“This last appeal,” The Crime Against Kansas, Part 15

Charles Sumner (Republican-MA)

Prologue, Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14Full text

Charles Sumner told the Senate that they could deny Kansas’ free state movement its statehood only by bastardizing Michigan’s. Both states had wildcat constitutions and state governments that presented themselves to Congress and asked admission to the Union. If Michigan could come in to general approval, pending the revision of some boundary disputes, when why not Kansas? Nobody held it against Michigan that the state colored outside the lines a little bit, so any reasonable person could see that admitting the Topeka government as Kansas would come and go to no great harm. By contrast, denying it cast doubt on the wisdom of admitting the Wolverine State.

Sumner moved on to argue from principle as well as precedent:

the fundamental principle of American institutions, so embodied in the Declaration of Independence, by which Government is recognized as deriving its just powers only from the consent of the governed, who may alter or abolish it when it becomes destructive of their rights.

Stephen Douglas

The territorial government of Kansas prosecuted an organized campaign of destruction to the rights of antislavery whites, to say nothing of the rights of black Americans. It lacked the consent of the governed, who attended the free state polls regularly but largely ignored the government’s elections. By the American creed, Kansans had every right to cast it off and make their own. Nowhere in the Declaration of recent history could Sumner find an American precedent for choosing the other path, to endorse tyranny over whites as a principle for the foundation of government. He could find one only by looking abroad, or across the Senate floor at Stephen Douglas.

Douglas and the other proslavery men in the Senate stood, Sumner argued, on the ground of the Holy Alliance,

which declares that “useful and necessary changes in legislation and in the administration of States ought only to emanate from the free will and the intelligent and well-weighed conviction of those whom God has rendered responsible for power.”

Sumner put this principle against the Declaration “and bid them grapple!” With the propositions carried forth by Seward’s bill for free Kansas and Douglas’ for the proslavery government, they needed too the grapple on the floor of the Senate. In an era that took political contention as a source of popular entertainment, some constituency probably existed which would delight in seeing Seward and Douglas literally throwing each other around.

William H. Seward in 1851

From that metaphor, Sumner moved on to his summation. He repeated his insults against Butler, “incoherent phrases, discharged the loose expectoration of his speech,” and lines about South Carolina’s “shameful imbecility from Slavery”. Then Douglas came in for a review, adding “the superior intensity of his nature.” Sumner checked in with James Mason over the Fugitive Slave Act before finishing:

The contest, which, beginning in Kansas, has reached us will soon be transferred from Congress to a broader state, where every citizen will be not only spectator, but acting; and to their judgment I confidently appeal.

In other words, vote Republican in 1856 and this problem will get sorted

In just regard for free labor in that Territory, which is sought to blast by unwelcome association with the slave, whom it is proposed to task and sell there; in stern condemnation of the Crime which has been consummated on that beautiful soil; in rescue of fellow-citizens, now subjugated to a tyrannical Usurpation; in dutiful respect for the early Fathers, whose inspirations are now ignobly thwarted,; in the name of the Constitution, which has been outraged-of laws trampled down-of Justice banished-of Humanity degraded-of Peace destroyed-of Freedom crushed to earth; and in the name of the Heavenly Father, whose service is perfect Freedom, I make this last appeal.

“They cannot afford to be generous or even just.”

Charles Francis Adams

The Senate gagged Charles Sumner, denying him the customary permission to speak on behalf of a motion he presented for the repeal of the Fugitive Slave Act. The man with three backbones had shown his backbone at last. His fellow senators, citing their parties’ commitment to the finality of the Compromise of 1850, told Sumner that he shouldn’t take this personally. They had to do what they had to do, just as he did in bringing the resolution to the floor to begin with. Before the vote, Sumner had every expectation that he would speak. He got on well with Southern men. His oratory had won praise before. Senate custom stood on his side. In rising to ask the chamber to take up his resolution, Sumner got in his only words on the subject:

As a Senator, under the responsibilities of my position, I have deemed it in my duty to offer this resolution. I may seem to have postponed this duty to an inconvenient period of the session; but had I attempted it at an earlier day, I might have exposed myself to a charge of a different character. It might have been said, that, a new-comer and inexperienced in this scene, without deliberation, hastily, rashly, recklessly, I pushed this question before the country. This is not the case now. I have taken time, and, in the exercise of my most careful discretion, at last ask the attention of the Senate. I shrink from any appeal founded on a trivial personal consideration; but should I be blamed for delay latterly, I may add, that, though in my seat daily, my bodily health for some time past, down to this very week, ash not been equal to the service I have undertaken. I am not sure that it is now, but I desire to try.

Did you hear that, William Lloyd Garrison? Sumner had good reasons to delay, including personal illness. David Donald, citing Sumner’s letters, names the sickness as diarrhea and attributes it to Sumner’s nerves. He might have the right of it. One doesn’t want to give a lengthy speech while cramped up or likely to have dire need of a recess midway through. Now, at last, and against his better judgment given continuing infirmity, Sumner would speak. The Senate need only let him and they would hardly refuse a man who deliberated so long and confessed to such a weakness.

But they did, blindsiding Sumner. Charles Francis Adams wrote Sumner on August 1 explaining how he had gone wrong:

The result at which you arrived is not in the least surprising to me. You are in your nature more trusting than I, and therefore expected more. Where slavery is concerned I have not a particle of confidence in the courtesy, honor, principles, or veracity of those who sustain it, either directly by reason of selfish interest, or more remotely through the servility learned by political associations. In all other cases I should yield them a share of confidence. I should not, therefore, had I been in your place, have predicated any action of mine upon the grant by them of any favor whatever. They cannot afford to be generous or even just. If you can get even that to which you have a clear right, you will do pretty well; but to get it you will have to fight for it.

Adams spoke from experience, both in his own career and upbringing and as a Northern man in general. To a significant degree, the political progress of the free states during the last decade of the antebellum involved their moving from an innocence like Sumner’s, or at least an indifference, to a hardened awareness like Adams already preached in 1852.

“By God, you shan’t.” Gagging Charles Sumner

Charles Sumner (Free Soil-MA)

Charles Sumner might have endured William Lloyd Garrison’s criticism. He might even have ignored the effect it may produce among Garrison’s voting supporters. But Sumner liked being subject to public opprobrium no more than anyone else. When the mastermind of the Free Soil-Democracy coalition, Henry Wilson, started bending his ear Sumner had to act. He planned to speak last on slavery, giving himself time to learn the ways of the Senate and polish up his debate chops. That might have made sense on a personal level, but also made for bad politics at a time when Sumner’s movement could not afford them.

Back in Massachusetts, the Free Soilers did their part in helping the Democracy pass its reform laws. The Democrats, however, failed to hold up their end of the coalition bargain by passing a personal liberty law that Sumner helped write. Nor had they passed resolutions against the Fugitive Slave Act or do anything else to advance the cause of antislavery in the Bay State. As the months wore on, it looked increasingly like only Sumner’s election had come of a fraught coalition. In a situation like that, Palfrey’s argument that they ought not to have done it to begin with must have carried some force.

Realizing he had to do something, Sumner acted on July 27. Going back to his promise of immediate repeal for the hated Fugitive Slave Act, he rose and offered a resolution:

That the Committee on the Judiciary be instructed to consider the expediency of reporting a bill for the immediate repeal of the Act of Congress, approved September 18, 1850, usually known as the Fugitive Slave Act.

Sumner had the right to present any resolutions he liked to the Senate and the moment seems to have passed without incident. Massachusetts’ senator asked that Congress take up the issue the next day, July 28, and the leave of the house to speak on the resolution’s behalf. The rules required that permission but, like many things in the Senate, custom reduced that to a pure formality. If you wanted to speak on your resolution, the Senate let you speak. Senators did not gag their peers.

James Mason

We might better say that Senators do not usually gag their peers, but they made a special exception on July 28, 1852. Sumner’s southern friends turned on him. Andrew Butler damned him for putting the resolution up as a pretense to deliver an antislavery speech. Others claimed Sumner’s resolve tantamount to disunion. Northern Democrats castigated him. Stephen Douglas declared, as quoted in Donald’s biography, the he refuse to “extend any act of courtesy to any gentleman to…fan the flames of discord that have so recently divided this great people.” The Senate voted 32-10 to gag Charles Sumner. Afterwards, his friends came up and apologized. Their parties restrained them from allowing such a speech on the floor of the Senate. Nothing personal, ok?

James Mason, the author of the Fugitive Slave Act, told Sumner to wait for next term. Sumner insisted it must come this term, at which point Mason told him “By God, you shan’t.”

A Closer Look at David Rice Atchison, Part Two

David Rice Atchison (D-MO)


We left David Rice Atchison, Senator from Missouri, invisible in the records. Between February second and twentieth of 1855, he drops off the map. During that time, Lewis Cass believed that Atchison toured the South soliciting support for his crusade in Kansas. Large rallies would have generated news reports, but if Atchison came to a state capital quietly and talked to fellow politicians behind closed doors, we might never know. Outside of Missouri and Washington, few people likely knew him on sight. He appears again back in Missouri, possibly in St. Louis on the twentieth and definitely in Jefferson City by the twenty-second.

Bourbon Dave arrived to disappointing news. The Missouri legislature had just voted to postpone choosing a new senator. Until that point, Atchison may have expected easy reelection. It turned out that his battle with Thomas Hart Benton had cost him the support of many Democrats, enough together with Missouri’s Whigs to deny him a clear majority. With nothing much to do in the state capital, he made for the border the next day. He had Kansas to save for slavery, after all. Elections for the legislature would take place on March 30 and he could hardly miss that. On the twenty-fifth, Atchison went into Kansas in the company of “eighty men and twenty-four wagons.” He came packing two Bowie knives and four pistols, just for himself. The proceeds of his movement, in fraud and intimidation, amounted to control of the legislature of Kansas.

Robert Morse Taliaferro Hunter (D-VA)

Atchison wrote his F Street messmate, Robert M.T. Hunter, celebrating the victory and asking for ten thousand southerners to come and consolidate their victory. If they could “take possession of and hold every acre of timber” then Kansas could never go against slavery. Missouri could swing half of the ten thousand, he believed, but the rest of the section had to do its part. If the section failed Atchison, then it would lose Missouri and, soon after, Texas and Arkansas. With them gone, the South would have to concede the territories entire to freedom.

But none of this made Atchison “a Bandit, a ruffian, an Aaron Burr.” Atchison did not, he would have his friend know, preside over a regime of violent hooliganism. Instead he saved the lives and homes of antislavery Kansans by restraining his men. Where he went, nothing violent transpired. He couldn’t claim any responsibility for other places, but he assured Hunter that only the most impudent got “the hickory.”

One must suspect Atchison of polishing up his reputation here, but the Howard Report found only violent threats where he personally went. He may, as he did when proslavery forces moved against Lawrence, have acted to restrain his followers just as he claimed. He still got the mob in position where it could do harm and we ought to understand the border ruffians as part of a movement he started, organized, and led. The two do not cancel out, but only together form a complete picture of Missouri’s senator.

Andrew Butler of South Carolina, another of Atchison’s late messamates fabulously declared

the advent of Kansas shall be to the living Atchison a Star in his varied galaxy of life.

A young friend or relation of Butler’s had just gone off to Kansas and Butler asked Atchison to look after him.

James Mason

James Mason, author of the Fugitive Slave Act, proved less effusive. He heard rumors that people in Kansas wanted Andrew Reeder deposed in favor of a more pliable governor. The proslavery side should not use their victory as an excuse to color outside the legal lines. Instead, if Reeder proved intransigent against the proslavery legislature, then they could charge him with various offenses and ask his removal. Atchison had anticipated Mason’s advice, bending Franklin Pierce’s ear on the issue through his old friend, classmate, and present Secretary of War. Jefferson Davis had his back, to the point where the papers referred to a coalition of the two men against Reeder. In the summer, Pierce fired him at the request of Kansas’ legislature.

In the mean time, Atchison’s Platte County men destroyed the Parkville Industrial Luminary for objecting to how Missouri had outright stolen Kansas’ legislature. Parrish, Atchison’s biographer, stresses that he has no evidence the man himself took part in the destruction, but also notes that the Squatter Sovereign praised the act. Given the close personal and political relationship between the brothers Stringfellow and Atchison, it seems unlikely they would have done so if Atchison objected. Instead they advised continuing the campaign against antislavery papers elsewhere in Missouri and, as they later would, in Lawrence.

Atchison’s reelection campaign also got off to an odd start. A proslavery convention met at St. Louis between the twelfth and fourteenth of July. It heard a motion that Atchison and his old law partner Alexander Doniphan, leading contenders for the Senate seat, give speeches. Atchison tried to give them a pass, aiming to keep the convention a proslavery affair rather than introduce partisanship into things. Doniphan, a Whig, followed his lead. The convention wouldn’t hear of it and appointed a committee, which Atchison again refused. The usual order of such things seems to have involved such refusals, but then one reconsidered when a committee affirmed that the convention really wanted you to speak. Maybe Atchison proved himself in earnest in the hopes that it would win him popularity enough to keep his post in the Senate, but Parrish rightly points out that he didn’t give up on Kansas after realizing that he would not again serve as senator. Rebuffed, the convention turned to the favorite pastime of nineteenth century mass meetings: drawing up a set of resolutions. Over in Kansas., the free state men did the same.

Lincoln’s Peoria Speech, Part Twelve

Lincoln 1860

Abraham Lincoln

(Introduction, Parts 12, 3, 4, 5, 6, 7, 8, 9, 10, 11. Full text.)

After Lincoln told his audience at Peoria that, however much he opposed Stephen Douglas’ plan to expand slavery, however much he thought slavery itself a great evil, he did not see black people as the equals of whites. He went beyond just acknowledging the prejudice of his audience and the time, embracing it as his own. Then he had still one more way to disappoint a modern reader:

When they [southerners] remind us of their constitutional rights, I acknowledge them, not grudgingly, but fully, and fairly; and I would give them any legislation for the reclaiming of their fugitives, which should not, in its stringency, be more likely to carry a free man into slavery, than our ordinary criminal laws are to hang an innocent one.

The Fugitive Slave Act of 1850? Really, Abe? On first blush it reads like Lincoln signing on to that most radical law. I’ve read frequent references to that effect, most often in the context of Lincoln’s first inaugural, where he declares that in swearing to uphold the Constitution, he swore to uphold its fugitive slave clause therein. There Lincoln goes on to say:

I take the official oath to-day with no mental reservations and with no purpose to construe the Constitution or laws by any hypercritical rules; and while I do not choose now to specify particular acts of Congress as proper to be enforced, I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional.

He had his doubts about the fugitive slave act, which he laid out immediately prior:

In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not in any case surrendered as a slave? And might it not be well at the same time to provide by law for the enforcement of that clause in the Constitution which guarantees that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”?

I think one can fairly say that Lincoln endorsed the infamous law in March, 1860. But he did so with open reservations even then and even when using it as an olive branch in a crisis. Even at this extreme, Lincoln will only go so far as enforcement until repealed of a law already largely a dead letter. And even if Lincoln’s government pushed prosecution against a new rush of slave rescuers, would a northern jury convict?

Back in 1854, on closer examination, Lincoln’s doubts come out much more clearly. In both cases he wants some kind of law that provides the sort of protections that an accused criminal would receive: a real trial, habeas corpus, the right to speak in his or her own defense and to introduce evidence…all the things that the fugitive slave act precluded. Lincoln would have southerners get their slaves back, but only if they worked hard for it. The model they chose, James Mason’s fugitive slave act, simply did not suffice. They needed to do much better.

All of this makes another appearance of Lincoln the conciliatory moderate. He hates the fugitive slave act, but will uphold it until its repeal. He has all the right doubts, the same that a modern civil libertarian might have, but ultimately views himself not as a revolutionary working to overthrow the system but as a reformer bent on its incremental improvement.

The Appeal’s History Lesson, Part Six

Salmon P. Chase

Salmon P. Chase

Salmon Chase pointed his finger at Stephen Douglas, the villain who would profane the statute books with his dastardly repeal of the Missouri Compromise. Stephen Douglas pointed his finger at Salmon Chase and his fellow antislavery men for the same reason. Neither had all the facts on his side. Both, as people do, selected those facts which helped their argument and ignored or found reasons to excuse those that harmed it. Both men argued that a national policy on slavery existed, if with a few bumps and detours, from the earliest days of the Republic. Chase imagined a policy that limited slavery with an eye to its eventual end. Douglas imagined one where impersonal, natural lines of climate and geography made the decisions about slavery and then local governments recognized them.

But the Appeal of the Independent Democrats did not limit itself to questions of remote history. Chase took aim at Douglas’ preferred evasion:

It is said that the Territory of Nebraska sustains the same relations to slavery as did the territory acquired from Mexico prior to 1850, and that the pro-slavery clauses of the bill are necessary to carry into effect the compromises of that year.

No assertion can be more groundless.

Three acquisitions of territory have been made by treaty. The first was from France. Out of this territory have been created the three slave States of Louisiana, Arkansas, and Missouri, and the single free State of Iowa. The controversy which arose in relation to the then unorganized portion of this territory was closed in 1820 by the Missouri act, containing the slavery prohibition, as has already been stated. This controversy related only to the territory acquired from France. The act by which it was terminated was confined, by its own express terms, to the same territory, and had no relation to any other.

For Florida, the nation chose slavery. For the Mexican Cession:

The controversy which arose from this acquisition is fresh in the remembrance of the American people. Out of it sprung the acts of Congress, commonly known as the compromise measures of 1850, by one of which California was admitted as a free state; while two others, organizing the Territories of new Mexico and Utah, exposed all the residue of the recently acquired territory to the invasion of slavery.

These acts were never supposed to abrogate or touch the existing exclusion of slavery from what is now called Nebraska. Thea applied to the territory acquired from Mexico, and to that only. They were intended as a settlement of the controversy growing out of that acquisition, and of that controversy only. They must stand or fall on their own merits.

I probably sound too influenced by the last man I read here, but Chase has a point. Even if later on people came to see the Missouri Compromise as part of an unwritten constitution, the law only said what it said. As I’ve read the back and forth between the Appeal and Douglas’ rebuttal, both understandings strike me as at least reasonable. Certainly the nation never explicitly adopted a single policy on slavery. It chose complete exclusion in the Northwest Ordinance, but then territorial partition in the Missouri Compromise. It chose free expansion in the Southwest Ordinance, in Florida, and the Mississippi territory. One could call those decisions popular sovereignty. For California, which chose freedom, one could say the same. For Utah and New Mexico, the nation chose no policy at all.

David Rice Atchison (D-MO)

David Rice Atchison (D-MO)

One can generalize any number of policies from the record, each with strong points for and against it. Chase and Douglas agreed on probably the hardest point to sustain: that a national policy existed at all.

Chase went on to point out that David Rice Atchison himself understood all of that and accepted the permanence of the Missouri Compromise just last March, quoting him directly:

It is evident that the Missouri compromise cannot be repealed. So far as that question is concerned, we might as well agree to the admission of this Territory now as next year, or five, or ten years hence.

Why would Atchison say such a thing, if he thought that he and his fellow senators repealed the Missouri Compromise three years before? Furthermore, Chase produced sections of the compromise acts that preserved the Missouri Compromise explicitly. He even dug up a section written by James Mason, Mr. Fugitive Slave Act, in the New Mexico territory act, repeating the extension of the compromise line across Texas, should Congress carve future states from it.

It is solemnly declared, in the very compromise acts, “that nothing herein contained shall be construed to impair or qualify” that prohibition of slavery north of 36°30′; and yet, in the face of this declaration, that sacred prohibition is said to be overthrown. Can presumption further go?

At least on the point that Congress repealed the Missouri Compromise in 1850, Douglas clearly and consciously lied.

Appeasing F Street

Stephen Douglas

Stephen Douglas

David Rice Atchison and his F Street housemates dug their feet in against Stephen Douglas’ bill to organize the Indian country as Nebraska Territory. Congress reserved that land to freedom under the Missouri Compromise thirty years before and for that reason the South had spent most of a decade killing any bill that would open it to white settlement and thus make it into free states down the road. But by 1854 they must have felt like they swam against the tide of history. Some settlers from Missouri and Iowa already lived on the land illegally. The West, at the time meaning the states bordering the Mississippi, clamored for a railroad to the Pacific and the rest of the nation largely wanted to give it to them. They needed only agree on the specifics. Against that tide, Atchison himself briefly yielded at the end of the last Congress. But he returned, after getting an earful from his angry constituents, committed to stopping Douglas unless he could collect a pound of flesh for slavery.

By 1854, the Democracy had withered in the North. It did not have the same degree of problem that the Whigs did in the South, but by proving itself the safest party for slavery it had alienated many of its Northern supporters. The party’s decline in the North put men like Douglas increasingly at the mercy of proslavery extremists like Atchison. As the party’s rising star in the North, the Little Giant did not make it his business to crusade against them. He cared little about slavery and so yielding to its advocates cost him nothing personally. Politics requires uncomfortable compromises, but a compromise that advanced slavery didn’t even amount to that for Douglas. He needed only give ground on something unimportant to him to get what he really wanted: the West opened to white settlement. Furthermore, in opposing the Missouri Compromise prohibition on slavery, Atchison appealed to Douglas on grounds he had long supported: popular sovereignty.

Putting on Douglas’ shoes for a moment, this looks less like a hard bargain than a great deal. Douglas gets what he really wants though a just slightly altered means and then gets more on top of it by having his favorite doctrine adopted as the law of the land. No fool, Douglas knew that appeasing F Street would have some political costs in the North. He underestimated those costs, but he knew enough to sound out ways to make his bill acceptable to F Street and the South without also burning all the bridges in the North. The man who managed passage of the Armistice had sailed those waters before and could do it again.

On January 4, 1854, Douglas’ committee reported out not Iowa Senator Dodge’s bill that had begun the previous March as Illinois Senator Douglas’ bill, but rather a new measure entirely. It would organize Nebraska but remained mute on slavery except for the provision, quoted by Allan Nevins:

And when admitted as a State or States, the said Territory, or any portion of the same, shall be received into the Union, with or without slavery, as their constitution may prescribe at the time of their admission.

The committee attached a report to the bill saying that they had no consensus on whether the Missouri Compromise ban stood or not. Douglas called it a virtual repeal as the bill at least contemplated slavery on the land. He replicated the language of the New Mexico and Utah territorial bills, neither explicitly enacting popular sovereignty nor repudiating it.

Repeal of the Missouri Compromise in full seemed impossible. When Atchison said he had no hope that it would ever fall, no Senator rose to gainsay him. If the South could withstand that ambiguity on New Mexico and Utah, and already accepted far worse for slavery on the Great Plains, surely the section could tolerate the same in Nebraska. In fact, even Douglas’ virtual repeal offered more than proslavery men could have hoped for just a year prior. Surely that would satisfy F Street.

The F Street Mess

Augustus Caesar Dodge (D-IA)

Augustus Caesar Dodge (D-IA)

Chastened and committed once more to proslavery extremes, David Rice Atchison returned to Washington for the 33rd Congress in December, 1853. His Democratic party had control of both chambers by a safe margin and Bourbon Dave took his place as President pro tempore of the Senate. Even if Atchison had pulled back from his earlier surrender, he had the clout to get a Nebraska bill through and the momentum seemed to press for just that. Iowa’s Augustus Caesar Dodge submitted the same bill that passed the House last Congress, the Douglas-approved legislation that would leave the Missouri Compromise in place. The Senate referred it to Douglas’ Committee on Territories.

Bourbon Dave had influence and he returned to Washington determined to use it against Douglas’ free Nebraska bill, beginning with his housemates. In an era before airplanes or easy rail travel, members of Congress went to Washington to stay. For the length of a session, they would hear from their constituents through letters, newspapers, and the telegraph, but not in person unless the constituents came to them. As people naturally do, they congregated with like-minded sorts to create little homes away from home. Some preferred to live alone, but many threw together to rent a boarding house they then called a mess. Atchison lived, amid house slaves and Senators, in a mess on F Street. His housemates included Virginia’s Robert M. T. Hunter, chairman of the Senate Finance committee, and James Mason of Fugitive Slave Act fame, chair of the Foreign Affairs committee and South Carolina’s Andrew P. Butler, chair of the Judiciary committee. Atchison bent their ears about Missouri’s vulnerabilities and how a free Nebraska could mean the end of Missourian slavery. Furthermore he assured them that he had a practical issue, not just one touching on the South’s always prickly sense of honor. Hemp and tobacco would grow in Nebraska territory just as they did across the border in Missouri.

James Mason

James Mason (D-VA)

The F Street mess had some reservations. They did not all see a rosy future for slavery in the future Kansas, or for that matter in Missouri. Even if Atchison had it right and plantations could creep up the Missouri river they could not hope to match the huge profits of the cotton kingdom. Maybe, even if it presented greater risk, the South would do better to concede Nebraska and look to enslaving New Mexico, Utah, or a section of Mexico proper stolen away fair and square. Perhaps old man Calhoun even had the right of it and they should focus not on regaining a majority but instead on ensuring a permanent slave power veto on all national laws to preserve the slavery they had.

But the mess had other things on its mind than just the practicalities. Restriction on slavery entailed its immorality. One does not embrace laws to ban things one approves of and so accepting the restriction meant at least implicitly accepting that slavery deserved banning. No Southern politician could lightly court that impression, lest he face a firestorm back home. The Missouri Compromise, they decided, had to go because as long as it stood it declared Southerners inferior just as the Wilmot Proviso did, unclean lepers that belonged not in the nation’s future but on the dustbin of history. Douglas’ old bill, now revived by Dodge for the new Congress, could not stand. If the Little Giant wanted Nebraska, he would have to win over the F Street patriarchs.

James Mason for Federal Power

James Mason

James Mason

With the benefit of hindsight, Jefferson Davis seems like an obvious spokesperson for the South on nearly any controversy of the 1850s. But as large a body politic as the slave states could not, despite the best efforts of men like Calhoun and the fire-eaters, make itself of all one mind. His objection to Commodore Paulding’s arrest of Nicaragua-bound filibuster William Walker on Nicaraguan soil revealed some of those divisions. None other than James Mason, President pro tempore of the Senate and author of the Fugitive Slave Act rose to dispute him.

Davis insisted that, whatever other details of the case fell out, the President simply did not have the power to enforce the Neutrality Act beyond American territorial waters or with the Army or Navy. Mason contended that

the President is required by the Constitution to see that the laws are faithfully executed, and the Constitution gives him the command of the Army and Navy. I presume it would follow, that when the Army and Navy are given to him, he may use them, if necessary, in the execution of the laws.

Mason did not say so much on the floor of the Senate but, given he wrote the Fugitive Slave Act, I imagine it at least crossed his mind that past presidents had, in fact, used the Army and Navy to enforce federal law in places far less controversial than Nicaragua. Millard Fillmore did so in Boston and tried to do so in Pennsylvania. I doubt Davis felt moved to object then, even if he thought the Fugitive Slave Act a paltry compensation for the loss of a slave California.

That would not fly today, as the routine use of the United States military for domestic law enforcement runs afoul of the Posse Comitatus Act of 1878. That law, lamentably, arose from the determination of the Southern governments not to exercise their police powers to ensure former slaves the right to vote.

Jefferson Davis

Jefferson Davis

At any rate, Mason went on

Another position of the honorable Senator [Davis] is, that the President has no power to order an arrest to be made; and yet the honorable Senator states that, under the law, the military power may be used for the purpose of preventing the departure of these expeditions from our pots. How can they be prevented from departing unless by exercising the power of arrest? Whether the President can direct a naval officer to seize a citizen of the United States, or one who has left the United States, not a citizen, upon the high seas, is a question worthy of consideration. It is one of those questions which I presume must be considered upon this reference. I do not mean to go into the general policy, because I do not think this the appropriate time, further than to say this much: as far as my opinions are concerned I regard it as the incumbent duty of the President to see that the neutrality laws are fully executed, and we never have had a more striking instance of the wisdom and expediency of those laws in preserving the public peace than the extraordinary attempts which have been made by this man, Walker, as I fear, to bring them into jeopardy.

Whatever else one can say about James Mason, he stuck to his guns. When it came to Walker and the Fugitive Slave Act, at least, Mason believed in the president had a duty to enforce the laws. He would, however, later take Emerson’s famous advice about foolish consistencies  it came to Abraham Lincoln trying to enforce federal law in 1861.