CHAPTER XI. The Kansas-Nebraska Act

THE KANSAS-NEBRASKA ACT

With the occupation of Oregon and of the gold fields of California, American colonization lost temporarily its conservative character. That heel-and-toe process, which had hitherto marked the occupation of the Mississippi Valley, seemed too slow and tame; the pace had lengthened and quickened. Consequently there was a great waste--No-man's-land--between the western boundary of Iowa, Missouri and Arkansas, and the scattered communities on the Pacific slope. It was a waste broken only by the presence of the Mormons in Utah, of nomadic tribes of Indians on the plains, and of tribes of more settled habits on the eastern border. In many cases these lands had been given to Indian tribes in perpetuity, to compensate for the loss of their original habitat in some of the Eastern States. With strange lack of foresight, the national government had erected a barrier to its own development.

As early as 1844, Douglas had proposed a territorial government for the region of which the Platte, or Nebraska, was the central stream. The chief trail to Oregon traversed these prairies and plains. If the United States meant to assert and maintain its title to Oregon, some sort of government was needed to protect emigrants, and to supply a military basis for such forces as should be required to hold the disputed country. Though the Secretary of War indorsed this view, Congress was not disposed to anticipate the occupation of the prairies. Nebraska became almost a hobby with Douglas. He introduced a second bill in 1848, and a third in 1852, all designed to prepare the way for settled government.

The last of these was unique. Its provisions were designed, no doubt, to meet the unusual conditions presented by the overland emigration to California. Military protection for the emigrant, a telegraph line, and an overland mail were among the ostensible objects. The military force was to be a volunteer corps, which would construct military posts and at the same time provide for its own maintenance by tilling the soil. At the end of three years these military farmers were each to receive 640 acres along the route, and thus form a sort of military colony. Douglas pressed the measure with great warmth; but Southerners doubted the advisability of "encouraging new swarms to leave the old hives," not wishing to foster an expansion in which they could not share, nor forgetting that this was free soil by the terms of the Missouri Compromise. All sorts of objections were trumped up to discredit the bill. Douglas was visibly irritated. "Sir," he exclaimed, "it looks to me as if the design was to deprive us of everything like protection in that vast region ... I must remind the Senate again that the pointing out of these objections, and the suggesting of these large expenditures show us that we are to expect no protection at all; they evince direct, open hostility to that section of the country."

It was the fate of the Nebraska country to be bound up more or less intimately with the agitation in favor of a Pacific railroad. All sorts of projects were in the air. Asa Whitney had advocated, in season and out, a railroad from Lake Michigan to some available harbor on the Pacific. Douglas and his Chicago friends were naturally interested in this enterprise. Benton, on the other hand, jealous for the interests of St. Louis, advocated a "National Central Highway" from that city to San Francisco, with branches to other points. The South looked forward to a Pacific railroad which should follow a southern route. A northern or central route would inevitably open a pathway through the Indian country and force on the settlement and organization of the territory; the choice of a southern route would in all likelihood retard the development of Nebraska.

While Congress was shirking its duty toward Nebraska, the Wyandot Indians, a civilized tribe occupying lands in the fork of the Kansas and Missouri rivers, repeatedly memorialized Congress to grant them a territorial government. Dogged perseverance may be an Indian characteristic, but there is reason to believe that outside influences were working upon them. Across the border, in Missouri, they had a staunch friend in ex-Senator Benton, who had reasons of his own for furthering their petitions. In 1850, the opposition, which had been steadily making headway against him, succeeded in deposing the old parliamentarian and electing a Whig as his successor in the Senate. The coup d'état was effected largely through the efforts of an aggressive pro-slavery faction led by Senator David E. Atchison. It was while his fortunes were waning in Missouri, that Benton interested himself in the Central Highway and in the Wyandots. His project, indeed, contemplated grants of land along the route, when the Indian title should be extinguished. Possibly it was Benton's purpose to regain his footing in Missouri politics by advocating this popular measure; possibly, as his opponents hinted, he looked forward to residing in the new Territory and some day becoming its first senator; at all events, he came to look upon the territorial organization of Nebraska as an integral part of his larger railroad project.

In this wise, Missouri factional quarrels, Indian titles, railroads, territorial government for Nebraska, and land grants had become hopelessly tangled, when another bill for the organization of Nebraska came before Congress in February, 1853. The measure was presented by Willard P. Hall, a representative from Missouri, belonging to the Benton faction. His advocacy of the bill in the House throws a flood of light on the motives actuating both friends and opponents. Representatives from Texas evinced a poignant concern for the rights of the poor Indian. Had he not been given these lands as a permanent home, after being driven from the hunting ground of his fathers? To be sure, there was a saving clause in the bill which promised to respect Indian claims, but zeal for the Indian still burned hotly in the breasts of these Texans. Finally, Hall retorted that Texas had for years been trying to drive the wild tribes from her borders, so as to make the northern routes unsafe and thus to force the tide of emigration through Texas. "Why, everybody is talking about a railroad to the Pacific. In the name of God, how is the railroad to be made, if you will never let people live on the lands through which the road passes?"

In other words, the concern of the Missourians was less for the unprotected emigrant than for the great central railroad; while the South cared less for the Indian than for a southern railroad route. The Nebraska bill passed the House by a vote which suggests the sectional differences involved in it.

It was most significant that, while a bill to organize the Territory of Washington passed at once to a third reading in the Senate, the Nebraska bill hung fire. Douglas made repeated efforts to gain consideration for it; but the opposition seems to have been motived here as it was in the House. On the last day of the session, the Senate entered upon an irregular, desultory debate, without a quorum. Douglas took an unwilling part. He repeated that the measure was "very dear to his heart," that it involved "a matter of immense importance," that the object in view was "to form a line of territorial governments extending from the Mississippi valley to the Pacific ocean." The very existence of the Union seemed to him to depend upon this policy. For eight years he had advocated the organization of Nebraska; he trusted that the favorable moment had come. But his trust was misplaced. The Senate refused to consider the bill, the South voting almost solidly against it, though Atchison, who had opposed the bill in the earlier part of the session, announced his conversion,--for the reason that he saw no prospect of a repeal of the Missouri Compromise. The Territory might as well be organized now as ten years later.

Disappointed by the inaction of Congress, the Wyandots took matters into their own hands, and set up a provisional government. Then ensued a contest between the Missouri factions to name the territorial delegate,--who was to present the claims of the new government to the authorities at Washington. On November 7, 1853, Thomas Johnson, the nominee of the Atchison faction, was elected. In the meantime Senator Atchison had again changed his mind: he was now opposed to the organization of Nebraska, unless the Missouri Compromise were repealed. The motives which prompted this recantation can only be surmised. Presumably, for some reason, Atchison no longer believed the Missouri Compromise "irremediable."

The strangely unsettled condition of the great tract whose fate was pending, is no better illustrated than by a second election which was held on the upper Missouri. One Hadley D. Johnson, sometime member of the Iowa legislature, hearing of the proposal of the Wyandots to send a territorial delegate to Congress, invited his friends in western Iowa to cross the river and hold an election. They responded by choosing their enterprising compatriot for their delegate, who promptly set out for Washington, bearing their mandate. Arriving at the capital, he found Thomas Johnson already occupying a seat in the House in the capacity of delegate-elect. Not to be outdone, the Iowa Johnson somewhat surreptitiously secured his admission to the floor. Subsequently, "the two Johnsons," as they were styled by the members, were ousted, the House refusing very properly to recognize either. Thomas Johnson exhibited some show of temper, but was placated by the good sense of his rival, who proposed that they should strike for two Territories instead of one. Why not; was not Nebraska large enough for both?

Under these circumstances, the question of Nebraska seemed likely to recur. Certain Southern newspapers were openly demanding the removal of the slavery restriction in the new Territory. Yet the chairman of the Senate Committee on Territories, who had just returned from Europe, seems to have been unaware of the undercurrents whose surface indications have been pointed out. He wrote confidentially on November 11th: "It [the administration] has difficulties ahead, but it must meet them boldly and fairly. There is a surplus revenue which must be disposed of and the tariff reduced to a legitimate revenue standard. It will not do to allow the surplus to accumulate in the Treasury and thus create a pecuniary revulsion that would overwhelm the business arrangements and financial affairs of the country. The River and Harbor question must be met and decided. Now in my opinion is the time to put those great interests on a more substantial and secure basis by a well devised system of Tonnage duties. I do not know what the administration will do on this question, but I hope they will have the courage to do what we all feel to be right. The Pacific railroad will also be a disturbing element. It will never do to commence making railroads by the federal government under any pretext of necessity. We can grant alternate sections of land as we did for the Central Road, but not a dollar from the National Treasury. These are the main questions and my opinions are foreshadowed as you are entitled to know them."

In the same letter occurs an interesting personal allusion: "I see many of the newspapers are holding me up as a candidate for the next Presidency. I do not wish to occupy that position. I do not think I will be willing to have my name used. I think such a state of things will exist that I shall not desire the nomination. Yet I do not intend to do any act which will deprive me of the control of my own action. I shall remain entirely non-committal and hold myself at liberty to do whatever my duty to my principles and my friends may require when the time for action arrives. Our first duty is to the cause--the fate of individual politicians is of minor consequence. The party is in a distracted condition and it requires all our wisdom, prudence and energy to consolidate its power and perpetuate its principles. Let us leave the Presidency out of view for at least two years to come."

These are not the words of a man who is plotting a revolution. Had Nebraska and the Missouri Compromise been uppermost in his thoughts, he would have referred to the subject, for the letter was written in strict confidence to friends, from whom he kept no secrets and before whom he was not wont to pose.

Those better informed, however, believed that Congress would have to deal with the territorial question in the near future. The Washington Union, commonly regarded as the organ of the administration, predicted that next to pressing foreign affairs, the Pacific railroad and the Territories would occupy the attention of the administration. And before Congress assembled, or had been long in session, the chairman of the Committee on Territories must have sensed the situation, for on December 14, 1853, Senator Dodge of Iowa introduced a bill for the organization of Nebraska, which was identical with that of the last session. The bill was promptly referred to the Committee on Territories, and the Nebraska question entered upon its last phase. Within a week, Douglas's friends of the Illinois State Register were sufficiently well informed of the thoughts and intents of his mind to hazard this conjecture: "We believe they [the people of Nebraska] may be safely left to act for themselves.... The territories should be admitted to exercise, as nearly as practicable, all the rights claimed by the States, and to adopt all such political regulations and institutions as their wisdom may suggest." A New York correspondent announced on December 30th, that the committee would soon report a bill for three Territories on the basis of New Mexico and Utah; that is, without excluding or admitting slavery. "Climate and nature and the necessary pursuits of the people who are to occupy the territories," added the writer complacently, "will settle the question--and these will effectually exclude slavery."

These rumors foreshadowed the report of the committee. The problem was to find a mode of overcoming the opposition of the South to the organization of a Territory which would not only add eventually to the number of free States, but also open up a northern route to the Pacific. The price of concession from the South on the latter point must be some apparent concession to the South in the matter of slavery. The report of January 4, 1854, and the bill which accompanied it, was Douglas's solution of the problem. The principles of the compromise measures of 1850 were to be affirmed and carried into practical operation within the limits of the new Territory of Nebraska. "In the judgment of your committee," read the report, "those measures were intended to have a far more comprehensive and enduring effect than the mere adjustment of the difficulties arising out of the recent acquisition of Mexican territory. They were designed to establish certain great principles ... your committee have deemed it their duty to incorporate and perpetuate, in their territorial bill, the principles and spirit of those measures. If any other consideration were necessary, to render the propriety of this course imperative upon the committee, they may be found in the fact that the Nebraska country occupies the same relative position to the slavery question, as did New Mexico and Utah, when those Territories were organized."

Just as it was a disputed point, the report argued, whether slavery was prohibited by law in the country acquired from Mexico, so it is questioned whether slavery is prohibited in the Nebraska country by valid enactment. "In the opinion of those eminent statesmen, who hold that Congress is invested with no rightful authority to legislate upon the subject of slavery in the Territories, the 8th section of the act preparatory to the admission of Missouri is null and void; while the prevailing sentiment in large portions of the Union sustains the doctrine that the Constitution of the United States secures to every citizen an inalienable right to move into any of the Territories with his property, of whatever kind and description, and to hold and enjoy the same under the sanction of law. Your committee do not feel themselves called upon to enter upon the discussion of these controverted questions. They involve the same grave issues which produced the agitation, the sectional strife, and the fearful struggle of 1850." And just as Congress deemed it wise in 1850 to refrain from deciding the matter in controversy, so "your committee are not prepared now to recommend a departure from the course pursued on that memorable occasion either by affirming or repealing the 8th section of the Missouri act, or by any act declaratory of the meaning of the Constitution in respect to the legal points in dispute." The essential features of the Compromise of 1850, which should again be carried into practical operation, were stated as follows:

"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, by their appropriate representatives, to be chosen by them for that purpose.

"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 provision of the Constitution of the United States, in respect to fugitives from service, is to be carried into faithful execution in all 'the organized Territories,' the same as in the States."

The substitute reported by the committee followed the Dodge bill closely, but contained the additional statement. "And when admitted as a State or States, the said Territory, or any part of the same, shall be received into the Union, with or without slavery, as their Constitution may prescribe at the time of their admission." This phraseology was identical with that of the Utah and New Mexico Acts. The bill also made special provision for writs of error and appeals from the territorial court to the Supreme Court of the United States, in all cases involving title to slaves and personal freedom. This feature, too, was copied from the Utah and New Mexico Acts. As first printed in the Washington Sentinel, January 7th, the bill contained no reference to the Missouri Compromise and no direct suggestion that the territorial legislature would decide the question of slavery. The wording of the bill and its general tenor gave the impression that the prohibition of slavery would continue during the territorial status, unless in the meantime the courts should declare the Missouri Compromise null and void. Three days later, January 10th, the Sentinel reprinted the bill with an additional section, which had been omitted by a "clerical error." This twenty-first section read, "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:" then followed the three propositions which had accompanied the report of January 4th. The last of these three propositions had been slightly abbreviated: all questions pertaining to slavery were to be left to the decision of the people through their appropriate representatives, the clause "to be chosen by them for that purpose" being omitted.

This additional section transformed the whole bill. For the first time the people of the Territory are mentioned as the determining agents in respect to slavery. And the unavoidable inference followed, that they were not to be hampered in their choice by the restrictive feature of the Missouri Act of 1820. The omission of this weighty section was certainly a most extraordinary oversight. Whose was the "clerical error"? Attached to the original draft, now in the custody of the Secretary of the Senate, is a sheet of blue paper, in Douglas's handwriting, containing the crucial article. All evidence points to the conclusion that Douglas added this hastily, after the bill had been twice read in the Senate and ordered to be printed; but whether it was carelessly omitted by the copyist or appended by Douglas as an afterthought, it is impossible to say. After his report of January 4th, there was surely no reason why Douglas should have hesitated to incorporate the three propositions in the bill; but it is perfectly obvious that with the appended section, the Nebraska bill differed essentially from its prototypes, though Douglas contended that he had only made explicit what was contained implicitly in the Utah bill.

Two years later Douglas replied to certain criticisms from Trumbull in these words: "He knew, or, if not, he ought to know, that the bill in the shape in which it was first reported, as effectually repealed the Missouri restriction as it afterwards did when the repeal was put in express terms. The only question was whether it should be done in the language of the acts of 1850, or in the language subsequently employed, but the legal effect was precisely the same." Of course Douglas was here referring to the original bill containing the twenty-first section.

It has commonly been assumed that Douglas desired the repeal of the Missouri Compromise in order to open Nebraska to slavery. This was the passionate accusation of his anti-slavery contemporaries; and it has become the verdict of most historians. Yet there is ample evidence that Douglas had no such wish and intent. He had said in 1850, and on other occasions, that he believed the prairies to be dedicated to freedom by a law above human power to repeal. Climate, topography, the conditions of slave labor, which no Northern man knew better, forbade slavery in the unoccupied areas of the West. True, he had no such horror of slavery extension as many Northern men manifested; he was probably not averse to sacrificing some of the region dedicated by law to freedom, if thereby he could carry out his cherished project of developing the greater Northwest; but that he deliberately planned to plant slavery in all that region, is contradicted by the incontrovertible fact that he believed the area of slavery to be circumscribed definitely by Nature. Man might propose but physical geography would dispose.

The regrettable aspect of Douglas's course is his attempt to nullify the Missouri Compromise by subtle indirection. This was the device of a shifty politician, trying to avert suspicion and public alarm by clever ambiguities. That he really believed a new principle had been substituted for an old one, in dealing with the Territories, does not extenuate the offense, for not even he had ventured to assert in 1850, that the compromises of that year had in any wise disturbed the status of the great, unorganized area to which Congress had applied the restrictive proviso of 1820. Besides, only so recently as 1849, he had said, with all the emphasis of sincerity, that the compromise had "become canonized in the hearts of the American people, as a sacred thing, which no ruthless hand would ever be reckless enough to disturb." And while he then opposed the extension of the principle to new Territories, he believed that it had been "deliberately incorporated into our legislation as a solemn and sacred compromise."

By this time Douglas must have been aware of the covert purpose of Atchison and others to secure the repeal of the Missouri Compromise, though he hoped that they would acquiesce in his mode of doing it. He was evidently not prepared for the bold move which certain of the senators from slave States were contemplating. He was therefore startled by an amendment which Dixon of Kentucky offered on January 16th, to the effect that the restrictive clause of the Act of 1820 should not be so construed as to apply to Nebraska or any other Territory; "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 Missouri Act had never been passed. Douglas at once left his seat to remonstrate with Dixon, who was on the Whig side of the Senate chamber. He disliked the amendment, not so much because it wiped out the Missouri Compromise as because it seemed "affirmatively to legislate slavery into the Territory." Knowing Dixon to be a supporter of the compromise measures of 1850, Douglas begged him not to thwart the work of his committee, which was trying in good faith to apply the cardinal features of those measures to Nebraska. The latter part of Dixon's amendment could hardly be harmonized with the principle of congressional non-intervention.

There seems to be no reason to doubt that Dixon moved in this matter on his own initiative; but he was a friend to Atchison and he could not have been wholly ignorant of the Missouri factional quarrel. To be sure, Dixon was a Whig, but Southern Whigs and Democrats were at one in desiring expansion for the peculiar institution of their section. Pressure was now brought to bear upon Douglas to incorporate the direct repeal of the compromise in the Nebraska bill. He objected strongly, foreseeing no doubt the storm of protest which would burst over his head in the North. Still, if he could unite the party on the principle of non-intervention with slavery in the Territories, the risk of temporary unpopularity would be worth taking. No doubt personal ambition played its part in forming his purpose, but party considerations swayed him most powerfully. He witnessed with no little apprehension the divergence between the Northern and Southern wings of the party; he had commented in private upon "the distracted condition" of the party and the need of perpetuating its principles and consolidating its power. Might this not be his opportunity?

On Sunday morning, January 22d, just before the hour for church, Douglas, with several of his colleagues, called upon the Secretary of War, Davis, stating that the Committees on Territories of the Senate and House had agreed upon a bill, for which the President's approval was desired. They pressed for an immediate interview inasmuch as they desired to report the bill on the morrow. Somewhat reluctantly, Davis arranged an interview for them, though the President was not in the habit of receiving visitors on Sunday. Yielding to their request, President Pierce took the proposed bill under consideration, giving careful heed to all explanations; and when they were done, both he and his influential secretary promised their support.

What was this momentous bill to which the President thus pledged himself? The title indicated the most striking feature. There were now to be two Territories: Kansas and Nebraska. Bedded in the heart of