But the suggestion had already been made and was growing in favor, that a select committee should be intrusted with these and other delicate questions, in order to secure a basis of compromise in the spirit of Clay's resolutions. Believing that such a course would indefinitely delay, and even put in jeopardy, the measure that lay nearest to his heart,—the admission of California,—Douglas resisted the appointment of such a committee. If it seemed best to join the California bill with others now pending, he preferred that the Senate, rather than a committee, should decide the conditions. But when he was outvoted, Douglas adopted the sensible course of refusing to obstruct the work of the Committee of Thirteen by any instructions. He was inclined to believe the whole project a farce: well, if it was, the sooner it was over, the better; he was not disposed to wrangle and turn the farce into a tragedy.[[354]]
Douglas was not chosen a member of the select Committee of Thirteen. He could hardly expect to be; but he contributed not a little to its labors, if a traditional story be true. In a chance conversation, Clay, who was chairman of the committee, told Douglas that their report would recommend the union of his two bills,—the California and the Territorial bills,—instead of a bill of their own. Clay intimated that the committee felt some delicacy about appropriating Douglas's carefully drawn measures. With a courtesy quite equal to Clay's, Douglas urged him to use the bills if it was deemed wise. For his part, he did not believe that they could pass the Senate as a single bill. In that event, he could then urge the original bills separately upon the Senate. Then Clay, extending his hand, said, "You are the most generous man living. I will unite the bills and report them; but justice shall nevertheless be done you as the real author of the measures." A pretty story, and not altogether improbable. At all events, the first part of "the Omnibus Bill," reported by the Committee of Thirteen, consisted of Douglas's two bills joined together by a wafer.[[355]]
There was one highly significant change in the territorial bills inside the Omnibus. Douglas's measures had been silent on the slavery question; these forbade the territorial legislatures to pass any measure in respect to African slavery, restricting the powers of the territorial legislatures at a vital point. Now on this question Douglas's instructions bound him to an affirmative vote. He was in the uncomfortable and hazardous position of one who must choose between his convictions, and the retention of political office. It was a situation all the more embarrassing, because he had so often asserted the direct responsibility of a representative to his constituents. He extricated himself from the predicament in characteristic fashion. He reaffirmed his convictions; sought to ward off the question; but followed instructions when he had to give his vote. He obeyed the letter, but violated the spirit of his instructions.
In the debates on the Omnibus Bill, Douglas reiterated his theory of non-interference with the right of the people to legislate for themselves on the question of slavery. He was now forced to further interesting assertions by some pointed questions from Senator Davis of Mississippi. "The Senator says that the inhabitants of a territory have a right to decide what their institutions shall be. When? By what authority? How many of them?" Douglas replied: "Without determining the precise number, I will assume that the right ought to accrue to the people at the moment they have enough to constitute a government.... Your bill concedes that a representative government is necessary—a government founded upon the principles of popular sovereignty, and the right of the people to enact their own laws; and for this reason you give them a legislature constituted of two branches, like the legislatures of the different States and Territories of the Union; you confer upon them the right to legislate upon all rightful subjects of legislation, except negroes. Why except negroes?"[[356]] Forced to a further explanation, he added, "I am not, therefore, prepared to say that under the constitution, we have not the power to pass laws excluding negro slaves from the territories.... But I do say that, if left to myself to carry out my own opinions, I would leave the whole subject to the people of the territories themselves.... I believe it is one of those rights to be conceded to the territories the moment they have governments and legislatures established for them."[[357]] In short, this was a policy dictated by expediency, and not—as yet—by any constitutional necessity. Douglas was not yet ready to abandon the high national ground of supreme, Federal control over the Territories.
But the restrictive clause in the territorial bills satisfied the radical Southerners as little as it pleased Douglas. Berrien wished to make the clause more precise by forbidding the territorial legislatures "to establish or prohibit African slavery"; but Hale, with his preternatural keenness for the supposed intrigues of the slave power, believed that even with these restrictions the legislatures might still recognize slavery as an already established institution; and he therefore moved to add the word "allow." Douglas voted consistently; first against Berrien's amendment, and then, when it carried, for Hale's, hoping thereby to discredit the former.[[358]] Douglas's own amendment removing all restrictions, was voted down.[[359]] True to his instructions, he voted for Seward's proposition to impose the Wilmot Proviso upon the Territories, but he was happy to find himself in the minority.[[360]] And so the battle went on, threatening to end in a draw.
A motion to abolish and prohibit peon slavery elicited an apparently spontaneous and sincere expression of detestation from Douglas of "this revolting system." Black slavery was not abhorrent to him; but a species of slavery not confined to any color or race, which might, because of a trifling debt, condemn the free white man and his posterity to an endless servitude—this was indeed intolerable. If the Senate was about to abolish black slavery, being unwilling to intrust the territorial legislature with such measures, surely it ought in all consistency to abolish also peonage. But the Senate preferred not to be consistent.[[361]]
By the last of July, the Omnibus—in the words of Benton—had been overturned, and all the inmates but one spilled out. The Utah bill was the lucky survivor, but even it was not suffered to pass without material alterations. Clay now joined with Douglas to secure the omission of the clause forbidding the territorial legislature to touch the subject of slavery. In this they finally succeeded.[[362]] The bill was thus restored to its original form.[[363]]
Everyone admitted that the compromise scheme had been wrecked. It was highly probable, however, that with some changes the proposals of the committee could be adopted, if they were considered separately. Such was Douglas's opinion. The eventuality had occurred which he had foreseen. He was ready for it. He had promptly called up his original California bill and had secured its consideration, when the Utah bill passed to a third reading. Then a bill to settle the Texan boundary controversy was introduced. The Senate passed many weary days discussing first one and then the other. The Texas question was disposed of on August 9th; the California bill, after weathering many storms, came to port four days later; and two days afterward, New Mexico was organized as a Territory under the same conditions as Utah. That is to say, the Senate handed on these bills with its approval to the lower house, where all were voted. It remained only to complete the compromise programme piece-meal, by abolishing the slave trade in the District of Columbia and by providing a more stringent fugitive slave law. By the middle of September, these measures had become law, and the work of Congress went to its final review before the tribunal of public opinion.
Douglas voted for all the compromise measures but the Fugitive Slave Law. This was an unfortunate omission, for many a Congressman had sought to dodge the question.[[364]] The partisan press did not spare him, though he stated publicly that he would have voted for the bill, had he not been forced to absent himself. Such excuses were common and unconvincing. Irritated by sly thrusts on every side, Douglas at last resolved to give a detailed account of the circumstances that had prevented him from putting himself on record in the vote. This public vindication was made upon the floor of the Senate a year later.[[365]] A "pecuniary obligation" for nearly four thousand dollars was about to fall due in New York. Arrangements which he had made to pay the note miscarried, so that he was compelled to go to New York at once, or suffer the note to be protested. Upon the assurance of his fellow senators that the discussion of the bill would continue at least a week, he hastened to New York. While dining with some friends from Illinois, he was astounded to hear that the bill had been ordered engrossed for a third reading. He immediately left the city for Washington, but arrived too late. He was about to ask permission then to explain his absence, when his colleague dissuaded him. Everyone knew, said Shields, that he was in favor of the bill; besides, very probably the bill would be returned from the House with amendments.
The circumstantial nature of this defense now seems quite unnecessary. After all, the best refutation of the charge lay in Douglas's reputation for courageous and manly conduct. He was true to himself when he said, "The dodging of votes—the attempt to avoid responsibility—is no part of my system of political tactics."