Part 17

I know that there is another deceptive clause which seems to throw certain safeguards around the election of delegates to the Convention, _when that Convention shall be ordered by the Legislature_; but out of this very clause do I draw judgment against the Usurpation which the bill recognizes. It provides that the tests, coupled with the electoral franchise, shall not prevail in the election of delegates, and thus impliedly condemns them. But if they are not to prevail on this occasion, why are they permitted at the election of the Legislature? If they are unjust in the one case, they are unjust in the other. If annulled at the election of delegates, they should be annulled at the election of the Legislature; _whereas the bill of the Senator leaves all these offensive tests in full activity at the election of the very Legislature out of which this whole proceeding is to come_, and it leaves the polls at both elections in the control of the officers appointed by the Usurpation. Consider well the facts. By existing statute establishing the Fugitive Slave Bill as a shibboleth, a large portion of honest citizens are excluded from voting for the Legislature, while, by another statute, all who present themselves with a fee of one dollar, whether from Missouri or not, and who can pronounce this shibboleth, are entitled to vote. And it is a Legislature thus chosen, under the auspices of officers appointed by the Usurpation, that you now propose to invest with parental powers to rear the Territory into a State. You recognize and confirm the Usurpation which you ought to annul without delay. You put the infant State, now preparing to take a place in our sisterhood, to suckle the wolf which you ought at once to kill. The marvellous story of Baron Munchausen is verified. The wolf which thrust itself into the harness of the horse it had devoured, and then whirled the sledge according to mere brutal bent, is recognized by this bill, and kept in its usurped place, when the safety of all requires that it should be shot.

In characterizing this bill as _the Remedy of Injustice and Civil War_, I give it a plain, self-evident title. It is a continuation of the Crime against Kansas, and as such deserves the same condemnation. It can be defended only by those who defend the Crime. Sir, you cannot expect that the people of Kansas will submit to the Usurpation which this bill sets up and bids them bow before, as the Austrian tyrant set up the ducal hat in the Swiss market-place. If you madly persevere, Kansas will not be without her William Tell, who will refuse at all hazards to recognize the tyrannical edict; and this will be the beginning of civil war.

Next, and lastly, comes _the Remedy of Justice and Peace_, proposed by the Senator from New York [Mr. SEWARD], and embodied in his bill for the immediate admission of Kansas as a State of this Union, now pending as a substitute for the bill of the Senator from Illinois. This is sustained by the prayer of the people of the Territory, setting forth a Constitution formed by spontaneous movement, in which all there had opportunity to participate, without distinction of party. Rarely is any proposition presented so simple in character, so entirely practicable, so absolutely within your power, and promising at once such beneficent results. In its adoption, the Crime against Kansas will be all happily absolved, the Usurpation it established peacefully suppressed, and order permanently secured. By a joyful metamorphosis this fair Territory may be saved from outrage.

“Oh, help,” she cries, “in this extremest need, If you who hear are Deities indeed! Gape, Earth, and make for this dread foe a tomb _Or change my form, whence all my sorrows come_![98]

In offering this proposition, the Senator from New York has entitled himself to the gratitude of the country. Throughout a life of unsurpassed industry and of eminent ability, he has done much for Freedom, which the world will not let die; but than this he has done nothing more opportune, and he has uttered no words more effective than the speech, so masterly and ingenious, by which he vindicated it.

Kansas now presents herself for admission with a Constitution republican in form. And, independently of the great necessity of the case, three considerations of fact concur in commending her. First, she thus testifies her willingness to relieve the National Government of the considerable pecuniary responsibility to which it is now exposed on account of the pretended Territorial Government. Secondly, by her recent conduct, particularly in repelling the invasion on the Wakarusa, she has evinced an ability to defend her government. And, thirdly, by the pecuniary credit she now enjoys, she shows undoubted ability to support it. What can stand in her way?

* * * * *

The power of Congress to admit Kansas at once is explicit. It is found in a single clause of the Constitution, which, taken by itself, without any qualification applicable to the present case, and without doubtful words, requires no commentary. Here it is.

“New States _may_ be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.”

New States MAY be admitted. Out of that little word _may_ comes the power, broadly and fully, without any limitation founded on population or preliminary forms, provided the State is not within the jurisdiction of another State, nor formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States. Kansas is not within the _legal_ jurisdiction of another State, although the laws of Missouri are tyrannically extended over her; nor is Kansas formed by the junction of two or more States; and therefore Kansas _may_ be admitted by Congress into the Union, without regard to population or preliminary forms. You cannot deny the power, without obliterating this clause. The Senator from New York was right in rejecting all appeal to precedents as entirely irrelevant; for the power invoked is clear and express in the Constitution, which is above all precedent. But since precedent is enlisted, let us look at precedent.

It is objected that the _population_ of Kansas is not sufficient for a State; and this objection is sustained by under-reckoning the numbers there, and exaggerating the numbers required by precedent. In the absence of any recent census, it is impossible to do more than approximate to the actual population; but, from careful inquiry of the best sources, I am led to place it now at 50,000, though I observe that a prudent authority, the “Boston Daily Advertiser,” puts it as high as 60,000; and while I speak, this remarkable population, fed by fresh emigration, is outstripping even these calculations. Nor can there be doubt, that, before the assent of Congress can be perfected in the ordinary course of legislation, this population will swell to the large number of 93,420, required in the bill of the Senator from Illinois. _But, in making this number the condition of the admission of Kansas, you set up an extraordinary standard._ There is nothing out of which it can be derived, from the beginning to the end of the precedents. Going back to the days of the Continental Congress, you find that in 1784 it was declared that 20,000 free inhabitants in a Territory might “establish a permanent Constitution and Government for themselves”;[99] and though this number was afterwards, in the Ordinance of 1787 for the Northwestern Territory, raised to 60,000, yet the power was left in Congress, and subsequently exercised in more than one instance, to constitute a State with a smaller number. Out of all the new States, only Maine, Wisconsin, and Texas contained, at the time of admission into the Union, so large a population as is required in Kansas,--while no less than _fifteen_ new States have been admitted with a smaller population, as will appear by the following list, which is the result of research, showing the number of “free inhabitants” in these States at the date of the proceedings which ended in their admission.

Vermont 85,399 Kentucky 61,247 Tennessee 66,650 Ohio 45,028 Louisiana 41,896 Indiana 63,897 Mississippi 25,938 Illinois 40,156 Alabama 48,871 Missouri 56,364 Arkansas 42,635 Michigan 87,273 Florida 32,500 Iowa 78,819 California 92,597

But this is not all. At the adoption of the National Constitution there were three of the old Thirteen whose respective populations did not reach the amount now required of Kansas: these were Delaware, with only 50,209 free inhabitants; Rhode Island, with only 68,158 free inhabitants; and Georgia, with only 53,284 free inhabitants. And even while I speak, there are at least three States, with Senators on this floor, which, according to the last census, do not contain the population now required of Kansas: I refer to California, with only 92,597 free inhabitants; Delaware, with only 89,242 free inhabitants; and Florida, with only 48,135 free inhabitants. So much for precedents of population.

In sustaining this objection, it is not uncommon to abandon the strict rule of numerical precedent, and to allege that the population required in a new State has always been, in point of fact, above the existing ratio of representation for a member of the House of Representatives. But this is not true; for no less than three States, Mississippi, Arkansas, and Florida, being all Slave States, were admitted with a free population below this ratio. So much, again, for precedents. But even if this coincidence were complete, it would be impossible to press it into binding precedent. The rule seems reasonable, and in ordinary cases would not be questioned; but it cannot be drawn or implied from the Constitution. Besides, this ratio is in itself a sliding scale. At first it was 30,000, increased in 1793 to 33,000, and thus continued till 1813, when it was put at 35,000. In 1823 it was 40,000; in 1833 it was 47,700; in 1843 it was 70,680; and now it is 93,420. If any ratio is to be made the foundation of binding rule, it should be that which prevailed at the adoption of the Constitution,--or at least that which prevailed when Kansas, as part of Louisiana, was acquired from France, under solemn stipulation that it should “be incorporated in the Union of the United States, and admitted _as soon as possible_, according to the principles of the Federal Constitution.” But this whole objection is met by the memorial of the people of Florida, which, if good for that State, is also good for Kansas. Here is a passage.

“But the people of Florida respectfully insist that their right to be admitted into the Federal Union as a State is not dependent upon the fact of their having a population equal to such ratio. Their right to admission, it is conceived, is guarantied by the express pledge in the sixth article of the treaty [with Spain] before quoted; and if any rule as to the number of population is to govern, it should be that in existence at the time of the cession, which was thirty-five thousand.[100] They submit, however, that any ratio of representation, dependent on legislative action, based solely on convenience and expediency, shifting and vacillating as the opinion of a majority of Congress may make it, now greater than at a previous apportionment, but which a future Congress may prescribe to be less, cannot be one of the _constitutional_ ‘PRINCIPLES’ referred to in the treaty, consistency with which, by its terms, is required. It is, in truth, but a mere regulation, not founded on principle. No specific number of population is required by any recognized principle as necessary in the establishment of a free Government.… It is in no wise ‘_inconsistent with the principles of the Federal Constitution_’ that the population of a State should be less than the ratio of Congressional representation. The very case is provided for in the Constitution. With such deficient population, she would be entitled to one Representative. If any event should cause a decrease of the population of one of the States even to a number below the _minimum_ ratio of representation prescribed by the Constitution, she would still remain a member of the Confederacy, and be entitled to such Representative. It is respectfully urged, that a rule or principle which would not justify the _expulsion_ of a State with a deficient population, on the ground of inconsistency with the Constitution, should not exclude or prohibit _admission_.”[101]

Thus, Sir, do the people of Florida plead for the people of Kansas.

Distrusting the objection from inadequacy of population, it is said that _the proceedings for the formation of a new State are fatally defective in form_. It is not asserted that a previous enabling Act of Congress is indispensable; for there are notorious precedents the other way: among which are Kentucky, in 1791; Tennessee, in 1796; Maine, in 1820; and Arkansas and Michigan, in 1836. But it is urged that in no instance has a State been admitted whose Constitution was formed without such enabling Act, or without authority of the Territorial Legislature. This is not true; for California came into the Union with a Constitution formed not only without any previous enabling Act, but also without any sanction from a Territorial Legislature. The proceedings which ended in this Constitution were initiated by the military Governor there, acting under the exigency of the hour. This instance may not be identical in all respects with that of Kansas; but it displaces completely one of the assumptions which Kansas now encounters, and it completely shows the disposition to relax all rule, under the exigency of the occasion, in order to do substantial justice.

There is a memorable instance, which contains in itself every element of irregularity which you denounce in the proceedings of Kansas. Michigan, now cherished with such pride as a sister State, achieved admission into the Union in persistent defiance of all rule. Do you ask for precedents? Here is a precedent for the largest latitude, which you who profess deference to precedent cannot disown. Mark now the stages of this case. The first proceedings of Michigan were without any previous enabling Act of Congress; and she presented herself at your door with a Constitution thus formed, and with Senators chosen under that Constitution, precisely as Kansas does. This was in December, 1835, while Andrew Jackson was President. The leaders of the Democracy at that time scouted all objection for alleged defects of form, employing language strictly applicable to Kansas. There is nothing new under the sun; and the very objection of the President, that the application of Kansas proceeds from “persons acting against authorities duly constituted by Act of Congress,”[102] was hurled against the application of Michigan, in debate on this floor. This was the language of Mr. Hendricks, of Indiana:--

“But the people of Michigan, in presenting their Senate and House of Representatives as the legislative power existing there, _showed that they had trampled upon and violated the laws of the United States establishing a Territorial Government in Michigan_. These laws were, or ought to be, in full force there; but, by the character and position assumed, they had set up a Government antagonist to that of the United States.”[103]

To this impeachment Mr. Benton replied in these effective words:--

“Conventions were original acts of the people. They depended upon inherent and inalienable rights. The people of any State may at any time meet in Convention, without a law of their Legislature, and without any provision, or against any provision, in their Constitution, and may alter or abolish the whole frame of Government as they please. The sovereign power to govern themselves was in the majority, and they could not be divested of it.”[104]

Mr. Buchanan vied with Mr. Benton in vindicating the new State.

“The precedent in the case of Tennessee … has completely silenced all opposition in regard to the necessity of a previous Act of Congress to enable the people of Michigan to form a State Constitution. It now seems to be conceded that our subsequent approbation is equivalent to our previous action. This can no longer be doubted. _We have the unquestionable power of waiving any irregularities in the mode of framing the Constitution, had any such existed._”[105]

“He did hope that by this bill all objections would be removed,--and that this State, so ready to rush into our arms, would not be repulsed, _because of the absence of some formalities which perhaps were very proper, but certainly not indispensable_.”[106]

After an animated contest in the Senate, the bill for the admission of Michigan, _on her assent to certain conditions_, was passed, by 23 yeas to 8 nays. You find weight, as well as numbers, on the side of the new State. Among the yeas were Thomas H. Benton, of Missouri, James Buchanan, of Pennsylvania, Silas Wright, of New York, and William R. King, of Alabama.[107] Subsequently, on motion of Mr. Buchanan, the gentlemen sent as Senators and Representative by the new State received the regular compensation for attendance throughout the very session in which their seats had been so acrimoniously contested.[108]

In the House of Representatives the application was equally successful. The Committee on the Judiciary, in an elaborate report, reviewed the objections, and, among other things, said:--

“That the people of Michigan have without due authority formed a State Government; but, nevertheless, _that Congress has power to waive any objection which might on that account be entertained_ to the ratification of the Constitution which they have adopted, and to admit their Senators and Representatives to take their seats in the Congress of the United States.”[109]

The House sustained this view by a vote of 153 yeas to 45 nays. In this large majority, by which the title of Michigan was then recognized, will be found the name of Franklin Pierce, at that time a Representative from New Hampshire.

But the case was not ended. The fiercest trial and the greatest irregularity remained. The Act providing for the admission of the new State contained a modification of its boundaries, and proceeded to require, as _a fundamental condition_, that these should “receive the assent of a Convention of delegates elected by the people of the said State, for the sole purpose of giving the assent herein required.”[110] Such a Convention, duly elected under call from the Legislature, met in pursuance of law, and, after consideration, declined to come into the Union on the condition proposed. The action of this Convention was not universally satisfactory; and in order to effect admission into the Union, another Convention was called, _professedly_ by the people in their sovereign capacity, without authority from State or Territorial Legislature,--nay, Sir, borrowing the language of the present President, “against authorities duly constituted by Act of Congress,” at least as much as the recent Convention in Kansas. The irregularity of this Convention was increased by the circumstance that two of the oldest counties of the State, comprising a population of some 25,000 souls, refused to take part in it, even to the extent of not opening the polls for the election of delegates, claiming that it was held without warrant of law, and in defiance of the legal Convention. This popular Convention, though wanting popular support coextensive with the State, yet proceeded, by formal act, to give the assent of the people of Michigan to the fundamental condition proposed by Congress.

The proceedings of the two Conventions were transmitted to President Jackson, who, by message, 27th December, 1836, laid them both before Congress, indicating very clearly his desire to ascertain the will of the people, without regard to form. The origin of the popular Convention he thus describes:--

“This latter Convention was not held or elected by virtue of any Act of the Territorial or State Legislature. It originated from the People themselves, and was chosen by them in pursuance of resolutions adopted in primary assemblies held in the respective counties.”[111]

And the President then declares, that, had these proceedings come to him during the recess of Congress, he should have felt it his duty, on being satisfied that they emanated from a Convention of delegates elected _in point of fact by the People of the State_, to issue his proclamation for the admission of the State.

The Committee on the Judiciary in the Senate, of which Felix Grundy was Chairman, after inquiry, recognized the competency of the popular Convention, as “elected by the People of the State of Michigan,” and reported a bill, responsive to their acceptance of the proposed condition, for the admission of the State without further terms.[112] Then, Sir, appeared the very objections now directed against Kansas. It was complained, that the movement for immediate admission was the work of “a minority,” and that “a great majority of the State feel otherwise.”[113] And a leading Senator, of great ability and integrity, Mr. Ewing, of Ohio, broke forth in catechism which would do for the present hour. He exclaimed:--

“What evidence had the Senate of the organization of the Convention? of the organization of the popular assemblies who appointed their delegates to that Convention? None on earth. Who they were that met and voted we had no information. Who gave the notice? And for what did the People receive that notice? To meet and elect? What evidence was there that the Convention acted according to law? Were the delegates sworn? And if so, they were extrajudicial oaths, and not binding upon them.… Were the votes counted? In fact, it was not a proceeding under the forms of law, for they were totally disregarded.”[114]

And the same able Senator, on another occasion, after exposing the imperfect evidence with regard to the action of the Convention, existing only in letters and in an article from a Detroit newspaper, again exclaimed:--

“This, Sir, is the evidence to support an organic law of a new State about to enter the Union,--yes, of an organic law, the very highest act a community of men can perform: letters referring to other letters, and a scrap of a newspaper!”[115]