The Life of Jefferson Davis

by Frank H. Alfriend

In the course of his reply to me—if indeed it may be called such; it seemed to be rather a review of every thing except what I had said—he set me the bad example of going into the canvass in my own State. It is the first, I trust it will be the last time, I shall follow his example; and now only to the extent of the occasion, where criticism was invited by unusual publicity. In the canvass which the Senator had with his opponent, Mr. Lincoln, and the debates of which have been published in a book, we find much which, if it be consistent with his course as I had known it, only proves to me how little able I was to understand his meaning in former times.

The Kansas-Nebraska Bill having agreed the right for which I contend to be the subject of judicial decision; it having specially provided the mode and facilitated the process by which that right should be brought to the courts and finally decided; not allowing any check to be interposed because of amount, that bill having continued the provision which had been introduced into the New Mexico Bill, how are we to understand the Senator’s declarations, that, let the Supreme Court decide as they may, the inhabitants of a Territory may lawfully admit or exclude slavery as they please? What a hollow promise was given to us in the provision referring this vexed question to judicial decision, in order that we might reach a point on which we might peacefully rest, if the inhabitants of the Territories for which Congress had legislated could still decide the question and set aside any decision of the Supreme Court, and do this lawfully. I ask, was it not to give us a stone, when he promised us bread; to incorporate a provision in the organic act securing the right of appeal to the courts, if, as now stated, those courts were known to be powerless to grant a remedy?

Here there is a very broad distinction to be drawn between the power of the inhabitants of a Territory, or of any local community, lawfully to do a thing, and forcibly to do it. If the Senator had said, that whatever might be the decision of the Supreme Court, whatever might be the laws of Congress, whatever might be the laws of the Territories, in the face of an infuriated mob, such as he described on another occasion, it would be impossible for a man to hold a slave against their will, he would but have avowed the truism that in our country the law waits upon public opinion. But he says that they can do it lawfully. If his position had been such as I have just stated, it would have struck me as the opinion I had always supposed him to entertain. More than that, it would have struck me as the opinion which no one could gainsay; which, at any time, I would have been ready to admit. Nothing is more clear than that no law could prevail in our country, where force, as a governmental mean, is almost unknown, against a pervading sentiment in the community. Every body admits that; and it was in that view of the case that this question has been so often declared to be a mere abstraction. It is an abstraction so far as any one would expect in security to hold against the fixed purpose and all-pervading will of the community, whether territorial or other, a species of property, ambulatory, liable, because it has mind enough to go, to be enticed away whenever freed from physical restraint, and which would be nearly valueless if so restrained. It may be an abstraction as a practical question of pecuniary advantage, but it is not the less dear to those who assert the constitutional right. It would constitute a very good reason why no one should ever say there was an attempt to force slavery on an unwilling people, but no reason why the right should not be recognized by the Federal Government as one belonging to the equal privileges and immunities of every citizen of the United States.

But the main point of the Senator’s argument—and it deserved to be so, because it is the main question now in the public mind—was, what is the meaning of non-intervention? He defined it to be synonymous with squatter sovereignty, or with popular sovereignty....

The Senator and myself do not seem to be getting any nearer together; because the very thing which he describes constitutes the only case in which I would admit the necessity, and, consequently, the propriety of the people acting without authority. If men were cast upon a desert island, the sovereignty of which was unknown, over which no jurisdiction was exercised, they would find themselves necessitated to establish rules which should subsist between themselves; and so the people of California, when the Congress failed to give them a government; when it refused to enact a territorial law; when, paralyzed by the power of contending factions, it left the immigrants to work their own unhappy way; they had a right—a right growing out of the necessity of the case—to make rules for the government of their local affairs. But this was not sovereignty. It was the exercise, between man and man, of a social function necessary to preserve peace in the absence of any controlling power—essential to conserve the relations of person and property. The sovereignty, if it existed in any organization or government of the world, remained there still; and whenever that sovereignty extended itself over them, whether shipwrecked mariners, or adventurous Americans—whether cast off by the sea, or whether finding their weary way across the desert plains which lie west of the Mississippi—whenever the hand of the Government holding sovereign jurisdiction was laid upon them, they became subject; their sovereign control of their own affairs ceased. In our case, the directing hand of the Government is laid upon them at the moment of the enactment of an organic law. Therefore, the very point at which the Senator begins his sovereignty, is the point at which the necessity, and, in my view, the claim ceases.

But suppose that a territorial legislature, acting under an organic law, not defining their municipal powers further than has been general in such laws, should pass a law to exclude slave property, would the Senator vote to repeal it?

Mr. Douglas. I will answer. I would not, because the Democratic party is pledged to non-intervention; because, furthermore, whether such an act is constitutional or not is a judicial question. If it is unconstitutional, the court will so decide, and it will be null and void without repeal. If it is constitutional, the people have a right to pass it. If unconstitutional, it is void, and the court will ascertain the fact; and we pledged our honors to abide the decision....

Mr. Davis. If it will not embarrass the Senator, I would ask him if, as Chief Executive of the United States, he would sign a bill to protect slave property in State, Territory, or District of Columbia—an act of Congress?

Mr. Douglas. It will be time enough for me, or any other man, to say what bills he will sign, when he is in a position to exercise the power.

Mr. Davis. The Senator has a right to make me that answer. I was only leading on to a fair understanding of the Senator and myself about non-intervention....