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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.]

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[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.

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[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