As evidence of his desire to remove this most tangible of Southern gravamina, Douglas introduced a supplementary fugitive slave bill on January 28th.[[923]] Its notable features were the provision for jury trial in a Federal court, if after extradition a fugitive should persist in claiming his freedom; and the provisions for the payment of damages to the claimant, if he should lose through violence a fugitive slave to whom he had a valid title. The Federal government in turn might bring suit against the county where the rescue had occurred, and the county might reimburse itself by suing the offenders to the full amount of the damages paid.[[924]] Had this bill passed, it would have made good the most obvious defects in the much-defamed legislation of 1850; but the time had long since passed, when such concessions would satisfy the South.
Douglas had to bear many a gibe for his publicly expressed hopes of peace. Mason denounced his letter to Virginia gentlemen as a "puny, pusillanimous attempt to hoodwink" the people of Virginia. But Douglas replied with an earnest reiteration of his expectations. Yet all depended, he admitted, on the action of Virginia and the border States. For this reason he deprecated the uncompromising attitude of the senator from Virginia, when he said, "We want no concessions." Equally deplorable, he thought, was the spirit evinced by the senator from New Hampshire who applauded that regrettable remark. "I never intend to give up the hope of saving this Union so long as there is a ray left," he cried.[[925]] Why try to force slavery to go where experience has demonstrated that climate is adverse and where the people do not want it? Why prohibit slavery where the government cannot make it exist? "Why break up the Union upon an abstraction?" Let the one side give up its demand for protection and the other for prohibition; and let them unite upon an amendment to the Constitution which shall deny to Congress the power to legislate upon slavery everywhere, except in the matter of fugitive slaves and the African slave-trade. "Do that, and you will have peace; do that, and the Union will last forever; do that, and you do not extend slavery one inch, nor circumscribe it one inch; you do not emancipate a slave, and do not enslave a free-man."[[926]]
In the course of his eloquent plea for mutual concession, Douglas was repeatedly interrupted by Wigfall of Texas, whose State was at the moment preparing to leave the Union. In ironical tones, Wigfall begged to be informed upon what ground the senator based his hope and belief that the Union would be preserved. Douglas replied, "I see indications every day of a disposition to meet this question now and consider what is necessary to save the Union." And then, anticipating the sneers of his interrogator, he said sharply, "If the senator will just follow me, instead of going off to Texas; sit here, and act in concert with us Union men, we will make him a very efficient agent in accomplishing that object."[[927]] But to the obdurate mind of Wigfall this Union talk was "the merest balderdash." Compromise on the basis of non-intervention, he pronounced "worse than 'Sewardism,' for it had hypocrisy and the other was bold and open." There was, unhappily, only too much truth in his pithy remark that "the apple of discord is offered to us as the fruit of peace."
It was a sad commentary on the state of the Union that while the six cotton States were establishing the constitution and government of a Southern Confederacy, the Federal Senate was providing for the territorial organization of that great domain whose acquisition had been the joint labor of all the States. Three Territories were projected. In one of these, Colorado, a provisional government had already been set up by the mining population of the Pike's Peak country. To the Colorado bill Douglas interposed serious objections. By its provisions, the southern boundary cut off a portion of New Mexico, which was slave Territory, and added it to Colorado. At the same time a provision in the bill prevented the territorial legislature from passing any law to destroy the rights of private property. Was the new Territory of Colorado to be free or slave? Another provision debarred the territorial legislature from condemning private property for public uses. How, then, could Colorado construct even a public road? Still another provision declared that there should be no discrimination in the rate of taxation between different kinds of property. How, then, could Colorado make those necessary exemptions which were to be found on all statute books?[[928]]
In his encounter with Senator Green, who had succeeded him as chairman of the Committee on Territories, Douglas did not appear to good advantage. It was easy to prove his first objection idle, as there was no slave property in northern New Mexico. As for the other objectionable provisions, all—by your leave!—were to be found in the Washington Territory Act, which had passed through Douglas's committee without comment.[[929]]
Douglas proposed a substitute for the Colorado bill, nevertheless, which, besides rectifying these errors,—for such he still deemed them to be,—proposed that the people of the Territory should elect their own officers. He reminded the Senate that the Kansas-Nebraska bill had been sharply criticised, because while professing to recognize popular sovereignty, it had withheld this power. At that time, however, the governor was also an Indian agent and a Federal officer; now, the two functions were separated. He proposed that, henceforth, the President and Senate should appoint only such officers as performed Federal duties.[[930]] When Senator Wade suggested that Douglas had experienced a conversion on this point, because he happened to be in opposition to the incoming administration, which would appoint the new territorial officers, Douglas referred to his utterances in the last session, as proof of his disinterestedness in the matter.[[931]]
Even in his rôle of peace-maker, Douglas could not help remarking that the bill contained not a word about slavery. "I am rejoiced," he said, somewhat ironically, "to find that the two sides of the House, representing the two sides of the 'irrepressible conflict,' find it impossible when they get into power, to practically carry on the government without coming to non-intervention, and saying nothing upon the subject of slavery. Although they may not vote for my proposition, the fact that they have to avow the principle upon which they have fought me for years is the only one upon which they can possibly agree, is conclusive evidence that I have been right in that principle, and that they have been wrong in fighting me upon it."[[932]]
In the House the Colorado bill was amended by the excision of the clause providing for appeals to the United States Supreme Court in all cases involving title to slaves. Douglas promptly pointed out the significance of this omission. The decisions of the territorial court regarding slavery would now be final. The question of whether the territorial legislature might, or might not, exclude slavery, would now be decided by territorial judges who would be appointed by a Republican President.[[933]] The Republicans now in control of the Senate were eager to press their advantage. And Douglas had to acquiesce. After all, the practical importance of the matter was not great. No one anticipated that slavery ever would exist in these new Territories.
The substitute which Douglas offered for the Colorado bill, and subsequently for the other territorial bills, deserves more than a passing allusion. Not only was it his last contribution to territorial legislation, but it suggested a far-reaching change in our colonial policy. It was the logical conclusion of popular sovereignty practically applied.[[934]] Congress was invited to abdicate all but the most meagre power in organizing new Territories. The task of framing an organic act for the government of a Territory was to be left to a convention chosen by adult male citizens who were in actual residence; but this organic law must be republican in form, and in every way subordinate to the Constitution and to all laws and treaties affecting the Indians and the public lands. A Territory so organized was to be admitted into the Union whenever its population should be equal to the unit required for representation in the lower house of Congress. The initiative in taking a preliminary census and calling a territorial convention, was to be taken by the judge of the Federal court in the Territory. The tutelage of the Federal government was thus to be reduced to lowest terms.
Congress was to confine itself to general provisions applicable to all Territories, leaving the formation of new Territories to the caprice of the people in actual residence. This was a generous concession to popular sovereignty; but even so, the paramount authority was still vested in Congress. Congress, and not the people, was to designate the bounds of the Territory; Congress was to pass judgment upon the republicanism of the organic law, and a Federal judge was to set the machinery of popular sovereignty in motion. Obviously the time had passed when Congress would make so radical a departure from precedent. Least of all were the Republican members disposed to weaken the hold of the Federal government upon Territories where the question of slavery might again become acute.