The Chief Justice advanced to his conclusion in this part of the opinion through a most labored argument. He started with the dictum that there was no clause in the Constitution which gave Congress any power over territory acquired subsequently to the adoption of the Constitution, interpreting the provision which vests in Congress "the power to makeall needful rules and regulations concerning the territory and other property of the United States," as applying only to territory held by the United States at the time of the adoption of the Constitution. He then founded the power to govern the territory subsequently acquired upon the right to acquire territory; and declared that in governing such territory, or providing for its government, Congress was limited by all those provisions of the Constitution which protect private rights against governmental power. He claimed, finally, that that one of these provisions which ordains that no person shall be deprived of life, liberty, or property without due process of law protected property in slaves, taken into the Territories by their masters, against both the power of Congress and of the agents of Congress in the Territories, the Territorial governments, to free them. The conclusion from this reasoning was that anybody could take slaves into a Territory of the United States, and hold them there in slavery, no matter what might be the disposition of Congress or of the Territorial government in regard to the subject, and that the question whether slavery was to be permanently established in a Territory or not could not be determined until the Territory should become a "State," and then only by an act of the "State."
This was the point which the Kansas-Nebraska Act had not covered, and which the President said, in his inaugural address, would be decided in the forthcoming opinion on the Dred Scott case. The opinion was pronounced several days after the inaugural, and it was later charged by Mr. Seward, and intimated by Mr. Lincoln, and believed by a large number of persons, that the Chief Justice imparted the opinion of the Court to the President before it was pronounced. But this point, thoughnot necessarily involved in the case, had been argued by counsel, and the newspapers had declared that it would be decided, and both Mr. Buchanan and Mr. Taney were men of the highest personal and official integrity, and possessed the most delicate sense of the requirements and proprieties of the great stations which they occupied. It is almost certain that the charge was an unfounded suspicion. The prevalence of the suspicion was, however, an ominous sign of the danger impending over the land.
Justice Curtis found no more difficulty in controverting these propositions than those upon the first point treated in the opinion of the Chief Justice. He first referred to the undoubted facts that not all the territory claimed by the several "States" had been ceded to the United States at the time that the Constitution of 1787 was adopted, but that it was expected that what remained would soon be so ceded, and that therefore the clause vesting in Congress "the power to make all needful rules and regulations concerning the territory of the United States" must have been framed with these future acquisitions in view, and intended to apply to them also. He then demanded to know why, if the Court could derive the power of Congress to govern territory acquired from foreign states from a right which is not expressed in the Constitution, but is itself implied, the right to acquire, should it hesitate to derive it from a power in respect to the territory of the United States which is expressed in the Constitution. He contended that until Congress or the Territorial legislature had legalized slavery in a Territory, no one could be said to be deprived of his property in slaves in the given Territory, either by a Congressional act forbidding the existence of such property, or by the failure of Congress or the Territoriallegislature to enact laws for the security of such property. He repudiated the idea that a holder of slaves could take the law of the place from which he emigrated, securing such property, into a Territory with him as a monstrosity in jurisprudence, since it would introduce into a given Territory as many slave codes as there were slaveholding Commonwealths represented therein by their slaveholding emigrants, and he indicated, finally, that the reasoning of the Court must reach ultimately the proposition that Congress was required by the Constitution to establish slavery in every Territory of the Union, and consequently to make every new "State" a slaveholding "State."
The slaveholders and the Douglas Democrats of the North were in high glee over the decision, and hardly stopped to read the powerful dissenting opinion which had shattered it to atoms. They caused thousands upon thousands of copies of the decision to be printed and distributed among the masses of the people. The Free-soilers did the same thing with the opinion of Justice Curtis. It was not many weeks before it became entirely manifest that the cause of slavery had lost immensely by the decision, and the cause of free-soilism had gained in the same degree. Justice Curtis had demonstrated that the decision had cast the responsibility for the further extension of slavery upon the nation, and the nation now began to show its resolution to meet its responsibility by acquitting itself of any participation in this great wrong, in the only manner now left to it, that is, by preventing it. The nation could no longer deceive itself with the idea that it could stand neutral. The Court had actually swept away the dogma of "popular sovereignty" in the Territories. The nation must nowneither prohibit, nor allow the Territorial governments to prohibit, slavery within the Territories, as the decision would have it, or the nation must itself prohibit it, as the dissenting opinion would have it. When these alternatives were distinctly recognized as necessary and exhaustive, it did not take the nation long to decide which course it must pursue.
THE STRUGGLE FOR KANSAS CONCLUDED
THE STRUGGLE FOR KANSAS CONCLUDED
The Lecompton Convention Ordered—Robert J. Walker and F. P. Stanton—Stanton and the "Free-state" Men—Walker's Address—The "Free-State" Legislature and Mass-meeting—The Plan to Capture the Territorial Legislature by the "Free-state" Men—The "Free-state" Men in Majority in the Territorial Legislature—The Lecompton Convention—The Lecompton Constitution—Only the Slavery Article to be Submitted Fully to the People—Protest of the "Free-state" Men—The Extra Session of the New Territorial Legislature—Stanton Removed—Lecompton Constitution With Slavery Adopted—The "Free-state" Men Capture the Lecompton Government and Reject the Lecompton Constitution—Denver Advises the President Against the Admission of Kansas Under the Lecompton Instrument—The President's Message of February 2nd (1858)—The Passage of the Lecompton Bill by the Senate—The Rejection of the Bill by the House—The English Bill—The Rejection of the Lecompton Constitution by the People of Kansas—A Fourth Government for Kansas—The Struggle for Kansas Closed—Dr. Robinson—The General Government—Mr. Jefferson Davis—The Beginning of Error and Wrong—Brown's Atrocities—The Forerunners of War.
According to the dictum of the Court in the great case reviewed in the preceding chapter, slave property was lawful in Kansas during the Territorial period, and could be first dealt with by the constitutional convention, which should prepare the organic law for Kansas as a Commonwealth of the Union.
Already before the promulgation of the decision, the Territorial legislature had provided for the holding of the constitutional convention at Lecompton, and for the election of the delegates thereto. This election was appointed for June 15th, 1857.
It was certain that the "Free-State" men now outnumbered the pro-slavery men, and that upon a fair census, registration, and distribution of seats, and with a fair election and count, they would be able to secure the majority in the convention. But could they consistently participate in an election ordered by, and under the control of, the Territorial government? Many of them felt that they could not. Others, however, were inclined to do so, if the regulations were impartial. They examined the provisions made by the Territorial legislature for the machinery of the registration and the election, and found that they were grossly favorable to the pro-slavery party. They also found that the legislature had made no provision for submitting the constitution which might be framed to the vote of the people.
While the "Free-state" men were deliberating upon this matter, the new Territorial officials appointed by the new President appeared. President Buchanan had selected Robert J. Walker, of Mississippi, to be Governor, and F. P. Stanton, of Tennessee, to be Secretary, of the Territory. Both of these men were capable, honest, and resolute. Walker was a shrewd politician, indeed, but he was fair-minded and faithful to his plighted word. Stanton arrived on the scene about the middle of April. Walker came a month later. Stanton, therefore, was Acting Governor during the first month of his residence in the Territory.
Stanton went to Lawrence, on the 24th, and urged the"Free-state" men to take part in the approaching election. He had, however, already apportioned the representation in the convention on the basis of the existing census. It was evident that he was unaware that this was unjust to the "Free-state" men. Seeing this, the "Free-state" men made a counter proposition for a new census and apportionment, and for an impartial control of the elections. Stanton did not think he had the power to conclude an agreement with them on this basis, and the negotiations fell through.
The new Governor now arrived, and bent all his energies to induce the "Free-state" men to participate in the election. He issued an address, in which he solemnly declared that he would secure honest elections and returns, and pledged himself that the constitution, which the convention might form, should be submitted to the people for ratification or rejection. He also threatened that he would enforce the laws of the Territory. His idea seems to have been to create an Administration party, which would win a majority of the seats in the convention and make Kansas a Democratic non-slaveholding Commonwealth. The pro-slavery men discovered the plan at once, and accused the Governor of leaning toward the "Free-state" party.
The "Free-state" men were not yet, however, ready to trust the Governor. They thought it wisest to maintain their own organization, and make the Governor feel their power. On June 9th the "Free-state" legislature assembled, to provide for the election of successors to the existing members and officials. Along with it was convoked a sort of mass-meeting of citizens. The legislature was at first without a quorum, and never had an honest quorum.This fact was sedulously concealed from the Governor, while the orators at the mass-meeting raised enough dust and smoke to cover up the real condition of affairs. They made the place fairly blue with their bluster and their threats, and the little Governor was greatly impressed by the apparent seriousness of the situation.
By this time, however, the "Free-state" men had become considerably discouraged in regard to the admission of Kansas into the Union under the Topeka constitution. The Senate had given the application the cold shoulder, and had, apparently, laid it aside permanently. The prevarications of Lane were said to have produced this result. As matters now stood, Robinson and the more conservative men of the "Free-state" party began to consider the advisability of attempting to capture the Territorial legislature, by participating in the election of members, which was to take place in the following October. They felt certain that upon a true census and a fair apportionment, and with an honest election, they could win a majority of the seats in the legislature, and would then be in a position to nullify the work of the Lecompton convention, which, on account of the abstention of the "Free-state" men from the election of the delegates, would be packed with pro-slavery representatives.
The matter of first importance was to obtain a true census. Senator Wilson, of Massachusetts, was at the moment in Lawrence, conferring with Robinson and his friends concerning the state of affairs, and he strongly advised these gentlemen to take a correct census under the auspices of the "Free-state" government, and to nominate candidates for seats in the Territorial legislature, and elect them. He felt so decidedly about the matter that he offered to secure the funds necessary to defray the expenses of taking the new census.
Robinson and his friends were now convinced that this was the wise course, but they knew that it would be difficult to persuade the radical elements in their party to go with them. The mass-meeting at Topeka of June 9th had voted to stick to the "Free-state" government, and a convention of the "Free-state" men had assembled on July 15th to provide for its continuance. This convention, after nominating candidates for the legislative seats and for the offices, and resolving to adhere to the "Free-state" government, recommended the people to assemble in mass convention, at Grasshopper Falls, on the 26th of the following August, to take action in regard to the participation of the "Free-state" men in the October election of members of the Territorial legislature, since Governor Walker had declared that this election would be held under the laws of Congress, and not under the acts of the Territorial legislature, and had pledged himself to secure an honest election. It was evident from this that the conservative element in the "Free-state" party had won the day.
Before the day appointed for the Grasshopper Falls convention had arrived, the new census had been completed under the direction of the "Free-state" government, and it was morally certain that the "Free-state" men could elect a majority of the members of the new Territorial legislature. When the convention assembled, it therefore resolved, by a large majority, that the "Free-state" men should participate in the October election, warning the people, however, of the seriousness of the undertaking, and cautioning them against over-confidence in success.
The Lecompton convention assembled on the seventh day of September, and, after organizing, adjourned to October 19th, as if to await the result of the election of the members of the Territorial legislature.
This election came off on October 5th. The Governor remained true to his pledge of protecting the ballot-box. The presence of United States soldiers discouraged any movements from Missouri, and peace reigned at the polls. The returns from the counties of McGee and Johnson were, however, so manipulated by the pro-slavery election officers as to give the majority of the seats in the legislature to the pro-slavery party. These returns, as well as those from the other counties, were, however, to be canvassed finally by the Governor and Secretary. The "Free-state" men now demanded of them the fulfilment of their pledge of pure elections. The "Free-state" men had their newly taken census, and they convinced the Governor and Secretary that about ten times as many votes had been returned from these localities as there were residents in them. Walker and Stanton threw out the fraudulent returns, and gave, thus, the Territorial legislature to the "Free-state" men.
Two days before the Governor announced his intention of purging the returns of the frauds committed by the pro-slavery men in regard to them, and while the excitement about them was intense, it was suddenly discovered by the conservative "Free-state" men that Lane was working up a conspiracy for using violence against the members of the Lecompton convention. He, as commander-in-chief, had ordered the "Free-state" forces to assemble in Lawrence on October 19th for that purpose. The conservative men at once set themselves against this movement, and after a serious struggle happily won the day. They appointed a mass-meeting of the party at Lecompton for the following week, as much to protect the members of the convention against any sudden attack byLane and his reckless adherents as to watch their constitution-framing work. Before the meeting took place the Governor had announced the rejection of the fraudulent returns, and had thus deprived the "Free-state" men of all excuse for violence. Some boisterous speeches were, nevertheless, indulged in at the meeting, but the convention was allowed to complete its work in peace.
The convention framed an instrument after the Missouri model, and incorporated in it an article guaranteeing the property in slaves already within the Territory. The convention then framed an independent provision in regard to slavery as a permanent institution of the new Commonwealth. This provision alone was to be fully submitted to the vote of the people. The people must take the Lecompton constitution with slavery as a permanent institution, or the Lecompton constitution without slavery as a permanent institution but containing a guarantee of the slave property already in the Territory. The day appointed by the convention for the voters to signify their approval or disapproval of the provision in regard to slavery as a permanent institution was December 21st, 1857, and the day designated for the election of members and officers under the new constitution was January 4th following.
The "Free-state" men regarded this submission of only a single article of the constitution to popular vote as a fraud upon the principle of "popular sovereignty," and demanded of Stanton, who was then discharging the Governor's duties, in the temporary absence of the latter, that the Governor's pledge as to the full submission of the proposed constitution to the people at the polls should be redeemed. Stanton bravely resolved to keep the Governor's word ofhonor, although he believed it would cost him his position.
What the "Free-state" men asked of him was to convene at once the new Territorial legislature, in which the "Free-state" men now had a majority of the seats, for the purpose of giving it the opportunity to order the full submission of the Lecompton constitution to the suffrages of the people. Stanton yielded to their request, and called the legislature to meet at Lecompton on December 7th. This body at once resolved to submit the proposed constitution fully and in all its parts to the people, to be adopted or rejected by them at their pleasure, and appointed the 4th day of the following January as the time for taking the vote.
Stanton was immediately removed from office by the Administration, and General John W. Denver, of Virginia, at the moment Indian Commissioner, was assigned to the duties of Acting Governor in the Territory.
The "Free-state" men resolved to take no part in voting upon the slavery article of the Lecompton constitution, since they must take this constitution either with or without slavery as a permanent institution, and could not vote against the constitution as a whole. Consequently the Lecompton constitution with slavery as a permanent institution was, so far as the returns of the voting on December 21st were concerned, adopted. According to these returns six thousand two hundred and sixty-six votes were cast for it. Of these, nearly three thousand were afterward shown to be fraudulent. Between five and six hundred votes were cast for this constitution without slavery as a permanent institution. None were counted against itin toto. That is to say, out of avoting population of about fifteen thousand, less than four thousand were in favor of this constitution in either form.
The more prudent of the "Free-state" men now thought, however, that it would be wise to participate in the election of members and officers of the Lecompton "State" government on the day fixed by the Lecompton constitution, January 4th, 1858. They were to vote fully at that time, as we have seen, upon the Lecompton constitution, by order of the Territorial legislature, now in their hands. They felt certain of defeating the constitution, and they knew that they could win in the election of the officers and members. They nominated a ticket with G. W. Smith at its head, as their candidate for Governor.
On January 4th, more than ten thousand votes were cast against the Lecompton constitution entire, and only about one hundred and fifty votes were cast in its favor. The "Free-state" men also elected their candidates for the offices and seats in the government created by the Lecompton constitution.
The "Free-state" men now had possession of the Topeka "Free-state" government, of the Territorial legislature, and of the Lecompton "State" government, and had rejected the Lecompton constitution by an undoubted majority of the suffrages of the citizens of Kansas.
As yet the Lecompton constitution had not been presented by the President to Congress, and Acting Governor Denver hastened to give him a truthful statement of the condition of affairs in the Territory, and to urge him not to recommend to Congress the admission of Kansas under this constitution, but to suggest to that body the passage simply of an enablingact, under which the people of Kansas might begin again the work of forming a Commonwealth constitution.
But the President did not heed this wise warning. On February 2nd, 1858, he sent the Lecompton constitution, with the provision making slavery a permanent institution in Kansas, to Congress, and recommended the admission of the distracted Territory into the Union, as a "State," under it. His line of argument was that every step in the procedure of framing and adopting this constitution had been regularly and legally taken, and that all the voters could have participated in the work if they had chosen to do so. He claimed that the act of the Territorial legislature, after it came under the control of the "Free-state" men, in ordering another vote, and a different sort of vote, upon the constitution, than and from that appointed and required by the convention, was irregular; and he undertook to comfort the "Free-state" men with the suggestion that, Kansas once admitted, they could change its constitution to suit themselves, if they were really in majority.
The President's argument carried the Senate with him despite the powerful opposition of Mr. Douglas, who bravely antagonized the Administration, and held firmly that his great principle of "popular sovereignty" required the unreserved submission of every part of the constitution to the free suffrages of the people, in order to establish its validity. He declared that unless this should be done Congress could not know whether the people of Kansas had made a constitution or not, and that without that knowledge the admission of Kansas under the constitution before the Senate was tantamount to making aconstitution for Kansas by Congressional act. The honest and manly stand taken by Mr. Douglas upon this great subject certainly presents him in the rôle of a patriotic statesman, rather than in his usual character of the shrewd politician.
The Senate passed the Lecompton bill on March 23rd, 1858, by a substantial majority, but the House promptly rejected it. The House passed a measure, instead, for referring the Lecompton constitution back to the people of Kansas, who should vote freely upon it in all its parts, and for admitting Kansas, without further Congressional action, under this constitution, if it should receive the popular ratification; but the Senate rejected this substitute for its bill.
The matter was then sent to a conference committee of the two Houses. After long deliberation a measure was matured by this committee which appeared to deal with a subsidiary question only, but which, by some sort of an understanding, was held to give the people of Kansas the chance to reject the Lecompton constitutionin totoat the polls. The measure is known as the English bill from its projector, Mr. W. H. English, a member of the conference committee from the House of Representatives. It provided for a reduction of the land grants from twenty-three millions of acres, asked for by Kansas under the Lecompton constitution, to about four millions of acres, and proposed the submission of this change to a vote of the people of Kansas. If the people adopted the change, they would be considered as having adopted the Lecompton constitutionin toto. If, on the other hand, they rejected this change, they would be considered as having rejected this constitutionin toto.
The English bill was agreed to by both Houses; and on August 2nd, 1858, the people of Kansas voted upon the measure. They rejected it, and with it the Lecompton constitution, by a vote of more than eleven thousand in a total vote of about thirteen thousand.
In the meantime, fearing that Congress might pass the bill for admitting Kansas under the Lecompton constitution, the Territorial legislature, now in the hands of the "Free-state" men, passed a bill ordering a new constitutional convention. The bill was passed within a few days of the end of the session, and Governor Denver, thinking that Kansas had about enough governments already, pocketed the measure. The convention was, however, held, and a constitution was framed and submitted to the people which received some three thousand votes in favor of its adoption, while none were cast against it. Officers were chosen under it, and thus a fourth government for Kansas was created. All of these governments were now, however, in the hands of the conservative men of the "Free-state" party.
With the rejection of the Lecompton constitution by the people of Kansas, on August 2nd, the struggle for Kansas was closed. It was to be a non-slaveholding Commonwealth and a Republican Commonwealth. The record of this struggle is certainly one of the most remarkable chapters in the history of the United States. There is much to admire in it, much to be ashamed of, and much to be repudiated as foul and devilish. The prudence, moderation, tact, and bravery of Dr. Robinson and his friends have rarely been excelled by the statesmen and diplomatists of the New World or of the Old. They were placed in a most trying situationboth by their foes and by those who, professing to be their friends, endangered the cause more by violent and brutal deeds than did their open enemies. Their triumph over all these difficulties is a marvel of shrewd, honest, and conservative management, which may well serve as one of the best object-lessons of our history for succeeding generations.
The attitude of the general Government was also honorable and praiseworthy. It did its best to hold the balance even and impartial between the contending forces. It sent out intelligent, honest, and resolute men as Governors; and it used the army to maintain the peace, and protect person and property from violence. Even President Pierce's Secretary of War, Mr. Jefferson Davis, who was considered the very high-priest of the slavery interest, sent a military commander, Colonel E. V. Sumner, to Kansas, whom he knew to be in sympathy with Free-soil principles, and instructed him only to do what was just between all parties; and when Colonel Sumner, fearing that, from personal sympathy with the cause of the "Free-state" men, he might unconsciously act too favorably toward them, really went farther than his duty required against them, in dispersing their legislature, Mr. Davis expressed the opinion that the United States forces ought not to have interfered with the "Free-state" government until it had undertaken to execute some of its measures. It was said at the time that Mr. Davis' quasi disavowal of Colonel Sumner's act was caused by its unpopularity throughout the North; but Mr. Davis was not to any such degree sensitive to Northern opinion. Personally and officially Mr. Davis was a remarkably upright man, and was accustomed to take counsel chiefly of his own judgment and conscience, and to disturb himself very little about the views ofothers concerning his duties and acts. Governor Robinson has recently testified to the impartial attitude of the military power of the United States in Kansas, and has declared that "had it not been for the officers of the United States army, the 'Free-state' struggle would have ended in disaster on more than one occasion."
Error began, unquestionably, with the repeal of the Act prohibiting slavery in the Louisiana territory above thirty-six degrees and thirty minutes north latitude, and wrong began, just as unquestionably, with the incursion of the Missourians, and their fraudulent voting at the Territorial election in March of 1855. A bogus legislature was thus thrust upon Kansas Territory at the outset. It was a political outrage of the first degree, and it would have justified rebellion against the execution of the enactments of this body. But it does not excuse, or even palliate, the criminal atrocities inaugurated by John Brown at Dutch Henry's Crossing, and the wild reign of murder and robbery which followed in their train. All this was common crime of the blackest and most villainous sort, and the men who engaged in it were cutthroats and highwaymen, who took advantage of the confusion in Kansas to prosecute their nefarious work.
It is often said that the Civil War began in Kansas, and simply spread from there over the country. It is true that violence began there, and in its degeneration into savagery developed those devilish dispositions that carried murder and robbery into Virginia, and thereby helped mightily to create that intensely hostile feeling between the North and the South which resulted in Civil War, but we affront good morals and common sense when we dignify those Kansas atrocities by the title of war; and we obliterate moral distinctions whenwe attempt to justify them by the end which their authors professed to have in view, the extermination of African slavery throughout the country. Such deeds are not means to anything except the establishment of the reign of hell on earth, and the maudlin adoration sometimes accorded their doers is evidence of an unbalanced moral sense. It is a source of congratulation that the juristic sense of the last decades of the nineteenth century refuses to place the crank who kills or robs for what he considers, or professes to consider, the welfare of society under any other class than that of the most dangerous criminals. It remains for the ethical sense of the twentieth century to sweep the hero-worship too often accorded such characters out of the world's literature.
But if the murders, and robberies, and arson committed in Kansas were not war, they were the forerunners of war. The last expedient which the minds of men could invent for putting the slavery question in the position of a purely local matter had been tried, and had utterly and miserably failed. The nation must now settle the question, by peaceable means if it could, but if it could not, then by force. The record of its attempts, first upon the one line, and then upon the other, will be the chief subject of the next and last volume of this series.
THE ELECTORAL VOTE IN DETAIL, 1820-1856.
THE ELECTORAL VOTE IN DETAIL, 1820-1856.
1Missouri was not formally admitted as a state until August, 1821.