“Left entirely to the discretion of Congress” The Committee on Territories Weights in, Part One

 

Galusha Grow

Galusha Grow

The Senate took a look at the memorial to Congress that James Lane brought back with him and Lewis Cass presented to the body. It took no time at all for the senators to recognize all the scratched out and rewritten bits of the memorial and the curious fact that all the signatures at the end came in the same hand. Clearly, Lane had perpetrated a fraud on the Senate of the United States. That he swore an oath to the contrary, and we know that the free state government actually did send him off with a memorial, didn’t matter. When he challenged Stephen Douglas to a duel for satisfaction, Douglas fobbed him off with senatorial privilege. Cass withdrew the petition and the Senate moved on.

It happened differently in the House, with its anti-Nebraska majority. They referred the report and its attached materials, including the Topeka Constitution, to the Committee on Territories on April 7, 1856. The Committee’s report doesn’t come dated in my version and I can’t find when they reported back, but it seems to have taken them at least into May. As usual, the Committee released a majority and minority report. They give us a useful window into what actual, if partisan, nineteenth century lawmakers thought of Kansas’ irregular situation.

Galusha Grow, a Democrat turned Republican from Pennsylvania, presented the majority’s findings. The accepted practice involved a territory organized by Congress, as Kansas and other places had been. That territorial government then received permission to write a constitution, which it did. It then forwarded the constitution to Congress, which approved or disapproved. Grow consideration of Kansas’ petition for statehood with a chronicle of past departures from that line that the Congress had seen fit to accept or overlook.

Of the eighteen states admitted to the Union, Grow’s committee reported that five skipped the territorial stage entirely. Among the thirteen others, five gained admission under constitutions they had no permission from Congress to write. Furthermore:

The power of Congress to admit States is of the most plenary character, and is conferred by the constitution (sec. 3, art. 4) in these words: “New States may be admitted by the Congress into this Union.” The time, mode, and manner of admission, therefore, is left entirely to the discretion of Congress.

James Henry Lane

James Henry Lane

The conventional way of making states amounted to only that, a convention. Congress had no obligation to treat them as binding precedent, but could do as it liked. The letter of the Constitution demanded only that states have a republican government. If someone named themselves King of Kansas and asked for admission, Congress would have to tell them no. Whatever high opinions they might hold of themselves, no one in Kansas seems to have thought themselves royalty. So did Kansas have a republican government? If so, Congress didn’t have to make it a state but might do so if that appeared the best course for Kansans and for the nation.

Grow noted that the territorial form of government denied the people the full range of self-governance that state possessed in the American system. They could not choose their governors and the Congress had a full veto over any enactments of their legislature. The plight of the initial settlers:

few in numbers, and widely separated […] contest[ing] with the savage and the wild beast, the dominion of the wilderness, and […] not of sufficient numbers, strength, or wealth to protect themselves alone against the uncivilized influences that surround them.

Hard times and meager means required federal subsidy, paying salaries, arranging the construction of public buildings, and otherwise facilitating the development of the territory justified “supervisory power.” Otherwise, Congress might end up on the hook for endless expenses and laws with which “it entirely disapproves.” One obviously couldn’t have that. The people who went to territories did not lose their capacity for self-governance or somehow diminish their moral strength, but they did put themselves in this situation willingly. They chose to leave states and hazard what the Congress might do with a territory.

But when the white settlers had the numbers and the money, and wanted it, they could upgrade to a state government. When they could, Grow’s report averred, they ought to as

there is no longer any occasion for the guardianship of Congress, and no reason why their request should be delayed or refused.

Editing, Liars, and Almost a Duel: The Free State Memorial to Congress, Part Two

Stephen Douglas

Stephen Douglas

James Lane came to Congress in April of 1856 with a memorial in hand from the Topeka legislature. It explained that repeated abuses and usurpations of the rights of white men to set their own institutions, rights promised to them by the Kansas-Nebraska Act, had driven the free state men to the extremity of setting up their own state government. The Congress ought to see foot to admit that government to the Union as the sole, legitimate government of Kansas.

Nobody could have expected this to go well, but a shift of just a few senators might have sufficed to get something done. The Congress already had Kansas settlements under discussion, a topic which I plan to return to in future posts. Michigan’s Lewis Cass, the original popular soveriegnty booster, presented Lane’s memorial to the Senate on April 7. Antislavery Kansans might have hoped for a warm reception from Stephen Douglas, who Lane knew from back in the day and on whose popular sovereignty ground the free state movement made its stand.

James Henry Lane

James Henry Lane

The Little Giant would have none of that. He looked over the memorial and called out some curious traits. Someone had crossed out passages and written in others, hardly the mark of a fine state paper suited for a grave situation. Maybe your high school English teacher would let that slide in moderation, but the United States Senate had to wonder if the men who put their names on the memorial had seen the final version. Did someone collect the signatures and then alter the text? Had someone (read: Lane) edited things after the fact to make the memorial a better fit for the political circumstances in Washington? For that matter, why did all the signatures appear in the same handwriting? Just what was James Lane trying to pull?

Lewis Cass

Lewis Cass

Douglas laid out the faults and decided that Lane had come to the Senate with an amateurish fraud. Lane explained that the alterations happened with the approval of Governor Robinson, and the handwriting came from simple re-copying because the original signature page had gone missing. Everybody really signed it; trust him. To prove the point, Lane took an oath administered by a justice of the Supreme Court that he transmitted to the Congress a genuine memorial.

Stephen Douglas called Lane a liar. Lane demanded satisfaction on the field of honor. Douglas wrapped himself in senatorial privilege and refused Lane’s challenge. Lane accepted the refusal in ill grace, implying that Douglas really refused on grounds of cowardice. Few found Lane’s oath or his challenge persuasive. The Senate rejected the Topeka memorial on a party line vote.

Real Fears From Abroad

A cartoon attacking the Catholic Church's perceived attempt to "take over" American life

A cartoon attacking the Catholic Church’s perceived attempt to take over American life, via the Library of Congress

Protestant America, especially the sort with a Puritan pedigree, had a long folk memory of Catholic misdeeds. The fact that Protestants back in the Reformation behaved just as monstrously toward Catholics as Catholics did toward Protestants did not really enter into it. The Catholics, they believed, had it coming. Liberal-minded immigrants fleeing the reactionary crackdown in Europe could remind Americans of an older vintage of just that and supply new reasons that those awful thralls of Rome deserved steadfast opposition.

America, of course, already had native Catholics. But their small numbers, outside of certain locales, did little to draw Protestant fears. Louisiana stood no chance of somehow seizing control of national institutions for itself and the Pope. All of these new immigrants, however, could very well turn New York, or Massachusetts for that matter, Catholic. Would it stop there or would the whole nation soon bow, or be made to bow, to Rome?

The Know-Nothings’ fears had a great deal to do with simple bigotry, but they could point to more than phantoms to make their case. The Catholic church did, by and large, side with established reactionary regimes instead of liberal reformers over in Europe. Nor did anybody look to the Papal States, where the Pope ruled outright on all matters civil and spiritual, as a model of liberal principles. In countries where Catholicism predominated, both in Europe and the Americas, it did little to endear itself to unbelievers. Allen Nevins reports that in the Senate, Lewis Cass (D-MI) condemned the treatment of Protestants in Catholic countries, near and far. He highlighted two cases in particular:

Lewis Cass

Lewis Cass (D-MI)

An American woman died in Cuba, which had no place to bury her. Protestant bodies would not sully Catholic cemeteries. For her, the community offered only a hole in the ground where the mortal remains of Protestants heaped on top of each other like a human compost pile. Burying her elsewhere would earn the guilty parties a hefty fine. Taking her from the island required permission that rarely came and would itself involve a large fine.

In the Grand Duchy of Tuscany, the Catholic regime afflicted the living as well as the dead. The Madiais, a married couple, rotted in a Tuscan prison for the crime of owning a Protestant Bible. Archbishop Hughes, of New York, defended Tuscany to Cass. The Grand Duchy had laws against this sort of thing. It had an established religion and prohibited wooing its subjects away from that faith. He would not quite defend the arrest itself, but changed the subject to the burning of a convent in Massachusetts.

With oppression abroad, local churchmen making excuses for it, and the tide of new Catholic immigrants, a person of a certain bent could see the nation easily going the wrong way. Right here in the United States, Irish parades had turned into riots. The Irish, a nineteenth century American could say with confidence, just did that kind of thing. Drunken hoodlums to a man, they menaced the person and property of every godly Protestant American. Fools as well, one could depend on them to riot at the drop of a demagogue’s hat. Moreover, they came dirty and full of disease. This European detritus clogged up the prison and poorhouse alike. Did America really want still more? Even if, by some miracle, they did not imperil the Republic with their Catholic ways, they demonstrated again and again unfit for and unworthy of inclusion in the American body politic.

Of course, native-born Americans could also show strong clannish streaks. They rioted quite often, generally in the same cities where the Irish did. Their ancestors too came with strange ways and alien religions. Past generations had driven Quakers from New England and, a bit later, out of the South. More recently, they had driven the Mormons west with great enthusiasm. Plenty of Americans, right up until 1854, would gladly tell you that abolitionists had the same pedigree of dangerous religious fanaticism. Some still would. More than enough, including those tarred with the same brush in past generations, would eagerly deploy the same arguments all over again against immigrants from “the armpit of Europe”, from Asia, from Latin America, from Muslim countries, and from anywhere else. Some segment of the American population appears to hold it as an article of faith that people come to the United States only to recreate every horror they knew on foreign shores.

The States Speak

Salmon P. Chase

Salmon P. Chase (FS-OH)

Most sectional disputes prior to Kansas-Nebraska involved something like a united South forcing its will on a divided North. The South had its own internal divisions that we should not ignore, but the common interest in preserving slavery usually trumped the North’s indifference to the subject. The South did not always win all that it wanted, and never pleased its radicals, but one can reasonably argue that Southern, proslavery interests prevailed more often than not. That only stands to reason. A committed minority that cares far more about its signature issue than its opposition often prevails in a democratic system. The rickety constitutional structure of the American republic, packed to the gills with anti-democratic measures proved an able accomplice. Had matters involved just what the House of Representatives preferred, the Wilmot Proviso would have sailed into law. The Senate changed all of that.

One might expect, given the reversal of the usual pattern, that the House’s plan to bury the Kansas-Nebraska act would have succeeded. The more united section would prevail over the less united. Probably the men in the House who voted to bury the bill expected something like that. With Nebraska wrapped up in the Missouri Compromise repeal from the get-go, future Congresses would have a far harder time bringing it back than Stephen Douglas had in pushing the bill through the Senate. The South would accept the loss and move on. Maybe Union-minded Southerners would even come around and vote to defeat the bill as one provocation too far and to show themselves Union men first and Southern men second.

Stephen Douglas

Stephen Douglas (D-IL)

Politicians with such hopes had good reason to hold them. In early 1854, as the Senate debated, ten free states had their legislatures in session. Only Douglas’ own Illinois could rouse itself to pass a resolution in favor of the Kansas-Nebraska act, and that with considerable pressure from his supporters. Only fifty of the legislature’s hundred members voted on the issue. Rhode Island condemned it unanimously. Maine, Massachusetts, and Wisconsin damned the bill by large margins. The New York legislature instructed its delegation directly to vote against Kansas-Nebraska. In the other five, Democratic majorities made their influence felt through inaction. Pennsylvania and New Jersey contemplated the issue, but refused to take a vote. Salmon Chase’s own Ohio kept the subject tabled, fearing reaction either way. The California Democracy, in firm control of the state, likewise opted for silence.

Lewis Cass

Lewis Cass (D-MI)

Other states did not have their legislatures in session, but voice their objections by other means. Connecticut, the conservative home of manufacturers with strong Southern business ties, saw its state conventions for both parties vote anti-Nebraska resolutions through. In Pierce’s own New Hampshire, which held the first election after the bill came before the Senate, the Democracy’s majority in the governor’s race dropped by two-thirds and the party lost its House majority of 89. Pierce insisted that Nebraska had nothing to do with the result, which would have surprised the voters. The Pennsylvania Democratic convention let Douglas down too, resisting pressure to toe the administration line. In Detroit, home of Mr. Popular Sovereignty Lewis Cass, elected an anti-Nebraska Whig mayor by the kind of margin that the Democracy customarily enjoyed. The town’s Democratic paper, the Times, insisted that Michigan stood against Nebraska and if the Little Giant’s bill passed, there would be hell to pay.

To answer all of that, and more, the South responded tepidly. Georgia and Mississippi endorsed the bill. The Tennessee Senate came just short, endorsing its principles but not Kansas-Nebraska itself. Alabama, Kentucky, Louisiana, Maryland, and Texas opted for the same silence that Pennsylvania, Ohio, and California chose.

The Ambiguity of Popular Sovereignty, Part One

Lewis Cass

Lewis Cass (D-MI), originator of popular sovereignty

Looking at Kansas from the South, suppose the terrain does suit slavery. Suppose it would house profitable hemp plantations, even if more lucrative opportunities existed further south in Arkansas and Texas for cotton. Suppose Douglas got his bill through. That meant the South won, right? Popular sovereignty would permit slavery to rush in, end of story. From Kansas it could flood into modern Nebraska, not all that much farther north. If slavery went to Kansas, it would surely go to any territory west of it organized later. Then, as Chase foretold, Douglas’

criminal betrayal of precious rights; as part and parcel of an atrocious plot to exclude from a vast unoccupied region immigrants from the Old World, and free laborers from our own states, and convert it into a dreary region of despotism, inhabited by masters and slaves.

Whatever the practical chances of the whole of the Great Plains falling to slavery, free soil men really believed that. The proslavery men also understood the Kansas-Nebraska bill as a portentous event. Here they could turn history around and undo ancient wrongs. They could strike out the stain on slavery and the honor of the slaveholding class that Thomas Jefferson put on them by hedging them out of the Northwest Territory, then compounded by the Missouri Compromise, by free California, by Northerners flouting the Fugitive Slave Act. A litany of defeats that each reaffirmed slavery as somehow toxic could end and a new sequence could begin announcing the virtues of a slaveholding culture. For Douglas, who remained indifferent and uninterested in slavery, the great principle of self-government hung just as much in the balance.

Senator William H. Seward (Whig-NY), Taylor's antislavery friend and advisor.

William H. Seward (Whig-NY)

That knowledge, combined with the anticipation of epic fireworks, emptied the House so its members could sit in the gallery and listen to Douglas hold forth. It drew the eyes of the nation. Never ones to underestimate their importance, Douglas’ fellow senators felt much the same.  Standing at the pivot point of history, William Henry Seward, the New York Whig who led the ailing party declared:

We are on the even of a great national transaction, a transaction that will close a cycle in the history of our country.

The elder statesmen that had dominated the Senate for decades: Clay, Calhoun, Webster, and even Benton had left the body. All save Benton had died. While Douglas, and many of the others, had played roles in the storm in 1850 they had done so in the shadows of giants now gone. They had before them the first great sectional struggle to resolve all on their own. Some historians, and commentators at the time, blamed that generational turnover for the disaster that ensued as if the 1850 club could have done better. But Kansas-Nebraska did not mean 1850 came again. Four years passed full of fugitive slave rescues, Uncle Tom’s Cabin, and other controversy that did much more to alienate the sections.

Still, one thread remained the same: In 1850, Douglas and Lewis Cass promised that popular sovereignty would solve the slavery issue in the Southwest. Then, as in 1854, they declined to say just when it could do so.

The Kansas-Nebraska Act: Delay

Stephen Douglas

Stephen Douglas

Stephen Douglas had his bill. The next day, January 24, 1854, the Little Giant leaned on the Senate to get it considered. He complained that many Senators had not read his work, insisting that they had two weeks to mull it over and neglecting to mention the drastic revisions that took place in those two weeks. Ohio’s Salmon Chase, one of the two Free Soilers in the Senate rose to call Douglas out on that:

I hope the Senator from Illinois will not press the consideration of this bill this morning. As introduced originally by the Senator from Iowa, [Mr. Dodge] it was a simple bill which was presented to the Senate for its consideration at the last session.

Douglas knew that, of course. He wrote the bill, introduced it, and argued for its adoption in the final day of the 32nd Congress. But Douglas had to pretend he made only trifling revisions to satisfy everyone. He would not win northern votes by playing up his explosive capitulations to slavery. Chase would not let him off that easily. He rightly said that the bill

Salmon P. Chase

Salmon P. Chase (Free Soil-OH)

has since undergone very important changes in the hands of the Committee on Territories, and been printed and laid on the tables of Senators embodying these changes. Only yesterday the committee changed the form of the bill altogether, and proposed to create two Territories instead of one, and also changed materially the provisions upon other questions of very much public interest; and the bill thus having been changed in fact into two bills, has only been laid on the tables of Senators this morning, and I presume no one has had an opportunity to read it. It involves very important matters, and I think that when we take it up it should be with a determination to proceed with it until it shall be disposed of.

Though Douglas presented the bill the day previous, it took time for the Senate bureaucracy to print it up and distribute a copy to each Senator. With the bill only on their desks that morning, it stands to reason that not every Senator would have read it. Douglas probably preferred it that way and hoped for a hasty vote. He tried it last Congress, after all.

Michigan’s Lewis Cass, once Mr. Popular Sovereignty, joined Chase’s motion:

would it not be better to let the bill lie over until Monday? It embraces important points about which there will be a great deal of discussion, and many gentlemen say they have not read the bill, and are not prepared to enter upon its consideration. It seems to me, therefore, that just comity requires that in so important a measure there should be no appearance of precipitancy, nor should any effort to force any gentleman to consider it when he is not prepared to be permitted.

Lewis Cass

Lewis Cass (D-MI)

Just the day before, when Douglas submitted the bill for printing, he himself called it a replacement for the previous bill. He couldn’t get away with claiming he had in hand the same measure that he wrote the previous March and which Augustus Caesar Dodge resubmitted in December after that. But his political circumstances dictated that with the deed done, he not draw attention to it. Even with his confession on Monday, Douglas kept up the fiction that his bill only repeated the repeal already done in 1850.

Indian Country and the Railroad

Thomas Hart Benton

Thomas Hart Benton

Missouri, at the exposed edge of the South with freedom on two sides and oddball demographics, disposed of its more atypical senator, Thomas Hart Benton, at the instigation of his nearly as atypical fellow senator, David Rice Atchison. For the moment, rather white, rather free, almost Northern Missouri cast its lot with the Lower South extremists. The apparent paradox of such a lightly enslaved state throwing in with the deeply enslaved states further south makes a certain amount of sense. Knowing Missouri slavery vulnerable, its advocates would naturally make themselves extremely vigilant and sensibly adopt the most extreme proslavery politics to deter their opponents and so both put themselves and their opposites on notice against hidden subversion like that which might hide behind Benton’s stand for silence on slavery.

But Benton’s almost free Missouri did not evaporate. He returned to Washington in 1853, representing St. Louis in the House. His supporters worked, without success, to repeal the Missouri legislature’s resolutions against him. But their efforts signaled that Benton had not closed the book on holding higher office again. Atchison would stand for reelection in 1855 and few things would please Old Bullion more than taking the seat of the man who took his away.

David Rice Atchison (D-MO)

David Rice Atchison (D-MO)

Benton and Atchison both favored a central route for the transcontinental railroad, and there the grudge match between them joins with the great sectional crisis that undid the Armistice’s finality after a mere four years. With the demise of the southern route, disposed of by Lewis Cass, Stephen Douglas, and Benton’s replacement Henry S. Geyer, any route chosen had to run through not Texas and organized New Mexico or Utah territory, but through Indian country. Per the Non-Intercourse Act of 1834, whites could not settle there. They couldn’t even trade there without a special license. They could not buy or hold land. They could only pass through on their way to the coast. All of that had to change for the railroad’s construction and, deeply connected in the minds of nineteenth century Americans, for the white race to fulfill its destiny by filling the continent.

Stephen Douglas

Stephen Douglas

Douglas had worked on organizing Indian country as Nebraska Territory since he first entered the House. He didn’t care one way or the other about slavery. Douglas wanted his railroad, his profits, and the advancement of his race. But where Douglas in the House failed, Douglas in the Senate could succeed. In 1852, on his third try, the Little Giant submitted a bill to recruit a volunteer military force to build a series of forts across Indian country, string a telegraph line, and support itself through farming. After three years, each man in the force would get a section of land on the route. The law did not pass, says something about both Douglas’ ingenuity and how badly he wanted the land settled.

Douglas had good reason to think the time ripe. By the fall of 1853, two groups of whites had ignored the prohibitions of the Non-Intercourse Act and settled in the area. A group of Missourians settled around Fort Leavenworth, amid the very army charged under the law to evict them. To signal their enthusiasm, they elected a slaveholding Atchison man as their delegate to Congress. They had no authority to do any such thing, of course. Nor did the Iowans who settled across the river from Council Bluffs and elected a free soil man to send to Congress. Both groups stood in blatant defiance of the law, but like the filibusters they took what they wanted and dared Congress to make them give it back.

The Nicaraguan Response to Paulding

Hiram Paulding, Walker's captor

Hiram Paulding, Walker’s captor

Hiram Paulding, Commodore of the Home Squadron, violated the sovereignty of Nicaragua. He launched a military expedition on Nicaraguan soil and seized from it William Walker and other assorted filibusters. What did Nicaragua say to that? On December 30, 1857, the Nicaraguan minister sent a letter to Secretary of State Lewis Cass with his nation’s answer to the Walker-Paulding affair. It came to Congress with the materials Buchanan sent and on January 21, Wisconsin Senator James Doolittle read a portion of it into the record:

The undersigned, in the name of the three Governments which he represents, returns thanks to the Government of the United States for having taken away the adventurer William walker, and his invading hand, from the point of which they had taken possession on the coast of Nicaragua; thus freeing those friendly countries from the evils with which they would have been visited, had these disturbers of the peace of nations been allowed the possibility of increasing their forces by new recruits. Those who, in the service which the Government of the United States has rendered to its friend, the Republic of Nicaragua, would seek fo a warrant to say that the Nicaraguan territory has been violated will hardly find it, from the moment that the world will have learned that the Government of Nicaragua, far from complaining of a violation of her territory, looks upon that act as an assistance, directed in her behalf of its inviolability, which was wounded, in effect, by certain adventurers from the United States; and that it considers such assistance, extended by this Government, as a consequence of the measures which, by his note of the 14th of September last, the undersigned had asked this Government to adopt, giving orders to the Navy o the United States to capture the violators of the laws of neutrality.

Nicaragua thanked the worried parties for their concerns over its sovereignty, but essentially invited Paulding and the Navy in to take care of Walker. They had Nicaraguan permission to come and leave to operate. However, the Nicaraguans must have had in mind that a future administration could drum up a pretext to defend Nicaraguan sovereignty and launch an invasion on its back. The note continued:

The point from which Commodore Paulding forced away those bandits, the violators of the laws of all nations, and, as such, justly assimilated, by the law of nations, to pirates and foes of mankind, is an almost desert one, on which there exist no Nicaraguan authorities that could have managed the apprehension of those felons. Nicaragua, therefore, considers that the proceedings of Commodore Paulding against Walker and his horde were entirely justifiable; for, as a man-of-war of any nation may take up pirates from a desert island, or one so thinly peopled that they can assert their dominion over it, although that island might belong to another sovereign nation, just so can bandits be apprehended, as enemies of the human race, by armed vessels of a friendly nation, on a point of a foreign coast, which may be placed under circumstances like to those of the island mentioned by way of illustration.

William Walker, the gray-eyed man of destiny

William Walker, the gray-eyed man of destiny

The filibusters, as the name indicates, amounted to pirates and what passed for international law in the 1800s certainly authorized action like Paulding’s against them. But the particular circumstances justified Paulding’s seizure. Nicaragua invited the US to stop Walker, not to stop by whenever it liked.

The letter also references a separate difficulty: Nicaragua claimed, but did not actually control, much of its east coast. The British claimed protectorate over it due in part to the number of recently freed slaves from the British West Indies who settled there. The Americans and Nicaraguans did not recognize the Mosquito Coast protectorate, but nor did the Nicaraguans rush to put their military where it might clash with the British. American intervention against a foe of the British faction in Nicaragua’s internal struggles amounted to the perfect solution. Paulding did not threaten the United Kingdom’s protectorate, removed a foe to British interests, and defended Nicaraguan sovereignty against that same foe. Everybody won, except William Walker and his supporters.

Hiram Paulding and the Law

Hiram Paulding, Walker's captor

Hiram Paulding, Walker’s captor

Having set out why he thought the Neutrality Act so important, aside from his duty to execute the laws, Buchanan’s January 7, 1858 message to Congress continued to lay out the pertinent legal details. Neutrality laws went all the way back to the 1790s and the chief provisions of the original, Washington-era, law remained in the then-current version. What constituted a violation of the Neutrality Act?

The military expedition rendered criminal by the act must have its origin, must “begin,” or be “set on foot,” in the United States; but the great object of the law was to save foreign States with whom we were at peace from the ravages of these lawless expeditions proceeding from our shores. […] In order to render the law effectual, it was necessary to prevent “the carrying on” of such expeditions to their consummation after they had succeeded in leaving our shores.

This has been done effectually, and in clear and explicit language, by the authority given to the President under the eighth section of the act to employ the land and naval forces of the United States “for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or domain of any foreign prince or States, or any colony, district, or people with whom the United States are at peace.”

That certainly sounds like Walker’s expeditions. It also sounds like Narciso López’s and John Quitman’s expeditions against Cuba. All set out with the avowed purpose of overthrowing a country at peace with the United States. All began in the United States. All had logistical and financial support from within the United States. Walker, like López and Quitman, clearly broke the law.

Why then did Walker’s arrest provoke such controversy? Expansionists might not have loved how Zachary Taylor intercepted López and his expedition. They admired that effort at least as much as Walker’s and wanting to steal Cuba amounted to a tradition in the movement. Nicaragua, while certainly desirable, had not occupied their imaginations nearly as often. Whence came the outrage? Aside the increasing radicalism of the late 1850s and the usual partisan rhetoric, they had reason to think Paulding acted improperly.

Senator James R. Doolittle (R-WI)

Senator James R. Doolittle (R-WI)

Senator James Rood Doolittle (R-WI, by 1858 we have Republicans in the Senate) described Walker’s capture:

I understand the President of the United States to assume, as an undisputed fact, that this expedition, of which Walker was the chief, was set on foot within the jurisdiction of the United States to make war against Nicaragua, a Republic at peace with us; that it was well known to the Government of the United States that this expedition was about to be carried on against Nicaragua; that the leader of this expedition was arrested by officers of the United States, but was discharged upon giving bail in the insufficient sum of $2,000; that soon after his discharge, Walker, with his command, embarked on board the steamer Fashion, a vessel of the United States, and sailing under the flag of the United States, and entered San Juan; and under the very guns of the Saratoga, a vessel of war of the United States, lying in the waters of San Juan, he was permitted to land upon the soil of Nicaragua; that immediately after landing, he commenced, and was actually engaged in carrying on, a lawless warfare against the people and the Government of Nicaragua; and that while he was so engaged upon the shores of Nicaragua, Commodore Paulding arrived in the harbor of San Juan, in command of the flag-ship Wabash; that after he arrived there, he immediately ordered General Walker and his command to embark on board such vessels as he should designate, and compelled them to embark and return to the United States.

Walker sailed from the US with an illegal filibustering expedition. He reached Nicaragua, passing a US warship to do so, and and landed there. Paulding sent some boats and Marines to block the advance of Walker’s little army up the river it planned to use, then maneuvered his ships to block retreat, and trained cannons on Walker’s camp. Walker got the hint and surrendered himself.

This presents a real problem of international law. By what authority did Paudling arrest Walker on Nicaraguan soil? True, the filibuster broke American laws. But he no longer stood on American soil or in an American jurisdiction. Technically speaking, Paulding invaded Nicaragua, occupied its coast, blockaded its territorial waters, and as he had no legal authority within the nation kidnapped people from its shores at gunpoint. Whether or not Paulding exceeded his instructions, he clearly violated international law.

In the service of their political aims, the expansionists suddenly found themselves defending Nicaragua’s aggrieved sovereignty against a rogue military man.

The Weird Adventures of William Walker #5

William Walker, the gray-eyed man of destiny

William Walker, the gray-eyed man of destiny

Hiram Paulding, Walker's captor

Hiram Paulding, Walker’s captor

William Walker’s later expeditions to Nicaragua justifiably don’t get the same attention that his successful conquest of the country does. He lost, after all. But one brought him to the attention of the United States Congress.

On December 8, 1857, Commodore Hiram Paulding, in command of the United States Navy’s Home Squadron, arrested Walker and hauled him back to New York. Commodore Paulding seized Walker for violating the Neutrality Act. Paulding did not take it on himself to go after Walker. Rather he had orders to do just that. In the ensuing debates over the capture, on January 21, 1858, the Congressional Globe quotes this letter, dated September 14, 1857:

The undersigned, Minister Plenipotentiary of the Republic of Guatemala and Salvador, and the Chargé d’Affaires of the Republic of Costa Rica, have the honor to make known to the Secretary of State of the United States, that there is no doubt that there is being prepared, in the southern part of this Republic, an expedition under the orders of the adventurer William Walker, the which, according to the advices published in the public journals, will sail about the middle of the present month, or the beginning of the next, and will proceed to Bocas del Toro, where it will receive the armament which has been prepared in this port of New York to be forwarded to said point. It is probable that the uniting of the expeditionists and the aforesaid armament, at Bocas del Toro, may be for the purpose of these new invaders of Nicaragua entering the port of San Juan del Norte, for they have no other port at which they can enter. The undersigned hope that the Government of the United States, in view that it cannot prevent the debarkation of this expedition, so publicly and shamelessly announced, like all the others, will order that a vessel of war of the United States Prevent the landing of these aggressors in the Bocas del Toro, and that positive orders be given to the vessel of war that may be lying in San Juan del Norte, also to prevent the landing of the said filibusters on that coast, causing them to return to the United States, as transgressors of the laws of this country, and as disturbers of the peace and security of friendly nations.

Lewis Cass

Lewis Cass

Four days later, Secretary of State Lewis Cass of popular sovereignty fame, put out a circular letter to the various naval commands:

From the information received at this Department, there is reason to believe that lawless persons are now engaged within the limits of the United States in setting on foot and preparing the means for military expeditions to be used against the territories of Mexico, Nicaragua, and Costa Rica–Republics with whom the United States are at peace–in direct violation of the sixth section of the act of Congress, approved 20th April, 1818. And, under the eighth section of said act, it is made lawful for the President, or such person as he shall empower, to employ the land and naval forces of the United States, and the militia thereof, “for the purpose of preventing the carrying on of any such expedition of enterprise from the territories or jurisdiction of the United States.” I am, therefore, directed by the President to call your attention to the subject, and to urge you to use all due diligence, and to avail yourself of all legitimate means at your command, to enforce these and other provisions of the said act of 20th April, 1818, against those who may be found to be engaged in setting on foot or preparing military expeditions against the territories of Mexico, Costa Rica, and Nicaragua, so manifestly prejudicial to the national character, and so injurious to the national interest. And you are hereby instructed to promptly communicate to this Department the earliest information you may receive relative to such expeditions.

Isaac Toucey

Isaac Toucey

When asked by another officer in a similar situation, Secretary of the Navy Isaac Toucey offered more detailed instructions:

American citizens have a right to travel and go where they please, when engaged in lawful pursuits, but not to violate the laws of their own or any country. They have the right to expatriate themselves and to become citizens of any country which is willing to receive them, but not to make that right a mere cloak and cover for a warlike expedition against it or its Government. Your instructions do not authorize you to act arbitrarily or upon mere suspicion. You will not seize an American vessel, or bring her into port, or use the force under your command to prevent her landing her passengers, upon mere suspicion. You will be careful not to interfere with lawful commerce. But where you find that an American vessel is manifestly engaged in carrying on an expedition or enterprise from the territories or jurisdiction of the United States against the territories of Mexico, Nicaragua, or Costa Rica, contrary to the sixth section of the act of Congress of April 20, 1818, already referred to, you will use the force under your command to prevent it, and will not permit the men or arms engaged in it, or destined for it, to be landed in any port of Mexico or Central America.

Paulding had orders to arrest Walker and did so with the blessing of both United States and Central American authorities. He had a clear basis in American law to do so. Walker’s own activities gave evidence beyond mere suspicion, as noted by the Central American diplomats in warning the State Department. But those facts settled nothing and the arrest provoked a major controversy, arising at length in Congress on January 7, 21, 28, and then again in April 8, 1858.