Foiled in their hope of winning the territorial legislature, the free-State settlers in Kansas resolved upon a hazardous course. Believing the legislature an illegal body, they called a convention to draft a constitution with which they proposed to apply for admission to the Union as a free State. Robinson, the leader of the free-State party, was wise in such matters by reason of his experience in California. Reeder, who had been displaced as governor and had gone over to the opposition, lent his aid to the project; and ex-Congressman Lane, formerly of Indiana, gave liberally of his vehement energy to the cause. After successive conventions in which the various free-State elements were worked into a fairly consistent mixture, the Topeka convention launched a constitution and a free-State government. Unofficially the supporters of the new government took measures for its defense. In the following spring, Governor Robinson sent his first message to the State legislature in session at Topeka; and Reeder and Lane were chosen senators for the inchoate Commonwealth.[[546]]
Meantime Governor Shannon had succeeded Reeder as executive of the territorial government at Shawnee Mission. The aspect of affairs was ominous. Popular sovereignty had ended in a dangerous dualism. Two governments confronted each other in bitter hostility. There were untamed individuals in either camp, who were not averse to a decision by wager of battle.[[547]]
Such was the situation in Kansas, when Douglas reached Washington in February, after a protracted illness.[[548]] The President had already discussed the Kansas imbroglio in a special message; but the Democratic majority in the Senate showed some reluctance to follow the lead of the administration. From the Democrats in the House not much could be expected, because of the strength of the Republicans. The party awaited its leader. Upon his appearance, all matters relating to Kansas were referred to the Committee on Territories. The situation called for unusual qualities of leadership. How would the author of the Kansas-Nebraska Act face the palpable breakdown of his policy?
With his customary dispatch, Douglas reported on the 12th of March.[[549]] The majority report consumed two hours in the reading; Senator Collamer stated the position of the minority in half the time.[[550]] Evidently the chairman was aware where the burden of proof lay. Douglas took substantially the same ground as that taken by the President in his special message, but he discussed the issues boldly in his own vigorous way. No one doubted that he had reached his conclusions independently.
The report began with a constitutional argument in defense of the Kansas-Nebraska Act. As a contribution to the development of the doctrine of popular sovereignty, the opening paragraphs deserve more than passing notice. The distinct advance in Douglas's thought consisted in this: that he explicitly refused to derive the power to organize Territories from that provision of the Constitution which gave Congress "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." The word "territory" here was used in its geographical sense to designate the public domain, not to indicate a political community. Rather was the power to be derived from the authority of Congress to adopt necessary and proper means to admit new States into the Union. But beyond the necessary and proper organization of a territorial government with reference to ultimate statehood, Congress might not go. Clearly, then, Congress might not impose conditions and restrictions upon a Territory which would prevent its entering the Union on an equality with the other States. From the formation of the Union, each State had been left free to decide the question of slavery for itself. Congress, therefore, might not decide the question for prospective States. Recognizing this, the framers of the Kansas-Nebraska Act had relegated the discussion of the slavery question to the people, who were to form a territorial government under cover of the organic act.[[551]]
This was an ingenious argument. It was in accord with the utterances of some of the weightiest intellects in our constitutional history. But it was not in accord with precedent. There was hardly a territorial act that had emerged from Douglas's committee room, which had not imposed restrictions not binding on the older Commonwealths.
Having given thus a constitutional sanction to the principle of the Kansas-Nebraska Act, the report unhesitatingly denounced that "vast moneyed corporation," created for the purpose of controlling the domestic institutions of a distinct political community fifteen hundred miles away.[[552]] This was as flagrant an act of intervention as though France or England had interfered for a similar purpose in Cuba, for "in respect to everything which affects its domestic policy and internal concerns, each State stands in the relation of a foreign power to every other State." The obvious retort to this extraordinary assertion was, that Kansas was only a Territory, and not a State. Douglas then made this "mammoth moneyed corporation" the scapegoat for all that had happened in Kansas. The Missouri Blue Lodges were defensive organizations, called into existence by the fear that the "abolitionizing" of Kansas was the prelude to a warfare upon slavery in Missouri. The violence and bloodshed in Kansas were "the natural and inevitable consequences of such extraordinary systems of emigration."[[553]]
Such ex post facto assertions did not mend matters in Kansas, however much they may have relieved the author of the report. It remained to deal with the existing situation. The report took the ground that the legislature of Kansas was a legal body and had been so recognized by Governor Reeder. Neither the alleged irregularity of the elections, nor other objections, could diminish its legislative authority. Pro-tests against the election returns had been filed in only seven out of eighteen districts. Ten out of thirteen councilmen, and seventeen out of twenty-six representatives, held their seats by virtue of the governor's certificate. Even if it were assumed that the second elections in the seven districts were wrongly invalidated by the legislature, its action was still the action of a lawful legislature, possessing in either house a quorum of duly certificated members. This was a lawyer's plea. Technically it was unanswerable.
Having taken this position, Douglas very properly refused to pass judgment on the laws of the legislature. By the very terms of the Kansas-Nebraska Act, Congress had confided the power to enact local laws to the people of the Territories. If the validity of these laws should be doubted, it was for the courts of justice and not for Congress to decide the question.[[554]]
Throughout the report, the question was not once raised, whether the legislature really reflected the sentiment of a majority of the settlers of Kansas. Douglas assumed that it was truly representative. This attitude is not surprising, when one recalls his predilections and the conflict of evidence on essential points in the controversy. Nevertheless, this attitude was unfortunate, for it made him unfair toward the free-State settlers, with whom by temper and training he had far more in common than with the Missouri emigrants. Could he have cut himself loose from his bias, he would have recognized the free-State men as the really trustworthy builders of a Commonwealth. But having taken his stand on the legality of the territorial legislature, he persisted in regarding the free-State movement as a seditious combination to subvert the territorial government established by Congress. To the free-State men he would not accord any inherent, sovereign right to annul the laws and resist the authority of the territorial government.[[555]] The right of self-government was derived only from the Constitution through the organic act passed by Congress. And then he used that expression which was used with telling effect against the theory of popular sovereignty: "The sovereignty of a Territory remains in abeyance, suspended in the United States, in trust for the people, until they shall be admitted into the Union as a State."[[556]] If this was true, then popular sovereignty after all meant nothing more than local self-government, the measure of which was to be determined by Congress. If Congress left slavery to local determination, it was only for expediency's sake, and not by reason of any constitutional obligation.