Theoretically popular sovereignty, as applied in the Kansas-Nebraska Act, was not an advance over the doctrine of Cass and Dickinson. It professed to be the same which had governed Congress in organizing Utah and New Mexico. Nevertheless, popular sovereignty had an artificial quality which squatter sovereignty lacked. The relation between Congress and the people of the Territories, in the matter of slavery, was now to be determined not so much by actual conditions as by an abstract principle. Federal policy was indoctrinated.
There was, too, this vital difference between squatter sovereignty in Utah and New Mexico and popular sovereignty in Nebraska and Kansas: the former were at least partially inhabited and enjoyed some degree of social and political order; the latter were practically uninhabited. It was one thing to grant control over all domestic concerns to a population in esse, and another and quite different thing to grant control to a people in posse. In the Kansas-Nebraska Act hypothetical communities were endowed with the capacity of self-government, and told to decide for themselves a question which would become a burning issue the very moment that the first settlers set foot in the Territories. Congress attempted thus to solve an equation without a single known quantity.
Moreover, slavery was no longer a matter of local concern. Doubtless it was once so regarded; but the time had passed when the conscience of the North would acquiesce in a laissez faire policy. By force of circumstances slavery had become a national issue. Ardent haters of the institution were not willing that its extension or restriction should be left to a fraction of the nation, artificially organized as a Territory. The Kansas-Nebraska Act prejudiced the minds of many against the doctrine, however sound in theory it may have seemed, by unsettling what the North regarded as its vested right in the free territory north of the line of the Missouri Compromise. The Act made the political atmosphere electric. The conditions for obtaining a calm, dispassionate judgment on the domestic concern of chief interest, were altogether lacking.
It was everywhere conceded that Nebraska would be a free Territory. The eyes of the nation were focused upon Kansas, which was from the first debatable ground. A rush of settlers from the Northwest joined by pioneers from Kentucky and Missouri followed the opening up of the new lands. As Douglas had foretold, the tide of immigration held back by Indian treaties now poured in. The characteristic features of American colonization seemed about to repeat themselves. So far the movement of population was for the most part spontaneous. Land-hunger, not the political destiny of the West, drove men to locate their claims on the Kansas and the Missouri. By midsummer colonists of a somewhat different stripe appeared. Sent out under the auspices of the Emigrant Aid Company, they were to win Kansas for freedom at the same time that they subdued the wilderness. It was a species of assisted emigration which was new in the history of American colonization, outside the annals of missionary effort. The chief promoter of this enterprise was a thrifty, Massachusetts Yankee, who saw no reason why crusading and business should not go hand in hand. Kansas might be wrested from the slave-power at the same time that returns on invested funds were secured.
The effect of these developments upon the aggressive pro-slavery people of Missouri is not easy to describe. Hitherto they had assumed that Kansas would become a slave Territory in the natural order of events. This was the prevailing Southern opinion. At once the people of western Missouri were put upon the defensive. Blue lodges were formed for the purpose of carrying slavery into Kansas. Appeals were circulated in the slave-holding States for colonists and funds. Passions were inflamed by rumors which grew as they stalked abroad. The peaceful occupation of Kansas was at an end. Popular sovereignty was to be tested under abnormal conditions.
When the election of territorial delegates to Congress occurred, in the late fall, a fatal defect in the organic law was disclosed, to which many of the untoward incidents of succeeding months may be ascribed. The territorial act conferred the right of voting at the first elections upon all free, white, male inhabitants, twenty-one years of age and actually resident in the Territory.[[536]] Here was an unfortunate ambiguity. What was actual residence? Every other act organizing a territorial government was definite on this point, permitting only those to vote who were living in the proposed Territory, at the time of the passage of the act. The omission in the case of Kansas and Nebraska is easily accounted for. Neither had legal residents when the act was passed. Indeed, this defect bears witness to the fact that Congress was legislating, not for actual, but for hypothetical communities. The consequences were far-reaching, for at the very first election, it was charged that frauds were practiced by bands of Missourians, who had crossed the border only to aid the pro-slavery cause. Not much was made of these charges, as no particular interest attached to the election.
Far different was the election of members of the territorial legislature in the following spring. On all hands it was agreed that this legislature would determine whether Kansas should be slave or free soil. It was regrettable that Governor Reeder postponed the taking of the census until February, since by mid-winter many settlers, who had staked their claims, returned home for the cold season, intending to return with their families in the early spring. This again was a characteristic feature of frontier history.[[537]] In March, the governor issued his proclamation of election, giving only three weeks' notice. Of those who had returned home, only residents of Missouri and Iowa were able to participate in the election of March 30th, by hastily recrossing into Kansas. Governor Reeder did his best to guard against fraud. In his instructions to the judges of election, he warned them that a voter must be "an actual resident"; that is, "must have commenced an active inhabitancy, which he actually intends to continue permanently, and must have made the Territory his dwelling place to the exclusion of any other home."[[538]] Still, it was not to be expected that bona fide residents could be easily ascertained in communities which had sprung up like mushrooms. A hastily constructed shack served all the purposes of the would-be voter; and, in last analysis, judges of elections had to rest content with declarations of intentions. Those who crossed into Kansas after the governor's proclamation and endeavored to continue actual inhabitancy, were with difficulty distinguished from those who now crossed for the first time, under a similar pretext. As Douglas subsequently contended with much force, the number of votes cast in excess of the census returns did not in itself prove wholesale fraud.[[539]]
Under such liability to deception and misjudgment, the territorial authorities held the election which was likely to determine the status of Kansas with respect to slavery. Both parties were playing for great stakes; passion and violence were the almost inevitable outcome. Both parties contained desperadoes, who invariably come to the surface in the general mixing which occurs on the frontier. Both parties committed frauds at the polls. But the most serious gravamina have been laid at the door of those Blue Lodges of Missouri which deliberately sought to secure the election of pro-slavery candidates by fair means or foul. The people of western Missouri had come to believe that the fate of slavery in their own Commonwealth hinged upon the future of Kansas. It was commonly believed that after Kansas, Missouri would be abolitionized. It was, therefore, with the fierce, unreasoning energy of defenders of their own institutions, that Blue Lodges organized their crusade for Kansas.[[540]] On election day armed bands of Missourians crossed into Kansas and polled a heavy vote for the pro-slavery candidates, in the teeth of indignant remonstrances.[[541]]
The further history of popular sovereignty in Kansas must be lightly touched upon, for it is the reflex action in the halls of Congress that interests the student of Douglas's career. Twenty-eight of the thirty-nine members of the first territorial legislature were men of pronounced pro-slavery views; eleven were anti-slavery candidates. In seven districts, where protests had been filed, the governor ordered new elections. Three of those first elected were returned, six were new men of anti-slavery proclivities. But when the legislature met, these new elections were set aside and I the first elections were declared valid.[[542]]
In complete control of the legislature, the pro-slavery party proceeded to write slavery into the law of the Territory. In their eagerness to establish slavery permanently, these legislative Hotspurs quite overshot the mark, creating offenses and affixing penalties of doubtful constitutionality.[[543]] Meanwhile the census of February reported but one hundred ninety-two slaves in a total population of eight thousand six hundred.[[544]] Those who had migrated from the South, were not as a rule of the slave-holding class. Those who possessed slaves shrank from risking their property in Kansas, until its future were settled.[[545]] Eventually, the climate was to prove an even greater obstacle to the transplantation of the slave-labor system into Kansas.