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.