Wednesday, January 26, 2005

Bleeding Kansas --- Part 3

Senator Stephen A. Douglas did not get the Democratic nomination for President in 1856. He was too controversial, too hard to control. James Buchanan, a Pennsylvania Democrat, a former Secretary of State, now the Ambassador to England (and therefore out of the country during the current Kansas crisis), a professional politician with 40 years of experience, won the election of 1856 with heavy Southern support. The events of the previous years, from the Mexican War on, had destroyed political alliances in the North. The Whig Party was dying, and the Republican Party not yet fully coalesced. There was also a “nativist” party, the Know Nothings, which ran former President Millard Fillmore, a New Yorker. His Whig administration, in power for the Compromise of 1850, was basically pro-Southern. The Northern vote was therefore split, and Buchanan won election in the Electoral College 174-122 (combined) despite having only 45% of the popular vote (1,800,000 to 2,200,000)

Kansas was still a political “hot-potato” and no one wanted to be the governor of Kansas. Robert Walker a Pennsylvania-based Mississippi plantation owner with strong ties to Douglas accepted the job. Before taking the job, however, he made Buchanan endorse the following statement: “The actual, bona-fide residents of the territory of Kansas, by a fair and regular vote, unaffected by fraud or violence, must be permitted, in adopting their state constitution, to decide for themselves what shall be their social institutions.”

Douglas now had Governor Walker in Kansas, a Buchanan appointee who was closer to Douglas than he was to Buchanan. There was also a Surveyor General, a Commissioner of Elections, John A. Calhoun (no relation to the famous Senator from South Carolina) who was completely beholden to Douglas for his career.

Not waiting for Governor Walker, the Kansas legislature (the “legal” pro-slavery one) announced an election for delegates to the State Constitutional Convention, to be held in Lecompton. The Kansas voting districts did not seem to follow the actual population trends very well. In addition, all the mechanisms of the voting was in pro-Southern hands. As a result, free-soilers decided to sit out the election. On arriving in Kansas, Governor Walker warned the anti-slavery movement that the upcoming election was a legal election set up by a legal legislature, and the free-soilers would have to live with the result. The free-soilers did not take the Governor’s advice, and a pro-slavery Constitutional Convention was elected. 2,200 voted out of an estimated 9,000 eligible voters in Kansas. In general, no states were admitted to the Union unless there were enough people to elect a representative to the House of Representatives. In 2000, each Congressional district represents between 500,000 and 600,000 persons. In 1857, each district represented 90,000 persons. Under general rules, there were not enough people in Kansas to hold a Constitutional convention. Yet, a Constitutional convention was about to be held.

What is popular sovereignty? A “legal” legislature is elected by 6,307 of a possible 2,905 voters “residing” in Kansas for the day called for a constitutional convention. 2,200 people out of a possible 9,000 eligible voters (apparently, population had increased) voted for representatives to that convention. Was that enough “popular sovereignty” for the purposes of the Kansas-Nebraska Act? The entire South clearly thought so. None of the actions taken by the pro-slavery forces were strictly illegal. Southern sentiment wanted a convention to meet in Lecompton to pass a pro-slavery constitution. The pro-slavery faction, despite Buchanan’s promise to Walker, despite what seemed to be the general understanding in Kansas, then wanted to bypass a final general election on the issue of slavery on the grounds that it was within the power of the territorial legislature to bypass the vote. Then, they wanted the Congress to ratify the Lecompton Constitution. All of this was to the letter of the law, but is it what any of the lawmakers intended when they passed the Kansas-Nebraska Act and set up the election?

Buchanan was on record, both in March and in July, as stating that the Constitution had to be submitted to the voters, but what did that really mean?

The Lecompton Convention was originally planned for September, but it was adjourned because the “legal” Kansas legislature was due up for election in October. Finally, it seemed that everyone voted, notwithstanding the heavy pro-Southern gerrymandering of the districts. The pro-Southern voters won, although some of the results were a bit unusual. For example, in one district, there were 6 houses and 30 registered voters. 1,601 voters voted. The same person signed all 1,601 signatures. They were the same 1,601 names that appeared, in identical order, in the Cincinnati Directory. It was considered that the signatures were either the work of John Calhoun (who was supposedly Stephen Douglas’s friend), or someone working under the direction of Calhoun.

The Buchanan administration told Governor Walker that he was expected to let the [pro-slavery] judges in Kansas sort out the disputed ballots. However, the judges literally left the state rather than face the wrath of the losing party. As a matter of law, the governor now had the power to throw out election returns, and Governor Walker exercised this power. He declared the winners in a way that seemed to follow the population, and made the incoming Kansas legislature pro-Northern. Obviously, Walker used up all his political capital, and in the midst of the financial panic of 1857, he left Kansas, too.

As a result of Walker’s actions, the incoming “legal” state legislature in Kansas would be anti-slavery. In the meantime, the constitutional convention in Lecompton, was equally “legal” and totally pro-slavery. The Lecompton delegates saw, if they had not before, that any constitution that they would submit to the voters would be defeated.

The Lecompton Convention finally convened in November 1857. The Lecompton Convention stripped Governor Walker of most of his powers. That meant that the most powerful person in Kansas, as far as elections were concerned, was now John Calhoun.

Calhoun had a problem of his own. Congress would not ratify a state Constitution that had no provision for approval by the voters. Both Buchanan and Douglas had demanded some sort of popular vote. Calhoun reportedly wrote Douglas for advice, but Douglas never responded. It is unclear what Calhoun would have done with the advice anyway. Calhoun had clearly cast his lot with the pro-slavery faction in Kansas, and for them the end result had to be Kansas as a slave state. In solving the dilemma, Calhoun proved that modern “newspeak” is not so modern.

The voters would be allowed to vote only on the constitutional provision on slavery. Voters could vote either for the Constitution “with slavery” or the Constitution “without slavery.” The Constitution “with slavery” has its plain meaning. The Constitution “without slavery” meant that no new slaves would be imported into Kansas. However, all existing slaves, and all their descendents, would continue to be slaves. Moreover, the Constitution stated that the “pro-slavery” provisions could not be amended for at least seven years.

The “grandfathering” of existing slaves, in new or amended state constitutions, was not unique, and several states had resorted to it in their abolition of slavery acts. However, the Lecompton Constitution provided that all existing slaves, and their issue, would remain slaves. This was unique. Since it was impossible for slaves to conclusively prove paternity, it would allow for the continuation of slavery even if the “against slavery” forces won. This unique position was based on an expansive reading of Dred Scott. Dred Scott said that slaves could not be granted freedom in the territories against the wishes of their masters. It did not change the laws allowing states to decide on slavery or freedom. The Lecompton Convention stretched Dred Scott to say that once a slaveholder brought a slave into a territory, no one, except the master, ever had the power to set that slave, or his family, free.

Beyond this non-choice about slavery, the voting commissioners of every county would be appointed by Calhoun, and the commissioners would in turn appoint the election judges. Therefore, as a practical matter, there would be no opportunity to protest vote fraud, or in some cases to even vote “against slavery.” Voting against the entire constitution was not an option.

President Buchanan declared that a Constitutional Convention that gave the voters only this choice regarding slavery, in this manner, was “popular sovereignty” as far as he was concerned. Buchanan said that the slavery clause was the only clause worth voting on, that the remainder of any state’s Constitution was boilerplate. For Buchanan, giving “popular sovereignty” to voters to formulate their “domestic institutions,” giving the “states rights” to formulate its “domestic institutions,” were only euphemisms for the discussion of slavery.

Buchanan put all of the prestige of the Presidency, and all of the power and the patronage of his Administration, behind the pro-slavery Lecompton Constitution.

[More to follow]