The Kansas-Nebraska Act Makes the News!

One of my favorite political commentators, Michael Barone, compares the odious Obamacare legislation to the Kansas-Nebraska Act:

It's time to blow the whistle on two erroneous statements that opponents and proponents of the health care legislation being jammed through Congress have been making. Republicans have been saying that never before has Congress passed such an unpopular bill with such important ramifications by such a narrow majority. Barack Obama has been saying that passage of the bill will mean that the health care issue will be settled once and for all.

The Republicans and Obama are both wrong. But perhaps they can be forgiven because the precedent for Congress passing an unpopular bill is an old one, and the issue it addressed has long been settled, though not by the legislation in question.

That legislation was the Kansas-Nebraska Act of 1854. Its lead sponsor was Stephen A. Douglas, at 41 in his eighth year as senator from Illinois, the most dynamic leader of a Democratic Party that had won the previous presidential election by 254 electoral votes to 42.

ADDENDUM: Scott Johnson at Powerline points out that the Claremont Review of Books had made available Harry Jaffa's essay entitled Lincoln in Peoria in light of Barone's column.

Some Thoughts on the Compromise of 1850

I was struck by this observation by Jonathan H. Earle:

Without the lifeblood of constant agitation to nourish its ranks, the Free Soil movement languished in the years between the compromise [of 1850] and the Kansas-Nebraska Act.

* * *

When the 1852 votes were counted, the Free Democrats were pummeled in every quarter, even where they had done well four years before. With the exhausted David Wilmot in retirement, voters in Pennsylvania's 12th Congressional District voted overwhelmingly for [Franklin] Pierce . . .

* * *

For fourteen months after the 1852 election, Free Soil -- as a movement, an ideology, and a party -- was practically moribund. Then on January 4, 1854, the diminutive Illinois senator Stephen A. Douglas introduced a bill . . ..

The quote highlights the fact that, in many ways, the Compromise of 1850 was a striking success. 150 years later, a combination of hindsight and the tendency of events to get telescoped together makes it appear that the Compromise was doomed from the start. The history of the late 1840s and 1850s is often portrayed as a series of waves cresting ever higher as the flood tide of discord rushes in and eventually envelops the country (or, as David M. Potter has put it, "a kind of a vortex, whirling the country in ever narrower circles and more rapid revolutions into the pit of war"). But the men who crafted the Compromise did not, and could not, know that.

Even so great an historian as Professor Potter, who repeatedly emphasizes the contingency of history, sometimes falls into the trap. While admitting that "[a]ntislavery men were profoundly discouraged" after the Compromise, and that "outward appearances all indicated that the national yearning for harmony would banish the slavery issue from politics," he also refers to "the futility of the Compromise" and "the shibboleth of 'finality' as a slogan."

Professor Potter contends "that the sectional rapprochement" during the post-Compromise years "did not rest on broad or deep foundations." But if that is so, it only emphasizes the remarkable job done by those who constructed the Compromise. For ten crucial years the Compromise withstood a series of unforeseen and unforeseeable blows -- from Bloody Kansas and Lecompton to the caning of Sumner and Dred Scott -- that would have felled a less sturdy structure.

About the illustration:

A crudely drawn satire bitterly attacking Democratic presidential candidate Franklin Pierce and appealing to the "Freemen of America." The print, possibly executed by a free black, criticizes the Democrats' platform, as established by the Baltimore Convention, which in the interest of preserving the Union endorsed the Compromise of 1850. More specifically the artist condemns Pierce's pledge to enforce the Fugitive Slave Act, included in the compromise as a submission to southern slaveholding interests. In the center Pierce prostrates himself before a "Slave holder & Peace Maker," a bearded man in wide-brimmed hat and striped trousers holding a cat-o-nine-tails and manacles. The upper half of Pierce is over the Mason Dixon line, his face in the dirt on the "Baltimore Platform." The slaveholder says: "Save the Union, / And with the "meanest" Yankee grease / Smear the hinges of your knees / And in "silence" pray for peace." Pierce, dubbed "one of the Southern "dirt" eaters "Saving" the Union," replies, "I accept this cheerfully." The Democratic platform is labeled "Southern pine" and is inscribed with reference to the compromise, "Fugitive Slave Law and nigger catching, and resist agitation on the Slavery question &c." On it lie a skull and crossbones, manacles, and a serpent. At far left is "the Devil come up to attend his revival," who commends, "Well done my faithful servants!" On the right is the infamous Hungarian general Julius von Haynau, who carries a whip and wears a "Barclay's Brewery" pitcher on his head. (Haynau was assaulted by Barclay employees while in England.) The Hungarian extends his hand toward the slaveholder, saying, "I feel quite at home in this company give me your hand my good fellow." Further to the right are Lewis Cass and Stephen A. Douglas, disappointed aspirants for the 1852 Democratic nomination. Cass says, "We are down Douglass, "Pierce" has bid lower than either of us." Douglas: "There is nothing impossible for a New Hampshire "Hunker" [i.e., conservative] Democrat to do in that line." On the ground nearby are the words, "the "slave&1ocratic miscalled the Democratic party, how they obey the "crack" of the slaveholder's whip!"

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.

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?