The Toombs bill caused Republicans grave misgivings, even while they conceded its ostensible liberality.  Could an administration that had condoned the frauds already practiced in Kansas be trusted to appoint disinterested commissioners?  Would a census of the present population give a majority in the proposed convention to the free-State party in Kansas?  Everyone knew that many free-State people had been driven away by the disorders.  Douglas endeavored to reassure his opponents on these points; but his words carried no weight on the other side of the chamber.  No better evidence of his good faith in the matter, however, could have been asked than he offered, by an amendment which extended the right of voting at the elections to all who had been bona fide residents and voters, but who had absented themselves from the Territory, provided they should return before October 1st.[575] If, as Republicans asserted, many more free-State settlers than pro-slavery squatters had been driven out, then here was a fair concession.  But what they wanted was not merely an equal chance for freedom in Kansas, but precedence.  To this end they were ready even to admit Kansas under the Topeka constitution, which, by the most favorable construction, was the work of a faction.[576]

It was afterwards alleged that Douglas had wittingly suppressed a clause in the original Toombs bill, which provided for a submission of the constitution to a popular vote.  The circumstances were such as to make the charge plausible, and Douglas, in his endeavor to clear himself, made hasty and unqualified statements which were manifestly incorrect.  In his own bill for the admission of Kansas, Douglas referred explicitly to “the election for the adoption of the Constitution."[577] The wording of the clause indicates that he regarded the popular ratification of the constitution to be a matter of course.  The original Toombs bill had also referred explicitly to a ratification of the constitution by the people;[578] but when it was reported from Douglas’s committee in an amended form, it had been stripped of this provision.  Trumbull noted at the time that this amended bill made no provision for the submission of the constitution to the vote of the people and deplored the omission, though he supposed, as did most men, that such a ratification would be necessary.[579] Subsequently he accused Douglas not only of having intentionally omitted the referendum clause, but of having prevented a popular vote, by adding the clause, “and until the complete execution of this Act, no other election shall be held in said Territory."[580]

Douglas cleared himself from the latter charge, by pointing out that this clause had been struck out upon his own motion, and replaced by the clause which read, “all other elections in said Territory are hereby postponed until such time as said convention shall appoint."[581] As to the other charge, Douglas said in 1857, that he knew the Toombs bill was silent on the matter of submission, but he took the fair construction to be that powers not delegated were reserved, and that of course the constitution would be submitted to the people.  “That I was a party, either by private conferences at my house or otherwise, to a plan to force a constitution on the people of Kansas without submission, is not true."[582]