Friday, July 11, 2008

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[U]nless the Act of 1820 were repealed outright, it would still exclude slaves until the territorial government arrived at a decision to let them in -- which such a government could never be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.

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