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SENATOR DOUGLAS, OF ILLINOIS,
DELIVERED IN THE SENATE OF THE UNITED STATES, DECEMBER 9, 1857.
On motion of Mr. DOUGLAS, the Senate resumed the consideration of the motion made by him yesterday, to print the President's message and accompanying documents, with fifteen thousand extra copies. Mr. DOUGLAS said:
Mr. PRESIDENT: When yesterday the President's message was read at the Clerk's desk, I heard it but imperfectly, and I was of the impression that the President of the United States had approved and indorsed the action of the Lecompton convention in Kansas. Under that impression, I felt it my duty to state that, while I concurred in the general views of the message, yet, so far as it approved or indorsed the action of that convention, I entirely dissented from it, and would avail myself of an early opportunity to state my reasons for my dissent. Upon a more careful and critical examination of the message, I am rejoiced to find that the President of the United States has not recommended that shall pass a law to receive Kansas. the Union under the constitution formed at Lecompton. It is true that the tone of the message indicates a willingness on the part of the President to sign a bill, if we shall see proper to pass one, receiving Kansas into the Union under that constitution. But, sir, it is a fact of great significance, and worthy of consideration, that the President has refrained from any indorsement of the convention, and from any recommendation as to the course Congress should
pursue with regard to the constitution there formed.
The message of the President has made an argument-an, unanswerable, argument in my opinion-against that constitution, which shows clearly, whether intended to arrive at the result or not, that, consistently with his views and his principles, he cannot accept that constitution. He has expressed his deep mortification and disappointment that the constitution itself has not been submitted to the people of Kansas for their acceptance or rejection. He informs us that he has unqualifiedly expressed his opinions on that subject in his instructions to Governor Walker, assuming, as a matter of course, that the constitution was to be submitted to the people before it could have any vitality or validity. He goes further, and tells us that the example set by Congress in the Minnesota case, by inserting a clause in the enabling act requiring the constitution to be submitted to the people, ought to become a uniform rule, not to be departed from hereafter in any case, On these various propositions I agree entirely with the President of the United States, and I am prepared now to sustain that uni form rule which he asks us to pursue, in all other cases, by taking the Minnesota provi sion as our example.
I rejoice, on a careful perusal of the m sage, to find so much less to dissent from than I was under the impression there was, from the hasty reading and imperfect hear
in the country at the time the Nebraska bill was passed; he was not a party to the controversy and the discussion that took place during its passage. He was then rep resenting the honor and the dignity of the country with great wisdom and distinction at a foreign court. Thus deeply engrossed, his whole energies were absorbed in con ducting great diplomatic questions that di verted his attention from the mere territo rial questions and discussions then going
ing of the message in the first instance. In effect, he refers that document to the Congress of the United States-as the Constitution of the United States refers it for us to decide upon it under our responsibility. It is proper that he should have thus referred it to us as a matter for congressional action, and not as an Administration or Executive measure, for the reason that the Constitution of the United States says that "Congress may admit new States into the Union." Hence we find the Kansas ques-on in the Senate and the House of Repre tion before us now, not as an Administration measure, not as an Executive measure, but as a measure coming before us for our free action, without any recommendation or interference, directly or indirectly, by the the Administration now in possession of the Federal Government. Sir, I propose to examine this question calmly and fairly, to see whether or not we can properly receive Kansas into the Union with the constitution formed at Lecompton.
sentatives, and before the people at home.
Now, sir, what was the principle enur ciated by the authors and supporter of that bill when it was brought forward! Did we not come before the country and say that we repealed the Missouri restri tion for the purpose of substituting and carrying out as a general rule the great principle of self-government, which left the people of each State and each Territory free to form and regulate their domestic institu tions in their own way, subject only to the Constitution of the United States? In sup port of that proposition, it was argued hera, and I have argued it wherever I have spoken in various States of the Union, at home and abroad, every where I have endeavored to prove that there was no reason why an ex coption should be made, in regard to the slavery question. I have appealed to the
The President, after expressing his regret and mortification and disappointment, that the constitution had not been submitted to the people in pursuance of his instructions to Governor Walker, and in pursuance of Governor Walker's assurances to the people, says, however, that by the Kansas-Nebraska act the slavery question only was required to be referred to the people, and the remainder of the constitution was not thus required to be submitted. He acknowledges that, as a general rule, on general principles, the whole constitution should be submitted; but according to his understanding of the organic act of Kansas, there was an imper-people if we did not all agree, men of all ative obligation to submit the slavery question for their approval or disapproval, but no obligation to submit the entire constitution. In other words, he regards the organic act, the Nebraska bill, as having made an exception of the slavery clause, and provided for the disposition of that question in "a mode different from that in which other domestic or local, as contradistinguished from Federal questions, should be decided. Sir, permit me to say, with profound respect for the President of the United States, that I conceive that on this point he has committed a fundamental error, an error which lies at the foundation of his whole argument on this matter. I can well understand how that distinguished statesman came to fall into this error. He was not
parties, that all other local and domesti
wife, parent and child, guardian and ward; and why should we not then allow them to decide for themselves the relations between master and servant! Why make an exception of the slavery question by taking it out of that great rule of self-government which applies to all the other relations of life?" The very first proposition in the Nebraska bill was to show that the Missouri restriction, prohibiting the people from deciding the slavery question for themselves, constituted an exception to a general rule, in violation of the principle of self-government, and hence that that exception should be repealed, and the slavery question, like all other questions, submitted to the people to be decided for themselves.
Sir, that was the principle on which the Nebraska bill was defended by its friends. Instead of making the slavery question an exception, it removed an odious exception which before existed. Its whole object was to abolish that odious exception, and make the rule general, universal, in its application to all matters which were local and domestic, and not national or Federal. For this reason was the language employed which the President has quoted; that the eighth gection of the Missouri act, commonly called the Missouri compromise, was repealed be cause it was repugnant to the principle of non-intervention established by the compromise measures of 1850, "it being the true intent and meaning of this act not to legislate slavery into any Territory or State, Dor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Consti tution of the United States." We repealed We repealed the Missouri restriction because that was confined to slavery. That was the only exception there was to the general principle of self-government. That exception was taken away for the avowed and express purpose of making the rule of self-government general and universal, so that the people should form and regulate all their domestic institutions in their own way.
Sir, what would this boasted principle of popular sovereignty have been worth, if it applied only to the negro, and did not extend to the white man? Do you think we could have aroused the sympathies and the patriotism of this broad Republic, and have arried the presidential election last year in
the face of a tremendous opposition, on the principle of extending the right of self-government to the negro question, but denying it as to all the relations affecting white men? No, sir. We aroused the patriotism of the country and carried the election in defence of that great principle, which allowed all white men to form and regulate their domestic institutions to suit themselves-institutions applicable to white men as well as to black men-institutions applicable to freemen as well as to slaves-institutions concerning all the relations of life, and not the mere paltry exception of the slavery question. Sir, I have spent too much strength and breath, and health, too, to establish this great principle in the popular heart, now to see it fritted away by bringing it down to an exception that applies to the negro, and does not extend to the benefit of the white man. of the white man. As I said before, I can well imagine how the distinguished and eminent patriot and statesman now at the head of the Government fell into the error for error it is, radical, fundamental-and, if persevered in, subversive of that platform upon which he was elevated to the Presidency of the United States.
Then, if the President be right in saying that, by the Nebraska bill, the slavery question must be submitted to the people, it follows inevitably that every other clause of the constitution must also be submitted to the people. The Nebraska bill said that' the people should be left "perfectly free to form and regulate their domestic institutions in their own way "not the slavery! question, not the Maine liquor-law question, not the banking question, not the school question, not the railroad question, but "their domestic institutions," meaning each and all the questions which are local, notnational, State, not Federal. I arrive at the conclusion that the principles enunciated so boldly, and enforced with so much ability by the President of the United States, require us, out of respect to him and the platform on which he was elected, to send this whole question back to the people of Kansas, and enable them to say whether or not the constitution which has been framed, each and every clause of it, meets their approbation.
The President, in his message, has made an unanswerable argument in favor of the principle which requires this question to be
sent back. It is stated in the message, with more clearness and force than any language which I can command; but I can draw your attention to it and refer the argument in the message, hoping that you will take it as a part of my speechas expressing my idea more forcibly than I am able to express it. The President that a question of great interest, like the slavery question, cannot be fairly decided by a convention of delegates, for the reason that the delegates are elected in districts, and in some districts a delegate is elected by a small majority; in others by an overwhelming majority, so that it often happens that a majority of the delegates are one way, while a majority of the people are the other way; and therefore it would be unfair and inconsistent with the great principle of popular sovereignty, to allow a body of delegates, not representing the popular voice, to establish domestic institutions for the mass of the people. This is the President's argument to show that you cannot have a fair and honest decision without submitting it, the popular vote. The same argument is conclusive with regard to every other question as well as with regard to slavery.
But, Mr. President, it is intimated in the message that although it was an unfortunate circumstance, much to be regretted, that the Lecompton convention did not submit the constitution to the people, yet perhaps it may be treated as regular, because the convention was called by a Territorial legislature which had been repeatedly recognized by the Congress of the United States as a legal body. I beg Senators not to fall into an error as to the President's meaning on this point. He does not say, he does not mean, that this convention had ever been recognized by the Congress of the United States as legal or valid. On the contrary, he knows, as we here know, that during the last Congress I reported a bill from the Committee on Territories to authorize the people of Kansas to assemble and form a constitution for themselves. Subsequently, the Senator from Georgia (Mr. TOOMBS) brought forward, a substitute for my bill, which, after having been modified by him and myself in consultation, was passed by the Senate. It is known in the country as the Toombs bill." It authorized the people of Kansas Territory to
assemble in convention and form a constitu tion preparatory to their admission into the Union as a State. That bill, it is wel known, was defeated in the House of Rep resentatives. It matters not, for the pur pose of this argument, what was the reason of its defeat. Whether the reason was a political one; whether it had reference to the then existing contest for the Presidency; whether it was to keep open the slavery question; whether it was a conviction that the bill would not be fairly carried out; whether it was because there were not people enough in Kansas to justify the for mation of a State-no matter what the reason was, the House of Representatives refused to pass that bill, and thus denied to the people of Kansas the right to form a constitution and State government at this time.
So far from the Congress of the United States having sanctioned or legalized the convention which assembled at Lecompton, it expressly withheld its assent. The assent has not been given, either in express terms or by implication; and being with held, this Kansas constitution has just such validity and just such authority as the Ter ritorial legislature of Kansas could impart to it without the assent, and in opposition to the known will of Congress.
Now, sir, let me ask what is the extent of the authority of a Territorial legislature as to calling a constitutional convention without the assent of Congress Fortu nately this is not a new question; it does not now arise for the first time. When the Topeka constitution was presented to the Senate nearly two years ago, it was referred to the Committee on Territories, with a ra riety of measures relating to Kansas. The committee made a full report upon the whole subject. That report reviewed all the irregular cases which had occurred in our history in the admission of new States The committee acted on the supposition that whenever Congress had passed an en abling act authorizing the people of a Ter ritoty to form a State constitution, the convention was regular, and possessed all the authority which Congress had delegated to it; but whenever Congress had failed or refused to pass an enabling act, the proceed ing was irregular and void, unless vitality was imparted to it, by a subsequent act of Congress adopting and confirming it. The friends of the Topeka constitution insisted
that although their proceedings were irregular, they were not so irregular but that Congress could cure the error by admitting Kansas with that constitution. They cited a variety of cases, amongst others the Arkansas case. In my report, sanctioned by every member of the Committee on Territories, except the Senator from Vermont, (Mr. COLLAMER,) I reviewed the Arkansas case as well as the others, and affirmed the doctrine established by General Jackson's administration and enunciated in the opinion of Mr. Attorney General Butler, a part of which opinion was copied into the report and published to the country at the time.
Now, sir, in order to ascertain what we understood on the 12th of March, 1856
little more than a year and a half ago-to be the true doctrine on this point, let me call your attention to the opinion of Mr. Butler in the Arkansas case. The Governor of the Territory of Arkansas sent a printed address to President Jackson, in which he stated that he had been urged to call together the Legislature of the Territory of Arkansas, for the purpose of allowing them to call a convention to form a constitution, preparatory to their admission into the Union as a State. The Governor stated that, in his opinion, the Legislature had no power to call such a convention without the assent of Congress first had and obtained; but he asked instructions on that point. The President referred the case to the Secretary of State, and he asked for the advice of the Attorney General, whose opinion was given, and adopted, as the plan of action, and communicated to the Governor of Arkansas for his instruction. I will read some extracts from that opinion;
Consequently, it is not in the power of the General Assembly of Arkansas to pass any law for the purpose of electing members to form a constitution and State government, or to do any other act, directly or indirectly, to create such new government. Every such law, even though it were approved by the Government of the Territory, would be null and void. If passed by them, notwithstanding his veto, by a vote of two-thirds of each branch, it would still be equally void,
"If I am right in the foregoing opinion, it will then follow that the course of the Governor, in declining to call together the Territorial Legisla ture for the purpose in question, was such as his legal duties required; and that the views he has expressed in his public address, and also in his official communication to yourself, so far as they
indicate an intention not to sanction or concur in any legislative or other proceedings towards the formation of a State government until Congress shall have authorized it, are also correct."
That is what I have understood to be the settled doctrine as to the authority of a Territorial Legislature to call a convention without the consent of Congress first had and obtained. The reasoning is very clear and palpable. A Territorial Legislature possesses whatever power its organie act gives it, and no more. The c organic act of Arkansas provided that the legislative power should be vested in the Territorial Legislature, the same as the organic act of Kansas, provides that the legislative power and authority shall be vested in the Legis lature. But what is the extent of that legislative power? It is to legislate for that Territory under the organic act, and in obedience to it. It does not include any power to subvert the organic act under which it was brought into existence. It has the power to protect it, the power to execute it, the power to carry it into effect; but it has no power to subvert, none to destroy; and hence that power can only be obtained by applying to Congress, the same authority which created the territory itself. But while the Attorney General decided, with the approbation of the administration of General Jackson, that the Territorial Legislature had no power to call a convention, and that its action was void if it did, he went further:
"No law has yet been passed by Congress which either expressly or impliedly gives to the people of Arkansas the authority to form a State
Nor has there been any in regard to Kansas. The two cases are alike thus far. They are alike in all particulars so far as the question involving the legality and the validity of the Lecompton convention is concerned. The opinion goes on to say:
"For the reasons above stated, I am, therefore, of opinion that the inhabitants of that Territory have not at present, and that they cannot asquire otherwise than by an act of Congress, the right to form such a government."
General Jackson's administration took the ground that the people of Arkansas, by the authority of the Territorial Legisla ture, had not the power to hold a convention to form a constitution, and could not acquire it from any source whatever except from Congress. While, therefore, the legi