The Relations of the Federal Government to Slavery

In 1846 the question of prohibition again came up in Congress on the bill to organize a territorial government for Oregon, and was kept in agitation until Oregon was forced, for self-protection to form a provisional government; and after a proposition of Mr. Douglas, sustained by the Senate, to extend the Missouri compromise line to the Pacific, had been voted down in the House by northern votes, the Oregon bill was finally passed in 1848, with the proviso of the ordinance of 1787 against slavery, the South voting in a body against its passage – not because they expected slavery to go there, but because they wanted the Missouri line of compromise extended to the Pacific.

In 1846 and 1847 the slavery agitation raged fiercely in the nation and in Congress upon the question of applying a slavery prohibition in the form known as the Wilmot proviso to all the territory to be acquired from Mexico under the treaty, the negotiations for which were then pending. The Wilmot proviso was voted down, and the treaty was consummated Feb. 2, 1848, and Mexican territory, embracing California, Utah and New Mexico was acquired without prohibition of slavery, but the territory was free under the Mexican law, and all Mexican inhabitants who should elect to become citizens of the United States, were entitled to become so at the proper time to be judged of by Congress, and to be incorporated into the Federal Union according to the principles of the Constitution.

At the commencement of the session of the XXXIst Congress in 1849, the slavery agitation had reached a degree of intensity before unknown. The territory acquired from Mexico, in consequence of this agitation had been left without civil government. California, full of northern emigrants in search of gold, had in the absence of any action of Congress, exercised her inherent right of self-government and formed a State Constitution prohibiting slavery, and was asking admission to the Union. Utah and New Mexico were ripe for territorial governments. The Texan boundary was unsettled. The South was opposing the admission of California as a Free State and insisting on its division, and demanding the distinct legalization of slavery in the territories south of the Missouri line of 36 deg. 30 min., and the extension of that line to the Pacific, and demanding also a more stringent fugitive slave law, and the North was demanding the admission of California and the establishment of the Wilmot proviso over all the territory to be organized, and demanding also the immediate abolition of slavery in the District of Columbia.

The contest for speaker in the House continued from the 3d to the 22d December, 1849, resulting in the election of Howell Cobb over R. C. Winthrop. So ominous of trouble were the signs of the political sky, that President Taylor, in his annual message, took occasion to caution the Congress against the introduction of topics of a sectional character, and to repeat the solemn warning of Washington against furnishing any ground for characterizing parties by geographical discriminations.

The history of the legislation of 1850 is too well known to need detail here. It resulted in another compromise, by which six important measures all involving the slavery question were adopted. These were

1. The admission of California as a free State.

2. The settlement of the Texas boundary, limiting its northern line to 36 deg. 30 min.

3. The formation of territorial government for Utah, and

4. The like for New Mexico.

5. The abolition of the slave trade in the District of Columbia, and

6. The Fugitive slave law.

California, Utah, New Mexico and Texas all embraced territory on both sides of the Missouri Compromise line. California was the first State south of that line that had ever asked for admission to the Union with a Constitution excluding slavery.

The cardinal feature of the Compromise of 1850 was the abandonment of a geographical line to separate free and slave territory, and the distinct recognition of the principle of non-intervention by Congress with slavery. The compromise in terms recognized the right of the people of the territories to be admitted to the Union with or without slavery as they might desire – that was its very essence as distinguished from the Compromise of 1820.

The principle of non-intervention in the territories had been logically involved, in the national platforms of the democratic party since 1840, but it had never until 1850 received the direct sanction of the Congress.

The legislation of 1850 must be regarded as one of the most memorable events in our constitutional and political history. It received the aid and sanction of some of the ablest and wisest statesmen the nation has ever known. – There were men in the Senate taking part in the controversy that resulted in the compromise, whose political lives had commenced when the fathers of the Republic were ruling its affairs. Clay, Benton, Webster and Calhoun were there, and the South and the North alike were represented by their ablest men. It had become their high duty to settle by an enduring principle the future policy of the nation as to the organization of territorial government for the national domain, and as to the admission of new States. The antagonisms of the North and South, fostered on the one hand by the spirit of abolition, and on the other by the spirit of slavery extension; and still more fostered by the long continued and unconstitutional attempts of Congress to deal with the question, by splitting the difference between the contending sections, could no longer be reconciled by a boundary line. With every fresh acquisition of national territory, the zeal of the contending power overleaped the congressional boundary, and demanded more for its own sectional policy.

In the Congress of 1850 the Northern or Free soil party insisted on the absolute prohibition of slavery in all the new territory acquired from Mexico. They were able as they had been before when Mr. Douglas proposed, and the South voted for it, to vote down the project of extending the Missouri Compromise line to the Pacific. The South with such Northern men as were opposed to the Wilmot proviso, were able to defeat that. Neither the Missouri Compromise nor the Wilmot proviso could be carried. – The "irrepressible conflict," long encouraged by selfish political schemers or over-zealous, if not fanatical theorists, had reached a crisis, and the nation looked on in fear.

Then it was that the great and patriotic men who carried the compromise of 1850, said to the South and to the North, we will henceforth make no line over the national domain to mark out the boundary between Free States and Slave States. Before the law of the Constitution, both Free States and Slave States are equal. The territory of which we are the trustees belongs neither to Northern institutions, nor to Southern institutions. We will not interfere, for we have no right to interfere, to give it exclusively to either. It is now free territory by the Mexican law. We will not extend slavery over it, nor will we exclude slavery from it; but we open the territory to citizens of all the States alike. It is their common property. The land is all before them where to choose; let them go in with their wives and their children, their men servants and their maid servants, their goods and their cattle, and the stranger that is within their gates, and form such domestic institutions as may suit their wants and desires, consistent with republican government and the Federal Constitution, which is for them, as for us, the supreme law. Let the people, who are to constitute States in all that wide domain, decide for themselves, for they will best know, what fundamental or temporary laws they want, and the Federal government will protect them in their free choice. When they come to us matured, as California now is, into republican States, we will admit them to our common Union on an equal footing with the original States in all respects whatsoever, "with or without slavery, as their Constitution may prescribe at the time of their admission."

Here at last was found the true solution of the question of slavery in its relations to the Federal government, and it was adopted by the Congress and accepted by the nation; for both the Democratic and Whig parties, then the great dividing political parties, united upon it as common ground in the presidential canvass of 1852. One party, however, styling itself the Free Soil Democracy, the remnant of the party that had in 1848 supported Martin Van Buren for the presidency upon the Buffalo platform of "no more Slave States – no more Slave Territory," did meet in convention, at Pittsburgh, on 11th August, 1852, to denounce in no measured language the compromise of 1850 and slavery in general. I notice this party now only to refer you at your leisure to its platform, and to ask you to note that the President of the Convention was Henry Wilson of Massachusetts, and its nominees for President and Vice-President were John P. Hale of New Hampshire, and George W. Julian of Indiana. Two of these gentlemen are now Republican Senators in Congress, and the third, Mr. Julian, a member elect from Indiana to the House of Representatives in Congress. These gentlemen were known in 1852 as Free Soil Abolitionists, in 1860 they are known by the more fashionable and pleasant-sounding name of Republicans.

The principle of non-intervention, on which the compromise of 1850 was based, was in itself so simple, so just, so consistent with the Constitution and the democratic theory of our institutions, that it could not but prevail. Out of 3,143,679 votes cast for President in 1852, Mr. Hale received 155,825, leaving 2,987,854 as the popular vote in favor of the compromise of 1850.

I rejoice to know that in that great struggle to establish sound and enduring constitutional principle, to rule the Federal government on the question of slavery, the Whig party and its noble old leaders, were as they had ever been, on the side of the Union and the Constitution. The compromise of 1850 was with Webster and Clay the crowning achievement of illustrious lives, and having accomplished this great work, they soon —

"Sustained and soothed by an unfaltering trust,

Drew around them the drapery of the couch of death,

And laid down to pleasant dreams,"

full of years and full of honors.

The compromise of 1850 touched the true principle of dealing with slavery, but it was not a perfect work. It left upon the statute book of the nation, legislation still operating over United States territory, directly opposed to the principle of non-intervention, which the nation had almost unanimously approved. The principle of the compromise of 1850, and the principle of permission or prohibition involved in a geographical line to divide Free and Slave States, were directly inconsistent with each other, and sooner or later this inconsistency had to be met and removed. For the Congress to say, as they did in the compromise of 1850, that the people of Texas, Utah and New Mexico, should be admitted to the Union as Free States or as Slave States, as they might choose, and at the same time to affirm as they did by retaining, or at least not formally erasing, the Missouri compromise line and the Oregon prohibition, that the people of Kansas, Nebraska and Oregon, and all the north-west territories should come into the Union as Free States or not at all, was a glaring inconsistency, and discrimination, not in favor of the North, but in favor of the South. Men in Oregon wanting domestic slaves could not have them. Men in Utah and New Mexico wanting slaves could have them or not, as they pleased. One man in the nation was found able enough, and brave enough, and patriotic enough to grapple with this question and bring it to the test, and carry out to its logical results the doctrine of the compromise of 1850; and that he bore himself bravely and well through the trying ordeal, and against fearful odds, even his bitterest foes must admit.

Stephen A. Douglas, of Illinois, was but 37 years of age when he stood in the United States Senate, one of the ablest of the supporters of the compromise of 1850. His own hand had drawn the bills to admit California as a Free State, and to organize Utah and New Mexico. Among the venerable princes of the Senate, he was their equal, and Henry Clay, the noblest Roman of them all, moved by Mr. Douglas' magnanimity on that occasion, pronounced him to be "the most generous man living."

In 1854 Mr. Douglas carried through the Congress of the United States and through a parliamentary warfare, in which no other man than he could have triumphed, the bill to organize the territories of Kansas and Nebraska, declaring inoperative and void the Missouri geographical compromise line, and affirming the true intent and meaning of the Kansas and Nebraska act to be, "to leave the people of any State or territory perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."

In this short "stump speech in the belly of the bill," as Thomas H. Benton and Republican orators after him have, by way of ridicule, been pleased to call it, is the key to the law which must ever govern its true interpretation, and it puts to the rout all the arguments that have been made to prove that non-intervention and popular or territorial sovereignty are not in the Kansas and Nebraska bill, except in small fractions.

A measure so radical and far-reaching as the formal annulling of the Missouri compromise line, could not fail to meet at first with terrific opposition. It broke in on old habits and ways of thinking – it stirred up men's opinions to the roots – it took thought from the surface and forms of things to their substance – it brought democracy to the test. It put to the nation the pregnant questions: Are the rights of white men and black men, the claims of freedom and humanity to be trusted to the white men of the American territories, as well as American States, or are they not? Are free white American citizens in American territories, as well as American States, competent to decide the question of African slavery or not? Are they competent to govern themselves or not? It did more than this; it laid the ax of Anglo-Saxon democracy at the root of the tree of African slavery.

No man was more sincerely opposed to the annulling of the Missouri compromise line than myself; but I am free to say, that with my prejudices in favor of freedom and Free States, and the reputed sacredness of the Missouri line, I did not look on both sides of the question. I condemned Mr. Douglas and I condemned him unheard. I have endeavored to retrieve that error by a more thorough examination, and I am now convinced that he was in the right and his opponents were in the wrong, and to that conviction will the nation come at last.

The defeat of Fremont and the condemnation of the Republican or Philadelphia platform of 1856 by a majority upon the popular vote of 1,371,430 votes, was an unequivocal endorsement by the people, not only of the compromise of 1850, but of the Kansas and Nebraska bill in its erasure of the Missouri line. Had James Buchanan been a wise statesman and a patriot, as I fear he is not; had he carried in his veins "a single drop of democratic blood," Kansas under the operation of the principle of non-intervention by Congress, and intervention by its own people with the question of slavery, would now have been a Free State within the American Union, the first trophy of legitimate popular sovereignty, and a great national party with Stephen A. Douglas at its head would have been existing and triumphant, standing upon firm constitutional ground, knowing no North and no South, but regarding and protecting equally the constitutional rights of all the States.

But it was not at once so to be. Mr. Buchanan and Southern statesmen of ultra views, aided by a few Northern politicians, were infatuated enough to suppose that the two-edged sword of popular sovereignty that was sheathed in the Kansas bill, was to be wielded by the Federal administration, and not by the people of Kansas, and made to cut but one way and that way in favor of slavery. And they were equally infatuated when they found that they could not force upon the people of Kansas the fraudulent Lecompton Constitution, to suppose that the power of self-government, which had been conceded to the people of the territories, could be nullified by the dogma of the sovereignty of the Supreme Court.

Mr. Buchanan and his compeers should have known before they passed the Kansas bill, that when the people of an American State or territory once laid their hands upon the power to form and regulate their domestic institutions in their own way, they held the power upon which free institutions and slave institutions alike rested in the American States, and that that power and its free exercise could never be taken from the people by any Supreme Court or the dogma of any political party, and any systematized attempt to take it away would be met by resistance that would shiver the Union to fragments. The sovereignty of the people or true democracy, like the elements of fire and water, is a gentle and a genial thing, when the hand of representative government rests kindly upon it, but if that hand dares to essay a wrong, then will the power of the people become like the burning lava of the volcano, when its pent-up fires escape, or the resistless waves of the ocean, when the storm moves over its depths. The courts may guide and direct and check the popular will, but when a great political idea, like that of the rightful sovereignty of the States, either in the Union or in the territories, has taken root and settled into a well-defined opinion in the popular mind, the courts must let it alone; it is for them then to follow the popular will, not to lead it. Law is the voice of the people. Let the courts that assume to be the oracles of the law, see to it that they mistake not the people's voice, especially on those great political questions that touch the fountains of a nation's life.

The attempt of Mr. Buchanan's administration to force slavery upon Kansas by means of the Lecompton Constitution, against the real sentiment of the people, and against the true intent and meaning of the organic law of Kansas, and failing in that, the attempt to override the principle of popular sovereignty, by means of a false construction of the Dred Scott decision, roused to renewed zeal and combined all the Northern elements of opposition to slavery, and in the excitement of angry passion that has followed, the great compromise of 1850, and the true character of that measure, and its legitimate consequent, the erasure of the Missouri compromise line, have been obscured in the public mind, and both have lost their hold upon the calm judgments of the people. Why is this? Are not the laws that now stand upon the statute book of the nation, as the compromise measures of 1850, the same as they were in 1852, when they were endorsed by nearly 3,000,000 of votes – almost the unanimous vote of the nation? Is the law of the Kansas and Nebraska act, annulling the Missouri compromise line, a different law from what it was in 1856, when it was triumphantly sustained against Fremont and the Philadelphia platform? No man can say the laws are not the same. As they were then, so are they now. If right in principle and good then, they are equally right and good now. Were the people senseless or did they mean nothing when they endorsed those laws? No man dare say that. Why is it then that the Democratic party, which triumphed in 1852 and in 1856 on these very measures, is now a divided and broken army and almost panic-stricken, and its opponents, the advocates of Congressional prohibition of slavery, with a man at their head without a record as a statesman and almost unknown to the nation, carrying in their train all the fiercest elements of anti-slavery agitation, are already boasting of sure success? No satisfactory answer can be given to these questions, except the fact that the administration of James Buchanan, false to the principles on which it was placed in power, has attempted by intervention in favor of slavery, to destroy the very principle which is the life of the compromise of 1850 and of the Kansas and Nebraska law of 1854. Those great measures and their ablest and most consistent champion, have alike been stabbed in the house of their friends. By the course of the Buchanan administration, the people of the North have been made to believe that the principle of non-intervention is a sham; that the compromise of 1850 and the erasure of the Missouri line in 1852 were fraudulent schemes to cheat the people into a consent to extend slavery all over the national territory; and the cry is echoed all through the North: the nation's plighted faith is broken, the landmarks of freedom are removed, the barbarism of slavery will spread over the land! Is there reason in this cry, for argument it cannot be called? There is none. Why the very fact that the acts of the Federal executive have had power to produce this strange delusion and wild commotion of the public mind, is itself a potent argument for holding fast to the principle of the compromise of 1850, and rallying the people again to its support, so that the President and the Congress may no longer disturb the people by tampering with the local question of slavery. Again I say, there is nothing in this cry of the extension of the barbarism of slavery; it is as senseless as it is dangerous to the nation's peace. All that is is done by the legislation of 1850 and 1854, is to establish a governing principle in regard to slavery in the territories, which is exactly the same as the principle which governs slavery in the States under the Constitution. The laws of 1850 and 1854 plant slavery no where, nor do they extend it any where into the national domain. They leave the national territory free.

What better authority can we have on this point than that of Henry Clay, whose influence perhaps as much as that of any other man, helped to carry the compromise of 1850? Did he mean in voting for that compromise, by which the principle of non-intervention was adopted as to territory both North and South of the Missouri compromise line of 36 deg. 30 min., to extend slavery into such territory? Hear what he said on the question in the Senate of the United States. He said in answer to a demand of Jefferson Davis for a positive provision for the admission of slavery south of the Missouri compromise line: – "Coming as I do from a Slave State, it is my solemn, deliberate and well-matured determination that no power – no earthly power – shall compel me to vote for the positive introduction of slavery either south or north of that line. Sir, while you reproach, and justly too, our British ancestors for the introduction of this institution upon the continent of America, I am, for one, unwilling that the posterity of the present inhabitants of California and New Mexico shall reproach us for doing just what we reproach Great Britain for doing to us. If the citizens of those territories choose to establish slavery, I am for admitting them with such provisions in their constitutions; but then it will be their own work and not ours, and their posterity will have to reproach them and not us, for forming constitutions allowing the institution of slavery to exist among them." In the same paragraph, Mr. Clay further says, "I believe that slavery no where exists within any portion of the territory acquired by us from Mexico." So much for the testimony of Henry Clay! Now, who shall say that the compromise of 1850 was a law to extend slavery over the free territory covered by it? and if not, then for the same reason, the Kansas and Nebraska act was not a law for extending slavery over the free territory north of the Missouri line. What the law of 1850 did for the territory acquired from Mexico, the same did the law of 1854 do for the Louisiana territory acquired from France. No man can show a substantial difference, except that the Kansas and Nebraska law more clearly recognizes the right of the people to decide the question of slavery. Again, I would ask of the men who make this cry of the extension of slavery, to answer in candor: If the Missouri line was a landmark for freedom, was it not also a landmark for slavery? Was not the country south of 36 deg. 30 min., under the law of March 6th 1820, as impliedly devoted to slavery as the country north of it was to freedom? Up to 1848, when California, to which northern men had been led, not more by the love of freedom than by the lust of gold, had declared herself a Free State, had a Free State ever been made south of the Missouri line? Was it not the almost sure result of that line to prevent men who favor Free States from going south of it to demonstrate by experience that Free States could grow and prosper even in a southern clime? Had free labor a fair chance to raise its standard in the south, and try its strength beneath a burning sun, so long as Congress had virtually doomed the land of the south to slave labor, by declaring that the region of free land and free labor was north of the Missouri line? Is it not slavery rather than freedom that needs the protection of positive law? Does the north, guarded as it is by nature's irrepealable law, and by the self-poised and self-reliant strength of its freeborn sons, need the Federal power to guard its soil from the feet of slaves? Is slavery more progressive and expansive than freedom? and are the men who form Free States afraid to meet the men who form Slave States on common ground and take an even chance for control? In a word, do the men who build up free institutions need any thing more from the Federal government than that it should place in their hands the ax and the sword of democracy, and let them alone?