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