The History of the Confederate War, Its Causes and Its Conduct. Volume 1 of 2

The extreme opponents of slavery had taken more advanced ground than ever before. They denounced the Fugitive Slave Law as a statute which Congress had no right to enact and which no citizen should obey. They pointed out that it was in violation of that very doctrine of state sovereignty to which the advocates of slavery had appealed. The ultra ones among them planted themselves upon the doctrine first enunciated by Mr. Seward of New York, that there is a "higher law" than the statutes or the Constitution, and that men of enlightened consciences were bound to obey that higher law even to the extent of violating the statutes, and setting the Constitution at naught.

The time had obviously come when there was no longer any use in the adoption of compromises or the passage of conciliatory laws by statesmen whose first concern was for the preservation of the Union. Compromises were no longer binding upon men's consciences or conduct. Political parties refused to regard them and even states in their organized capacity legislated for their nullification, asserting their right of sovereignty to that extent.

It is obvious that peace could not long continue in a country thus violently divided against itself in opinion and sentiment. Sooner or later by one means or another, but with the same certainty that governs the rising and the setting of the sun, such a condition meant war. In this case it meant that within the Union so afflicted there was an "irrepressible conflict" of opinion, a conflict that would yield to no argument, submit itself to no law, accommodate itself to no circumstance and would stoutly insist upon irreconcilable contentions on the one side and the other until the matter should be decided by that last brutal arbitrament of man, a conflict of cannon, musketry, and mortars.

Precisely that condition of affairs had been reached in the United States when the compromise measures of 1850 were repudiated, defied and nullified by both popular and legislative authority. Logically the war between North and South should have occurred then, and undoubtedly it would have occurred at that time but for the persistence of that sentiment of devotion to the Union which still dominated the minds of a majority of men both at the North and at the South.

It was in obedience to that sentiment that statesmen refused to see the hopelessness of the situation and went on endeavoring to find some way out of the difficulty that should bring peace where there was no peace, and save the Union from disruption.

The trouble with all such efforts was that everything proposed by way of placating those on one side of the controversy additionally inflamed those on the other.

The most notable legislative outcome of this vexed situation was the Kansas-Nebraska Bill, for which Senator Douglas made himself sponsor. That bill provided for the erection of the two territories, Kansas and Nebraska, leaving it to those who should settle within that domain to permit or exclude slavery as they might please when the time should come for them to apply for admission to the Union as states. By direct implication at least slaves might freely be taken into those territories during the period of their territorial existence if the settlers there so desired.

In justice to the memory of a patriotic statesman who served his country to the best of his ability, it is only fair that his doctrine and his opinions shall be presented in his own words.

In the speech by which, in 1850, he placated the animosity that had greeted him at Chicago, he set forth his thought as follows:

These measures [the compromise measures of 1850] are predicated upon the great fundamental principle that every people ought to possess the right of framing and regulating their own internal concerns and domestic institutions in their own way… These things are all confided by the constitution to each state to decide for itself, and I know of no reason why the same principle should not be extended to the territories.

Three years later Mr. Douglas carefully set forth his doctrine again in the Kansas-Nebraska Bill itself. Referring to the Missouri Compromise, with its prohibition of slavery in the states to be erected out of Louisiana territory north of 36° 30´, the bill said:

Which being inconsistent with the principle of non-intervention by Congress with slavery in the states and territories, as recognized by the legislation of 1850 … is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any territory or state, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.

Mr. Douglas's doctrine, popularly known as "Squatter Sovereignty," was open to criticism on very obvious constitutional and historical grounds.

The original conception of the Union had undoubtedly been that it was a confederacy of states, each sovereign within itself except in so far as it had surrendered to the National Government a part of its sovereignty by accepting the Federal Constitution and entering the Union. It was deemed an axiom that each state was free by the will of its own citizens to regulate its domestic affairs in its own way, permitting or forbidding slavery at its own free will. After the great slavery controversy arose the South contended still for this doctrine of states' rights, and by the Kansas-Nebraska Bill, this sovereignty of the states was extended to the territories also.

The student of history must observe however that that doctrine had been very greatly impaired if not indeed set aside by the act of Virginia in ceding her claims in the Northwest Territory and the acceptance of that cession by the general government. In that cession it had been stipulated that slavery should never be permitted in any of the territory thus made a part of the national domain. The cession was made with the direct intent that the region concerned should presently be divided and admitted into the Union as a number of states. But those states were thus forbidden in advance to permit the existence of slavery within their borders. So far as they were concerned, therefore, the supposed right of a state to legislate at will on that subject was taken away from them even before their birth.

Here it would seem there was an abrogation or at least an important modification of the doctrine of the right of each state to determine this question for itself, and that modification had been made by Virginia and everywhere accepted.

The Missouri Compromise in precisely the same manner had taken away that right of determination from all the states that might be formed out of the Louisiana territory lying north of the southern line of Missouri. If the prohibition thus laid upon yet unborn states was permissible as regards the cession of the Northwest Territory it would seem to have been equally so with regard to the new domain west of the Mississippi.

Further than this the sovereign right of a state to determine this question for itself did not extend at any time to the territories. Under the Constitution as uniformly interpreted by the Supreme Court of the United States, Congress is supreme in the territories and may make any law that it pleases for their governance. In other words the people of the territories have absolutely no rights of self-government except such as Congress may from time to time see fit to confer upon them.

This statement is not made speculatively or as an opinion of the historian. It is a well settled doctrine of constitutional law, affirmed by every court to which the question has at any time been submitted.

Senator Douglas's Kansas-Nebraska Bill was based upon an assumption precisely the reverse of this. It extended to the territories a sovereignty which under the Constitution belonged only to states, and which, as has been suggested, the states themselves had in a large degree surrendered by the acceptance of the cession of the Northwest Territory.

CHAPTER VIII

The Kansas War – The Dred Scott Decision – John Brown's Exploit at Harper's Ferry

With the aid of a considerable Northern vote in Congress the South succeeded in passing the Kansas-Nebraska Bill, repealing the Missouri Compromise, and under the doctrine of "Squatter Sovereignty" throwing all the territories open to slavery at least as a possibility.

The North at once took alarm and the Free-soil party, newly named the Republican party, grew in numbers and enthusiasm as no other party had ever done before.

Events mightily aided this growth, driving into the Free-soil or Republican party many thousands of men who had before held aloof from a movement which they thought to be dangerous to the perpetuity of the Union and to peace within its borders.

First of these events was the outbreak of civil war in Kansas. The repeal of the Missouri Compromise opened that territory at once to settlement by men from both sections and at the same time opened the question whether it should become a free or a slave state. Incidentally a contest of factions began which raged hotly to the end.

Whether Kansas should be a slave state or a free state depended upon the will of the settlers alone. The land was in many respects a tempting one to emigrants in spite of the aridity of its western part, so that even without any incentive of politics its speedy settlement was quite a matter of course. But politics North and South enormously aided in that behalf. There was a rush from both sections to fill up and occupy the land in order to control it. From the Missouri border and from farther south slaveholders and the representatives of slavery poured into the territory in great numbers with the purpose of voting it into the Union as a slave state. In the slang of the period these were called "border ruffians." On the other hand there was an "assisted emigration" from the North, the emigration of men whose way was paid in consideration of their votes and their rifle practice against slavery in Kansas. These called themselves "Free State Men" but they were called by their adversaries "Jayhawkers."

In order to promote the emigration of these men to Kansas societies were formed in Massachusetts and other states which not only paid their way but furnished them with rifles of an improved pattern and ammunition in plenty, with the distinct understanding that it was their duty to ply both the bullet and the ballot in aid of the cause they represented.

These two groups of men quickly fell by the ears, as it was intended that they should, and civil war in the strictest sense of that term ensued.

John Brown – an able, adventurous, and fanatical man – took command of the free state forces and between him and his adversaries there was a contest for supremacy which involved every outrage to which civil war, waged by uncivilized man, can give birth. Small battles were fought. Men on either side were shot or hanged without mercy. Homes were desolated. Women and children were driven forth to suffer all the agonies of starvation, of cold, and of homelessness – all in aid of the voting one way or the other.

In our time such a situation in a territory subject to national control would be instantly ended by the sending of troops to the disturbed region with instructions to preserve order, to suppress all manner of lawlessness, and to protect all citizens equally in the enjoyment of the peaceful possession of the land. But in the fifties the government of the United States was still unused to such exercise of its authority – parties were too evenly divided, political feeling was too hot and voters were far too sensitive, to admit of such a treatment of the situation as would in our time seem quite a matter of course. Troops were sent to Kansas, it is true, but in quite insufficient numbers and under inadequate instructions. So the war in Kansas went on and otherwise peaceful citizens of the Union actively aided it upon the one side or the other quite as if it had not been a civil war within the Union and in a territory in which the authority of Congress was supreme beyond even the possibility of question.

At the South companies of armed men were organized, equipped, and sent into Kansas nominally to settle there and vote to make a slave state of the territory, but really, if possible, to drive out every "Free State" man or to overawe or overcome them all, so that the voting might be all one way. At the North similar companies of men were organized and armed and aided to emigrate for the purpose of doing very much the same thing to the representatives of slavery and achieving a contrary result at the ballot box.

Many of the men on both sides were not genuine settlers at all but merely armed bandits engaged in a mission of violence. Yet on both sides they were supported, encouraged, and defended in their lawlessness by the pulpit, the press, and every other agency of civilization.

Elections were held in the territory in which both sides voted their men without question as to their age, the length of their residence within the territory or any other qualification for voting which the loose laws of the time provided. Every devilish device of fraud and swindling that had up to that time been invented by ingeniously unscrupulous politicians was employed on the one side or the other without so much as a qualm of conscience or a scruple of conventionality.

It was war that these men were engaged in and elections were a mere pretense. War habitually has no scruples as to the means it uses for the overcoming of an adversary. On each side men voted who had arrived within the territory just in time for the election, cheerfully perjuring themselves in order to do so, an incident which nobody seemed to regard as a serious matter. Each side voted its men as often as it could under the loose election laws of the time and in some cases that was very often. Ballot boxes were stuffed with fraudulent votes by one side and were seized and destroyed by the other.

Conventions fraudulently chosen by such practices as these framed constitutions which were one after another rejected by Congress.

The story need not be told here in further detail. The struggle continued until the end of the decade and it was not until after the Confederate War had begun that the territory was admitted to the Union as a state. In the meanwhile the eyes and minds of all the people in the country were concentrated upon that center of disturbance and the situation there enormously increased the intensity of that acrimony which already characterized the relations of men North and South.

Another event which tended to increase the acrimony between the two sections of the country and ultimately to bring about war was the rendering of the "Dred Scott" decision, which alarmed and intensely angered the North.

Dred Scott was a negro slave in Missouri, owned by an army surgeon who, about twenty years before, had taken him as a servant to an army post in Illinois. Under the laws of Illinois any slave taken by his master into that state was by that act set free.

Dred Scott remained however in the position of a slave and after a time he was taken back to Missouri. There he was sold to a new master whom he presently sued for assault on the ground that his former master had in effect set him free by voluntarily taking him into a free state, and that therefore he was not liable to sale or to a chastisement at the hands of a master.

The negro won in the lower courts but was defeated upon appeal. Later, circumstances enabled him to bring suit in the United States Court, and finally the case went on appeal to the Supreme Court of the United States. The questions directly and indirectly involved in it were of so great national and political interest that four of the greatest constitutional lawyers in all the land volunteered to argue it – two of them on the one side and two upon the other. The argument was a contest of intellectual giants with the whole country looking on and listening. At the end of it the judgment of the court was rendered by Chief Justice Taney in March, 1857. The decision negatived all of Dred Scott's contentions and it affirmed principles that were even more offensive to Northern sentiment than its negations were. It amounted in fact to a judgment that state laws setting free such slaves as might be brought into the states concerned by voluntary act of their masters were null and void. It expressly declared unconstitutional that part of the Missouri Compromise which forbade slavery in territories north of 36° 30´ north latitude.

So completely did the court decide upon the slavery side of the question that Thomas H. Benton, the great Democratic senator from Missouri, characterized this deliberate and very carefully considered judgment of the Supreme Court as one which made slavery the organic law of the land with freedom as a casual exception.

The victory of the pro-slavery radicals was here complete. The decision gave them the definite judgment of that Supreme Court whose decisions rise above congressional enactment and set aside statutes, – that court from whose judgments there is nowhere any appeal to any other authority on earth – in behalf of their most extreme contentions.

If that decision had been accepted by the people, as the decisions of the Supreme Court usually are, it would indeed have made slavery a national institution subject only to such limitations as the individual states might impose upon it within their own borders and without interference with slaveholders who might choose to take their slaves into free states and hold them there.

But the victory of the slave advocates – complete as it was – gave them no practical advantage. Such a doctrine as that laid down by the court simply could not find acceptance in the minds of men at the North. Logically it ought not to have found acceptance with the ultra pro-slavery men of the South for the reason that it distinctly negatived that contention for states' rights and state sovereignty upon which they relied in their contest with their adversaries.

Unfortunately for them, in the course of his decision Chief Justice Taney used one unhappy phrase which gave even greater offense perhaps than the decision itself did. That phrase was in fact no part of the decision but was what the lawyers call an obiter dictum– a saying apart. It was a mere statement of what the Chief Justice believed to be a fact of history. It was not at all a ruling of the court. As an illustration of his meaning he made the perfectly true statement that before the time of the American Revolution – and he might have included a much later date – the negroes "had been regarded as beings of an inferior order and altogether unfit to associate with the white race either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."

This statement of fact as to the attitude of the public mind toward the negro before the Revolution was entirely correct, as every educated reader knows, and as the history of the African slave-trade – carried on not only before the adoption of the Constitution but for a dozen years after 1808 when the constitutional prohibition of that nefarious traffic went into effect – perfectly and completely shows.

But Chief Justice Taney's simple statement of this historical fact was everywhere interpreted to be a part of his legal decision. This was natural enough under the circumstances for the reason that slavery itself, in behalf of which the decision seemed to have been rendered, rested solely upon the doctrine that a negro has no rights which the white man is bound to respect.

Even if this unfortunate phrase had not been used and even if it had not been misinterpreted as it was, the decision itself must of necessity have wrought something like a revolution in the thought of the Northern people. The most conservative among them had reconciled themselves to the existence of slavery in certain of the states upon the ground that each state had a right to legislate for itself upon that question and therefore that each state was alone responsible for its own legislation. They were startled now by the challenge of a Supreme Court decision which denied to them even this relief of conscience and even this liberty of individual state action. They were asked to accept the doctrine that slavery was a national institution against which state laws were futile except in a very limited way.

This extreme decision in favor of slavery, coming as it did at the very time when civil war was on in Kansas, not only inflamed public sentiment at the North but alarmed it. Already the political party opposed to the extension of slavery had mightily grown in numbers and in enthusiasm. In 1852 it had cast less than 157,000 votes. In 1856 its vote amounted to 1,341,264, carrying with it 114 electoral votes as against 174 secured by its chief antagonist and eight thrown away on a third candidate.

During that four years the Anti-slavery party had drawn to itself through force of circumstance all of the Free-soil Democracy and the greater part of the Northern Whigs.

In 1856 for the first time in the Republic's history the election of a president was contested by a party strictly sectional in its composition and the fact was alarming not only at the South but almost equally so at the North. The conviction was general that such a contest meant mischief for the country. It was the first sure foreboding of that war which was destined to come a little later between the sections.

The Republican party existed exclusively at the North. It made no pretense of existing in the Southern half of the Republic. It did not even go through the empty form of nominating electors in the Southern states either in 1856 or four years later in 1860. It did not hope in either of those years for a single electoral vote from any state lying south of the Potomac or the Ohio. Its purpose was to carry the election and to control the country by a strictly sectional and geographical vote – a thing that had never before been attempted or thought of by any party, and a thing the very suggestion of which caused great alarm throughout the country. For, men anxiously asked, if one section of the Union is thus to dominate the other how shall we be able to maintain the Union in its present disturbed and distracted condition? Hitherto, they reflected, majorities have been drawn from all the states in contests that were purely national in their inspiration and in their significance, and all men have held themselves bound to submit to the will of such majorities, as representing the ultimate judgment of all the states and all the people; but, they anxiously asked themselves, how long will the states or the people of one part of the country consent to be governed by the elected candidates of a party which exists solely in the other part of the country; a party which does not even ask for votes except in that other part, in support of its candidates; a party whose platform is one of avowed hostility to the industrial, social and domestic labor system of the southern half of the Republic; a party which has no existence or recognition or representation in that part of the Union, and which includes among its most active and aggressive members those who openly declare their purpose to overthrow the domestic institutions of the South, in defiance of all constitutional guarantees, and by any means that may be available, even including servile war in states where the negroes outnumber the whites by two or three to one?

Considerations of this kind undoubtedly restrained many voters at the North in the election of 1856, and for a time after that election there seemed to be a promise of peace in the influence of conservatism on the one side and on the other in spite of what was going on in Kansas.

At the same time the state of feeling throughout the country was well-nigh indistinguishable from that which prevails during the existence of actual civil war. Only the old devotion to the Union which existed in both the Northern and Southern mind prevented men from flying at each other's throats.

Then, as if to emphasize the inevitableness of war and to hasten its coming, there occurred the raid of John Brown at Harper's Ferry, Virginia, in the autumn of 1859 – only a year before a presidential election must occur.