Speech of Hon. Henry Winter Davis, of Maryland, against the admission of Kansas under the Lecompton Constitution. Delivered in the House of Representatives, March 30, 1858

SPEE'CH

OF

HON. HENRY WINTER DAVIS,

"

OF MARYLAND,

AGAINST

THE ADMISSION OF KANSAS

THE

CONSITUTIOISr.

DELIVERED IX THE HOUSE OF KEPEE8ENTATIVBB, MARCH 80, 1S68.

The House having under consideration the bill to admit the Stato of Kansas into
the Union— Mr. HENRY WIXTER DAVIS, of Maryland, said:

Mr. CHAIRMAN : The earlier explorers in high Northern lati-
tudes were perplexed at beholding great icebergs mysteriously
making their way to the north against current and wind and tide.
Philosophers in the closet divined from the strange phenomenon
the existence of an under current running counter to that of the
surface, that bore them along. The disinterested spectator, Mr.
Chairman, of the course of this debate, ignorant of our history for
four years, and of who now holds the helm, would find himself
similarly perplexed, and perhaps he might surmise a similar so-
lution.

That an administration which professes to be the god-father of
"popular sovereignty," should oppose the submission of a consti-
tution to the popular vote ; that an administration which is, in
name, Democratic, should propose to impose upon the majority
the will of the minority ; that an administration elevated to power
by the South, against the will of the JSTorth, should urge, as the
shortest way to accomplish the great purpose of making Kansas
a free State, her admission as a slave State; that the administra-
tion, which professes anxiety to preserve the peace of the coun-
try, should say that the shortest way to restore the broken peace
is, not to remove, but to fasten, by irrevocable laws, in the form
of a State constitution guarantied by the united power of the
country, that hateful oligarchy upon a people whose neck was too
tender to bear the weight of their Territorial yoke, which Con-
gress could at any moment alleviate ; that these methods should
be taken to accomplish these purposes, may well puzzle the speeu-
. lator in exploring the hidden reasons that drive men thus contra-
ry to win;; apparent reason — the ordinary method of guiding the

Printed by Lemuel Te\r«rs.

Vv

Commonwealth, the. ordinary propelling powers of the govern- »/•

ment — would seem to dictate. And possibly, Mr. Chairman, he
might not be very far from solving the problem if he were to as-
snme that the question is, not so much how to accomplish the pa-
cification of Kansas, or to make legislation square with the dogma
of "popular sovereignty" or to secure the right of the people to
form their own domestic institutions in their own way, which we
are taught to believe is a new revelation of the year of grace
eighteen hundred and fifty-four — not so much any of those rea-
sons as to prevent the Administration, which boasted itself the
omnipotent pacificator, from being brought to lick the dust, now,
ere the termination of the first session of its first Congress — to
lick the dust before the will of that majority which it is defying in
one of the Territories — before the will of that majority of the
people of the United States, against which Mr. Buchanan ascend-
ed the Presidential chair, and amid the irreconcilable diversi-
ties of opinion of the people who were combined to elevate Mr.
Buchanan to the Presidency — but here that men and parties are
brought face to face — can no longer coalesce in the policy he
would have them pursue.

We are debating the recognition of an independent State.

The Administration produce a piece of parchment with a form
of government written on it and a certificate of one John Cal-
houn, that it is the constitution adopted at Lecompton by a con-
vention of the people of Kansas ; and on this evidence the Presi-
dent and his friends demand the recognition of the State of
Kansas.

We respectfully ask for the proof that the piece of parchment
contains the will of the people of Kansas.

We are told the Territorial Legislature took, by law, the sense
of the people — -and 2,670 voted to call a convention ; that 2,200
persons voted, in att, for the members of the convention ; that
the convention, whose journal no one here has seen, voted the
constitution ; that it was not submitted to the people for their
ratification, and that the vote of the 4th of January, of 10,000
against it, is of no legal relevancy to the question before us.

On this state of facts, Mr. Chairman, we are besought, on be-
half of the Administration, to vote for the admission of Kansas
•under the Lecompton constitution for the sake of the principle
involved. Sir, I confess myself the servant of principle ; and I re-
spectfully ask gentlemen what principle they ask me to sanction ?

Is it that a minority in a territory constitute the people, and so
must make their will the law over the majority ? If so, I respect-
fully dissent from the principle.

Is it that the people of a territory, with or without previous au-
thority of Congress, have a legal right themselves to take the
initiative, and to lay upon your table a constitution which they
are entitled to demand at our hands that we shall accept ? If so,
then I respectfully dissent from the principle.

Is it, on the part of our Southern friends, that any constitution

which may be laid upon our table containing, no matter how put
there, a clause sanctioning .slavery, is to shut the eye to every
other circumstance connected with it, and to drive us to the ad-
mission of that people as a State merely because that provision
is in the constitution ? If so, then I respectfully dissent from the
principle.

Is it that they mean that gentlemen may look into the constitu-
tion for the purpose of seeing that slavery is there, and when
they rind it there are bound to vote for the admission? If so,
then the gentlemen upon the other side of the House, by exactly
the same reason, may look into that constitution to see that slavery
is there ; and, if they think it the more logical conclusion, may
vote to refuse admission upon that ground. But as I do not un-
derstand the gentlemen on the other side to admit the latter alter-
native as one lit to be embraced, they will indulge me in the logi-
cal consequence of not regarding the former as a proper conside-
ration to weigh at all with me upon the question that is before
the House.

That slavery is embraced in tlu-.t constitution, is certainly, Mr.
Chairman, in my opinion, no ground at all for the rejection — no
ground at all for any difficulty about admission. If put there by
the will of the people, it ought not to weigh with the weight of
the dust in the balance upon the question ; for to allow that to be
a ground of exclusion, while it would be within the legislative
discretion of Congress, would be, in my judgment, unwise, tend-
ing directly to consequences that all of us are most anxious to
avoid, and would exhibit an unsocial disposition in behalf of the
majority which might come to such a conclusion, which, whether
rightfully or wrongfully, the past history of the nation teaches us
only too well will lead to nothing but disastrous civil collisions;
which, in their result, if not immediately, will first undermine,
and then bring down in ruin, the whole fabric of our liberties.

Then, if these be not the principles which ought to commend
themselves to the judgment of a right-judging man, is there any
other? Is it that because the Territory has proceeded under a
law of a Territorial Legislature, with all the regularity and for-
mality, as the President tells us, that any territory has ever pro-
ceeded, we are lound to accept what they send to us, blindly and
without looking beyond it ? Is it the principle of this Govern-
ment not only that we may stop, but that we are lound to stop,
at what the Territory sends to us ? Then, Mr. Chairman, I do
not assent to that proposition ; and it is to that proposition that I
desire chiefly to draw your attention now.

Upon that question, I am freer than most of the gentlemen
upon either jside of this House. I voted with my Southern
friends against the Topeka constitution, being a free constitu-
tion formally sent here by the majority of the then inhabitants
of the Territory. I am, therefore, free to raise the question
whether there is legal authority at the bottom of that consti-
tution now presented to us? They protested against the admis-

4

gion of California because there was no evidence that a ma-
jority of its people had assented; because there was no formali-
ty of law preceding its constitution ; because there were no pro-
tections to the ballot-box. I am, therefore, now free to ask those
who did protest to join me in inquiring whether there be here
legal authority ; whether here the ballot-box has been protected ;
whether here we have the will of the people ascertained in legal
form which we not only may accept but which we are bound to
accept?

This assumes the validity of the laws of the Territorial Legis-
lature calling the convention, and the proceedings under them in
point of law ; and that the legal effect of those proceedings is to
clothe this parchment with all the attributes of a State constitu-
tion, and that we are not entitled to inquire who voted for or
against it ; how many staid from the polls, or why they did so ;
nor whether fraud or force have decided the result ; but that
the legal certificates preclude inquiry into everything beyond.

I respectfully deny the validity in point of law, and further
say, that if they were as valid as if authorised by act of Congress
they could to no extent exclude the legislative discretion of Con-
gress as to the fitness of recognising the new State.

Mr. Chairman, in my judgment all that is necessary to the ad-
mission of a State is a concurrence of the will of the people of a
territory and of Congress. Prior to such concurrence there is no
State. After that concurrence there is a State. The application
of a territory to be admitted as a State is only a petition upon
your table — an offer upon their part which we may accept or
which we may reject at our pleasure. After that concurrence it
has been engrafted into the living body politic of the country,
bone of our bone, flesh of our flesh, to share with us for good
or evil, to the end of time, the blessings or misfortunes of the He-
public — to be severed by nothing except that external violence
which shall lop off' some living limb of the Republic, or that civil
strife which the chief of the Republic is so rashly provoking.

Enabling acts, whether contained in the organic law of the
Territory, or in special acts authorizing the formation of a con-
stitution, providing for the formalities of election, the protection
of the polls, the expression of the popular will under the forms of
law, are only the guaranties that Congress in its wisdom throws
around the expression of the popular will. They are only methods
of ascertaining that will ; and when that will is ascertained, Con-
gress has everything that is indispensable, and all the Territory can
supply. The will of Congress to concur witli the will of the people
is expressed in the act of Congress admitting the State ; and it is
that concurrence, no matter how ascertained, by what forms, or
with the omission of what forms, which makes the distinction, and
alone makes the distinction between a Territory of the United
States and a State of the United States.

There is no such thing in our -system as an incipient State;,
a State whose federal relations are undefined, a State of uncer-

tain federal relations, as Mr. Calhoun once expressed himself. 1
respectfully submit that there is no intermediate condition be-
tween a territory and a State ; that a State whose federal rela-
tions are undefined is a State of which the Constitution of the
United States knows nothing. Uncertain federal relations are no
federal relations. Unless the State be in this Union the State is
out of this Union. Unless the State be bound by the Constitu-
tion the State is independent of the Constitution. Unless the
State have a right to be here represented the State has no right
to be represented anywhere. It is a State under the Constitu-
tion, or it is a State independent. If, therefore, any proceeding
create a State which does not simultaneously bring it within, and
make it one of, the United States, that State may as well form
an alliance with the incipient confederacy of Canada and New
Brunswick as enter this confederacy. It may levy war against
the United States, and you cannot punish its people for treason.
It may appropriate the territory of the United States, and it is
beyond your power. In a word, by the public law of the United
States, all the territory within their jurisdiction is either a terri-
tory of the United States or a State of this Union.

If, then, that be the case, we are brought at once to the ques-
tion of the relation of Congress to the territories in the formation
of States. What are the respective parts belonging to the people
of the Territory and to the Congress in the creation of a new
State?

With the dogma of sovereignty I do not deal here. I leave
that to the schools or to the gentlemen who meddle with meta-
physical disquisitions. What sovereignty is I shall not attempt
to define. The word is not used in our laws ; it is not found among
the wise words of our Constitution. It is the Will of the Wisp,
which thev who follow will find a treacherous guide through fens

v O ^ O

and bogs. We are not engaged in defining that •' popular sove-
reignty" with which gentlemen on the other side have been so
much plagued for the last year or two. Popular sovereignty is
only a demagogue's name for the foundation principle of all our
institutions. It is only a demagogue's name for the right of the
people to govern themselves — not that popular sovereignty which
is limited by, and springs from, an act of Congress — not that
mushroom growth, bred in the hot-bed of political corruption
as a dainty delicacy for the people's palate, under the sedulous
care oi my honorable friends opposite — which now that it is grown
is found to be nothing but toad-stools, whereof the body politic
is now sick — but that right of the people to govern themselves,
recognized by the fundamental law as the very corner-stone of
the Republic, which in this case the President violates and denies.
I here this day would deal in legal language ; and in legal lan-
guage there is such a thing as the people of the United States, of
which the people of a territory form the subjects. And there is
known in the law of the United States such a thing as the right
of the people of a State to form their own government. And it

• 6

is assumed that every State which can form, at any time, a part
of these United States, shall have emanated spontaneously from
the people, whose affairs it regulates, and shall have been received
voluntarily into the United States by the authority of Congress.

Now, sir, what is the relation of Congress to the Territories ?
Have the Territories — I do not say any natural right, for I am
not here upon a philosophical dissertation — have they any legal
right to initiate proceedings to form a constitution ? 1 do not ask
whether they may not come here and ask, by petition, Con-
gress to receive them, for that does not meet the difficulties of
the case ; but I ask whether the people of any Territory, by their
simple volition, can meet in convention and assume to themselves
such legal powers as shall compel Congress to recognise them as
a legal body. Certainly those gentlemen who protested against
the admission of California because there had been no preceding
law, cannot maintain that proposition. Certainly gentlemen who
voted against the Topeka constitution cannot maintain that prop-
osition. Certainly the gentlemen who signed what purported to
be a report of the committee of investigation of this House, can-
not maintain that proposition. Certainly the President, who de-
voted a great part of his message to demonstrate that it is only
through legal channels, by legal forms, and under legal authorities
that a constitution could be formed, cannot maintain that propo-
sition.

Neither can we, in point of sound sense and reason, maintain
it, because that assumes there is a power in the people of some
portions of the Territory not derived from the Constitution of the
United States — since the Constitution says nothing upon the sub-
ject, except that Congress may admit new States. And if they
have any inherent power, by the same reason they have all power ;
in other words, we are upon revolutionary ground, and not legal
ground. It is to confound a right by law under the Constitution
with the natural right mentioned in the Declaration of Inde-
pendence, of people to alter and change their government to
suit themselves. But we are not dealing with revolutionary, but
with legal rights. We live and were born under the Constitution,
and to us that is the ultimate criterion of legal rights ; it is
our embodiment of natural right in a living practical form of
government ; beyond it we recognise no natural right as a source
of legal right, and he who cannot deduce his claim of right,
under it has none. I submit, therefore, that by the law of the
United States the people of a Territory have no original right
or authority to form a State government. No public man of po-
sition and character of any party has ever ventured to maintain
such a proposition distinctly. The distinguished head of the State
Department has fallen into expressions which seem to imply it ;
he has hastened to repel the inference, but, in his haste, has in-
volved himself and his opinions in inexplicable perplexity and
mystification, whence nothing can rescue him.

Then, if there be no inherent legal right in the people of a Ter-

ritory to form a State government, how is it to be accomplished?
They must form it ; Congress cannot do it for them ; yet Con-
gress is the only legal authority, the only source of law for the
Territories. Where then does it exist? I maintain that so far as
legal authority is asserted of, or essential to, any proceeding for a
convention, it must flow from Congress ; because lit- re only is any
government over the Territories, in the eye of the law of the
United States. The Supreme Court, which even State-rights gen-
tlemen now-a-days regard as the ultimate arbiter upon all questions,
has settled some other things besides the relation of slavery to the
Territories ; and among them it has settled that Congress alone
governs the Territories — whether under the clause which authorizes
them to make all needful rules and regulations for the Territory
of the United States, or under some unwritten clause implied by
the strict coristructionists, it is needless here to inquire. It can flow
from nowhere else, because a State, in the view of the Constitution
of the United States, means a body of people within a particular
Territory, and that Territory belongs to the people of the United
States ; and the people who live upon a particular portion of that
territory have no right to assume to themselves, without our as-
sent, any portion of it. A State involves the idea of a certain
population inhabiting and possessing a certain Territory, and if
the people cannot get the Territory without the assent of Congress,
they cannot make themselves a State without the assent of Con-
gress, nor take any steps towards it essential to its existence,
which can exclude the control of Congress. Congress, it is true,
cannot make a constitution for a Territory. It can only throw
around the people of a Territory a legal protection, authorize them
to proceed, and give them the guaranties of law in their proceed-
ings ; but beyond that I apprehend Congress can do nothing, and
exceptiug Congress nobody can do that. What I wish here to
maintain is, that that is the fundamental principle of all the legis-
lation of Congress upon that subject. All the history of the Repub-
lic is in its favor ; it has all authority in its favor ; and there is
no precedent which raises even a doubt against it.

Now, sir, I ask the attention of the Committee very briefly to the
law — for I rose to-day to deal with the legal position of gen-
tlemen on the other side. They have not been willing to enter
the controversy with their opponents on the question of fraud in
the formation of the constitution, or whether it be the fair and
Ixmafide expression of the will of the people. They have insisted
that these things were concealed from them by a screen of legal
technicalities ; and it is to tear down that screen that I now ad-
dress myself.

In the absence, therefore, of any special act of Congress, author-
ising a convention, the only question is the construction of the
Kansas-Nebraska act of 1854. Does that act confer on the Ter-
ritorial Legislature power to call a convention to form a consti-
tution ?

There have been many States admitted into the Union, and

s

Tinder diverse circumstances, but much the greater number of
them have been admitted under the express and precedent
authority of laws of Congress. And, sir, you will perceive at
once — if the authority can only come from Congress to take the
initative steps — that it is immaterial whether that authority be
contained in the organic act or in a special act. In either case
it is our authority that they are exercising. In every instance
they are our agents. In every instance they have only the
authority that we give them. And, therefore, it comes exactly to
the same thing, whether there was an enabling act to authorize
the Territory to proceed to form a State constitution and govern-
ment, or whether the authority was given under its organic act.
This can never be a judicial question; but it is settled by every
form of political authority. The States of Yermont, Kentucky,
and Maine, and Texas have been admitted into the Union ; but not
as has been erroneously stated without precedent legislation. If
it were so, it would not affect the argument ; for they were never
Territories of the United States. But the assumption is histori-
cally erroneous. Vermont went through the Revolution without
any defined relations to the other colonies, claiming independ-
ence at the time of the revolution, under no colonial government ;
and, as a State, by its own inherent power, it acceded to and
adopted the Constitution of the United States, exactly as the
other States did. It is no case of the formation of a State out of
a Territory of the United States. Texas was likewise an inde-
pendent republic, acknowledged by the United States, and after-
wards received into the Union. Kentucky proceeded under a
law of the State of Virginia, whose Territory it then was, and on
that authority formed its constitution, and was admitted into the
Union. Maine proceeded under the authority of a law of Massa-
chusetts, whose Territory it was, and by that means formed its
State government and was admitted into the Union.

But the argument is irrevelarit ; for the question is not whether
Congress may in its discretion recognise constitutions formed by
the people without authority of law ; but whether a Territorial
Legislature was in point of law authority to legalise the election
of a convention, to give the convention itself a legal existence, to
vest it with legal power to bind not merely ti\z -people but the
Congress. No one denies the power of Congress to admit Ten-
nessee and Florida ; yet no body ever asserted any legal validity
in their proceedings before admission.

The language of the organic acts and the proceedings of Con-
gress thereupon are decisive.

The Territories divide themselves into two great classes. In
Ohio, Illinois, Indiana, Missouri, Mississippi, Alabama, Arkansas,
and Tennessee, and Michigan, the Legislatures had " power to
make laws in all cases, for the good government of the people of
the said Territory not repugnant to or inconsistent with the Con-
stitution and laws of the United States.

In Wisconsin, Minnesota, Oregon, Florida, Iowa, the power of

9

the Legislatures were declared to extend — in the identical words
of the Kansas Nebraska act — "to all rightful subjects of legisla-
tion not inconsistent with the Constitution and Laws of the United
States.

Congress has construed 'both forms of expression by passing
enabling acts for both classes. Not only for Ohio, Louisiana, Mis-
souri, Mississippi, Alabama, Illinois, Indiana, but also for Wiscon-
sin, Minnesota, and Oregon, did Congress pass acts specially
authorizing them to call a convention and form a State govern-
ment ; and, in every instance, excepting Wisconsin, these bills
provided all the details of the convention, the number of dele-
gates, its time of assembling, the modes under which the dele-
gates should be elected. It is plain Congress thought the power
"to make laws in all cases" necessarily extended it " to all right-
ful sulyects of legislation." It is plain Congress thought neither
form of expression authorised the temporary Territorial govern-
ment to create a convention to form a constitution which would
begin to operate only after the Territorial Legislature itself had
ceased. Its power to govern was confined to the Territory — a
tempory contrivance for a temporary purpose — involved in all the
local interests and conflicts of territorial politics — and not safely
to be intrusted with the providing for a constitution. In a word
they were authorised to make laws to govern the Territory • but
a law for a constitution was no lav/ for governing a Territory at all.

The case is stronger under the Kansas act ; for it reserves to
Congress the power to make two or more States or Territories out
of that Territory ; and if Congress have the right to make two
States, it is absurd to suppose it gave the Legislature power to
make one State of it.

But there are cases of Territories which have spontaneously
petitioned for admission under constitutions framed without an
enabling act, and they are fruitful of authority.

The proceedings for the admission of Arkansas, Michigan, and
Iowa — where there were no acts of Congress authorising conven-
tions— are decisive.

The law admitting Arkansas declared the boundaries of the
State. That, I suppose, establishes the fact that nobody then main-
tained that there was any authority in her constitution prior to
her admission. The territorial limits of a State are essential to
her existence; till they are defined there can be no State; after
there is a State, Congress cannot determine its right of territory.
On the territory depend the counties, the election districts, the
judicial divisions, the apportionments of representation, the very
people who are entitled to be heard on the adoption of the con-
stitution.

If the Territorial law can authorize a convention which can
adopt a constitution having any legal force prior to the recogni-
tion of Congress, it must have the right to define and appropriate
the territory of the State it creates ; and if it have not tlu* power
it cannot create a State in the eye of the law at all ; for Congress

10

may destroy its identity by taking away a half, or two-thirds, or
all its Territory, and give it to another State.

Congress recognised the State of Michigan upon the condition
that her people should accept the boundaries Congress prescribed ;
and on their acceptance only was Michigan admitted.

Iowa was declared to be admitted as a State, in 1845, under
her constitution of 1844, Congress declaring her boundaries, and
requiring the assent of her people to them. But in August,
1846, Congress prescribed by law other boundaries for Iowa, and
by that law recognised the validity of the proceedings of the
Legislature of the Territory of Iowa of the 17th of January,
1846, submitting the boundary between the Territory and Mis-
souri to the Supreme Court ; and finally in December, 1S46, Con-
gress declared Iowa admitted into the Union under a constitution
formed in May, 1846, and with the boundaries of the law of 1846..

The case of Wisconsin is still more decisive. The Territorial
legislative power extended to all proper subjects of legislation;
yet Congress passed an enabling act, and in it defined the bound-
aries of the future State, on the"6th of August, 1846. The people
formed a constitution on the 16th December, 1846, and Congress
admitted the State on condition the people assented to other
boundaries. Instead of merely assenting: to the boundaries, they

«,• ^3 *

formed a new constitution on the 1st of February, 1848 ; and on
their application were admitted as a State with the boundaries of
the enabling act, on the 29th May, 1848.

These cases demonstrate that, whether a constitution be formed
by the people, under or without an enabling act, the constitution
has no force of law, over either person or Territory, till the final
and complete admission of the State. Till her Senators and repre-
sentatives are entitled to their seals, the Territorial authorities
continue, the organic law is operative and supreme, the Territo-
rial Legislature retains its legislative power, Congress can abso-
lutely dispose of the Territory, assign its limits and exercise its
discretion whether to admit the people as a State or to retain them
as they are. In a word, these cases display the great fact lost
sight of in this controversy, that till actual and final admission
as a State* the constitution is not a law, it is merely & proposition
which will become operative only when Congress recognises the
existence of the State.

With reference to Michigan, a controversy arose in the Senate
which elicited some salutary opinions. We have first of all the
statement of his Excellency, the President, then in the Senate.
When Michigan was applying for recognition, the exact question
arose, whether there was a legal power in the Territorial Legisla-
ture to proceed, their powers being as I have stated them. Mr.
Buchanan then said :

'.' We have pursued this course [that is to disregard informalities] in regard to
Tennessee, to Arkansas, and even to Michigan. No Senator will pretend that their
Territorial Legislatures had any right whatever to pass lawsi enabling the people to
elect delegates to a convention for the purpose of forming a State constitution. It
was an act of itaurnation on their part."

11

This was said in the hearing of the whole Senate, that no Sen-
ator would contend that they had legal authority, and he asserted
that it was an act of usurpation ! And, so far as the record shows,
no man rose to controvert the authority of this distinguished ex-
positor of Democratic doctrines of that day. Well, sir, that
covers the three cases of proceedings by Territorial Legislatures
without authority from Congress by special act. That destroys
the whole argument which has been attempted to be founded
upon them, with reference to Arkansas, I am protected by
the authority of a name dear to the party which he found-
ed. The Governor of that Territory applied to General Jack-
son to know whether the Territorial Legislature had any au-
thority to pass an act for the purpose of taking the sense of the
people on the subject of a State constitution. General Jackson,
took ^ the opinion of his Attorney General, Mr. Butler; and the
opinion of that distinguished lawyer, acquiesced in by the whole
Administration, was, that there was no legal authority in the
Territorial Legislature, but that it was beyond their temporary func-
tions ; that there was no authority inherent in the people, but that
they were subordinate to the power of Congress, governed, as he
says, under that clause of the Constitution which gives Congress
power to make all needful rules and regulations for the territory
of the United States. The new lights had not risen in their day.
And as if no authority should be wanting, entitled to command
respect with every division of the various opinions that are enter-
tained now in this House, we have the further authority of a gen-
tleman from whom, in many respects, it is my misfortune to have
differed in political opinion, but who, in my judgment, was one
of the ablest gentlemen that ever graced the councils of this
country — more conservative, manly, and upright in his views, and
convictions, and conduct, than almost any man of his party ; al-
ways ready to sacrifice party allegiance upon the altar of truth ;
always following the dictates of an independent judgment, as well
in his votes as in his reasoning, and, for that reason, justly the
worshipped idol of the great Southern section of this country.
I suppose, that the strict constructionist gentlemen of this House
will not accuse me of any sympathy for dangerous dogmas from
Federal quarters when I quote the authority .of Mr. Calhoun:

"My opinion was," said he, "and still is, that the movement of the people of
Michigan in forming for themselves a State constitution, without waiting for the
assent of Congress, was revolutionary — "

What does the incumbent of the Executive chair say to that
now? Why were not the military forces of the United States
directed — instead of guarding and protecting the Lecoinpton con-
vention, to turn them out, as they were directed to turn out the
Topeka convention, equally illegal or equally legal ?

Mr. Calhoun proceeds to assign the reason :

" As it threw off the authority of the United States over t^he Territory."

That he regarded as necessarily involved in the very idea of
their assuming to themselves to take the first step, in a legal form,
towards the establishment of a State government.

12

He proceeds to say :

"And that we were left at liberty to treat the proceedings as revolutionary, and
to remand her to her territorial condition."

For doing which, with reference to Kansas, we are now threat-
ened with the direst consequences by the gentlemen who then
concurred in this opinion :

" Or to waive the irregularity."

Now all the argument of our friends on the other side is to
follow the regular course, and break down the irregular course-
only they have agreed to call the regular course that which Mr.
Calhoun called the irregular course. He proceeds to say :

^ "And to recognize what was done as rightfully done — as our authority alone was
concerned — my impression was that the former was the proper course ; but I also
thought that the act remanding her back should contain our assent in the usual man-
ner, for her to form a constitution, and thus leave her free to become a State."

And so a distinguished gentleman in another place (Mr. CEIT-
TENDEN) thought, not long since, and possibly there are some here
who may think like him.

Well, sir, no gentleman can rise here and cite any administra-
tion that has ever existed in this Republic, down to the beginning
of Mr. Buchanan's administration, that has ever so flagrantly
violated the laws of the Republic as to recognize any proceeding
of a Territorial Legislature on this subject, as having authority of
law. ~No man can name any high officer of the Government that
has ever said so, as no man can show any vote of Congress that
has ever looked to such a recognition. It was, sir, the first blun-
der— to be followed up consecutively and logically by other
blunders in law, in policy, as well as in morals — that this Admin-
istration made when it recognized the legal authority of the Le-
compton convention, assembled iiuder the Legislature of Kan-
sas. It was the last of the novelties which have been palmed
on the country as sound law, to break the fall to which the inven
tors of the Kansas-Nebraska act have been staggering for the last
four years.

Sir, it was new in this Administration. No member of either
House of Congress, at the last Congress, thought that there was
any authority in the act of 1854 for the people to proceed, or for
the Territorial Legislature to proceed. That law reserved to Con-
gress the right to divide the Territory. How, then, could it au-
thorize the people of that Territory to form themselves into one
State ? Did it contemplate that the wandering rabble that was
there when that law was passed had then the right ? And if they
had not the right, .pray how and when was the construction of the
law changed, so far as the legal meaning is concerned, by the ac-
cession of population ?

Did President Pierce, when he requested Congress to settle the
difficulties of Kansas, by passing a law authorizing them to form a
State constitution when they should have ninety-three thousand
inhabitants, think the people of Kansas then had that authority?
Did the gentleman, (Mr. TOOMBS,) who, in another place, during
the last Congress, moved a bill authorizing them, when they

13

should have ninety-three thousand inhabitants, to form a consti-
tution, and providing all the detailed organization of the con-
vention, think that without that law they had the authority
thm ? Did this House, when it passed Mr. Dunn's bill, suppose
they were doing then what the Territorial Legislature had the
right already to do, although that bill postponed the exercise
of the authority it conferred until their population had reached
the requisite point ? If they did not, then we have the concur-
rent opinions of all departments of the Government during the
last Administration — nay, of every member of the last Congress
of both sides, Democratic and Republican, as wrell as of all previ-
ous Administrations, of the statute book speaking for itself no
less than the reason and nature of the proceeding against the possi-
bility of any legal validity being imparted to the convention and
its proceedings by virtue of the Territorial laws ; and those things
of themselves ought to be sufficient, in my judgment, to settle
the principle that there is no legal authority in the Territorial
Legislature to proceed in the matter.

But it is perfectly clear that the law of the Legislature of Kansas
itself has not been executed. It required a census to be taken in
all the counties. It was not taken in half of them. It required
the appointment of delegates to be made after the census was
" completed" and u returned." It was made before the census was
more than half taken. The law contemplated an apportionment
on the basis of a completed census of the whole Territory, and
of course till that was done there was no authority to make any
apportionment. The causes of failure are immaterial to the legal
point ; but they are certified officially, by the Governor and Secre-
tary, to have been the neglect of the local officers, and not, the
hostility or opposition of the people. It required the apportion-
to be made by the Governor and the Secretary. It was made by
the Secretary alone, who was acting Governor at the time. It re-
quired counties, not having population enough for a delegate, to
be attached to some district; the fourteen counties excluded from
the census were not attached to any district. They, therefore, had
neither vote nor representation, actual or constructive, in the con-
vention. This failure to execute the law alone is fatal to every
idea of legal validity in the proceedings.

If there was no legal authority in the Legislature, then I sup-
pose that the fabric of my honorable friends on the other side
tumbles about their ears. What becomes of the argument that
we cannot look behind the certificates? Why, the certificates
have no legal authority. What becomes of the argument that
these people who stayed at home authorized those who voted to
vote for them? If there was no legal election, they were not
bound by it. If there was no law requiring them to attend, stay-
ing at home was their duty. They w< ro only not participating
in an "usurpation. The foundation for i presumption of the assent
of those who stayed at home, is, that the law required them to be
at the polls. The good old law of Virginia, as my honorable
friend in my eye will remember, made it a punishable offence to

14

stay away from an election ; and though there may bo no law
punishing it, yet it is a violation of law, and of the duty of the
citizen, to stay away from an election. It is the duty of the citi-
zen to cast his vote ; and if the citizen does not cast it, he is held
to authorize those who do ; but that cannot be where the proceed-
ing has no legal validity — that presumption cannot arise where it
is merely a voluntary collection of a portion of the people of the
Territory to signify their willingness to admit a certain form of
constitution without their having any authority to bind anybody
else. I suppose, then, that in that point of view, the whole argu-
ment upon the other side is in ruins. All their barriers of laws
and certificates, 'presumptions against fact, and acquiescences ex-
torted from protests and denials, are swept away.

We are at liberty to see that only two thousand six hundred
and seventy people voted on calling a convention ; that only two
thousand two hundred people elected the convention ; that the
census shows only nine thousand two hundred and fifty-one voters,
and twenty-four thousand seven hundred and eighty people in
the Territory which has transformed itself into a State. And if
they who hitherto insisted on confining us to legal returns and
certificates now suggest the imperfections of the census and regis-
try, I agree we may go further and see that there may be twelve
thousand voters, and from thirty-seven thousand to forty-two thou-
sand people in the Territory ; but of them not three thousand voters
modestly ask the powers of a State government against the votes
of ten thousand, and the protest of seven thousand. Xay, sir,
emancipated from every trammel, we are at liberty and bound to
go further, and to inquire whether there has been in this Terri-
tory such tierce collisions, such hostile passions, so much of rebel-
lion against the regular government, such an absolute division of
the people with reference to their government, so much of civil
bloodshed, so much of military control, such an absence of the
ordinary political virtues, of calmness, of consideration, of delibera-
tion as the President describes; whether an overwhelming majority
of the people are opposed to the thing that is now sought to be
forced or foisted upon them and devoted to another form of gov-
ernment. It relieves us from the fear of encountering the dangers
intimated and vaguely hinted at by gentlemen upon the other
side in the event of our venturing to do our duty. It leaves us
free to determine whether, under all these circumstances, it is not
a fair case for legislative discretion to pause and ask the people
again what they say, upon " a sober, second thought," about it — •
to see whether the people are likely to submit or likely to resist — •
whether any such great good is to be accomplished by now forcing
this constitution upon them that inevitable civil war will be com-
pensated by it.

We are are told by the President that this is the shortest way
to settle the agitation. Mr. Chairman, I confess myself astonished
at such an opinion from a gentleman who has seen so much of pub-
lic service, has so long filled distinguished positions, and also
knows, or ought to know, so much of human nature. Why, what

15

has been the difficulty in tljat unfortunate Territory ? Was it not
that their Territorial Legislature was usurped? Is not that the
reason that, from the foundation of the Territory to last October,
the people refused to recognize any authority under the laws
emanating from that Legislature? Have they not been quieted
only by the earnest efforts and warm appeals, backed by the
military power, of Governor Walker if Were they not quieted alone
by the assurance, which he gave them, that they should have an
opportunity of expressing their opinion on the law which was to
govern them ? Did they not join in the October election because
they had confidence in his assurances ? Was it not the first time
that the people of that Territory had ever met, face to face, in an
American manner at the common ballot-box? Was it not the
first time that they had stood in any other attitude, except that of
hostility, with arms in their hands and hatred in their hearts?
And are we to be told by the President that the way to pacify
them is, to subject them permanently to the hateful domination
of the handful of men from whose hands they would have wrested
the government — as the President tells us — but for the United
States troops ; that the whole sanctity and authority of a State
government shall remove them from all the power of Congress
to redress their grievances ; that they shall be admitted as a State,
and thereby be delivered over to the legal authorities under the
constitution which they protest against, which Congress cannot
repeal, and will be bound to enforce if resisted ; for, if the State
be admitted, Congress has then no discretion but to follow the
legal line of authority, and to put down everything else as rebel-
lion. But has not the President learned enough from the ex-
perience of the last three years to make him pause ere he pushed
the country upon this dangerous experiment ; or is he madly bent
on a party triumph at the risk of civil war, forced on people of
Anglo-Saxon blood as the only alternative to a tame surrender of
their right of self-government?

The President's policy is high treason against the right of the
people to govern themselves. His apology for his conduct is in-
sulting to the victims of his usurpation.

Is it true that the dividing line is between those who are loyal
to this Territorial government and those who endeavored to de-
stroy it by force and usurpation ? Then the latter have been no
parties to the proceedings for a convention, yet are to be subject
to the constitution.

Is it true that the Territorial government would long since have
been subverted had it not been protected from their assaults by
the troops of the United States * Then the stronger part of the
people is against the proceeding for a constitution — and it is to
the weaker part the President proposes to confide the powers of
State government over the stronger. Is not this to deliver the
State into the hands of its enemies ? or will the rebels submit
when the United States withdraw its troops ? or are they to guar-
antee the new usurpation ?

Is it true that Secretary Stantqn was obliged to summon the

16

Legislature as the only means whereby the election of the 21st
December could be conducted without collision and bloodshed ?
Thes why was Mr. Stanton dismissed for summoning them ? Was
it in furtherance of the same policy which then refused the peo-
ple an opportunity to speak, and now that they have spoken, re-
fuses to hear them ? Or if that election could not be conducted
without collision and bloodshed, because the people were subject-
ed to an authority they defied, is it the purpose of the President
to insure the collision and bloodshed Stanton avoided, by forcing
on them a government which they have protested and remon-
strated against, and are ready to defy and destroy ? Is tJiat the
readiest method of settling the Kansas question ?

Is it the truth, that up till the present moment the enemies of
the enabling government adhere to their Topeka revolutionary
constitution I Then they ar° not likely to receive the Lecompton
constitution.

Is the reason the people refused to vote for delegates to the
convention, that they have ever refused to sanction or recognize
any other constitution than that of Topeka ? Then surely they are
not among those who sanction the Lecompton constitution. It is
not by their will it is put over them. It was not from acquiescence
they refrained from voting. Their silence is their dissent ; the
President tells us so. He says they would have voted against it
had it been submitted. Surely, then, silence is as instructive as
their voice.

Sir, in my judgment, the passage of this law is a declaration of
civil war. The history of the last three years in Kansas leaves
no doubt that the people will not submit to this constitution. It
cannot legally be changed before 1864. I think it a fair case for
disregarding the form of law and the substance of law. If the
constitutional authorities should concur in the change, peace may
be preserved. I trust they will concur, and that peace will be
preserved. But if they do resist the change which the mass of
the people will demand, if we now refuse to listen to their protest,
then, in my judgment, the shortest remedy is the best.

Free government is a farce if men are required to submit to
usurpation such as has here been perpetrated, and I fear the peo-
ple of Kansas are not in a mood to assist at the farce. They will
turn it into tragedy. Having heretofore resisted, we ought to
suppose they will resist again. We ought to act wisely and care-
fully, and if we have discretion now, we will not drive this people
upon revolutionary courses. Give them a mode of relief, and
allow them to follow that peaceful course which they are inclined
to follow, according to all reports from that Territory. Give them
the opportunity of expressing their will as to the law under which
they are to live ; and having expressed their will — whether it be
for slavery or against slavery, is, in my judgment, absolutely im-
material— allow them to conic in at a proper time, with a proper
population and with reasonable boundaries and a rich dower, as
one of the sister States of the Republic,