By this time agreement had been reached in the caucus, so that Douglas was quite willing to modify the phraseology of the bill. "We see," said he, "that the difference here is only a difference as to the appropriate word to be used. We all agree in the principle which we now propose to establish." As he was not satisfied with the phrases suggested, he desired some time to consult with friends of the bill, as to which word would best "carry out the idea which we are intending to put into practical operation by this bill."[[473]]
On the following day, February 7th, Douglas reported, not merely "the appropriate word," but an entirely new clause, the product of the caucus deliberations.
The eighth section of the act preparatory to the admission of Missouri into the Union is no longer said to be superseded, but "being inconsistent with the principle of non-intervention by Congress with slavery in the States and Territories, as recognized by the legislation of 1850, (commonly called the Compromise Measures) is hereby declared inoperative and void, it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."[[474]]
This part of the bill had now assumed its final form. Subject only to the Constitution of the United States. The words were clear; but what was their implication? A few days later, Douglas wrote to his Springfield confidant, "The Democratic party is committed in the most solemn manner to the principle of congressional non-interference with slavery in the States and Territories. The administration is committed to the Nebraska bill and will stand by it at all hazards.... The principle of this bill will form the test of parties, and the only alternative is either to stand with the Democracy or rally under Seward, John Van Buren & Co.... We shall pass the Nebraska bill in both Houses by decisive majorities and the party will then be stronger than ever, for it will be united upon principle."[[475]]
Yet there were dissentient opinions. What was in the background of Southern consciousness was expressed bluntly by Brown of Mississippi, who refused to admit that the right of the people of a Territory to regulate their domestic institutions, including slavery, was a right to destroy. "If I thought in voting for the bill as it now stands, I was conceding the right of the people in the territory, during their territorial existence, to exclude slavery, I would withhold my vote.... It leaves the question where I am quite willing it should be left—to the ultimate decision of the courts."[[476]] Chase also, though for widely different reasons, disputed the power of the people of a Territory to exclude slavery, under the terms of this bill.[[477]] And Senator Clayton pointed out that non-interference was a delusion, so long as it lay within the power of any member of Congress to move a repeal of any and every territorial law which came up for approval, for the bill expressly provided for congressional approval of territorial laws.[[478]]
Douglas was irritated by these aspersions on his cherished principle. He declared again, in defiant tones, that the right of the people to permit or exclude was clearly included in the wording of the measure. He was not willing to be lectured about indirectness. He had heard cavil enough about his amendments.[[479]]
In the course of a debate on March 2d, another unforeseen difficulty loomed up in the distance. If the Missouri Compromise were repealed, would not the original laws of Louisiana, which legalized slavery, be revived? How then could the people of the Territories be free to legislate against slavery? It was a knotty question, testing the best legal minds in the Senate; and it was dispatched only by an amendment which stated that the repeal of the Missouri Compromise should not revive any antecedent law respecting slavery.[[480]]
The objection raised by Clayton still remained: how was it possible to reconcile congressional non-intervention with the right of Congress to revise territorial laws? Now Douglas had never contended that the right of the people to self-government in the Territories was complete as against the power of Congress. He had never sought to confer upon them more than a relative degree of self-government—"the power to regulate their domestic institutions." He could not, and he did not, deny the truth and awkwardness of Clayton's contention. Where, then, demanded his critics, was the guarantee that the Kansas-Nebraska bill would banish the slavery controversies from Congress? This challenge could not go unanswered. Without other explanation, Douglas moved to strike out the provision requiring all territorial laws to be submitted to Congress.[[481]] But did this divest Congress of the power of revision? On this point Douglas preserved a discreet silence.
Recognizing also the incongruity of giving an absolute veto power to a governor who would be appointed by the President, Douglas proposed a suspensive, in place of an absolute, veto power. A two-thirds vote in each branch of the territorial legislature would override the governor's negative.[[482]] Chase now tried to push Douglas one step farther on the same slippery road. "Can it be said," he asked, "that the people of a territory will enjoy self-government when they elect only their legislators and are subject to a governor, judges, and a secretary appointed by the Federal Executive?" He would amend by making all these officers elective.[[483]] Douglas extricated himself from this predicament by saying simply that these officers were charged with federal rather than with territorial duties.[[484]] The amendment was promptly negatived. Yet seven years later, this very proposition was indorsed by Douglas under peculiar circumstances. At this time in 1854, it would have effected nothing short of a revolution in American territorial policy; and it might have altered the whole history of Kansas.
Despite asseverations to the contrary, there were Southern men in Congress who nourished the tacit hope that another slave State might be gained west of the Missouri. There was a growing conviction among Southern people that the possession of Kansas at least might be successfully contested.[[485]] At all events, no barrier to Southern immigration into the Territory was allowed to remain in the bill. Objection was raised to the provision, common to nearly all territorial bills, that aliens, who had declared their intention of becoming citizens, should be permitted to vote in territorial elections. In a contest with the North for the possession of the territorial government, the South would be at an obvious disadvantage, if the homeless aliens in the North could be colonized in Kansas, for there was no appreciable alien population in the Southern States.[[486]] So it was that Clayton's amendment, to restrict the right to vote and to hold office to citizens of the United States, received the solid vote of the South in the Senate. It is significant that Douglas voted with his section on this important issue. There can be no better proof of his desire that freedom should prevail in the new Territories. The Clayton amendment, however, passed the Senate by a close vote.[[487]]