There were three objections to the bill. The commissioners were to be appointed by President Pierce. The 4th of July, from which residence must date, was a time at which great numbers of Northern settlers would be absent from the Territory on account of the turbulence and disorder which had rendered life there not only uncomfortable but unsafe. Moreover, no express provision was made for submitting the Constitution to a vote. However, it was regarded as a concession to the demands of an aroused public, clothed with the power of promptly and authoritatively expressing its disapproval.
But there were those in the Senate who feared the gift-bearing Greeks and thought it well, now that the majority had shown some regard for public opinion, to insist upon an explicit declaration of their purpose to submit the slavery question to the people of the Territory fairly and without juggling tricks. On the 2d of July, Trumbull offered an amendment declaring it to be the true intent and meaning of the bill organizing the Territory of Kansas to confer upon the inhabitants "full power at any time, through its territorial legislature, to exclude slavery from said Territory or to recognize and regulate it therein."This amendment seemed with utmost fairness to declare the meaning of that law precisely as Douglas expounded it. But the South had already taken the advanced ground that, as the Constitution of the United States expressly established slavery, it was not within the power of Congress or its creature, the territorial legislature, to abolish it. This was not the creed of the Northern Democracy, which had embraced the popular sovereignty doctrine of Douglas and Cass. To abandon that doctrine was to alienate the Northern Democrats and lose the presidential election. To carry it out in good faith was to surrender Kansas and the remaining Territories to anti-slavery institutions; for it was already evident that popular sovereignty meant free States. It was at no time a part of the serious political philosophy of the South, but the ingenious invention of the Northern leaders to hold their following. The South had permitted is Northern allies to give currency to the doctrine, but the more sagacious saw that it was a failure and were preparing, when the election was over, to cast it aside and announce the true Southern dogma, that no sovereignty except that of a State could forbid slavery anywhere in the Union.
Already the Dred Scott case was pending in the Supreme Court and had been once argued; but the decision was reserved until the elections were over and the new President inaugurated. Well informed Southern statesmen did not doubt that this ultra doctrine of their party would receive the authoritative sanction of that tribunal and the temporary scaffolding of popular sovereignty would then be summarily kicked aside. They could not afford to adopt Trumbull's declaration of power in the Territory to abolish slavery, for they secretly expected to establish that it had no such power. They could not afford to frankly declare against it while still courting the Northern Democrats. Benjamin, who was an accomplished lawyer, and with the lawyer's instincts depended more on constitutional defenses than on wavering popular majorities, moved to add the words "subject only to the Constitution of the United States." Now that the Constitution had become the bulwark of slavery, there was nervous dread that Congress and the people might forget that it was the supreme law to which all legislation was subject. Douglas earnestly objected to Trumbull's amendment. He protested against it as wholly unnecessary. He also voted against it as did the great majority of the Senators.
The bill passed the Senate by a vote of 33 to 12; but the House declined to consider it, and on the 3d passed an act to admit Kansas under the Topeka Constitution. No compromise of differences so radical was possible. Douglas remarked truly to his biographer that "it was evident during all the proceedings that the Republicans were as anxious to keep the Kansas question open as the Democrats were to close it, in view of the approaching presidential election."
