Dead Meat

Roy Franklin Nichols relates that by mid-1860 James Buchanan's detractors held him in such low esteem that they were referring to "Old Buck" as "Old Venison."

Contemporary politicos should be so creative.

Is West Virginia Unconstitutional?

In matters relating to secession and the Civil War, I'm generally a Union guy. But the fact remains that in analyzing the issues, sometimes the Union position just doesn't wash. You have to take your historical facts as you find them and take an honest look at the arguments.

It's hard, for example, to disagree with the late David M. Currie's conclusion that the establishment of the State of West Virginia was plainly unconstitutional. Article IV, Section 3 of the Constitution provided (and still provides) in relevant part:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

In a nutshell, when the state of Virginia voted to secede, loyal citizens in the northwestern part of the state elected delegates to a convention, which met in Wheeling in June 1861. The convention declared the chief state offices of the state vacant by reason of treasonable behavior of the incumbents and replaced them. It also redefined a quorum of the Virginia legislature as a majority of those members who took an oath to support the federal Constitution, ordered a referendum of the question whether a new state should be formed, and provided for the election of delegates to a constitutional convention.

The voters endorsed the creation of a new state, the constitutional convention drafted a constitution, and the voters endorsed it. The new "Virginia" legislature (using the quorum trick) then "consented" to the formation of a new state from Virginia and petitioned for its admission.

Did the state of Virginia grant its "Consent" to the creation of the new state? Only 38 of Virginia's 160 or so counties were represented in the new legislature. Kentucky Senators Lazarus W. Powell and John J. Crittenden and others argued at the time that the answer was plainly "no." In Senator Crittenden's words, "[H]ere is an applicaton to make a new State at the instance of the parties desiring to be made a new State, and nobody else consenting . . . . It is the party applying for admission consenting to the admission."

Professor Currie concludes that "[t]hese arguments seem to me quite irrefutable."

I think opponents of the West Virginia bill were right that the self-styled "Virginia" legislature was a farce and a sham, but the new state was admitted anyway. I suspect you're no more surprised than I am.

It goes without saying that I strongly urge anyone interested in the topic to read Professor Currie's far more thorough and subtle analysis in its entirety. It appears at pages 1201-1210 of the article linked above.

"I think she was more material"

During the Buchanan administration, Horace H. Day, a rubber manufacturer, was particularly resourceful when it came to entertaining Congressmen in Washington. According to Roy Franklin Nichols,

Mr. Day retained the services of two spiritualists, a Mrs. Gould and Mrs. Sarah H. Whitman of Providence, described as "an authoress of some celebrity." A Mrs. Stone, wife of one of Day's clerks, also was active "moving with members." A witness later testified, when asked if Mrs. Stone were a spiritualist, "I think not -- I think she was more material."

"So all these people . . . don't seem to know the basics of the history of the Civil War"

I haven't linked to Ann Althouse in a long time: "22% of Americans 'believe any state or religion has the right to peaceably secede and become an independent republic.'"

Ann -- er, Professor Althouse, comments: "So all these people have the law wrong and don't seem to know the basics of the history of the Civil War."

"He was a valiant trencherman"

Roy Franklin Nichols’s specialty is the brief, barbed sketch of political worthies, sometimes highlighted by alliteration. A few samples follow.

On James Buchanan:

His visitors [after he won the election of 1856] found him either at Wheatland [his estate outside Lancaster, PA] or at Michael’s [a restaurant in Lancaster]. Many of them he invited to his table, which was a mighty one, for he was a valiant trencherman. Nor was he loath to lead the way to the sideboard where decanters and bottles of varying potencies stood in bold array. He relished their contents and was never affected thereby, so hard a head had he.

On William Bigler:

The third Pennsylvanian in the group was Senator William Bigler, from the center of the state. He was a plain, plodding politician who in certain characteristics, such as dullness, ponderosity and dogged industry, resembled Buchanan.

On Lewis Cass:

The rub [in considering Cass for Secretary of State] was that Buchanan and Cass never had “got along”; Cass was aged, inefficient and was a British-baiter. How could Buchanan settle British difficulties with this obese, almost senile, Anglophobe in his cabinet?

* * *

[After he became Secretary of State,] Buchanan’s premier was worse than useless. At seventy-four senility was creeping up on the obese, indolent Lewis Cass. He was liable to attacks of vertigo and was unable to do effective, concentrated work. Whatever wisdom he had gained from his long political experience had not sufficed to save his Michigan constituency for him. Now, he was a constant trial as an advisor, because he could not make up his mind and was glad to be made the mouthpiece of others.

On John B. Floyd:

John Buchanan Floyd, Secretary of War, . . . came of excellent family, his father having been governor [of Virginia] before him . . .. He was remarkable in nothing else. He was not particularly intelligent, energetic, efficient, or interested. He was expansive and easy-going and was a poor administrator. He could be persuaded to participate in questionable practices, though not to his own advantage.

On Fernando Wood:

Fernando Wood had been elected mayor [of New York City] in 1854 as a reformer and apostle of good government. Safely in office, he had advanced quickly to a point where he was teaching corruption to corruptionists. He had produced an organization capable of dealing with barroom loafers, Hell’s Kitchen thugs, panderers to vice, and anyone tough enough to bully votes.

And Now for Something Completely Different

I am just beginning to explore TED. For a taste, take the time to watch this extraordinary lecture:

"His Creole wife preferred to keep the Atlantic between them"

I'm excited. I have picked up a succession of mediocre books, some of which I haven't finished, and one of which I won't finish. (This does not include Brian Burton, Brett.)

Today, however, I received, on Sean Nalty's recommendation, Roy Franklin Nichols's The Disruption of American Democracy and snuck in a chapter at work. I don't know yet whether it will contain great insights. Perhaps I will violently disagree with it -- the dedication "To The Memory of William A. Dunning" makes me queasy.

The prose, however, is just superb. Consider this brief description of Judah Benjamin:

[John] Slidell's colleague from Louisiana, Judah P. Benjamin, a Sephardic Jew, was smooth and urbane, his countenance suffused with a perpetual smile. He possessed a superior intelligence, but he was just as opportunistic and just as lustful for power and place. His Creole wife preferred to keep the Atlantic between them and dwelt in Paris, confining her connubial responsibilities to whatever favors she would grant him during his occasional summer visits to the French capital.

Who can resist writing like that?

"Those People"

Has anyone noticed that Robert E. Lee always refers to Union forces in conversation as "those people"? He never refers to them as "those Yankees" or "those Northerners." It's always "those people." Is it just an idiosyncracy, or was it some southern thing? Is it meant to be demeaning? I've always found it jarring.

I spotted this tendency some time ago, but I've never cataloged it. Well, you've got to start somewhere. Brian Burton has a chapter title that incorporates the phrase: "How Are We to Get at Those People?" Let's start there. Here's the scene:

On June 16, [1862,] after [Lee] told Stonewall Jackson to bring the Valley veterans to Richmond, he rode to the Chickahominy River with his military secretary, Col. Armistead L. Long. Lee, looking over the northern bank of the river, mused, "Now, Colonel Long. how are we to get at those people?" Long kept quiet, for he knew Lee well enough to know that the question was rhetorical.

I couldn't resist the illustration, even though its relevance is slight. It's entitled "Grant turning Lee's flank." Nineteenth Century humor often doesn't translate well, but that's just wonderful.

George McClellan, Whining Jerk

I'm sorry. George Brinton McClellan just makes my blood boil. It isn't so much what he does or doesn't do. It's the fact that he's a jerk, and an insubordinate one at that. Alternately a blowhard and, when thing's don't go right, a whining loser whose immediate reaction is to blame everyone but himself. Consider this June 25, 1862 telegram to Secretary of War Edwin M. Stanton:

I regret my great inferiority in numbers but feel that I am in no way responsible for it as I have not failed to represent repeatedly the necessity of reinforcements, that this was the decisive point, & that all the available means of the Govt should be concentrated here. I will do all that a General can do with the splendid Army I have the honor to command & if it is destroyed by overwhelming numbers can at least die with it & share its fate.

But if the result of the action which will probably occur tomorrow or within a short time is a disaster the responsibility cannot be thrown on my shoulders -- it must rest where it belongs. . . .

Assume, for the sake of argument, that McClellan's fantasies about relative numbers were correct. Assume further that Lincoln was dead wrong not to send every man east of the Appalachians to the Peninsula. Even so, can someone explain to me, please, why the man who dictated those words shouldn't have been fired on the spot?

Spreading the Word: A Contest

At TOCWOC, Brett Schulte is sponsoring a contest, and asks others to spread the word, so here goes: Win a Free Copy of Roll Call to Destiny. You have until August 15.

Thanks, Brett!

Some time ago, Brett Schulte reviewed and recommended Russel Beatie's volume on the beginning of the Peninsula Campaign. I told Brett that I doubted I had the stamina or the interest to read 700 pages covering a 90-day period, which did not even get me to Seven Pines. I confessed, however, that the only book on the Peninsula Campaign that I had read was Stephen Sears's To the Gates of Richmond, which was highly critical of McClellan. I inferred from Dimitri's heated but cryptic posts that there were other points of view, particularly regarding troop numbers. Did Brett have a recommendation on another book on the Campaign?

In response, Brett was kind enough to recommend Brian K. Burton's Extraordinary Circumstances: The Seven Days Battles, which I finally got around to ordering and received on Thursday.

Although I have only just cracked the book, this is clearly a well-done work. I could not resist turning first to the book's Appendix A, entitled "Union and Confederate Troop Strengths," which is alone worth the price of admission.

However, Burton's conclusion -- that "the two armies were very close in effective strength," perhaps within 1,000 men -- does not absolve McClellan. Burton himself concludes that responsibility for the ridiculously inflated estimates of Confederate troop strength produced by Pinkerton lies with McClellan:

The first substantial overestimate of Confederate numbers occurred in early August 1861 and was McClellan's alone. Pinkerton's first strength report, while an overestimate, was not as high as McClellan's, and Little Mac then told Pinkerton to make his estimates high. Moreover, as Pinkerton improved his estimates of the number of rebel regiments -- to the point where he was only 20 percent or so off -- he stopped using regiments to estimate strength and instead resorted to irrational methods.

Burton tentatively concludes "that McClellan believed his own numbers, there was no attempt to deceive people in Washington." However, that only convicts McClellan of stupidity at best and moral cowardice at worst.

I will read with interest Burton's take on McClellan's decision to board the Galena on June 30. Stephen Sears's withering criticism has stuck with me: "The truth of the matter is that George McClellan had lost the courage to command." We shall see. In the meantime, thanks, Brett, for a great lead!

"Dog's Misery"

Here's one I hadn't heard before:

The Federalists did what they could to stave off defeat. They painted Jefferson as a debauched Francophile; Americans heard that he had fathered mulatto children, prayed to the French goddess of reason, and even experimented on animals at Monticello, or "Dog's Misery," as some called it.

Peter Zavodnyik, The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861 (emphasis added).

Kansas-Nebraska 5: Douglas Casts the Die

Stephen A. Douglas planned to formally introduce the territory bill and begin debate on Monday January 23. But before he did so, he needed to get President Pierce on board.

To accomplish this, he arranged for a horde of senior legislators to descend on the weak-willed president on Sunday January 22, when he was alone. I have previously described aspects of this meeting in another post. For present purposes, the important point is that Douglas and his cohorts got the president write out, in his own hand, a statement that the Missouri Compromise “was superseded by the principles of the legislation of 1850, commonly called the compromise measures and is hereby declared inoperative and void.”

Douglas was now armed with the president’s endorsement. On Monday January 23, 1854, Douglas reported the bill in a dramatically revised form. Those of you who have been wondering when Kansas would make its appearance need wonder no longer. The new version proposed to create two new territories (Kansas and Nebraska) rather than one; the southern boundary of Kansas territory was shifted north from 36° 30’ to the thirty-seventh parallel, so as to avoid dividing lands of the Cherokee nation.

For our purposes, however, the key changes were those relating to the Missouri Compromise. You will recall that Douglas’s original January 4, 1854 bill included a Section 14 that provided that the Constitution and all laws of the United States would have the same force and effect in the Territory of Nebraska as elsewhere within the United States. The Missouri Compromise was not excepted.

Sections 14 (applicable to Nebraska) and 34 (applicable to Kansas) of the new bill now carved out Section 8 of the Missouri Compromise, using language similar to the text that Douglas had the president write out by hand the day before:

Sec. 14. And be it further enacted, . . . That the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Nebraska [“Kansas” in Section 34] as elsewhere within the United States, except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which was superseded by the principles of the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, and is hereby declared inoperative.

In addition, the new bill omitted the now-unnecessary Section 21 of the original bill (the “clerical error” section).

It is worth noting how gingerly Section 14 treated the 1820 Compromise. Rep. Phillips’s proposed language had declared the Compromise “inoperative, void and of no force and effect.” The statement that Douglas had Pierce write out declared the Compromise "inoperative and void." Douglas's January 23 amendment proposed to declare Section 8 “superseded” and “inoperative.” Silly as it seems, it's as if Douglas thought that fewer people would be offended if he used tender wording, even though it was a distinction without a difference. Nonetheless, however gentle the wording, it was clear that Douglas was proposing, in effect, to repeal Section 8. The die was cast.

Kansas-Nebraska 4: "It will raise a hell of a storm"

The last post on the topic ended with a question (or two). Why was the addition of Section 21 to Douglas’s Nebraska bill – which granted to the territorial legislature the power to legislate in favor of slavery – not sufficient? Why did it ultimately prove necessary expressly to repeal Section 8 of the Missouri Compromise?

The answer requires us to take a practical look at the expected situation on the ground. Section 21 permitted the territorial legislature to legalize slavery. But unless and until the territorial legislature did so, Section 8 made slavery illegal in the territory. So long as Section 8 remained in force, it was expected (reasonably so, I think) that slaveholders would not move there. And if slaveholders did not move to the territory, they would not qualify as residents able to vote for pro-slavery legislators. As David Potter has explained:

[U]nless the Act of 1820 were repealed outright, it would still exclude slaves until the territorial government arrived at a decision to let them in -- which such a government could never be expected to do if no slave interest had been permitted to establish itself in the first place.

Put differently, so long as non-slavery was the preexisting default condition, slavery had no chance of establishing itself in the territory. For slavery to have any chance, it had to be clear from the outset that slavery was not illegal in the territory.

Perceptive southerners recognized this, and they acted on it. The first to make a move was Archibald Dixon, a Whig senator from Kentucky. On Monday January 16, 1854, Senator Dixon announced his intention to offer an amendment that would, in effect, repeal the offending Section 8:

Mr. DIXON stated to the Senate, that when a bill to establish a territorial government in the Territory of Nebraska should come up for consideration, he should offer the following amendment:

Sec. 22. And be it further enacted, That so much of the 8th section of an act approved March 6, 1820, entitled “An act to authorize the people of the Missouri Territory to form a constitution and State government, and for the admission of such state into the Union on an equal footing with the original states, and to prohibit slavery in certain territories,” as declares ”That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited,” shall not be so construed as to apply to the Territory contemplated by this act, or in any other Territory of the United States; but that the citizens of the several States or Territories shall be at liberty to take and hold their slaves within any of the Territories of the United States, or of the States to be formed therefrom, as if the said act, entitled as aforesaid, and approved as aforesaid, had never been passed.

Senator Dixon’s proposed amendment gave rise to a fairly well-known story, which I’ll tell anyway. Douglas apparently immediately approached Dixon to object to his amendment. Perhaps Douglas was struggling to avoid any specific mention of the Missouri Compromise in his bill. There is also some suggestion that Douglas interpreted the closing clause of the amendment (“the citizens . . . shall be at liberty to take and hold their slaves”) as affirmatively requiring or mandating slavery within the territory.

At all events, two days later (Wednesday January 18, 1854) the two senators went for a carriage ride so that they could discuss the matter confidentially and without interruption. Dixon explained why he believed explicit repeal was necessary. Forty-fout years later, Susan Bullitt Dixon, Senator Dixon's widow, published an account that appears to be the source for what supposedly transpired next during that ride. (Unfortunately, the book is not freely available on Google Books. It has been reprinted recently and may still be in copyright. This 1899 New York Times book review is amusing and appalling.) However, David Potter provides a vivid summary:

Douglas showed that he was reluctant to accept Dixon’s plan, but he responded to Dixon’s logic, and after considerable discussion he at last exclaimed impulsively, “By God, Sir, you are right. I will incorporate it in my bill, though I know it will raise a hell of a storm.”

Meanwhile an Alabama Congressman, Philip Phillips, a Democrat on the House Territories Committee, arrived at the same conclusion that Dixon had. Phillips met with Douglas to explain his concerns. At Douglas’s request, Phillips drafted a proposed amendment for Douglas’s consideration:

That the people of the Territory through their Territorial legislature may legislate upon the subject of slavery in any manner they may think proper not inconsistent with the Constitution of the United States, and all laws or parts of laws inconsistent with this authority or right shall, from and after the passage of this act, become inoperative, void and of no force and effect.

Robert Johannsen’s comment that Rep. Phillips’s proposed amendment “was less strongly worded” than Senator Dixon’s is an understatement. Indeed, it is surprising that the so-called F Street Mess, a quartet of powerful southern Senators who lived in the same house in Washington (David R. Atchison of Missouri; James M. Mason and Robert M. T. Hunter of Virginia; and Andrew Butler of South Carolina), found it acceptable. While it is certainly possible to conclude that it declared Section 8 void, it is also possible to read the language as voiding Section 8 only to the extent that it barred the legislature from "legislat[ing] upon the subject of slavery." I would have wanted clearer language if I had been in their shoes.

Two Law Review Articles

This is more a note to myself than anything else. Two new articles to read:

Kurt Lash tackles the Eleventh Amendment.

Bryan Wildenthal revisits the original understanding of the Fourteenth Amendment.

Thanks, obviously to Professor Lawrence Solum for the leads.

Kansas-Nebraska 3: The "Clerical Error"

Senator Stephen Douglas’s Nebraska bill, as originally introduced on January 4, 1854, contained twenty sections. As we have seen, it did not mention, much less repeal, Section 8 of the Missouri Compromise. It was ambiguous on the point whether the territorial legislature could enact laws legalizing slavery.

On January 10, 1854, the bill was reprinted with an additional section that had supposedly been omitted from the original draft because of a “clerical error.” The new section – Section 21 – provided:

And be it further enacted, That, in order to avoid all misconstruction, it is hereby declared to be the true intent and meaning of this act, so far as the question of slavery is concerned, to carry into practical operation the following propositions and principles, established by the Compromise measures of one thousand eight hundred and fifty, to wit:

First. That all questions pertaining to slavery in the Territories, and in the new States to be formed therefrom, are to be left to the decision of the people residing therein, through their appropriate representatives.

Second. That “all cases involving title to slaves” and “questions of personal freedom” are referred to the adjudication of the local tribunals, with the right of appeal to the Supreme Court of the United States.

Third. That the provisions of the constitution and laws of the United States, in respect to fugitives from service, are to be carried into faithful execution in all the “organized Territories” the same as in the States.

Historians have tended to be suspicious of the assertion that Section 21 was originally omitted due to clerical error. However, the degree of suspicion has varied somewhat. Robert Johannsen observed, somewhat obscurely, that

[t]he new section was clearly not a part of the original bill, but whether it was indeed a “clerical error” or whether it was added as an afterthought it is not possible to determine.

David Potter more clearly rejects the “clerical error” claim:

On the manuscript of the bill, the additional section was added separately, which suggests that the “omission” in the first printing may have been more than a “clerical error.”

In large part, the historians’ views of the “clerical error” issue turn on their understanding of the original bill, without the additional Section 21. As I have previously discussed, Johannsen believes that the original bill granted the territorial legislature the power to legislate in favor of slavery. Therefore, Section 21 added only “emphasis:”

Douglas contended that the copyist had inadvertently omitted the section from the version that was submitted to the Senate. In any case, it did not alter the nature of the bill, although some later commentators have argued (unpersuasively) that the added section gave the bill “an entirely new meaning.” Section twenty-one merely repeated the points made in Douglas’ report and recapitulated provisions that were already in the bill. In doing so it gave them added emphasis.

David Potter, on the other hand, believes that the original bill did not grant the territorial legislature power to legalize slavery. He therefore regards the new section as a dramatic difference. Citing evidence that Senator David R. Atchison of Missouri and others “applied strong, and perhaps even harsh, pressure on this point,” Potter sees the new section as Douglas’s “curious way” of "meeting the objection.”

However one views these issues, it does seem clear that Section 21 did the trick. Whether or not the original bill gave the territorial legislature power to legalize slavery, Section 21 did. The legislature was plainly authorized to address “all questions pertaining to slavery.”

Why was that not enough? Why did it ultimately prove necessary expressly to repeal Section 8? It is to this issue we turn next.

Kansas-Nebraska 2: Ambiguities and Uncertainties in the Original Bill

It is fascinating to see that, to this day, it is not clear what the effect of Senator Douglas's original Nebraska bill would have been. In particular, would it have permitted the territorial legislature, when seated, to pass a law legalizing slavery and enacting a slave code?

On the one hand, Section 6 suggested an affirmative answer, for it granted the territorial legislature the power to legislate concerning “all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act.” Legislation concerning slavery was not excepted.

On the other hand, the original bill did not even mention, much less declare void, Section 8 of the Missouri Compromise. Arguably, Section 8 remained good law. As a “law[] of the United States which [was] not locally inapplicable,” Section 8 would “have the same force and effect within the said Territory of Nebraska as elsewhere within the United States.” In that case, slavery remained “forever prohibited” in the territory, and the territorial legislature did not have the power to declare otherwise.

The contrasting arguments are nicely reflected in the divergent views of two historians who have discussed the original bill. Robert Johannsen holds the view that the original bill permitted the territorial legislature to legalize slavery (emphasis added):

Douglas’ [original] bill established popular sovereignty in the proposed territory, while skirting the problem of the Missouri Compromise. The territorial legislature presumably would have the power to legislate with regard to slavery, and the people of the territory would be free to enter the Union “with or without slavery.” The Missouri Compromise was neither repealed nor abrogated; it was simply ignored. Like Mexican law in the southwest, the Missouri Compromise would remain in effect in Nebraska until superseded by territorial legislation . . ..

David Potter, on the other hand, is of the view that the original bill did not authorize the territorial legislature to legalize slavery. He endorses as “quite correct[]” the criticism leveled by southerners at the time

that the Act of 1820 still applied; the [original] bill only allowed the people of a territory to adopt a proslavery constitution when they were admitted to statehood; while they were a territory, the Act of 1820 would still remain in force. In short, Douglas’s [original] bill would create a situation under which, at the time of admission for statehood, slaveholders might vote for a proslavery constitution, but also under which no such slaveholders could establish themselves in the territory prior to this vote.

Both Johannsen and Potter agree that, whatever Douglas’s intent, he was clearly trying to get away with the minimum and to avoid open repeal. Johannsen refers with approval William Seward’s comment that “Douglas had gone ‘as far as the Democrats dare, toward abolishing that provision of the Missouri Compromise which devoted [the area] . . . to freedom.’”

Potter sums up the point wonderfully, as follows (emphasis added):

The bill of January 4 said nothing about the Missouri Compromise or about the status of slavery in the territory. Whether Douglas intended it to be silent repeal of the Act of 1820, as many historians [but not Potter?] have assumed, or a subtle device to placate the southerners by making them think he had abandoned the Act of 1820 without actually abandoning it, as has been contended, is not entirely clear. It is, on the other hand, quite clear that he was offering the least concession which, he hoped, might win southern support.

Kansas-Nebraska 1: The Original Bill

If you're reading this blog, you probably know that the Kansas-Nebraska Act of 1854 repealed the Missouri Compromise of 1820. You may also know that the driving force behind Kansas-Nebraska, Senator Stephen A. Douglas of Illinois, did not initially propose to repeal the 1820 Compromise explicitly. Although most standard histories go through the stages of the bill, I thought I’d provide some detail, with references to source documents. Here goes.

To begin at the beginning. In 1820, Congress enacted, and President Monroe signed, An Act to authorize the people of the Missouri territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states, and to prohibit slavery in certain territories, better known as the Missouri Compromise.

The Missouri Compromise (among other things), prohibited slavery north of 36° 30’ north latitude within the area of the Louisiana Purchase, with the exception of that portion of the Purchase that would become the State of Missouri (the southern boundary of which was 36° 30’). The Section of the Missouri Compromise Act that set forth the ban was Section 8, which did so in the following language:

SEC. 8. And be it further enacted. That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act [i.e., the State of Missouri], slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid.

Thirty-four years later, on January 4, 1854, Senator Stephen A. Douglas introduced a bill to create a formal territory out of the portion of the Louisiana Purchase that remained unorganized. The bill that he introduced was actually an amendment to a bill introduced in December 1853 by Senator Augustus Caesar Dodge of Iowa (what a great name!). The version of the bill that Senator Douglas substituted on January 4, 1854, entitled “A Bill to Organize the Territory of Nebraska,” may be viewed (with one significant caveat, discussed later) here. As you will see, the text of Senator Dodge’s original bill has been bracketed – that is deleted – and replaced by Senator Douglas’s new text, in italics, which begins here.

Senator Douglas’s original bill (which, for convenience, I will refer to as the “original bill,” even though it wasn’t) erected a single territory – the Territory of Nebraska. For our purposes, it contains three important provisions.

First, Section 6 of the original bill provided:

Sec. 6. And be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act . . . .

Section 6 then carved out certain exceptions to this general rule, but none of them related to slavery or the Missouri Compromise.

Second, Section 14 of Senator Douglas’s original bill provided:

Sec. 14. And be it further enacted, . . . That the constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Nebraska as elsewhere within the United States.

Finally, the very first section of the original bill stated that the state or states that would ultimately be created from the territory would be admitted even if they were slave states:

[W]hen admitted as a state or states, the said territory, or any portion of the same, shall be received into the Union, with or without slavery, as their constitution may prescribe at the time of their admission.

In short, Senator Douglas's initial version of the bill did not even mention Section 8 of the Missouri Compromise, much less repeal it. On the other hand, it suggested that the territorial legislature could enact virtually any legislation it chose with respect to slavery, and it expressly authorized the admission of slave states.

In the next post, we will consider what all this meant, and why it proved insufficient.

And where, by the way, is Kansas in all this?

New Digital Lincoln Photos

At Abraham Lincoln Pictures blog, Studio Macbeth has posted some astounding -- eerie -- digital recreations of Abe Lincoln. The site characterizes them as

full color original photo realistic depictions of Abraham Lincoln's face. These computer generated images are the result of our research into Lincoln's facial structure based on photographs and castings from his own time.

In the future, they expect to post video animations.

Thanks to Glenn Reynolds for the lead.

Note to Studio Macbeth: I don't want to infringe your copyright. I figured that that the pictures were so arresting that they would draw people to your site. But if you want me to remove the pictures, just ask.

A Territory With a Strange Name

Some histories create the impression that it is a mystery why Stephen Douglas was so determined to make territories out Kansas and Nebraska that he was willing to sacrifice the Missouri Compromise.

It isn’t. As Robert W. Johannsen explains, Douglas had been an ardent proponent of expansion, and a violent Anglophobe, throughout his Congressional career. He vehemently championed expansion wherever the opportunity presented itself: into Texas, Oregon (to 54° 40’), California, the southwest and Cuba.

As early as January 1845, Douglas had advocated the erection of territorial government in the area west of the Missouri River in order to facilitate the settlement of Oregon. In a speech in the House of Representative on January 31, 1845, Douglas urged territorial government for Oregon, which would settle the border dispute with the conniving British once and for all. In order to make Oregon easily and safely accessible,

[a] territorial government should be erected in Nebraska, that vast empty space stretching westward from the Missouri River; military posts should be established along the trails for the protection of the emigrants; and, finally, surveys of the western country should be authorized for the construction of a Pacific railroad. The American people, Douglas admonished, must shoulder the obligations of expansion, to “make the area of liberty as broad as the continent itself.”

Douglas’s proposal went nowhere in 1845. Legislators had never heard of Nebraska (John Quincy Adams referred to a proposed territory “with a strange name”) and weren’t even sure where it was.

What is surprising is not that Douglas reintroduced legislation on the issue nine years later; it's that it took him that long to do it.

Franklin Pierce Says "Ouch!"

The usual complaint about biographers is that they fall too much in love with their subjects. This was not, apparently, a problem that Franklin Pierce biographer Larry Gara encountered. He puts the best face on matters by emphasizing the difficult period in which Pierce held office, but his conclusion is fairly blunt:

[T]here is no question that by the mid-fifties it was no longer possible to persuade northern voters to accept a program of further slave extension. Yet that is precisely what Pierce tried to do. Moreover, it would have taken political genius to persuade the South to relinquish not only slavery itself but the power disproportionate to the southern voting population which derived from slavery. Franklin Pierce was no genius. Indeed, the ordinary demands of the office were often beyond his ability. He was a politician of limited ability, and instead of growing in his job, he was overwhelmed by it.