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Stephen A. Douglas by Allen Johnson

A >> Allen Johnson >> Stephen A. Douglas




It was characteristic of the man that he thought politics even when he
was in pursuit of health. Advised to take an ocean voyage, he decided
to visit Cuba so that even his recreative leisure might be politically
profitable, for the island was more than ever coveted by the South and
he wished to have the advantage of first-hand information about this
unhappy Spanish province. Landing in New York upon his return, he was
given a remarkable ovation by the Democracy of the city; and he was
greeted with equal warmth in Philadelphia and Baltimore.[779] Even a
less ambitious man might have been tempted to believe in his own
capacity for leadership, in the midst of these apparently spontaneous
demonstrations of regard. At the capital, however, he was less
cordially welcomed. He was not in the least surprised, for while he
was still in the South, the newspapers had announced his deposition
from the chairmanship of the Committee on Territories. He knew well
enough what he had to expect from the group of Southern Democrats who
had the ear of the administration.[780] Nevertheless, his removal from
a position which he had held ever since he entered the Senate was a
bitter pill.

For the sake of peace Douglas smothered his resentment, and, for a
brief time at least, sought to demonstrate his political orthodoxy in
matters where there was no conflict of opinion. As a member of the
Committee on Foreign Affairs, he cordially supported the bill for the
purchase of Cuba, even though the chairman, Slidell, had done more to
injure him in the recent campaign than any other man. There were those
who thought he demeaned himself by attending the Democratic caucus and
indorsing the Slidell project.[781]

It was charged that the proposed appropriation of $30,000,000 was to
be used to bribe Spanish ministers to sell Cuba; that the whole
project was motived by the desire of the South to acquire more slave
territory; and that Douglas was once more cultivating the South to
secure the presidency in 1860. The first of these charges has never
been proved; the second is probably correct; but the third is surely
open to question. As long ago as Folk's administration, Douglas had
expressed his belief that the Pearl of the Antilles must some day fall
to us; and on various occasions he had advocated the annexation of
Cuba, with the consent of Spain and the inhabitants. At New Orleans,
he had been called upon to express his views regarding the acquisition
of the island; and he had said, without hesitation, "It is folly to
debate the acquisition of Cuba. It naturally belongs to the American
continent. It guards the mouth of the Mississippi River, which is the
heart of the American continent and the body of the American nation."
At the same time he was careful to add that he was no filibuster: he
desired Cuba only upon terms honorable to all concerned.[782]

Subsequent events acquit Douglas of truckling to the South at this
time. No doubt he would have been glad to let bygones be bygones, to
close up the gap of unpleasant memories between himself and the
administration, and to restore Democratic harmony. For Douglas loved
his party and honored its history. To him the party of Jefferson and
Jackson was inseparably linked with all that made the American
Commonwealth the greatest of democracies. Yet where men are acutely
conscious of vital differences of opinion, only the hourly practice of
self-control can prevent clashing. Neither Douglas nor his opponents
were prepared to undergo any such rigid self-discipline.

On February 23d, the pent-up feeling broke through all barriers and
laid bare the thoughts and intents of the Democratic factions. The
Kansas question once more recurring, Brown of Mississippi now demanded
adequate protection for property; that is, "protection sufficient to
protect animate property." Any other protection would be a delusion
and a cheat. If the territorial legislature refused such protection,
he for one would demand it of Congress. He dissented altogether from
the doctrine of the Senator from Illinois, that by non-action, or
unfriendly legislation a Territory could annul a decision of the
Supreme Court and exclude slavery. That was mistaking power for right.
"What I want to know is, whether you will interpose against power and
in favor of right.... If the Territorial Legislature refuses to act,
will you act?... If it pass laws hostile to slavery, will you annul
them, and substitute laws favoring slavery in their stead?" "What I
and my people ask is action; positive, unqualified action. Our
understanding of the doctrine of non-intervention was, that you were
not to intervene against us, but I never understood that we could have
any compromise or understanding here which could release Congress from
an obligation imposed on it by the Constitution of the United
States."[783]

Reluctant as Douglas must have been to accentuate the differences
between himself and the Southern Democrats, he could not remain
silent, for silence would be misconstrued. With all the tact which he
could muster out of a not too abundant store, he sought to conciliate,
without yielding his own opinions. It was a futile effort. At the very
outset he was forced to deny the right of slave property to other
protection than common property. Thence he passed with wider and wider
divergence from the Southern position over the familiar ground of
popular sovereignty. To the specific demands which Brown had voiced,
he replied that Congress had never passed an act creating a criminal
code for any organized Territory, nor any law protecting any species
of property. Congress had left these matters to the territorial
legislatures. Why, then, make an exception of slave property? The
Supreme Court had made no such distinction. "I know," said Douglas, in
a tone little calculated to soothe the feelings of his opponents, "I
know that some gentlemen do not like the doctrine of non-intervention
as well as they once did. It is now becoming fashionable to talk
sneeringly of 'your doctrine of non-intervention,' Sir, that doctrine
has been a fundamental article in the Democratic creed for years."
"If you repudiate the doctrine of non-intervention and form a slave
code by act of Congress, when the people of a Territory refuse it, you
must step off the Democratic platform.... I tell you, gentlemen of the
South, in all candor, I do not believe a Democratic candidate can ever
carry any one Democratic State of the North on the platform that it is
the duty of the Federal government to force the people of a Territory
to have slavery when they do not want it."[784]

What Brown had asserted with his wonted impulsiveness, was then
reaffirmed more soberly by his colleague, Jefferson Davis, upon whom
more than any other Southerner the mantle of Calhoun had fallen. State
sovereignty was also his major premise. The Constitution was a
compact. The Territories were common property of the States. The
territorial legislatures were mere instruments through which the
Congress of the United States "executed its trust in relation to the
Territories." If, as the Senator from Illinois insisted, Congress had
granted full power to the inhabitants of the Territories to legislate
on all subjects not inconsistent with the Constitution, then Congress
had exceeded its authority. Turning to Douglas, Davis said, "Now, the
senator asks, will you make a discrimination in the Territories? I
say, yes, I would discriminate in the Territories wherever it is
needful to assert the right of citizens.... I have heard many a
siren's song on this doctrine of non-intervention; a thing shadowy and
fleeting, changing its color as often as the chameleon."[785]

When Douglas could again get the floor, he retorted sharply, "The
senator from Mississippi says, if I am not willing to stand in the
party on his platform, I can go out. Allow me to inform him that I
stand on the platform, and those that jump off must go out of the
party."

Hot words now passed between them. Davis spoke disdainfully of men who
seek to build up a political reputation by catering to the prejudice
of a majority, to exclude the property of the minority. And Douglas
retorted, "I despise to see men from other sections of the Union
pandering to a public sentiment against what I conceive to be common
rights under the Constitution." "Holding the views that you do," said
Davis, "you would have no chance of getting the vote of Mississippi
to-day." The senator has "confirmed me in the belief that he is now as
full of heresy as he once was of adherence to the doctrine of popular
sovereignty, correctly construed; that he has gone back to his first
love of squatter sovereignty, a thing offensive to every idea of
conservatism and sound government."

Davis made repeated efforts to secure an answer to the question
whether, in the event that slavery should be excluded by the people of
a Territory and the Supreme Court should decide against such action,
Douglas would maintain the rights of the slave-holders. Douglas
replied, somewhat evasively, that when the Supreme Court should decide
upon the constitutionality of the local laws, he would abide by the
decision. "That is not the point," rejoined Davis impatiently;
"Congress must compel the Territorial Legislature to perform its
proper functions"; _i.e._ actively protect slave property. "Well,"
said Douglas with exasperating coolness, "on that point, the Senator
and I differ. If the Territorial Legislature will not pass such laws
as will encourage mules, I will not force them to have them." Again
Davis insisted that his question had not been answered. Douglas
repeated, "I will vote against any law by Congress attempting to
interfere with a regulation made by the Territories, with respect to
any kind of property whatever, whether horses, mules, negroes, or
anything else."[786]

But there was a flaw in Douglas's armor which Green of Missouri
detected. Had the Senator from Illinois not urged the intervention of
Congress to prevent polygamy in Utah? "Not at all," replied Douglas;
"the people of that Territory were in a state of rebellion against the
Federal authorities." What he had urged was the repeal of the organic
act of the Territory, so that the United States might exercise
absolute jurisdiction and protect property in that region. "But if the
people of a Territory took away property in slaves, were they not also
defying the Federal authorities?" persisted Green. Unquestionably
Congress might revoke the Kansas-Nebraska Act, Douglas admitted; but
it should be remembered that the act was bottomed upon an agreement.
There was a distinct understanding that the question whether
territorial laws affecting the right of property in slaves were
constitutional, should be referred to the Supreme Court. "If
constitutional, they were to remain in force until repealed by the
Territorial Legislature; if not, they were to become void not by
action of Congress but by the decision of the court."[787] And Douglas
quoted at length from a speech by Senator Benjamin in 1856, to prove
his point. But it was precisely this agreement of 1854, which was now
being either repudiated or construed in the interest of the South.
Jefferson Davis frankly deprecated the "great hazard" which
representatives from his section ran in 1854; but, he added, "I take
it for granted my friends who are about me must have understood at
that time clearly that this was the mere reference of a right; and
that if decided in our favor, congressional legislation would follow
in its train, and secure to us the enjoyment of the right thus
defined."[788]

The wide divergence of purpose and opinion which this debate revealed,
dashed any hope of a united Democratic party in 1860. Men who looked
into the future were sobered by the prospect. If the Democratic party
were rent in twain,--the only surviving national party,--if
Northerners and Southerners could no longer act together within a
party of such elastic principles, what hope remained for the Union?
The South was already boldly facing the inevitable. Said Brown,
passionately, "If I cannot obtain the rights guaranteed to me and my
people under the Constitution, as expounded by the Supreme Court,
then, Sir, I am prepared to retire from the concern.... When our
constitutional rights are denied us, we _ought_ to retire from the
Union.... If you are going to convert the Union into a masked battery
from behind which to make war on me and my property, in the name of
all the gods at once, why should I not retire from it?"[789]

After the 23d of February, Douglas neither gave nor expected quarter
from the Southern faction led by Jefferson Davis. So far from avoiding
conflict, he seems rather to have forced the fighting. He flaunted his
views in the faces of the fire-eaters. Prudence would have suggested
silence, when a convention of Southern States met at Vicksburg and
resolved that "all laws, State and Federal, prohibiting the African
slave-trade, ought to be repealed,"[790] but Douglas, who knew
something of the dimensions which this illicit traffic had already
assumed, at once declared himself opposed to it. He said privately in
a conversation, which afterwards was reported by an anonymous
correspondent to the New York _Tribune_, that he believed fifteen
thousand Africans were brought into the country last year. He had seen
"with his own eyes three hundred of those recently imported miserable
beings in a slave-pen at Vicksburg, Mississippi, and also large
numbers at Memphis, Tennessee."[791]

In a letter which speedily became public property, Douglas said that
he would not accept the nomination of the Democratic party, if the
convention should interpolate into the party creed "such new issues as
the revival of the African slave-trade, or a congressional slave code
for the Territories."[792] And to leave no doubt as to his attitude he
wrote a second letter, devoted exclusively to this subject; it also
found its way, as the author probably intended it should, into the
newspapers. He opposed the revival of the African slave-trade because
it was abolished by one of the compromises which had made the Federal
Union and the Constitution. "In accordance with this compromise, I am
irreconcilably opposed to the revival of the African slave-trade, in
any form and under any circumstances."[793] How deeply this
unequivocal condemnation lacerated the feelings of the South, will
never be known until the economic necessities and purposes of the
large plantation owners are more clearly revealed.

The captious criticism of the Freeport doctrine by Southerners of the
Calhoun-Jefferson Davis school was less damaging, from a legal point
of view, than the sober analysis of Lincoln. The emphasis in Lincoln's
famous question at Freeport fell upon the word _lawful_: "Can the
people of a United States Territory, in any lawful way," etc. Douglas
had replied to the question of legal right by an assertion of the
power of the people of the Territories. This answer, as Lincoln
pointed out subsequently, was equivalent to saying that "a thing may
be lawfully driven away from where it has the lawful right to
be."[794] As a prediction, Douglas's simple statement, that if the
people of a Territory wanted slavery they would have it, and if they
did not, they would not let it be forced on them, was fully justified
by the facts of American history. It has been characteristic of the
American people that, without irreverence for law, they have not
allowed it to stand in the way of their natural development: they have
not, as a rule, driven rough-shod over law, but have quietly allowed
undesirable laws to fall into innocuous desuetude.

But such an answer was unworthy of a man who prided himself upon his
fidelity to the obligation of the Constitution and the laws. Feeling
the full force of Lincoln's inexorable logic,[795] but believing that
it was bottomed on a false premise, Douglas endeavored to give his
Freeport doctrine its proper constitutional setting. During the
summer, he elaborated an historical and constitutional defense of
popular sovereignty. The editors of _Harper's Magazine_ so far
departed from the traditions of that popular periodical as to publish
this long and tedious essay in the September number. Douglas probably
calculated that through this medium better than almost any other, he
would reach those readers to whom Lincoln made his most effective
appeal.[796]

The essay bore the title "The Dividing Line between Federal and Local
Authority," with the sub-caption, "Popular Sovereignty in the
Territories." In his interpretation of history, the author proved
himself rather a better advocate than historian. He had traversed much
the same ground in his speeches--and with far more vivacity and force.
Douglas searched the colonial records, and found--one is tempted to
say, to find--our fathers contending unremittingly for "the
inalienable right, when formed into political communities, to
exercise exclusive power of legislation in their local legislatures in
respect to all things affecting their internal polity--slavery not
excepted."[797]

Douglas took issue with the fundamental postulate of Lincoln's
syllogism--that a Territory is the mere creature of Congress and
cannot be clothed with powers not possessed by the creator. He denied
that such an inference could be drawn from that clause in the
Constitution which permits Congress to dispose of, and make all
needful rules for, the territory or other property belonging to the
United States. Names were deceptive. The word "territory" in this
connection was not used in a political, but in a geographical sense.
The power of Congress to organize governments for the Territories must
be inferred rather from the power to admit new States into the Union.
The Federal government possessed only expressly delegated powers; and
the absence of any explicit authority to interfere in local
territorial affairs must be held to inhibit any exercise of such
power. It was on these grounds that the Supreme Court had ruled that
Congress was not authorized by the Constitution to prohibit slavery in
the Territories.

It had been erroneously held by some, continued the essayist, that the
Court decided in the Dred Scott case that a territorial legislature
could not legislate in respect to slave property like other property.
He understood the Court to speak only of forbidden powers--powers
denied to Congress, to State legislatures and to territorial
legislatures alike. But if ever slavery should be decided to be one of
these forbidden subjects of legislation, then the conclusion would be
inevitable that the Constitution established slavery in the
Territories beyond the power of the people to control it by law, and
guaranteed to every citizen the right to go there and be protected in
the enjoyment of his slave property; then every member of Congress
would be in duty bound to supply adequate protection, if the rights of
property should be invaded. Not only so, but another conclusion would
follow,--if the Constitution should be held to establish slavery in
the Territories beyond the power of the people to control
it,--Congress would be bound to provide adequate protection for slave
property everywhere, _in the States_ as well as in the Territories.

Douglas immediately went on to show that such was not the decision of
the Court in the Dred Scott case. The Court had held that "the right
of property in slaves is distinctly and expressly affirmed in the
Constitution." Yes, but where? Why in that provision which speaks of
persons "held to service or labor in one State, under the laws
thereof"; not under the Constitution, not under the laws of Congress,
Douglas emphasized, but _under the laws of the particular State where
such service is due._ And so, when the Court declared that "the
government, in express terms, is pledged to protect it [slave
property] in all future time," it added "if the slave escapes from his
owner." "This is the only contingency," Douglas maintained, "in which
the Federal Government is authorized, required, or permitted to
interfere with slavery in the States or Territories; and in that case
only for the purpose of 'guarding and protecting the owner in his
rights' to reclaim his slave property." Slave-owners, therefore, who
moved with their property to a Territory, must hold it like all other
property, subject to local law, and look to local authorities for its
protection.

One other question remained: was the word "State," as used in the
clause just cited, intended to include Territories? Douglas so
contended. Otherwise, "the Territories must become a sanctuary for all
fugitives from service and justice." In numerous clauses in the
Constitution, the Territories were recognized as _States_.

Clever as this reasoning was, it clearly was not a fair exposition of
the opinion of the Court in the case of Dred Scott. If the Court did
not deny the right of a territorial legislature to interfere with
slave property, it certainly left that proposition open to fair
inference by the phrasing and emphasis of the critical passages. It
should be noted that Douglas, in quoting the decision, misplaced the
decisive clause so as to bring it in juxtaposition to the reference to
the fugitive slave clause of the Constitution, thus redistributing the
emphasis and confusing the real significance of the foregoing
paragraph.[798] Douglas stated subsequently that he did not believe
the decision of the Court reached the power of a territorial
legislature, because there was no territorial legislature in the
record nor any allusion to one; because there was no territorial
enactment before the Court; and because there was no fact in the case
alluding to or connected with territorial legislation.[799] All this
was perfectly true. The opinion of the Court was _obiter dicens_; but
the Court expressed its opinion nevertheless. As Lincoln said, men
knew what to expect of the Court when a territorial act prohibiting
slavery came before it. Yet this was what Douglas would not concede.
He would not admit the inference. Congress could confer powers upon a
territorial legislature which it could not itself exercise. The
dividing line between Federal and local authority was so drawn as to
permit Congress to institute governments with legislative, judicial,
and executive functions but without permitting Congress to exercise
those functions itself. From Douglas's point of view, a Territory was
not a dependency of the Federal government, but an inchoate
Commonwealth, endowed with many of the attributes of sovereignty
possessed by the full-fledged States.

So unusual an event as a political contribution by a prominent
statesman to a popular magazine, created no little excitement.[800]
Attorney-General Black came to the defense of the South with an
unsigned contribution to the Washington _Constitution_, the organ of
the administration.[801] And Douglas, who had meantime gone to Ohio to
take part in the State campaign, replied caustically to this critique
in his speech at Wooster, September 16th. Black rejoined in a pamphlet
under his own name. Whereupon Douglas returned to the attack with a
slashing pamphlet, which he sent to the printer in an unfinished form
and which did him little credit.[802]

This war of pamphlets was productive of no results. Douglas and Black
were wide apart upon their major premises, and diverged inevitably in
their conclusions. Holding fast to the premise that a Territory was
not sovereign but a "subordinate dependency," Black ridiculed the
attempts of Douglas to clothe it, not with complete sovereignty but
with "the attributes of sovereignty."[803] Then Douglas denounced in
scathing terms the absurdity of Black's assumption that property in
the Territories would be held by the laws of the State from which it
came, while it must look for redress of wrongs to the law of its new
domicile.[804]

The Ohio campaign attracted much attention throughout the country, not
only because the gubernatorial candidates were thoroughgoing
representatives of the Republican party and of Douglas Democracy, but
because both Lincoln and Douglas were again brought into the
arena.[805] While the latter did not meet in joint debate, their
successive appearance at Columbus and Cincinnati gave the campaign the
aspect of a prolongation of the Illinois contest. Lincoln devoted no
little attention to the _Harper's Magazine_ article, while Douglas
defended himself and his doctrine against all comers. There was a
disposition in many quarters to concede that popular sovereignty,
whether theoretically right or wrong, would settle the question of
slavery in the Territories.[806] Apropos of Douglas's speech at
Columbus, the New York _Times_ admitted that at least his principles
were "definite" and uttered in a "frank, gallant and masculine"
spirit;[807] and his speeches were deemed of enough importance to be
printed entire in the columns of this Republican journal. "He means to
go to Charleston," guessed the editor shrewdly, "as the unmistakable
representative of the Democratic party of the North and to bring this
influence to bear upon Southern delegates as the only way to secure
their interests against anti-slavery sentiment represented by the
Republicans. He will claim that not a single Northern State can be
carried on a platform more pro-slavery than his. The Democrats of the
North have yielded all they will."[808]

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