Jefferson Davis's Freeport Doctrine

I recently posted, in the form of a quiz, a quote from a speech delivered by Jefferson Davis in Portland, Maine on September 11, 1858 in which the former Secretary of War and then current Senator from Mississippi made a point identical to that expressed by Senator Stephen A. Douglas the prior month in a debate with one Abraham Lincoln in Freeport, Illinois.

Here's Douglas:

The next question propounded to me by Mr. Lincoln is, Can the people of a Territory in any lawful way, against the wishes of any citizen of the United States, exclude slavery from their limits prior to the formation of a State constitution? I answer emphatically, as Mr. Lincoln has heard me answer a hundred times from every stump in Illinois, that in my opinion the people of a Territory can, by lawful means, exclude slavery from their limits prior to the formation of a State constitution. Mr Lincoln knew that I had answered that question over and over again. He heard me argue the Nebraska bill on that principle all over the State in 1854, in 1855, and in 1856, and he has no excuse for pretending to be in doubt as to my position on that question. It matters not what way the Supreme Court may hereafter decide as to the abstract question whether slavery may or may not go into a Territory under the Constitution, the people have the lawful means to introduce it or exclude it as they please, for the reason that slavery cannot exist a day or an hour anywhere, unless it is supported by local police regulations. Those police regulations can only be established by the local legislature; and if the people are opposed to slavery, they will elect representatives to that body who will by unfriendly legislation effectually prevent the introduction of it into their midst. If, on the contrary, they are for it, their legislation will favor its extension. Hence, no matter what the decision of the Supreme Court may be on that abstract question, still the right of the people to make a Slave Territory or a Free Territory is perfect and complete under the Nebraska bill. I hope Mr. Lincoln deems my answer satisfactory on that point.

And here's Davis:

If the inhabitants of any territory should refuse to enact such laws and police regulations as would give security to their property or to his, it would be rendered more or less valueless, in proportion to the difficulty of holding it without such protection.

In the case of property in the labor of man, or what is usually called slave property, the insecurity would be so great that the owner could not ordinarily retain it. Therefore, though the right would remain, the remedy being withheld, it would follow that the owner would be practically debarred by the circumstances of the case, from taking slave property into a territory where the sense of the inhabitants was opposed to its introduction.

So much for the oft repeated fallacy of forcing slavery upon any community.

William W. Freehling describes the aftermath. Not unexpectedly, Davis's remarks generated anger and suspicion in his home state. In November 1858, Davis appeared before the Mississippi legislature to explain himself and to execute a “guarded retreat.”

“The difference between us is . . . wide,” [Davis explained] for I only conceded that “all property requires protection,” or it cannot be “held.” Douglas sees no governmental obligation to protect. But I know that a hostile community's power to free a slave generates not “a right to destroy but an obligation to protect.”

Davis did not explain what form the “obligation to protect” should take until eight months later. In a speech to the Democratic state convention in July 1859, he laid out a surprisingly moderate position. Protection of slavery in the territories did not require Congressional enactment of a slave code unless legal remedies failed:

Davis there declared that courts could prevent a hostile community from robbing a slaveholder. Thus our “right to protection does not necessarily involve the enactment of additional laws.” Maybe someday, if courts fail a slaveholder, we may need congressional protection. We must now claim our right to national protective laws in that possible future contingency. But as for Northern Democrats' fear that we now demand a national slave code, “you know it to be utterly unfounded and . . . absurd.”

Consistent with his stated approach, on February 2, 1860 Senator Davis submitted to the Senate a series of seven resolutions concerning slavery and slavery in the territories. As modified by Davis on March 1, 1860, the key resolutions provided that a slave code was not necessary at present, although it might be in the future:

4. Resolved, That neither Congress nor a Territorial Legislature, whether by direct legislation or legislation of an indirect and unfriendly character, possesses power to annul or impair the constitutional right of any citizen of the United States to take his slave property into the common Territories, and there hold and enjoy the same while the territorial condition remains.

5. Resolved, That if experience should at any time prove that the judiciary and executive authority do not possess means to insure adequate protection to constitutional rights in a Territory, and if the territorial government shall fail or refuse to provide the necessary remedies for that purpose it will be the duty of Congress to supply such deficiency.

The Senate passed Davis's resolutions on May 25, 1860. The vote in favor of the key 5th Resolution was a surprisingly lopsided 35 to 2.

Isn't the advertisement at the top of the post, which was printed in Washington, DC in 1860, wonderful? Apart from the fact that it refers to Jefferson Davis, it's irrelevant to the subject matter of the post, but I couldn't resist.