Beginning about the time when Wilmot presented his famous proviso, there developed a divergence of doctrine concerning the aspects of slavery in the territories which, along with other things, was to result in the establishment of the Southern confederacy and in civil war. Was it within the power of Congress to exclude slavery? If not, could the legislature of a territory do so? If such a legislature could not accomplish this directly, could it properly do so by indirection? If not, had Congress any duty to correct the action, or supplement the inaction of the territorial legislature? The compromise measures of the year 1850, the Kansas-Nebraska Act of 1854, and the Dred Scott decision, 1857, were the tangible results of the bitter struggle which involved these questions in state and national politics before 1860. Constitutional interpretations with respect to slavery and the nature of the federal government were expressed in the Georgia and Alabama platforms, in the Freeport and Cooper Union speeches, and in the Davis resolutions. Every individual involved in the controversy reinforced his doctrines by some particular interpretation of the organic act, as previously expressed and variously restated at intervals since its inception.
p2 The state-rights men considered the federal government an agent of the sovereign states, entrusted with certain carefully defined powers, for the performance of specific duties. State governments, they maintained, did not derive any power whatsoever from the Constitution or the federal government; on the contrary, whatever powers the latter possesses were bestowed upon it by the states through the Constitution. Its powers being derivative, the state which delegated them might take them away. Whatever powers had not been delegated to the federal government nor prohibited the states had been reserved to the respective states. The fact that a division of powers had been made confirmed the intention of limitations, and implied a power capable of enforcing restrictions. The question was, where did this power of determining the extent of limitations and reserved powers reside? Webster and the federal school said that in all suits in law and equity the Supreme Court was the final judge, and that in cases not capable of being argued before that tribunal Congress must judge of, and finally interpret, the powers of the federal government.1 Calhoun, Hayne, and the state-rights school held this doctrine to be a presumption utterly unwarranted either by interpretation of the Constitution itself or the circumstances of its inception.2 They regarded the Constitution as an instrument of union between states which had never surrendered their sovereignty nor agreed to unlimited submission to the government created by the compact. The states, and not the government so created, were the final p3 judges of the extent of their reserved powers. In case the federal government arrogated authority beyond the limits of the delegation or encroached upon the reservations, each state had the right to determine for itself the nature and extent of remedial measures.3
They maintained that it is the nature of all delegated power to increase; that, if the general government were invested with the right to determine the limits of its own powers and enforce its decisions, the Constitution would no longer act as a shield against encroachments upon the vested rights of the people and the independence of the states; that, under the theory of the federal school, there was no real, positive division of powers, since Congress or the Supreme Court, or the two operating harmoniously, might enlarge upon the delegated powers by usurpations; that, therefore, in the last analysis, a government which is the sole judge of the limits of its own powers becomes an absolutism. They contended that the principal justification for the creation of a government by a free people is to afford protection for minorities against the despotism of majorities in cases of internal dissension and sectional disputes; and that, unless some protective power be provided as a restraint upon the will of the many as against the few, the latter, however justifiable their position and sacred their menaced rights, must yield to the stronger party. If, therefore, the majority were invested with definitive rights and unlimited executive powers, the rights of the minority must, of necessity, become subject to the selfish pleasure and unrestrained ambitions of a legislative majority.4 The Southerners insisted that there p4 must be a self-protecting power in the hands of the minority. Limitations placed upon the power of the federal government by states would no longer restrain, and powers which had never been delegated by the states would be usurped, unless the ultimate source of authority in all cases of dispute rested with the states for whose benefit limitations had been imposed and reservations had been made. It was not in the nature of things for majorities to search constitutions to determine in what respects the rights of minorities were to be observed. These were never safe if protest and remonstrance were the only recourses available. State interposition and secession were, therefore, the only safe and effective measures of resistance, and the right of a state to exercise them was indisputable. They were effective remedies, too long fallen into disuse, in the opinion of the state-rights men, but not completely forgotten nor in any sense discarded.5
Not all of the men of the South were state-rights men, nor was the doctrine of state rights confined to that section of the country; but that doctrine was the constitutional refuge of the secessionists; and the fundamental p5 cause of secession was the threatened extinction of slavery. After the year 1848 the two were inseparable, state-rights Democrats and state-rights Whigs of pro-slavery bent merging into a Southern-rights association.6 The Douglas Democrats faithfully adhered to the theory of state rights. It was an essential element of popular sovereignty, and they freely proclaimed it as an argument against congressional intervention for protection.7 Even the Republicans used the argument of state rights when it suited their purpose to do so,8 and they wrote a broad declaration of it into their Chicago platform.9
As interpreted by the Southern-rights men the Constitution recognized the institution of slavery and provided for its representation, security, and protection. Slavery as an institution preceded the Constitution and was recognized, p6 not established, by the Constitution where state sovereignty did not prohibit it. They maintained that the institution could not be established or abolished in the territories by Congress. It was established there by the migration of the slave owner with his property. What they demanded was protection for property rights, not laws to establish the institution, because there was no necessity for such laws.10 The territories were the common possession of equally sovereign states, and to the federal government these states had entrusted, by the Constitution, the duty of administering the common property for the benefit of all. The power to declare what was property was a sovereign power, and could not be exercised except by the people of a state in their organic instrument of government. This right they had never surrendered to the federal government. The eminent domain over the territories resting with the states, a citizen of any state had the right to carry with him into the common territory whatever species of property his state recognized, and look for protection to the agent of the states which had been charged with that specific duty.
All Republicans contended that Congress possessed the constitutional power to exclude slavery from the territories; some few of them maintained that Congress possessed equal power to admit it.11 They held that the territories were not the common possession of the sovereign states but of the United States; and that as a state might prohibit slavery in its constitution, Congress might do so by the organic act creating a territorial government. This power of Congress, they contended, was established p7 by the Constitution and was amply substantiated by precedent and Supreme Court decisions. The Constitution gave to Congress the "power to make all needful rules and regulations concerning the territory and other property of the United States." As interpreted by the Republicans of the federal school, this clause gave to Congress a full and complete authority over the inhabitants of the territories; a power unrestricted by the Constitution, untrammeled by representatives of the governed, almost imperial. They contended that slavery was the creature of local, state, or municipal law, and could not exist in any acquired territory until established by the territorial legislature under express provision by Congress.12 Slavery, dependent upon local law for its legal existence, possessed no transitory qualities. Congress could, therefore, confine slavery within its existing limits, and prevent the admission of any more slave states.
The Republicans affirmed the right and duty of Congress to exclude slavery from the territories. The Southern-rights men denied it to Congress, to the territorial legislature, and to the people of a territory until they framed an organic law preparatory to admission as a state. The right of the people of a state and of them alone to recognize or abolish the institution of slavery by their constitution was the foundation of their entire constitutional theory. They never denied that, they never claimed more; and when the Republican leaders said that if the Constitution carried slavery into the territories it also carried it into the states, they were reading something into the claims of the Southern-rights men which was not p8 there. They were creating in the minds of the Northern people an impression of Southern claims which never had been, nor ever could be, asserted under the doctrine of state rights.
Both the Southern-rights men and the Republicans, then, advocated congressional intervention, the former for protection where necessary, the latter for exclusion. Legislation for protection where necessary allowed free states if the people so wished at the time of admission. Legislation for exclusion precluded the possibility of slave states. The former would not make all territories slave, the latter would make all territories free. The Southern-rights men were asking for the right to enjoy the use of slaves as property in the territories. The Republicans denied that slaves were property in the ordinary sense of the term. They were persons also liable to criminal jurisdiction and to manumission, and giving, through their character, as persons, valuable political rights to others.13 The Southerners accused the Republicans of failing to make a distinction between slaves as property and slavery as a political institution, which it could only become at the time of the admission of a state.14 It was utterly impossible for a Republican to think of slaves as being in the same category with other property; and while many of them attempted to justify their attitude toward slavery upon constitutional principles many more subscribed to the doctrine of the higher law.
When Wilmot proposed the exclusion of slavery from the territory to be acquired from Mexico he was opposed by few Northern Democrats. By 1860 practically all p9 Democrats denied the right of Congress to exclude slavery from the territories. The invalidation of the Missouri restriction and the decision of the Supreme Court in the Dred Scott case had strengthened the Southern-rights position. But, although the Democratic party was a unit in denying the right and power of congressional prohibition, a difference of opinion had developed over the question of the power of the territorial legislatures; and the intensity of the argument threatened the very existence of the party. All Democrats agreed that a territorial legislature possessed the power to protect slave property; some claimed it equally possessed the power to destroy it. The Southern-rights men held that the territorial legislature possessed no sovereign powers. It was created by act of Congress, and Congress might at any time end its existence. Deriving its powers from Congress, there was a limit to the extent of its legislative jurisdiction. The abolition of slavery was an act of sovereignty. No precedent existed for the abolition of slavery by legislative enactment, except where that power had previously been granted by constitutional provision. Congress could not transfer power which it did not possess. That power could be exercised by the people of a territory at the time of framing a constitution for admission as a state, and not before that time. "A territorial government," said Fitch, "derives all its powers from the Constitution through the General Government; it has no original power; it has no reserved power; and it cannot partake of the powers reserved to and by the States, until it becomes a State."15
p10 The Douglas Democrats contended that the territorial legislation could lawfully exclude slavery, either by non-action or unfriendly legislation. This doctrine they derived from the alleged inherent power of self-government existing in every community. They maintained that sovereignty began with the organization of the territorial government by Congress. It was the doctrine of popular sovereignty and not squatter sovereignty.16 They claimed as an historical basis for this doctrine of popular sovereignty the theory of non-intervention and as precedent for its application the compromise measures of 1850 and the Kansas-Nebraska Act. By 1860 they were denying the demand of the South for congressional protection on the ground that it was an advanced position, the party having previously defined the doctrine of non-intervention as a cardinal principle. The Southern-rights men denied that p11 the doctrine of non-intervention was ever intended to set aside the right of protection by Congress for slave property in the territories.17 The term had originated at the time of the acquisition of Mexican territory in 1848. It was a denial by the Democratic and Whig parties of the doctrine of congressional power to exclude as endorsed by the Free-Soil party at the North. It might more correctly have been called incapacity to exclude, for the question of the right to exclude was the only issue before the people.18
The compromise measures of 1850 were barely acceptable to the South and created an unprecedented excitement. They were acquiesced in by the majority of that section (1) because they offered a possible conclusion of the slavery controversy, and (2) because the majority was forced to choose between a qualified endorsement of them and a dissolution of the Union.19 Douglas, at that time, approved of the legislation; but, four years later, he introduced into Congress the Kansas-Nebraska bill, the enactment of which gave birth to the Republican party and created the dissension out of which arose in 1860 the disruption of the Democratic party and the dissolution of p12 the Union. This act invalidated the Missouri Compromise restriction and, in substance, said that the will of the people in the territory and not the will of the majority of Congress should decide the question whether they should be a slave or a free state at the time of admission. It denied the right of Congress, as was attempted in the case of Missouri, to keep a state out of the Union because it was slave or because it was free. This act did not contain the principle of popular sovereignty, nor did its endorsement by the Democratic party in the Cincinnati platform commit the party to that doctrine. When the bill was framed and discussed in the Democratic caucus, and later, when it was debated in the Senate, Douglas, Cass, and Stuart stood, as they had always done, on the right of the territorial legislature to exclude slavery if it desired to do so. The Southern members of the party maintained, as they had always done, that the people of the territory might exclude slavery at the time of framing constitution, and not before that time. Unable to reach an agreement on that important point, they so framed the bill as to leave the question of the power of the territorial legislature open to court decision; and, in framing the Cincinnati platform in 1856, the same procedure was followed. All members of the party in 1860 agreed that was true. Both sections of the party agreed to abide by that decision when it should be made.20
It was because of this provision rendering all territorial p13 legislation with regard to slavery subject to the Constitution and to Supreme Court decisions that some Southern-rights men supported the bill. Eventually they realized what the men of clearer thought had told them at the time, that to rely solely upon the judiciary for protection is a surrender of rights; that protection against unconstitutional laws and against violation of constitutional laws may be left to judicial power; but only legislative enactment can force protection to persons and property, and in case the legislative branch of the government fails to protect, either through evasion of constitutional duties or by neglect, the judiciary has no power to supply the deficiency. The full force of this truism struck them when Douglas said that the territorial legislature could exclude slavery by non-action. They realized that he was correct in that statement; but to his contention that it might lawfully do so, the Southerners never surrendered. They contended p14 that protection was the object and the imperative duty of government, and that in places exclusively subject to federal jurisdiction (including territories, since they were the creatures of Congress, and possessed no sovereignty), the states having no power to protect, the federal government could not, nor could any department of that government, abdicate its powers.21 The right of the slave owner to enter the territories with his property being conceded, and the power of the territorial legislature to exclude being denied, protection was an inevitable sequence.22
The Republicans did not deny the power of Congress to abrogate acts of territorial legislatures. They agreed that a territory possessed no sovereignty. They further agreed that, if the slave owner possessed the right to enter the territories with his property, Congress possessed the power to protect him in the enjoyment of that property; that is, if their vote on the Davis resolutions is any criterion by which to judge their attitude, for only Hamlin and Trumbull voted against the fifth resolution.23 But p15 the Republicans denied the constitutional right of Congress or of a territorial legislature to give legal existence to slavery in a territory, and their understanding of the nature of the federal government would not admit a recognition of the Southern claims that slavery was based in the common law and needed no statute law to establish it.
A majority of Congress, therefore, composed of Republicans and Northern Democrats denied the Southerners their claim to federal protection in the territories. Protection was asked for by the slaveholders only in case a majority in a territory, adverse to slavery interests, should pass positive, aggressive legislation against them, or should evade necessary protection. In case of questionable legislation, the popular-sovereignty adherents offered the protection of a court decision. If the territory refused to abide by the decision, Douglas contended that no matter what the courts might decide, the right of exclusion was perfect and complete under the Kansas Act.
If the right of property in a slave was distinctly and expressly affirmed in the Constitution, as the Supreme Court had said in the Dred Scott decision, and its enjoyment could not be interfered with by Congress or a territorial legislature, the logical conclusion followed that the federal government must protect the enjoyment. The only escapes from that conclusion were (1) to claim that the Supreme Court exceeded its jurisdiction in passing upon the question of congressional jurisdiction in the territories; (2) to accept the decision as temporarily binding and seek to have it reversed; or (3) to deny that the legislative and executive branches of the government were necessarily bound by Supreme Court decisions. The Republicans and Douglas Democrats adopted one or p16 another of these theories to escape the force of the decision.
Among the Republicans who supported the thesis that Congress was obligated to conform to the Constitution only in so far as it understood it, was Representative Conkling of New York. Speaking in the House of Representatives, April 17, 1860, he contended that the citizenship of Dred Scott was the essential limit of the court's jurisdiction in that famous case; that opinions rendered beyond that point were without legal force; but that the possibilities presented by the attitude of the court transformed the issue from a struggle between slavery and freedom to a far greater conflict between governmental agencies for prerogatives and power; a conflict in which the Supreme Court was asserting its authority to prescribe the limits of congressional legislation and executive action. Citing a letter of Jefferson to Gallatin, 1810, in which Jefferson rejoiced in the opportunity of obtaining a majority of Republicans in the Supreme Court, he said:
In 1860, sir, we have a chance to go and do likewise, and I trust we shall improve it. A reorganization and reinvigoration of the court, with just regard to commercial and political considerations, is one of the auspicious promises of Republican ascendancy.24
Proceeding on the basis of the denial of the authority of the Supreme Court over congressional legislation, and acting upon their interpretation of the right and duty of Congress to exclude slavery from the territories, the Republicans p17 forced through the House of Representatives, May 10, 1860, a bill declaring null and void all territorial acts of the legislature of New Mexico establishing, protecting, or legalizing slavery.25 The Republicans could not do otherwise than repudiate the authority of Supreme Court. Its constitutional interpretations in the Dred Scott case were in direct contradiction to the fundamental principle of their party, the right and duty of Congress to exclude slavery from the territories. Had the party adopted any other course, it would have surrendered its right to exist. It was not the denial of the historical data upon which the decision was based, nor the claim that the part of the decision over and above the question of the defendant's citizenship was obiter dicta, that constituted a threat against the South. It was the assertion that the will of a majority may destroy the constitutional safeguards of the rights of the minority.26 It was the declaration that in the future judges should receive appointments to the supreme bench not primarily because of their recognized ability as jurists but because they adhered to the principles p18 of the anti-slavery party. It was no idle threat, in view of the fact that seven of the nine judges were nearing the age of retirement.
The Southern-rights men insisted that to regard the Supreme Court's decisions as binding only upon inferior courts, and limited to the particular matter involved in litigation before it, was a narrow interpretation of its functions. Its functions and duties included the establishment of precedents, the definition of rights, the enforcement of law, and the establishment of a system of jurisprudence for the regulation of society. It is not to be understood that in their whole-hearted endorsement of the decision of the Supreme Court in the Dred Scott case, and in their denial of the Republican interpretation of the functions of that tribunal the Southerners compromised the doctrine of state rights. Members of the Democratic party, Southern-rights men and popular-sovereignty men alike, were few indeed who would have acknowledged the power of the Supreme Court to control the destiny of any state in the last resort. Neither the advocates of congressional protection nor those who supported popular sovereignty could have agreed to give such power to any branch of the federal government; but both groups could consistently regard, and did regard, Supreme Court decisions as binding upon coördinate departments of the federal government.27
The Southern-rights men and the Douglas Democrats agreed that the question of the constitutionality of the Missouri compromise line was before the Supreme Court p19 in the Dred Scott case, and that the decision in that respect was final. That part of the decision agreed perfectly with the claim of the slave owner to the right of migration to the common territories with his property. It also supported, in the premises, the doctrine of popular sovereignty. In its denial of the right of Congress to exclude the slave owner and his property, both groups were in perfect accord. They differed, however, on that part of the decision which dealt with the power of the territorial legislature.
This question of the power of the territorial legislature, as related to the decision of the Supreme Court in the Dred Scott case, assumed extraordinary importance in 1860. The leaders of the Democratic party, both North and South, had solemnly agreed over a period of ten years to abide by the decision of the court on that point whenever it should be given. The Douglas Democrats could not acknowledge the decision because it was incompatible with the doctrine of popular sovereignty, which was their political capital. The Southern-rights men, on the other hand, dared not surrender to the leadership of Douglas. Any movement in that direction would have been an acknowledgment, to the North, of a willingness to accept his doctrines as the future guide to governmental action, and popular sovereignty was as deadly to the institution of slavery as congressional prohibition.
The Douglas Democrats, cognizant of the gravity of the crisis, sought to evade the force of the decision by denying that it fulfilled the contract as previously agreed upon. Pugh, the recognized spokesman of the Douglas followers, labored faithfully to establish a working basis for the restoration of party harmony; but the inconsistencies into which his chief had been driven rendered his p20 task almost impossible. He acknowledged the solemn compact of the party to abide by the Supreme Court's decision relative to the power of the territorial legislature; but he insisted that the test case must arise out of an attack by a territorial legislature upon the institution of slavery, and that if no such attack were ever made there would be no occasion for controversy.28 The Dred Scott case had not arisen in a territory; it involved other questions; and the power of the territorial legislature had not been argued by counsel. The question before the party was, according to Douglas, What was the Supreme Court decision in the Dred Scott case? The proper procedure, then, was to cease the quarrel over the true interpretation of that decision, wait for another case to arise, and allow the court itself to state what had been its meaning.29
To this argument of the Douglas Democrats the Southerners replied that the Supreme Court, with but two judges dissenting, had agreed that the question of the power of the territorial legislature was within the jurisdiction of the court in the Dred Scott case; and that, as the court was then constituted, the decision in any case which might arise in the manner prescribed by the Douglas men was predetermined. In the excitement of the moment, they made no distinction between the announced intention of the Republicans to reorganize the Supreme Court and the assurance of the Douglas Democrats that they would abide by the Dred Scott decision if and when that decision should be affirmed in some future case arising in a different manner. The Republicans were contending that Congress must exclude slavery, and the Douglas p21 Democrats were contending that the territorial legislature might do so lawfully, irrespective of the Supreme Court decision in the Dred Scott case. The position of the Douglas Democrats was the more hostile to the slavery interests. The Democracy was about to split into two hostile sections over the issue.
1 Webster, "Second Speech on Foot's Resolutions," in Works, III, 270‑342.
2 Calhoun, "A Discourse on the Constitution and Government of the United States," in Works, I, 111‑406; "Letter to Governor Hamilton on the Subject of State Interposition," ibid., 144‑193.
3 Barksdale, Remarks in House of Representatives, January 23, 1860, Cong. Globe, 36 Cong., 1 Sess., IV, Appendix, 171.
4 Speech of William L. Yancey of Alabama, delivered in the National Democratic Convention, Charleston, April 28, 1860, 4.
5 Yancey took this position in the Charleston convention when he said: "We claim the benefit of the Constitution that was made for the protection of minorities. In the march of events, feeling conscious of your numerical power, you have aggressed upon us. We hold up between us and your advancing columns of numbers that written instrument which your and our fathers made, and by the compact of which, you with your power were to respect us and our rights. Our and your fathers made it that they and their children should forever observe it; that upon all questions affecting the rights of the minority, the majority should not rely upon their voting numbers, but should look, in restraint upon passion, avarice, and lust for power, to the written compact, to see in what the minority was to be respected, and how it was to be protected, and to yield an implicit obedience to that compact. You, in your voting power, are not accustomed to scan its provisions as closely as we, who, less in number, find in the instrument the only peaceable solution of difficulties that otherwise would lead to defend ourselves with arms." Ibid., 3‑4.
6 Phillips, "The Southern Whigs, 1834‑1854," in Essays in American History dedicated to Frederick Jackson Turner (Guy Stanton Ford, ed.), 216‑217.
7 Pugh said, in the Charleston convention, April 27, 1860: "I believe the Federal Government to be founded upon mutual compact between the States; and as the State entered into that compact of their own sovereign will, so it belongs to each of them, as the arbiter of its own destiny, to decide when the compact has been broken, and the mode and measure of redress." Proceedings of the Conventions at Charleston and Baltimore (National Democratic Executive Committee, ed.), 83.
8 The legislature of Wisconsin, March 19, 1859, in a series of resolutions denouncing the Supreme Court decision in the famous Booth case, said among other things: "Resolved, that the Government formed by the Constitution of the United States was not made the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each has an equal right to judge for itself as well of infractions as of the mode and measure of redress." For an historical treatment of the Booth case see Warren, The Supreme Court in United States History, III.42‑80.
9 The fourth resolution can be regarded in no other light than a concession to state-rights sentiment. Wilmot, temporary chairman of the convention, clearly implied that the resolution was included for that purpose. Proceedings of the first three Republican National Conventions . . . (Charles W. Johnson, ed.), 138.
10 Smith of North Carolina, Remarks in the House of Representatives, May 2, 1860. Cong. Globe, 36 Cong., 1 Sess., IV, Appendix, 277.
11 Corwin of Ohio, Remarks in the House of Representatives, January 24, 1860, ibid., 143.
12 Corwin of Ohio, Remarks in the House of Representatives, January 23‑24, 1860, ibid., 134‑150. Corwin, a conservative Republican, would acknowledge the existence of slavery wherever it already existed in territory at the time of acquisition. It was a safe concession in view of the fact that the United States possessed no such territory and was not likely soon to acquire any.
13 Sedgwick of New York, Remarks in the House of Representatives, ibid., 179.
14 Keitt of South Carolina, Remarks in the House of Representatives, ibid., 96.
15 Fitch of Indiana, Remarks in the Senate, February 2, 1860, ibid., 111; see, also, Hardeman of Georgia, Remarks in the House of Representatives, April 12, 1860, ibid., 223; Crittenden of Kentucky, Remarks in the Senate, May 24, 1860, ibid., III, 2341; Singleton of Mississippi, Remarks in the House of Representatives, December 19, 1859, ibid., IV, Appendix, 53.
16 Douglas defined the term squatter sovereignty as the exercise of self-government by settlers in a region within the public domain where Congress had made no provision for the exercise of governmental functions, and he denounced it as the assumption of unconstitutional powers. Ibid., III, 2147. The Southern-rights men took exception to this political philosophy of Douglas and exposed its inconsistencies relentlessly. Benjamin said in the Senate: "When the people of this country first go into the wilderness and find there no government whatever, and then exercise that inherent right of self-defense which drives men under the laws that God has implanted in them, to associate together in self-defense and organize some system of law for their own protection; then, when it would seem to the common sense of universal mankind that no one could say they were wrong in doing that — then it is that the Senator from Illinois says he repudiates and opposes their power. That is the squatter sovereignty that he objects to. But when the sovereign has come in; when the trustee of all the States has taken possession of the common fund; when it has organized a government that suits it in the exercise of its discretion, and when it has committed the administration of the affairs of the Territory, with certain limitations under the Constitution of the United States, to a Territorial Legislature — then, when the sovereign is present, then the people become invested, by some magical process, with an inherent popular sovereignty that rises superior to the author of their being." Ibid., 2237.
17 "Address to the Democratic Party of the State of Texas," in The Daily Delta, May 10, 1860; Daily Chronicle and Sentinel, Augusta, May 5, 1860.
18 Davis had said at the time: "But what is non-intervention seems to vary as often as the light and shade of every fleeting cloud. It has different meanings in every State, in every county, in every town. If non-intervention means that we shall not have protection for our property in slaves, then I always was, and always shall be, opposed to it." Cong. Globe, 31 Cong., 1 Sess., Appendix II, 919. See, also, Brown of Mississippi, Remarks in the Senate, ibid., 33 Cong., 1 Sess., Appendix, 232.
19 Garner, "The First Struggle over Secession in Mississippi," in the Mississippi Historical Society, Publications, IV, 89‑105; Du Bose, The Life and Times of William Lowndes Yancey, 251; Capers, The Life and Times of C. G. Memminger, 187‑229; Claiborne, Life and Correspondence of John A. Quitman, II, 114‑155.
20 Speaking of the Kansas-Nebraska Act, Douglas said: "We did not pretend to decide the question whether the Territorial Legislature had the power or not to prohibit slavery, but we did agree to give them all the power we had; and, if they exercised it in such manner as to violate the constitutional rights of any portion of the people, their remedy is to be found in an appeal to the Supreme Court, and not to Congress." Cong. Globe, 35 Cong., 2 Sess., II, 1258. Benjamin, referring to the party caucus, maintained that the South had asserted the right of slave owners to migrate to the territories, to be protected in their property rights, and had denied that any power could keep them out constitutionally or deprive them of protection until the time of the framing of a constitution. He said further: "Morning after morning we met, for the purpose of coming to some understanding upon that very point; and it was finally understood by all, agreed to by all, made the basis of a compromise by the supporters of that bill, that the Territories should be organized with a delegation by Congress of all the power of Congress in the Territories, and the extent of the power of Congress should be determined by the courts." Ibid., 36 Cong., 1 Sess., III, 1966. Senator Pugh of Ohio, probably the ablest defender of Douglas at the North and a close political ally, admitted that there had been a solemn agreement at the time, that the power of the territorial legislature over slavery should be left to the Supreme Court: "Both parties so understood it, that was the bill. That was the policy of the Democratic party. There might be a difference of opinion as to what the decision would be; there might be a difference of opinion as to the question itself; but as to the bill there was no question. So with the Cincinnati platform. The Cincinnati platform referred that question to judicial determination; and therefore to pretend that the Cincinnati platform is equivocal, or that the Kansas-Nebraska bill is equivocal, is in my judgment eminently absurd." Ibid., 2241; see, also, Green of Missouri, ibid., IV, Appendix, 70; Crawford of Georgia, ibid., 183; Fitch of Indiana, ibid., 112.
21 Davis of Mississippi, Remarks in the Senate, May 7, 1860, ibid., III, 1940; The Semi-Weekly Mississippian, Jackson, August 23, 1859, said: "The right of appeal from the Territorial to the Supreme Court becomes a mockery when Congress is forbidden to enforce the judgment of the latter tribunal. . . . Rights and obligations are reciprocal."
22 Said the venerable Crittenden: "To assert my right to go there, to carry my property there, and to enjoy that property, and then to say there is anybody stronger or mightier or more sovereign than the Constitution that can take from me that which the Constitution says I shall have and enjoy, or shall expel me from the place where the Constitution says I may go, I can imagine nothing so inconsistent and so contradictory." Ibid., III, 2341.
23 Ibid., 2344. "Resolved, That if experience should at any time prove that the judicial and executive authority does not possess means to insure adequate protection to constitutional rights in a Territory, and if the territorial government should fail or refuse to provide the necessary remedies for that purpose, it will be the duty of Congress to supply such deficiency."
24 Ibid., IV, Appendix, 236. See, also, Gooch of Massachusetts, Remarks in the House of Representatives, May 3, 1860, ibid., 291‑295; Vandever of Iowa, Remarks in the House of Representatives, April 27, 1860, ibid., 269; and Wade of Ohio, Remarks in the Senate, March 7, 1860, ibid., 153.
25 Ibid., III, 2046.
26 After an extended discussion of the question in the House of Representatives, January 25, 1860, Keitt said: "I know that the lust of avarice and the lust of ambition will never be satisfied while spoils are to be won and power obtained. I know, too, that mere parchment provisions will never stay back the march of a majority; and that its despotism, raised under the mask of law upon the ruins of the Republic, will be more fatal to liberty than the despotism of a victorious captain." Ibid., IV, Appendix, 95. "The right to destroy is not one of the prerogatives of government, but the duty to protect is its chief aim and attribute. Therefore, the right claimed by the Black Republicans, to abolish or exclude slavery from the Territories is not correlative with the duty to protect the same in the Territorial domain of the United States. The former is a gross and tyrannical violation of the first objects of all Government, Federal and State, imperial and Republican; while the latter is fulfilling the mission and design of every just government, which is to throw an ægis over all who live under it." Nashville Union and American, September 30, 1860.
27 Exceptionally clear statements from the leaders of the two wings of the party may be found in Speech of William L. Yancey of Alabama, delivered in the National Democratic Convention, Charleston, April 28, 1860, 12, and Pugh's reply to Yancey, in Proceedings of the Convention at Charleston and Baltimore, 83‑84.
28 Cong. Globe, 36 Cong., 1 Sess., III, 2241.
29 Ibid., 2241‑2242.
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If the URL has none the item is © Bill Thayer.
See my copyright page for details and contact information.
Page updated: 30 Jul 08