and the language of Walker and Stanton bear a remarkable
significance when we remember that they had been citizens of slave
States and zealous Democratic partisans, and that only hard practical
experience and the testimony of their own eyes had forced them to join
their predecessors in the political "graveyard." "The ghosts on the
banks of the Styx," said Seward, "constitute a cloud scarcely more
dense than the spirits of the departed Governors of Kansas, wandering
in exile and sorrow for having certified the truth against falsehood
in regard to the elections between Freedom and Slavery in Kansas."
----------
[1] January 12, 1857, Wilder, p. 113. Bell, Speech in Senate, March
18, 1858. Appendix "Globe," p. 137.
[2] Geary to Marcy, Feb. 21, 1857, Senate Ex. Doc. No. 17, 1st Sess.
35th Cong. Vol. VI., p. 178.
[3] Bigler, Senate Speech, Dec. 9, 1857. "Globe," p. 21. See also
Bigler, Dec. 21, 1857. "Globe," p. 113.
[4] Walker, Testimony before the Covode Committee. Reports of
Committees H.R. 1st Sess. 36th Cong. Vol. V., pp. 105-6.
[5] "These fifteen counties in which there was no registry gave a
much larger vote at the October election, even with the six months'
qualification, than the whole vote given to the delegates who signed
the Lecompton Constitution on the 7th November last."--[Walker to
Cass, December 15, 1857. Senate Ex. Doc. No. 8, 1st Sess. 35th Cong.
Vol. I, p. 128.]
[6] Walker to Buchanan, June 28, 1857. Report Covode Committee, pp.
117-19.
[7] Buchanan to Walker, July 12, 1857. Report Covode Committee, p.
112.
[8] The ingenuity which evolved 1600 Kansas votes from an old
Cincinnati directory and 1200 more from an uninhabited county, was not
exhausted by that prodigious labor. The same influences, and perhaps
the same manipulators, produced a companion piece known by the name
of the "candle-box fraud." At the election of January 4, 1858, for
officers under the Lecompton Constitution, the returns from Delaware
Agency underwent such suspicious handling that an investigating
commission of the Legislature, by aid of a search-warrant, found them
secreted in a candle-box buried under a woodpile near Calhoun's
"surveyor-general's office" at Lecompton. A forged list of 379 votes
had been substituted for the original memorandum of only forty-three
votes which had been cut from the certificate of the judges; the votes
on the forged list being intended for the pro-slavery candidates.
During the investigation Calhoun was arrested, but liberated by Judge
Cato on _habeas corpus_, after which he immediately went to Missouri,
and from there to Washington. The details and testimony are found in
House Com. Reports, 1st Sess. 35th Cong. Vol. III, Report No. 377.
[9] Minority Report, Select Com. of Fifteen. Report No. 377, page 109,
Vol. III., H.R. Reports, 1st Sess. 35th Cong.
This "missing link," no less than the remaining portion of the journal
printed in the proceedings of the investigating committee, is itself
strong circumstantial proof of the imposture underlying the whole
transaction. Many sections of the completed constitution are not even
mentioned in the journal; it does not contain the submission clause of
the schedule, and the authenticity of the document rests upon the
signature and the certificate of John Calhoun without other
verification.
[10] "Dr. Tebbs and General Whitfield a month since left very strong
letters for publication with the editor of the 'Union' which he
promised to publish. His breach of this promise is a gross outrage. If
not published immediately our success in convention materially depends
on my getting an immediate copy at Lecompton. My friends here all
regard now the 'Union' as an enemy and encouraging by its neutrality
the fire-eaters not to submit the constitution. Very well, the facts
are so clear that I can get along without the 'Union,' but he had no
right to suppress Dr. Tebbs's letter. I shall in due time expose that
transaction."--Extract from a letter of Robert J. Walker to James
Buchanan, dated October, 1857.
[11] For this autograph letter and other interesting manuscripts, we
are indebted to General Duncan S. Walker, a son of the Governor, now
residing in Washington, D.C.
[12] Under an Act of Congress popularly known as the "English Bill,"
this same Lecompton Constitution was once more voted upon by the
people of Kansas on August 2, 1858, with the following result: for the
proposition, 1788; against it, 11,300.--Wilder, "Annals of Kansas,"
pp. 186-8.
[13] Walker to Cass, Dec. 16, 1857. Senate Ex. Doc. No. 8, 1st Sess.,
35th Cong. Vol. I., pp. 131, 130.
CHAPTER VII
THE REVOLT OF DOUGLAS
The language of President Buchanan's annual message, the summary
dismissal of Acting Governor Stanton, and the resignation of Governor
Walker abruptly transferred the whole Lecompton question from Kansas
to Washington; and even before the people of the Territory had
practically decided it by the respective popular votes of December
21,1857, and January 4,1858, it had become the dominant political
issue in the Thirty-fifth Congress, which convened on December 7,
1857. The attitude of Senator Douglas on the new question claimed
universal attention. The Dred Scott decision, affirming constitutional
sanction and inviolability for slave property in Territories, had
rudely damaged his theory. But we have seen how in his Springfield
speech he ingeniously sought to repair and rehabilitate "popular
sovereignty" by the sophism that a master's abstract constitutional
right to slave property in a Territory was a "barren and a worthless
right unless sustained, protected, and enforced by appropriate police
regulations," which could only be supplied by the local Territorial
Legislatures; and that the people of Kansas thus still possessed the
power of indirect prohibition.
[Sidenote] 1857.
To invent and utter this sophism for home consumption among his
distant constituents on the 12th of June (a few days before the
Lecompton delegates were elected), and in so unobtrusive a manner as
scarcely to attract a ripple of public notice, was a light task
compared with that which confronted him as Senator, at the meeting of
Congress in December, in the light of John Calhoun's doings and
powers, of the scandal of the Oxford fraud, and of the indignation of
Northern Democrats against the betrayal of Walker and Stanton.
One of his first experiences was a personal quarrel with Buchanan.
When he reached Washington, three days before the session, he went to
the President to protest against his adopting the Lecompton
Constitution and sending it to Congress for acceptance. Buchanan
insisted that he must recommend it in his annual message. Douglas
replied that he would denounce it as soon as it was read. The
President, excited, told him "to remember that no Democrat ever yet
differed from an administration of his own choice without being
crushed. Beware of the fate of Tallmadge and Rives."
[Sidenote] Douglas, Milwaukee Speech, October 13, 1860.
"Mr. President," retorted Douglas, "I wish you to remember that
General Jackson is dead."
In the election of Mr. Buchanan as President the South had secured a
most important ally for the work of pro-slavery reaction. Trained in
the belief that the South had hitherto been wronged, he was ready on
every occasion to appear as her champion for redress; and Southern
politicians were now eager to use his leadership to make their views
of public policy and constitutional duty acceptable to the North.
Respectable in capacity but feeble in will, he easily submitted to
control and guidance from a few Southern leaders of superior
intellectual force. In his inaugural, he sought to prepare public
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