Saturday, June 26, 2010

Lewis Cass's Nicholson Letter


In December 1847, Michigan Senator Lewis Cass wrote a letter to one A.P.O. Nicholson of Nashville, Tennessee concerning the Mexican War, the Wilmot Proviso and the issue of slavery in the territories. The letter, dated December 24, 1847, was intended to launch Cass's ultimately successful campaign for the 1848 Democratic nomination for the presidency. It was made public and published, originally in the December 30, 1847 edition of the Washington Union.

The letter gained attention and is most famous today as one of the earliest articulations of Popular Sovereignty, the idea that the people of the territories should decide whether or not to permit slavery there. The great benefit of this idea, as Cass himself admitted, was that it would remove the contentious debate over slavery in the territories from the halls of Congress.


Scholars have repeatedly pointed out that Popular Sovereignty also contained a crucial - and highly beneficial, although potentially dangerous - ambiguity as to when during the territorial process residents could address slavery. Northern politicians attempting to convince their constituents that Popular Sovereignty would, as a practical matter, bar slavery from the territories, argued, or at least suggested, that territorial legislatures could forbid slavery at any time after their creation. Southerners, on the other hand, maintained that territories could bar slavery only in the final stage of their existence, when territorial representatives met in convention to draft a proposed state constitution.

While Cass's Nicholson letter is vague on this issue, the most interesting part of the letter to me is the discussion of Congress's power over the territories. He adopts the odd (and I would maintain clearly erroneous) position that Congress did not have the power to pass laws that generally regulated the affairs of citizens within the territories (what he elsewhere calls the "police"). The language contained in Article IV, Section 3 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States") "fairly construed, relates to the public lands, as such, to arsenals, dock-yards, forts, ships, and all the various kinds of property, which the United States may and must possess." It "does not extend to the unlimited power of legislation; to the passage of all laws, in the most general acceptation of the word; which [word], by the by, is carefully excluded from the sentence."

As Cass tacitly admits, the Northwest Ordinance - passed without controversy by the Founding Generation - makes something of a hash out of his position. He retreats to an uneasy solution. Based on the principle that government power "should not be carried beyond the necessary implication which produces it," Cass concludes that Congressional authority over the territories "should be limited to the creation of proper governments for new countries, acquired or settled, and to the necessary provision for their eventual admission into the Union; leaving, in the meantime, to the people inhabiting them, to regulate their internal concerns in their own way."


Here is the complete letter. Judge for yourselves:

Dear Sir: I have received your letter, and shall answer it as frankly as it is written.

You ask me whether I am in favor of the acquisition of Mexican territory, and what are my sentiments with regard to the Wilmot Proviso?

I have so often and so explicitly stated my views of the first question, in the Senate, that it seems almost unnecessary to repeat them here. As you request it, however, I shall briefly give them.

I think, then, that no peace should be granted to Mexico, till a reasonable indemnity is obtained for the injuries which she has done us. The territorial extent of this indemnity is, in the first instance, a subject of Executive consideration. There the Constitution has placed it, and there I am willing to leave it; not only because I have full confidence in its judicious exercise, but because, in the ever-varying circumstances of a war, it would be indiscreet, by a public declaration, to commit the country to any line of indemnity, which might otherwise be enlarged, as the obstinate injustice of the enemy prolongs the contest, with its loss of blood and treasure.

It appears to me that the kind of metaphysical magnanimity, which would reject all indemnity at the close of a bloody and expensive war, brought on by a direct attack upon our troops by the enemy, and preceded by a succession of unjust acts for a series of years, is as unworthy of the age in which we live, as it is revolting to the common sense and practice of mankind. It would conduce but little to our future security, or, indeed to our present reputation, to declare that we repudiate all expectation of compensation from the Mexican government, and are fighting, not for any practical result, but for some vague, perhaps philanthropic object, which escapes my penetration, and must be defined by those who assume this new principle of national intercommunication. All wars are to be deprecated, as well by the statesman, as by the philanthropist. They are great evils; but there are greater evils than these, and submission to injustice is among them. The nation which should refuse to defend its rights and its honor, when assailed, would soon have neither to defend; and when driven to war, it is not by professions of disinterestedness and declarations of magnanimity, that its rational objects can be best obtained, or other nations taught a lesson of forbearance – the strongest security for permanent peace. We are at war with Mexico, and its vigorous prosecution is the surest means of its speedy termination, and ample indemnity the surest guaranty against the recurrence of such injustice as provoked it.

The Wilmot proviso has been before the country some time. It has been repeatedly discussed in Congress, and by the public press. I am strongly impressed with the opinion, that a great change has been going on in the public mind upon this subject – in my own as well as others; and that doubts are resolving themselves into convictions, that the principle it involves should be kept out of the National Legislature, and left to the people of the confederacy in their respective local governments.

The whole subject is a comprehensive one, and fruitful of important consequences. It would be ill-timed to discuss it here. I shall not assume that responsible task, but shall confine myself to such general views as are necessary to the fair exhibition of my opinions.

We may well regret the existence of slavery in the southern States, and wish they had been saved from its introduction. But there it is, and not by the act of the present generation; and we must deal with it as a great practical question, involving the most momentous consequences. We have neither the right nor the power to touch it where it exists; and if we had both, their exercise, by any means heretofore suggested, might lead to results which no wise man would willingly encounter, and which no good man could contemplate without anxiety.

The theory of our Government presupposes that its various members have reserved to themselves the regulation of all subjects relating to what may be termed their internal police. They are sovereign within their boundaries, except in those cases where they have surrendered to the General Government a portion of their rights, in order to give effect to the objects of the Union, whether these concern foreign nations or the several States themselves. Local institutions, if I may so speak, whether they have reference to slavery, or to any other relations, domestic or public, are left to local authority, either original or derivative. Congress has no right to say that there shall be slavery in New York, or that there shall be no slavery in Georgia; nor is there any other human power but the people of those States, respectively, which can change the relations existing therein; and they can say, if they will, We will have slavery in the former, and we will abolish it in the latter.

In various respects the Territories differ from the States. Some of their rights are inchoate, and they do not possess the peculiar attributes of sovereignty. Their relation to the General Government is very imperfectly defined by the Constitution; and it will be found, upon examination, that in that instrument the only grant of power concerning them is conveyed in the phrase, “Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States." Certainly this phraseology is very loose, if it were designed to include in the grant the whole power of legislation over persons, as well as things. The expression, the "territory and other property," fairly construed, relates to the public lands, as such, to arsenals, dock-yards, forts, ships, and all the various kinds of property, which the United States may and must possess.

But surely the simple authority to dispose of and regulate these, does not extend to the unlimited power of legislation; to the passage of all laws, in the most general acceptation of the word; which, by the by, is carefully excluded from the sentence. And, indeed, if this were so, it would render unnecessary another provision of the Constitution, which grants to Congress the power to legislate, with the consent of the States, respectively, over all places purchased for the "erection of forts, magazines, arsenals, dock-yards," &c. These being the "property" of the United States, if the power to make "needful rules and regulations concerning" them includes the general power of legislation, then the grant of authority to regulate "the territory and other property of the United States" is unlimited, wherever subjects are found for its operation, and its exercise needed no auxiliary provision. If, on the other hand, it does not include such power of legislation over the "other property" of the United States, then it does not include it over their "territory;" for the same terms which grant the one, grant the other. "Territory" is here classed with property, and treated as such; and the object was evidently to enable the General Government, as a property-holder – which, from necessity, it must be – to manage, preserve, and "dispose of" such property as it might possess, and which authority is essential almost to its being. But the lives and persons of our citizens, with the vast variety of objects connected with them, cannot be controlled by an authority which is merely called into existence for the purpose of making rules and regulations for the disposition and management of property.

Such, it appears to me, would be the construction put upon this provision of the Constitution, were this question now first presented for consideration, and not controlled by imperious circumstances. The original ordinance of the Congress of the Confederation, passed in 1787, and which was the only act upon this subject in force at the adoption of the Constitution, provided a complete frame of government for the country north of the Ohio, while in a territorial condition, and for its eventual admission in separate States into the Union. And the persuasion, that this ordinance contained within itself all the necessary means of execution, probably prevented any direct reference to the subject in the constitution, further than vesting in Congress the right to admit the States formed under it into the Union. However, circumstances arose which required legislation, as well over the territory north of the Ohio, as over other territory, both within and without the original Union, ceded to the General Government; and, at various times, a more enlarged power has been exercised over the Territories – meaning thereby the different Territorial Governments – than is conveyed by the limited grant referred to. How far an existing necessity may have operated in producing this legislation, and thus extending, by rather a violent implication, powers not directly given, I know not. But certain it is, that the principle of interference should not be carried beyond the necessary implication which produces it. It should be limited to the creation of proper governments for new countries, acquired or settled, and to the necessary provision for their eventual admission into the Union; leaving, in the meantime, to the people inhabiting them, to regulate their internal concerns in their own way. They are just as capable of doing so as the people of the States; and they can do so, at any rate, as soon as their political independence is recognized by admission into the Union. During this temporary condition, it is hardly expedient to call into exercise a doubtful and invidious authority, which questions the intelligence of a respectable portion of our citizens, and whose limitation, whatever it may be, will be rapidly approaching its termination – an authority which would give to Congress despotic power, uncontrolled by the Constitution, over most important sections of our common country. For, if the relation of master and servant may be regulated or annihilated by its legislation, so may the relation of husband and wife, of parent and child, and of any other condition which our institutions and the habits of our society recognize. What would be thought if Congress should undertake to prescribe the terms of marriage in New York, or to regulate the authority of parents over their children in Pennsylvania? And yet it would be as vain to seek one justifying the interference of the National Legislature in the cases referred to in the original States of the Union. I speak here of the inherent power of Congress, and do not touch the question of such contracts as may be formed with new States when admitted into the Confederacy.

Of all the questions that can agitate us, those which are merely sectional in their character are the most dangerous, and the most to be deprecated. The warning voice of him who, from his character, and services, and virtue, had the best right to warn us, proclaimed to his countrymen, in his Farewell Address – that monument of wisdom for him, as I hope it will be of safety for them – how much we had to apprehend from measures peculiarly affecting geographical portions of our country. The grave circumstances in which we are now placed make these words, words of safety; for I am satisfied from all I have seen and heard here, that a successful attempt to ingraft the principles of the Wilmot proviso upon the legislation of this Government, and to apply them to new territory, should new territory be acquired, would seriously affect our tranquillity. 1 do not suffer myself to foresee or to foretell the consequences that would ensue; for I trust and believe there is good sense and good feeling enough in the country to avoid them, by avoiding all occasions which might lead to them.

Briefly, then, I am opposed to the exercise of any jurisdiction by Congress over this matter; and I am in favor of leaving to the people of any territory, which may be hereafter acquired, the right to regulate it for themselves, under the general principles of the Constitution. Because –

1. I do not see in the Constitution any grant of the requisite power to Congress; and I am not disposed to extend a doubtful precedent beyond its necessity – the establishment of Territorial Governments when needed – leaving to the inhabitants all the rights compatible with the relations they bear to the Confederation.

2. Because I believe this measure, if adopted, would weaken, if not impair, the Union of the States; and would sow the seeds of future discord, which would grow up and ripen into an abundant harvest of calamity.

3. Because I believe a general conviction, that such a proposition would succeed, would lead to an immediate withholding of the supplies, and thus to a dishonorable termination of the war. I think no dispassionate observer at the seat of government can doubt this result.

4. If, however, in this I am under a misapprehension, I am under none in the practical operation of this restriction, if adopted by Congress, upon a treaty of peace making any acquisition of Mexican territory. Such a treaty would be rejected just as certainly as presented to the Senate. More than one-third of that body would vole against it, viewing such a principle as an exclusion of the citizens of the slave holding states from a participation in the benefits acquired by the treasure and exertions of all, and which should be common to all. I am repeating – neither advancing nor defending these views. That branch of the subject does not lie in my way, and I shall not turn aside to seek it.
In this aspect of the matter, the people of the United States must choose between this restriction and the extension of their territorial limits. They cannot have both; and which they will surrender must depend upon their representatives first, and then, if these fail them, upon themselves.

5. But, after all, it seems to be generally conceded, that this restriction, if carried into effect, .could not operate upon any state to be formed from newly-acquired territory. The well-known attributes of sovereignty, recognized by us as belonging to the state governments, would sweep before them any such barrier, and would leave the people to express and exert their will at pleasure. Is the object, then, of temporary exclusion for so short a period as the duration of the territorial governments, worth the price at which it would be purchased? - worth the discord it would engender, the trial to which it would expose our Union, and the evils that would be the certain consequence, let that trial result as it might? As to the course, which has been intimated rather than proposed, of ingrafting such a restriction upon any treaty of acquisition, I persuade myself it would find but little favor in any portion of this country. Such an arrangement would render Mexico a party, having a right to interfere in our internal institutions in questions left by the Constitution to the state governments, and would inflict a serious blow upon our fundamental principles. Few, indeed, I trust, there are among us who would thus grant to a foreign power the right to inquire into the constitution and conduct of the sovereign states of this Union; and if there are any, I am not among them, and never shall be. To the people of this country, under God, now and hereafter, are its destinies committed; and we want no foreign power to interrogate us, treaty in hand, and to say, Why have you done this, or why. have you left that undone? Our own dignity and the principles of the national independence unite to repel such a proposition.

But there is another important consideration, which ought not to be lost sight of, in the investigation of this subject. The question that presents itself is not a question of the increase, but of the diffusion of slavery. Whether its sphere be stationary or progressive, its amount will be the same. The rejection of this restriction will not add one to the class of servitude, nor will its adoption give freedom to a single being who is now placed therein. The same numbers will be spread over greater territory; and so far as compression, with less abundance of the necessaries of life, is an evil, so far will that evil be mitigated by transporting slaves to a new country, and giving them a larger space to occupy.

I say this in the event of the extension of slavery over any new acquisition. But can it go there? This may well be doubted. All the descriptions, which reach us of the condition of the Californias and of New Mexico, to the acquisition of which our efforts seem at present directed, unite in representing those countries as agricultural regions, similar in their products to our Middle States, and generally unfit for the production of the great staples, which can alone render slave labor valuable. If we are not grossly deceived – and it is difficult to conceive how we can be – the inhabitants of those regions, whether they depend upon their ploughs or their herds, cannot be slave holders. Involuntary labor, requiring the investment of large capital, can only be profitable when employed in the production of a few favored articles confined by nature to special districts, and paying larger returns than the usual agricultural products spread over more considerable portions of the earth.

In the able letter of Mr. Buchanan upon this subject, not long since given to the public, he presents similar considerations with great force. "Neither," says this distinguished writer, "the soil, the climate, nor the productions of California south of thirty-six.degrees thirty minutes, nor indeed of any portion of it, north or south, is adapted to slave labor; and besides, every facility would be there afforded for the slave to escape from his master. Such property would be entirely insecure in any part of California. It is morally impossible, therefore, that a majority of the emigrants to that portion of the territory south of thirty-six degrees thirty minutes, which will be chiefly composed of our citizens, will ever re-establish slavery within its limits.

“In regard to New Mexico, east of the Rio Grande, the question has already been settled by the admission of Texas into the Union.

"Should we acquire territory beyond the Rio Grande and east of the Rocky mountains, it is still more impossible that a majority of the people would consent to re-establish slavery. They are themselves a colored population, and among them the negro does not belong socially to a degraded race."

With this last remark Mr. Walker fully coincides in his letter written in 1844, upon the annexation of Texas, and which everywhere produced so favorable an impression upon the public mind, as to have conduced very materially to the accomplishment of that great measure. "Beyond the Del Norte," says Mr. Walker, "slavery will not pass; not only because it is forbidden by law, but because the colored race there preponderates in the ratio of ten to one over the whites: and holding, as they do, the government and most of the offices in their possession, they will not permit the enslavement of any portion of the colored race, which makes and executes the laws of the country."

The question, it will be therefore seen on examination, does not regard the exclusion of slavery from a region where it now exists, but a prohibition against its introduction where it does not exist, and where, from the feelings of the inhabitants and the laws of nature, "it is morally impossible," as Mr. Buchanan says, that it can ever re-establish itself.

It augurs well for tho permanence of our confederation, that during more than half a century, which had elapsed since the establishment of this government, many serious questions, and some of the highest importance, have agitated the public mind, and more than once threatened the gravest consequences; but that they have all in succession passed away, leaving our institutions unscathed, and our country advancing in numbers, power, and wealth, and in all the other elements of national prosperity, with a rapidity unknown in ancient or in modern days. In times of political excitement, when difficult and delicate questions present themselves for solution, there is one ark of safety for us; and that is, an honest appeal to the fundamental principles of our Union, and a stern determination to abide their dictates. This course of proceeding has carried us in safety through many a trouble, and I trust will carry us safely through many more, should many more be destined to assail us. The Wilmot Proviso seeks to take from its legitimate tribunal a question of domestic policy, having no relation to the Union, as such, and to transfer it to another created by the people for a special purpose, and foreign to the subject-matter involved in this issue. By going back to our true principles, we go back to the road of peace and safety. Leave to the people, who will be affected by this question, to adjust it upon their own responsibility, and in their own manner, and we shall render another tribute to the original principles of our government, and furnish another guarantee for its permanence and prosperity.

I am, dear sir, respectfully, your obedient servant,

LEWIS CASS.

A.O.P. Nicholson, Esq., Nashville, Tenn.
About the first illustration, entitled The Democratic Funeral of 1848:
Foreseeing political death for the Democrats in the election, the artist imagines a funeral of the party's standard-bearers with a procession of the faithful. Democratic senators (left to right) Sam Houston of Texas, Thomas Hart Benton of Missouri, (obscured unidentified man), and South Carolina's John Calhoun carry a litter bearing the bodies of Van Buren, as a fox, and Lewis Cass, as a gas balloon (an unflattering play on his last name). Cass expels clouds of gas from his mouth. Benton carries a slip of paper with the words, "Last of the Family Reign." Calhoun carries an iron collar or manacle labeled "Slavery." They are followed by a second group of pallbearers: Ohio Senator William Allen, former Van Buren advisor Amos Kendall, New Hampshire Democratic leader Levi Woodbury, and former general William Worth, who carry a stretcher bearing retiring President Polk (with cloven hoofs and a devil's tail). Kendall also carries a document labeled "Latest Despatch" while Worth holds his "Military Comi--- [Commission?]," possibly alluding to his role in the Scott-Pillow controversy. (See "Self-Inflating Pillow," no. 1848-2.) An empty "Sub Treasury" box lies open next to Polk on the stretcher. The Independent or "Sub Treasury" bill was a widely criticized measure passed by the Polk administration in August 1846. All of the mourners wear clerical robes. A tombstone for the newspaper "Washington Union" is at left and a monument "To the Memory of Democracy" at right.
About the second illustration, entitled Cass & His Cabinet in 1849:
The satire imputes to the Democrats of 1848, led by candidate Lewis Cass, the corrupt practices of the Van Buren-era party. The artist also criticizes Whig repudiation of stalwart party leader Henry Clay in favor of the independent Zachary Taylor in its 1848 presidential nomination. Cass stands at the head of a table before a paper marked "Democratic Platform," addressing his "Cabinet" composed of old-line Democrats including (left to right) Van Buren's postmaster general Amos Kendall, his treasury secretary Levi Woodbury, former Van Buren Senate allies John Calhoun and Thomas Hart Benton, and Democratic senators Sam Houston and William Allen. Cass: "Gentlemen, we stand on the Democratic "Platform," that is, to "Reward our Friends," rewarding of enemies & deserting of Friends is what caused the breaking up of the Whig Party." Kendall, with a document "Post-Office Reform" before him: "Mr. President, I think you had better state to the gentlemen present what our Principles are & what we intend to carry out." Woodbury, holding a rolled document titled "New Hampshire" says: "The Whig Party ought to be broke up for ever, for putting aside "Clay" & sticking a man in his place that has no principle or Party." South Carolina Senator Calhoun, writing a paper "Free Trade S.C." comments: "I think after all the northern "Dough Faces" must feel rather "flat," to think we won't go their "bastard whig ticket." rather green that." Benton adds: "Feel "flat," why they are used to that, they always have their own way, Except upon "Election day!'" "Houston, with "Missouri Claims," agrees: "Yes, & the day after the "Election" they say it was a dam'd "Locofoco cheat, &" that the Irish & Dutch "both Voted against them." "Senator Allen concludes: "Gentleman, I agree with you all, we must turn out every man that does not stand on the "Platform," it will not do to have any spies in our camp."
About the third illustration, entitled A Correct Chart of Salt River:
"Salt River," the fictitious river of political doom, is charted here as a meandering stream of Democratic misfortunes. The chart was purportedly "prepared by Father Ritchie," i.e., Democratic editor and Polk administration spokesman Thomas Ritchie. Swipes are taken at the Tariff of 1846, Polk's Vice President George M. Dallas, Martin Van Buren, and 1848 Democratic presidential nominee Lewis Cass. The river winds upward from the Ohio River (Ohio was a Democratic stronghold in 1848) to the Lake of Oblivion with an island on which sits the "Mansion of Despair." The "Fast Sailing Steamer Free Trade," captained by Lewis Cass and piloted by Ritchie, sets out on the "Slough of Despond" below (one of the landmarks in John Bunyan's "Pilgrim's Progress&1). The ship approaches a fork, from which the "Old Fox Branch" on the right leads to "Cabbage Point" and the home of Martin Van Buren. Van Buren can be seen sitting in a rowboat on the river complaining, "Hard work this all; your fault 'John,' with your D--d Free Trade." His son John, a Free Soil party leader and campaigner, encouraged Van Buren's bid for the party's presidential nomination in 1848. On the left Salt River continues past the "Sub Treasury Bluffs," "Noise and Confusion Shoals," "Two Face Points," and "Irish Relief Shoal" (a reference to Democratic support for anti-British insurgents in Ireland), to another fork, "Prince John's Creek." Here John Van Buren walks along the shore and calls, "Good bye Dad! We could not Gull the People." The main branch of the river continues to "Pillow's Cemetery" (named after Gen. Gideon Pillow, conspirator against popular Mexican War commander Winfield Scott and a friend of James K. Polk), "One Seal Island" (?), "Casting Vote Point," and "St Anna Pass." The last is named after Mexican president and commander Santa Anna, whom the Polk administration returned from exile only to see him lead the war against the Americans. On Lake Oblivion is a small ferry boat heads toward the shore at upper right where it will connect with a train named "Tariff [of 18]42," bound for Washington. On the left is a funerary monument "In Memory of Dallas," a memorial to Vice President and former Pennsylvania senator George M. Dallas. Many of Dallas's fellow Pennsylvanians viewed him as a traitor to the state's interests in his support of the Tariff of 1846, which supplanted the popular 1842 tariff.

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