The cause above alluded to, as contributing to the rapid growth of the so-called Republican party after the elections of the year 1857, was the dissension among the Democrats, occasioned by the introduction of the doctrine called by its inventors and advocates "popular sovereignty," or "non-intervention," but more generally and more accurately known as "squatter sovereignty." Its character has already been concisely stated in the preceding chapter. Its origin is generally attributed to General Cass, who is supposed to have suggested it in some general expressions of his celebrated "Nicholson letter," written in December, 1847. On the 16th and 17th of May, 1860, it became necessary for me in a debate, in the Senate, to review that letter of Mr. Cass. From my remarks then made, the following extract is taken:
"The Senator [Mr. Douglas] might have remembered, if he had chosen to recollect so unimportant a thing, that I once had to explain to him, ten years ago, the fact that I repudiated the doctrine of that letter at the time it was published, and that the Democracy of Mississippi had well-nigh crucified me for the construction which I placed upon it. There were men mean enough to suspect that the construction I gave to the Nicholson letter was prompted by the confidence and affection I felt for General Taylor. At a subsequent period, however, Mr. Cass thoroughly reviewed it. He uttered (for him) very harsh language against all who had doubted the true construction of his letter, and he construed it just as I had done during the canvass of 1848. It remains only to add that I supported Mr. Cass, not because of the doctrine of the Nicholson letter, but in despite of it; because I believed a Democratic President, with a Democratic Cabinet and Democratic counselors in the two Houses of Congress, and he as honest a man as I believed Mr. Cass to be, would be a safer reliance than his opponent, who personally possessed my confidence as much as any man living, but who was of, and must draw his advisers from, a party the tenets of which I believed to be opposed to the interests of the country, as they were to all my political convictions.
"I little thought at that time that my advocacy of Mr. Cass upon such grounds as these, or his support by the State of which I am a citizen, would at any future day be quoted as an endorsement of the opinions contained in the Nicholson letter, as those opinions were afterward defined. But it is not only upon this letter, but equally upon the resolutions of the Convention as constructive of that letter, that the Senator rested his argument. [I will here say to the Senator that, if at any time I do him the least injustice, speaking as I do from such notes as I could take while he progressed, I will thank him to correct me.]
"But this letter entered into the canvass; there was a doubt about its construction: there were men who asserted that they had positive authority for saying that it meant that the people of a Territory could only exclude slavery when the Territory should form a Constitution and be admitted as a State. This doubt continued to hang over the construction, and it was that doubt alone which secured Mr. Cass the vote of Mississippi. If the true construction had been certainly known, he would have had no chance to get it."
Whatever meaning the generally discreet and conservative statesman, Mr. Cass, may have intended to convey, it is not at all probable that he foresaw the extent to which the suggestions would be carried and the consequences that would result from it.
In the organization of a government for California in 1850, the theory was more distinctly advanced, but it was not until after the passage of the Kansas-Nebraska Bill, in 1854, that it was fully developed under the plastic and constructive genius of the Hon. Stephen A. Douglas, of Illinois. The leading part which that distinguished Senator had borne in the authorship and advocacy of the Kansas-Nebraska Bill, which affirmed the right of the people of the Territories "to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States," had aroused against him a violent storm of denunciation in the State which he represented and other Northern States. He met it very manfully in some respects, defended his action resolutely, but in so doing was led to make such concessions of principle and to attach such an interpretation to the bill as would have rendered it practically nugatory—a thing to keep the promise of peace to the ear and break it to the hope.
The Constitution expressly confers upon Congress the power to admit new States into the Union, and also to "dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Under these grants of power, the uniform practice of the Government had been for Congress to lay off and divide the common territory by convenient boundaries for the formation of future States; to provide executive, legislative, and judicial departments of government for such Territories during their temporary and provisional period of pupilage; to delegate to these governments such authority as might be expedient—subject always to the supervision and controlling government of the Congress. Finally, at the proper time, and on the attainment by the Territory of sufficient strength and population for self-government, to receive it into the Union on a footing of entire equality with the original States—sovereign and self-governing. All this is no more inconsistent with the true principles of "popular sovereignty," properly understood, than the temporary subjection of a minor to parental control is inconsistent with the doctrines of the Declaration of Independence, or the exceptional discipline of a man-of-war or a military post with the principles of republican freedom.
The usual process of transition from a territorial condition to that of a State was, in the first place, by an act of Congress authorizing the inhabitants to elect representatives for a convention to form a State Constitution, which was then submitted to Congress for approval and ratification. On such ratification the supervisory control of Congress was withdrawn, and the new State authorized to assume its sovereignty, and the inhabitants of the Territory became citizens of a State. In the cases of Tennessee in 1796, and Arkansas and Michigan in 1836, the failure of the inhabitants to obtain an "enabling act" of Congress, before organizing themselves, very nearly caused the rejection of their applications for admission as States, though they were eventually granted on the ground that the subsequent approval and consent of Congress could heal the prior irregularity. The entire control of Congress over the whole subject of territorial government had never been questioned in earlier times. Necessarily conjoined with the power of this protectorate, was of course the duty of exercising it for the safety of the persons and property of all citizens of the United States, permanently or temporarily resident in any part of the domain belonging to the States in common.
Logically carried out, the new theory of "popular sovereignty" would apply to the first adventurous pioneers settling in the wilderness before the organization of any Territorial government by Congress, as well as afterward. If "sovereignty" is inherent in a thousand or five thousand persons, there can be no valid ground for denying its existence in a dozen, as soon as they pass beyond the limits of the State governments. The advocates of this novel doctrine, however, if rightly understood, generally disavowed any claim to its application prior to the organization of a territorial government.
The Territorial Legislatures, to which Congress delegated a portion of its power and duty to "make all needful rules and regulations respecting the Territory," were the mere agents of Congress, exercising an authority subject to Congressional supervision and control—an authority conferred only for the sake of convenience, and liable at any time to be revoked and annulled. Yet it is proposed to recognize in these provisional, subordinate, and temporary legislative bodies, a power not possessed by Congress itself. This is to claim that the creature is endowed with an authority not possessed by the creator, or that the stream has risen to an elevation above that of its source.
Furthermore, in contending for a power in the Territorial Legislatures permanently to determine the fundamental, social, and political institutions of the Territory, and thereby virtually to prescribe those of the future State, the advocates of "popular sovereignty" were investing those dependent and subsidiary bodies with powers far above any exercised by the Legislatures of the fully organized and sovereign States. The authority of the State Legislatures is limited, both by the Federal Constitution and by the respective State Constitutions from which it is derived. This latter limitation did not and could not exist in the Territories.
Strange as it may seem, a theory founded on fallacies so flimsy and leading to conclusions so paradoxical was advanced by eminent and experienced politicians, and accepted by many persons, both in the North and in the South—not so much, perhaps, from intelligent conviction as under the delusive hope that it would afford a satisfactory settlement of the "irrepressible conflict" which had been declared. The terms "popular sovereignty" and "non-intervention" were plausible, specious, and captivating to the public ear. Too many lost sight of the elementary truth that political sovereignty does not reside in unorganized or partially organized masses of individuals, but in the people of regularly and permanently constituted States. As to the "non-intervention" proposed, it meant merely the abnegation by Congress of its duty to protect the inhabitants of the Territories subject to its control.