Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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POPULAR SOVEREIGNTY

III.74.1

POPULAR SOVEREIGNTY (IN U. S. HISTORY). The acquisition of territory from Mexico (see ANNEXATIONS, IV.-VI.) brought with it a most troublesome and dangerous question, the status of slavery therein. Was the new territory to be entirely free? was it to be entirely slave? was it to be equitably divided? or was congress to refrain from interfering in any way, and allow the problem to gradually eliminate its own difficulties? The first proposition, the basis of the free-soil and republican parties successively, is elsewhere treated (see WILMOT PROVISO); the third had comparatively few advocates, for the time had passed when even a Missouri compromise line could settle the difficulty; the second and fourth represent the two opposing influences which, after twelve years of widening, finally split the democratic party in 1860.

III.74.2

—The second proposition above referred to is primarily untraceable, but its rounded and ultimate completion is certainly due to Calhoun. The argument for it took two directions, which may be briefly stated as follows: 1. The power given to congress by the constitution (article IV., section 3), to "dispose of and make all needful rules and regulations respecting the territory" of the United States, referred only to the territory then held by the United States, in which slavery had already been prohibited. (See ORDINANCE OF 1787.) This meaning was so clear at the time that a separate section was necessary to empower congress to govern the territory thereafter to be acquired for a national capital. Plainly, then, in the cases of Louisiana, Florida, and the Mexican annexations, congress was to govern them, not by virtue of this territorial section of the constitution, but by virtue of the sovereign power by which it had acquired them. But congress was itself the creature of the constitution, and could exercise in the territories no powers prohibited to it by the constitution: it could not erect a state church there; or take away freedom of speech, or trial by jury; or allow any one to be deprived of property without due process of law. If, therefore, it found slave property in any of the territories, it was constitutionally bound to legislate for the protection of this species of property, as well as of others. This was the branch of argument intended for the country in general. Historically it is very strong, as may be better seen in Taney's opinion in the Dred Scott case. Logically it is almost as strong, its radically weak point being in the definition of "property." How could congress be said to "find slave property" in the territories? State law or custom might create a property in man, but this could cover only the jurisdiction of the state: the state law or custom of Georgia could no more justify property in slaves in a territory than in the sister state of New York. Slave property could not be justified by territorial law, for the territories were under the sovereign jurisdiction of the United States; nor by that consensus of recognition by all men which justifies the holding of other animate objects as property. It could hold up absolutely no other shield than state law. Was congress to protect every man in the territories in the enjoyment of whatever he might see fit to claim as his property—air, sunlight, black men, or even other white men? But the whole argument is no stronger than its weakest part, and must stand or fall with that. 2. As the constitution was a compact between separate and sovereign states, congress, as the joint agent and representative of the states, had no right to so legislate against slave property in the territories as to prevent citizens of slave states from emigrating thither, since that would be a discrimination against such states, and would deprive them of their full and equal right in the territories. This branch is elsewhere considered. (See NATION, III.; STATE SOVEREIGNTY.) In this case it was addressed more directly to the slave states than to the country at large, and it furnishes the connecting link between the theory of state sovereignty and its practical enforcement by secession, when Calhoun's hypothetical casus belli had occurred. In this point of view, Calhoun's resolutions of Feb. 19, 1847, whose language has been used in the statement above, were the ultimatum on which the southern states originally declared war, in 1860.

III.74.3

—The first enunciation of the fourth proposition is generally found in the Nicholson letter of Cass, Dec. 24, 1847. In this Cass asserts that the principle of the Wilmot proviso "should be kept out of the national legislature, and left to the people of the confederacy in their respective local governments"; and that, as to the territories themselves, the people inhabiting them should be left "to regulate their internal concerns in their own way." This idea was the essence of "popular sovereignty." Its advocates generally accepted the territorial section of the constitution, above referred to, as applicable, not only to the territory possessed by the United States in 1788, but prospectively to any which might be acquired thereafter. They therefore held that congress might make any "rules and regulations" it might deem proper for the territories, including the Mexican acquisitions; but that, in making these rules and regulations, it was wiser and better for congress to allow the "inchoate state" to shape its own destiny at its own will. Properly, it will be seen, there was nothing in the dogma which could constitutionally prohibit congress from making rules for or against slavery in the territories, if it should so determine, though gradually Douglas and some of its more enthusiastic advocates grew into the belief that popular sovereignty was the constitutional right of the people of the territories, which congress could not abridge. Still, it should have been plain that, if a democratic congress might make a "regulation" empowering the people of the territories to control slavery therein, a congress of opposite views might with equal justice make a "regulation" of its own, abolishing slavery therein. This point, however, never became plain to the south until the new republican party secured control of the house of representatives in 1855-7. After that time the whole south came to repudiate popular sovereignty and the territorial section of the constitution, and rested on the Calhoun doctrine that congress and the immigrant both entered the territory with all the limitations of the constitution upon them, including its provisions for the protection of slave property as well as property of other kinds.

III.74.4

—At its first declaration, however, the idea proved to be a very taking one, south and north, for it promised to relieve the states from any responsibility for or consideration of the question of slavery in the territories. This was to be decided by the territorial legislature, as representing the people, and by the popular convention, upon the final formation of a state constitution. The democratic platform of 1848 did not directly refer to or indorse it, but its highly colored reference to the French revolution of that year, and to "the recent development of this grand political truth of the sovereignty of the people and their capacity and power for self-government, was at least suggestive of the Cass doctrine of popular sovereignty in the territories. The suggestion was made still plainer by the convention's action in rejecting, by a vote of 216 to 86, a resolution offered by Yancey, of Alabama, recognizing "the doctrine of non-interference with the rights of property of any portion of the people of this confederacy, be it in the states or territories, by any other than the parties interested in them [i.e., in such rights]"; the democratic convention was not willing, therefore, to sustain the right of any slaveholder to transfer his slave property into a territory against the will of its people.

III.74.5

—The sudden growth of population in California in 1848-50 gave Calhoun an opportunity of fastening a nickname upon the doctrine which he opposed. No territorial government had been formed in California when it applied for admission as a state. Its inhabitants, said Calhoun, were therefore trespassers on the public domain, mere squatters, who surely had no right on any theory to regulate their own government. His ridicule only made the terms "squatter sovereignty" and "popular sovereignty" interchangeable, though the former properly applied to an unorganized, and the latter to an organized, territory.

III.74.6

—The original discoverer of the doctrine of popular sovereignty in the territories did not perfect his claim by occupation, and Douglas almost immediately became its strongest and most persistent champion, so that his name is most entirely identified with it. Henceforward the Douglas doctrine became the shibboleth of most of the northern democrats, as a medium between the Wilmot proviso and the demand of many of the southern democrats for active congressional protection of slavery in the territories. It is significant, however, of the timorous and evasive statesmanship of 1850, that it is exceedingly difficult to say whether popular sovereignty was a feature in the compromise of that year. (See COMPROMISES, V.) Southern democrats asserted that it was not, and their claim is supported by the provisions that the legislatures of Utah and New Mexico (the only territories organized by the compromise) should have power over "all rightful subjects of legislation consistent with the constitution of the United States," and that its laws should be submitted to congress, and, if disapproved, should be null and of no effect. Douglas asserted that popular sovereignty was the basis of the bill, and the course of proceedings on it in the senate seems to confirm his assertion. He reported the bill in the senate, March 25, the powers of the legislature being as above stated. The committee of thirteen reported the same bill, May 8, adding the proviso "with the exception of African slavery." Amendments were offered by Jefferson Davis, of Mississippi, to empower the territorial legislature to protect, but not to attack, slavery, and by Chase, of Ohio, of exactly the opposite purport. Both were rejected; a motion of Douglas, through another senator, to strike out the committee's exception of slavery from the powers of the legislature, was carried by a vote of 33 to 19; and the bill passed as originally framed by Douglas. Even with this explanation, the best that can be said of the whole arrangement is, that it was a provoking verbal juggle, meaning anything but what it appeared to mean on its face, and best calculated for citation as a precedent in two opposite senses, for an increasingly bitter wrangle over its meaning, and for the final disruption of the party which had passed it. (See DEMOCRATIC-REPUBLICAN PARTY, V.)

III.74.7

—In 1854 the Kansas-Nebraska bill (see that title) again purported to enforce the popular sovereignty idea in the new territories, although slavery had been prohibited in both of them by the Missouri compromise of 1820. The fourteenth and thirty-second sections of the act put the laws of the United States in force in the two territories, "except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March 6, 1820, which, being inconsistent with the principle of non-intervention by congress with slavery in the states and territories, as recognized by the legislation of 1850, commonly called the compromise measures, is hereby declared inoperative and void; it being the true intent and meaning of this act, not to legislate slavery into any territory or state, nor to exclude it there from, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the constitution of the United States." It will be noticed that the language is simple and direct until the point is reached where "popular sovereignty" was to be defined; then it becomes circumlocutory. The people were to "form and regulate their domestic institutions in their own way"; did that mean that they were at liberty either to allow or to prohibit slavery? "Popular sovereignty" and common sense said, Yes; the very senate that passed the bill said, No; Chase's amendment, "under which the people of the territory, through their appropriate representatives, may, if they see fit, prohibit the existence of slavery therein," was rejected, March 2, by a vote of 36 to 10. What other meaning than that of the Chase amendment could be given to the bill, it is impossible to see, and, unless the vote above mentioned was only significant of a general dislike of Chase, the popular sovereignty part of the Kansas-Nebraska bill must be set down as another verbal juggle, intended to be read in different ways north and south—In the meantime Calhoun's original theory had been growing in favor at the south. There the leaders were rapidly growing more dissatisfied with "non-intervention by congress," with the idea that congress was of itself to do nothing for or against slavery in the territories; but was to delegate to the people of the territories the powers which it would not or could not exercise itself. A convention of delegates from nine southern states at Nashville, June 2, 1850, had declared that the federal government had no right to decide what should be held as property in the territories; that the slaveholding states would not submit to any restraints upon the removal of their citizens with their property to the territories; but that, for the sake of peace, they would consent to the equitable division of the territories by the line of 36° 30' to the Pacific. Four years afterward they assisted in carrying through the extension of popular sovereignty to all the territories, by the Kansas-Nebraska bill, partly from the desire to gratify the northern democracy, but much more from the delusive hope that all the territories would thus be opened to slavery. Within two years this hope had vanished forever. (See KANSAS.) It was plain that, without the reopening of the African slave trade, "popular sovereignty" in the territories meant their inevitable final admission as free states. From the moment that this result was apparent, there was no longer any hesitation among southern leaders. They accepted every link of the reasoning which Calhoun had forged ten years before: in the territories neither congress nor the territorial government could legislate against slavery; on the contrary, congress as the agent of the states, and the territorial governments as the agents of congress, were bound to fulfill the essence of good government by protecting those rights of property which were recognized by the states; and popular sovereignty would only come into play when the territory should itself become a state, and should decide whether it should be a free or a slave state. These were the basis of the Southern demands for a platform, on which the Charleston convention split in 1860. They had previously been accepted by the president and the official leaders of the democratic party, and by its majority in the senate. Douglas' non-concurrence led to his removal from the committee on territories in the senate, and practically placed him out of the party fold.

III.74.8

—Throughout all this twelve years struggle. "non-intervention by congress" meant, in the north, that congress was to do nothing for or against slavery in the territories, but was to allow the people of the territories to do as they pleased; and, in the south, that congress was to do nothing against slavery in the territories, either of itself or through the territorial legislatures. By dexterous manipulation of phrases the northern and southern democracy had united to pass the territorial bills of 1850 and 1854, neither insisting on the full expression of its demands in words. But in 1857 the supreme court, in the Dred Scott case (see that title), decided against Douglas and popular sovereignty, and for the full vigor of the Calhoun theory. Thereafter the southern leaders, as law-abiding citizens, could of course do nothing else than amplify their previous demands into consistence with the supreme court's doctrine, and, further, insist upon their expression in plain terms. In the democratic national convention of 1856 both sections had been content with a bald approval of "non-interference by congress with slavery in the territories," leaving the interpretation of this phrase undecided. In the convention of 1860 the two sections formulated their respective demands in plain terms. No manipulation of phrases could reconcile them, and the convention and the party at last divided. (See DEMOCRATIC-REPUBLICAN PARTY, V.) With the election of 1860, and the outbreak of the rebellion, popular sovereignty disappeared with the evil for which it was designed to be the remedy.

III.74.9

—The best exposition of the doctrine of "popular sovereignty" is that published by Douglas in September, 1859, as cited below. In it he insists desperately that the Dred Scott decision had not condemned his doctrine, though he admits that, if it had so condemned it, the Seward dogma would be correct, that "there is an irrepressible conflict between opposing and enduring forces, which means that the United States must and will, sooner or later, become either entirely a slave-holding nation or entirely a free labor nation." This belief of Douglas will account for the offer of his followers at Charleston "to abide by the decisions of the supreme court on questions of constitutional law." But his belief, honest as it undoubtedly was, was evidently unfounded. How can "the opinion of the court, that the act of congress which prohibited a citizen from holding and owning property of this kind [slave property] in the territory of the United States, is not warranted by the constitution, and is therefore void," be reconciled with a power in congress to authorize the people of the territories to impose the same prohibition? The court could hardly have decided against Douglas more plainly, except by naming him and his doctrine. Nevertheless, the doctrine of Douglas, that the territories are held only for the purpose of becoming states, that they are therefore really "inchoate states," that it is wise and just to allow their inhabitants the powers of self-government and "the regulation of their domestic institutions to suit themselves," is well founded, and has been the foundation of the American territorial system since 1787. (See TERRITORIES, I.) But the power of congress, nevertheless, is always latent, and may be exercised whenever congress, rightly or mistakenly, conceives it to be "for the general welfare" to do so. If the people of the territory undertake to harbor anything which seems to congress a moral evil, a lottery system, polygamy, or slavery, it is the right and duty of congress, for the welfare not only of the future state but of all the states, to intervene and destroy it. It is a little odd that the congresses of 1854-8, which were so quick to recognize this truth in the case of polygamy in Utah, were so slow to recognize it in the case of slavery in Kansas. Popular sovereignty in the territories is, and has always been, a privilege, not a right; and the privilege is to be exercised in strict conformity to the terms of the grant.

III.74.10

—The historical authorities for the rise and fall of the idea of "popular sovereignty" in the territories will be found under DEMOCRATIC-REPUBLICAN PARTY, V.; REPUBLICAN PARTY, I. The Calhoun doctrine will be found in 4 Calhoun's Works, 339 (resolutions of Feb. 19, 1847), 535; see also Taney's opinion in DRED SCOTT CASE; 2 Stephens' War Between the States, 202; and Jefferson Davis' senate resolutions of May 24, 1860, in Greeley's Political Text Book of 1860, 194. Cass' Nicholson letter in full is in Cluskey's Political Text Book of 1860, 462. The Douglas doctrine is in Harper's Magazine, September, 1859, and in Cutts' Treatise on Party Questions, 123. The former article was answered by attorney general J. S. Black in pamphlet Observations on it; and the medium between the two is taken in Reverdy Johnson's Remarks on Popular Sovereignty. H. A. Wise's Territorial Government, 47, 148, accomplishes the difficult feat of reaching Calhoun's conclusions from Douglas' premises.

ALEXANDER JOHNSTON.

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