Part 24 (1/2)

It was everywhere conceded that Nebraska would be a free Territory.

The eyes of the nation were focused upon Kansas, which was from the first debatable ground. A rush of settlers from the Northwest joined by pioneers from Kentucky and Missouri followed the opening up of the new lands. As Douglas had foretold, the tide of immigration held back by Indian treaties now poured in. The characteristic features of American colonization seemed about to repeat themselves. So far the movement of population was for the most part spontaneous. Land-hunger, not the political destiny of the West, drove men to locate their claims on the Kansas and the Missouri. By midsummer colonists of a somewhat different stripe appeared. Sent out under the auspices of the Emigrant Aid Company, they were to win Kansas for freedom at the same time that they subdued the wilderness. It was a species of a.s.sisted emigration which was new in the history of American colonization, outside the annals of missionary effort. The chief promoter of this enterprise was a thrifty, Ma.s.sachusetts Yankee, who saw no reason why crusading and business should not go hand in hand. Kansas might be wrested from the slave-power at the same time that returns on invested funds were secured.

The effect of these developments upon the aggressive pro-slavery people of Missouri is not easy to describe. Hitherto they had a.s.sumed that Kansas would become a slave Territory in the natural order of events. This was the prevailing Southern opinion. At once the people of western Missouri were put upon the defensive. Blue lodges were formed for the purpose of carrying slavery into Kansas. Appeals were circulated in the slave-holding States for colonists and funds.

Pa.s.sions were inflamed by rumors which grew as they stalked abroad.

The peaceful occupation of Kansas was at an end. Popular sovereignty was to be tested under abnormal conditions.

When the election of territorial delegates to Congress occurred, in the late fall, a fatal defect in the organic law was disclosed, to which many of the untoward incidents of succeeding months may be ascribed. The territorial act conferred the right of voting at the first elections upon all free, white, male inhabitants, twenty-one years of age and actually resident in the Territory.[536] Here was an unfortunate ambiguity. What was actual residence? Every other act organizing a territorial government was definite on this point, permitting only those to vote who were living in the proposed Territory, at the time of the pa.s.sage of the act. The omission in the case of Kansas and Nebraska is easily accounted for. Neither had legal residents when the act was pa.s.sed. Indeed, this defect bears witness to the fact that Congress was legislating, not for actual, but for hypothetical communities. The consequences were far-reaching, for at the very first election, it was charged that frauds were practiced by bands of Missourians, who had crossed the border only to aid the pro-slavery cause. Not much was made of these charges, as no particular interest attached to the election.

Far different was the election of members of the territorial legislature in the following spring. On all hands it was agreed that this legislature would determine whether Kansas should be slave or free soil. It was regrettable that Governor Reeder postponed the taking of the census until February, since by mid-winter many settlers, who had staked their claims, returned home for the cold season, intending to return with their families in the early spring.

This again was a characteristic feature of frontier history.[537] In March, the governor issued his proclamation of election, giving only three weeks' notice. Of those who had returned home, only residents of Missouri and Iowa were able to partic.i.p.ate in the election of March 30th, by hastily recrossing into Kansas. Governor Reeder did his best to guard against fraud. In his instructions to the judges of election, he warned them that a voter must be ”an actual resident”; that is, ”must have commenced an active inhabitancy, which he actually intends to continue permanently, and must have made the Territory his dwelling place to the exclusion of any other home.”[538] Still, it was not to be expected that _bona fide_ residents could be easily ascertained in communities which had sprung up like mushrooms. A hastily constructed shack served all the purposes of the would-be voter; and, in last a.n.a.lysis, judges of elections had to rest content with declarations of intentions. Those who crossed into Kansas after the governor's proclamation and endeavored to continue actual inhabitancy, were with difficulty distinguished from those who now crossed for the first time, under a similar pretext. As Douglas subsequently contended with much force, the number of votes cast in excess of the census returns did not in itself prove wholesale fraud.[539]

Under such liability to deception and misjudgment, the territorial authorities held the election which was likely to determine the status of Kansas with respect to slavery. Both parties were playing for great stakes; pa.s.sion and violence were the almost inevitable outcome. Both parties contained desperadoes, who invariably come to the surface in the general mixing which occurs on the frontier. Both parties committed frauds at the polls. But the most serious gravamina have been laid at the door of those Blue Lodges of Missouri which deliberately sought to secure the election of pro-slavery candidates by fair means or foul.

The people of western Missouri had come to believe that the fate of slavery in their own Commonwealth hinged upon the future of Kansas. It was commonly believed that after Kansas, Missouri would be abolitionized. It was, therefore, with the fierce, unreasoning energy of defenders of their own inst.i.tutions, that Blue Lodges organized their crusade for Kansas.[540] On election day armed bands of Missourians crossed into Kansas and polled a heavy vote for the pro-slavery candidates, in the teeth of indignant remonstrances.[541]

The further history of popular sovereignty in Kansas must be lightly touched upon, for it is the reflex action in the halls of Congress that interests the student of Douglas's career. Twenty-eight of the thirty-nine members of the first territorial legislature were men of p.r.o.nounced pro-slavery views; eleven were anti-slavery candidates. In seven districts, where protests had been filed, the governor ordered new elections. Three of those first elected were returned, six were new men of anti-slavery proclivities. But when the legislature met, these new elections were set aside and I the first elections were declared valid.[542]

In complete control of the legislature, the pro-slavery party proceeded to write slavery into the law of the Territory. In their eagerness to establish slavery permanently, these legislative Hotspurs quite overshot the mark, creating offenses and affixing penalties of doubtful const.i.tutionality.[543] Meanwhile the census of February reported but one hundred ninety-two slaves in a total population of eight thousand six hundred.[544] Those who had migrated from the South, were not as a rule of the slave-holding cla.s.s. Those who possessed slaves shrank from risking their property in Kansas, until its future were settled.[545] Eventually, the climate was to prove an even greater obstacle to the transplantation of the slave-labor system into Kansas.

Foiled in their hope of winning the territorial legislature, the free-State settlers in Kansas resolved upon a hazardous course.

Believing the legislature an illegal body, they called a convention to draft a const.i.tution with which they proposed to apply for admission to the Union as a free State. Robinson, the leader of the free-State party, was wise in such matters by reason of his experience in California. Reeder, who had been displaced as governor and had gone over to the opposition, lent his aid to the project; and ex-Congressman Lane, formerly of Indiana, gave liberally of his vehement energy to the cause. After successive conventions in which the various free-State elements were worked into a fairly consistent mixture, the Topeka convention launched a const.i.tution and a free-State government. Unofficially the supporters of the new government took measures for its defense. In the following spring, Governor Robinson sent his first message to the State legislature in session at Topeka; and Reeder and Lane were chosen senators for the inchoate Commonwealth.[546]

Meantime Governor Shannon had succeeded Reeder as executive of the territorial government at Shawnee Mission. The aspect of affairs was ominous. Popular sovereignty had ended in a dangerous dualism. Two governments confronted each other in bitter hostility. There were untamed individuals in either camp, who were not averse to a decision by wager of battle.[547]

Such was the situation in Kansas, when Douglas reached Was.h.i.+ngton in February, after a protracted illness.[548] The President had already discussed the Kansas imbroglio in a special message; but the Democratic majority in the Senate showed some reluctance to follow the lead of the administration. From the Democrats in the House not much could be expected, because of the strength of the Republicans. The party awaited its leader. Upon his appearance, all matters relating to Kansas were referred to the Committee on Territories. The situation called for unusual qualities of leaders.h.i.+p. How would the author of the Kansas-Nebraska Act face the palpable breakdown of his policy?

With his customary dispatch, Douglas reported on the 12th of March.[549] The majority report consumed two hours in the reading; Senator Collamer stated the position of the minority in half the time.[550] Evidently the chairman was aware where the burden of proof lay. Douglas took substantially the same ground as that taken by the President in his special message, but he discussed the issues boldly in his own vigorous way. No one doubted that he had reached his conclusions independently.

The report began with a const.i.tutional argument in defense of the Kansas-Nebraska Act. As a contribution to the development of the doctrine of popular sovereignty, the opening paragraphs deserve more than pa.s.sing notice. The distinct advance in Douglas's thought consisted in this: that he explicitly refused to derive the power to organize Territories from that provision of the Const.i.tution which gave Congress ”power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” The word ”territory” here was used in its geographical sense to designate the public domain, not to indicate a political community. Rather was the power to be derived from the authority of Congress to adopt necessary and proper means to admit new States into the Union. But beyond the necessary and proper organization of a territorial government with reference to ultimate statehood, Congress might not go. Clearly, then, Congress might not impose conditions and restrictions upon a Territory which would prevent its entering the Union on an equality with the other States.

From the formation of the Union, each State had been left free to decide the question of slavery for itself. Congress, therefore, might not decide the question for prospective States. Recognizing this, the framers of the Kansas-Nebraska Act had relegated the discussion of the slavery question to the people, who were to form a territorial government under cover of the organic act.[551]

This was an ingenious argument. It was in accord with the utterances of some of the weightiest intellects in our const.i.tutional history.

But it was not in accord with precedent. There was hardly a territorial act that had emerged from Douglas's committee room, which had not imposed restrictions not binding on the older Commonwealths.

Having given thus a const.i.tutional sanction to the principle of the Kansas-Nebraska Act, the report unhesitatingly denounced that ”vast moneyed corporation,” created for the purpose of controlling the domestic inst.i.tutions of a distinct political community fifteen hundred miles away.[552] This was as flagrant an act of intervention as though France or England had interfered for a similar purpose in Cuba, for ”in respect to everything which affects its domestic policy and internal concerns, each State stands in the relation of a foreign power to every other State.” The obvious retort to this extraordinary a.s.sertion was, that Kansas was only a Territory, and not a State.

Douglas then made this ”mammoth moneyed corporation” the scapegoat for all that had happened in Kansas. The Missouri Blue Lodges were defensive organizations, called into existence by the fear that the ”abolitionizing” of Kansas was the prelude to a warfare upon slavery in Missouri. The violence and bloodshed in Kansas were ”the natural and inevitable consequences of such extraordinary systems of emigration.”[553]

Such _ex post facto_ a.s.sertions did not mend matters in Kansas, however much they may have relieved the author of the report. It remained to deal with the existing situation. The report took the ground that the legislature of Kansas was a legal body and had been so recognized by Governor Reeder. Neither the alleged irregularity of the elections, nor other objections, could diminish its legislative authority. Pro-tests against the election returns had been filed in only seven out of eighteen districts. Ten out of thirteen councilmen, and seventeen out of twenty-six representatives, held their seats by virtue of the governor's certificate. Even if it were a.s.sumed that the second elections in the seven districts were wrongly invalidated by the legislature, its action was still the action of a lawful legislature, possessing in either house a quorum of duly certificated members. This was a lawyer's plea. Technically it was unanswerable.

Having taken this position, Douglas very properly refused to pa.s.s judgment on the laws of the legislature. By the very terms of the Kansas-Nebraska Act, Congress had confided the power to enact local laws to the people of the Territories. If the validity of these laws should be doubted, it was for the courts of justice and not for Congress to decide the question.[554]

Throughout the report, the question was not once raised, whether the legislature really reflected the sentiment of a majority of the settlers of Kansas. Douglas a.s.sumed that it was truly representative.

This att.i.tude is not surprising, when one recalls his predilections and the conflict of evidence on essential points in the controversy.

Nevertheless, this att.i.tude was unfortunate, for it made him unfair toward the free-State settlers, with whom by temper and training he had far more in common than with the Missouri emigrants. Could he have cut himself loose from his bias, he would have recognized the free-State men as the really trustworthy builders of a Commonwealth.

But having taken his stand on the legality of the territorial legislature, he persisted in regarding the free-State movement as a seditious combination to subvert the territorial government established by Congress. To the free-State men he would not accord any inherent, sovereign right to annul the laws and resist the authority of the territorial government.[555] The right of self-government was derived only from the Const.i.tution through the organic act pa.s.sed by Congress. And then he used that expression which was used with telling effect against the theory of popular sovereignty: ”The sovereignty of a Territory remains in abeyance, suspended in the United States, in trust for the people, until they shall be admitted into the Union as a State.”[556] If this was true, then popular sovereignty after all meant nothing more than local self-government, the measure of which was to be determined by Congress. If Congress left slavery to local determination, it was only for expediency's sake, and not by reason of any const.i.tutional obligation.

Douglas found a vindication of his Kansas-Nebraska Act in the peaceful history of Nebraska, ”to which the emigrant aid societies did not extend their operations, and into which the stream of emigration was permitted to flow in its usual and natural channels.”[557] He fixed the ultimate responsibility for the disorders in Kansas upon those who opposed the principle of the Kansas-Nebraska Act, and who, ”failing to accomplish their purpose in the halls of Congress, and under the authority of the Const.i.tution, immediately resorted in their respective States to unusual and extraordinary means to control the political destinies and shape the domestic inst.i.tutions of Kansas, in defiance of the wishes and regardless of the rights of the people of that Territory as guaranteed by their organic law.”[558]

A practical recommendation accompanied the report. It was proposed to authorize the territorial legislature to provide for a const.i.tutional convention to frame a State const.i.tution, as soon as a census should indicate that there were ninety-three thousand four hundred and twenty inhabitants.[559] This bill was in substantial accord with the President's recommendations.