Thursday, July 10, 2008

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 The Missouri Compromise was neither repealed nor abrogated; it was simply ignored. Like Mexican law in the southwest, the Missouri Compromise would remain in effect in Nebraska until superseded by territorial legislation .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.

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