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"perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.""
words into that clause of the organic act, which | Constitution," but "in framing their Constituare not found in it originally. Those words are: tion" is not there"in framing their Constitution." There are no such words in the act. Undoubtedly, if that clause had provided that the people might, in framing their Constitution, have arranged their institutions to suit themselves, the idea might be supported; but the words are not in the criginal provision. He assumes that they are. He makes the interpolation, and then draws his own inference from that interpolation thus introduced into the organic act.
Mr. BROWN. If the Senator from Maine will allow me, I will, in that connection, show that the author of the Kansas bill puts precisely the same interpretation on it which the President does. In the report made to Congress on the 12th of March, 1856, by the Senator from Illinois, I find this language:
"Is not the organization of a Territory eminently necessary and proper, as a means of enabling the people thereof to form and mould their local and domestic institutions, and establish a State Government under the authority of the Constitution, preparatory to its admisssion into the Union?"
I read from page 4 of the report, in which it is stated to be eminently proper and necessary for two purposes: first, to enable them to regulate and mould their institutions to suit themselves; and, second, to form a Constitution, preparatory to their admission into the Union. If the author of the bill put that interpretation on it in a report made to Congress, I see no great harm in the President putting the same construction on it. I think it was the true interpretation.
Mr. FESSENDEN. It makes no difference to me what construction the Senator from Illinois put on that act at any time. I do not, however, agree with the Senator from Mississippi, that the language he has read carries any such idea with it; but I shall leave it to the Senator from Illinois, if he chooses, to settle that question with the Senator from Mississippi, and with the President. What I have to do is to comment on what the President says. I say that it is a new idea, never before suggested in my hearing, (and I believe I have heard this controversy from the beginning,) that the organic law was to be construed as an enabling act, until it comes authoritatively, for the first time, from the President of the United States.
I do not blame him in one sense; it was necessary to his argument; without it, that argument fails; but, in another sense, I do blame him for it, and that is this: in undertaking to quote the language of a clause in a law of Congress, I think he should not interpolate words into it which are not there, and hold out the idea that those words actually exist, or are clearly and distinctly implied, when there is nothing in the act itself to authorize anything of that description. Let me read this clause. It has been read some thousands of times before, but perhaps it cannot be read too often-I mean the clause following: "It being the true intent and meaning of this act, not to legislate Slavery into any Territory or State, nor to exclude it therefroin, but to leave the people thereof"
Here the President inserts "in framing their
It is very plain that it was not intended that this should be an enabling act; because, if it had been so intended, it would have been so specifically stated. The words "in framing their Constitution" would have been inserted. At any rate, some particular portion of that act would have been found, in which the authority was specifically given to the people of Kansas to frame a Constitution under it, and under that Constitution to ask admission into the Union; but nothing of that kind is found. Is it possible, can anybody believe, that the Congress of the United States, in framing a law to organize a Territory, and intending by that law to confer on the people of the Territory the power to frame a Constitution, and under that Constitution to come into the Union, would have left it to be inferred from language which, in fact, conveys no such idea? The idea is preposterous. Again, we all know that nothing of the kind was ever suggested in any debate that took place on that occasion. Nobody supposed that under that organic act there was authority conferred to frame a State Constitution, preparatory to admission into the Union. There is nothing in the terms of the provision which I have read, nothing in the terms of the act anywhere, which could lead to the conclusion that any such authority was either given or intended to be given in any manner whatever.
I should like to ask any man, and the President of the United States particularly, who contends that this is an enabling act, of what benefit in that clause are the words, "subject only to the Constitution of the United States," if the clause was intended to say, and only to say, to the people of the Territory of Kansas, "you are at liberty, when you frame a Constitution, preparatory for admission into the Union, if you choose, to frame your domestic institutions in your own way?" Of what benefit, let me ask, is it, to add at the end of the sentence, "provided you do not in any manner contravene the provisions of the Constitution of the United States?" Must not the State Constitution, when framed, come before us? Must it not be presented to us for our action, and if there is a provision in it contrary to the Constitution of the United States, have we not power to reject it? The very fact that the words "subject only to the Constitution of the United States" are left in the act, goes to prove most conclusively, beyond all dispute, that the object was not to confer on the people of Kansas that authority when they were forming their Constitution, but to confer on them that authority to be exercised while they were a Territory, and with reference to their Territorial institutions alone. The people of a Territory may very well be thus limited while they remain a Territory. While they are acting under their organic law, framing institutions to regulate themselves at that time, confining themselves to that, it may be very good sense to say, that while you are thus a Terri
tory, you shall frame no institutions that are | mend? The authority is not given them; they contrary to the Constitution of the United States; must derive it from somebody. True, they have but if it was conferring on them the authority to power to legislate; but this is not a proper subform a Constitution, of what use is it to say-ject of legislation, unless the authority is conferare not the words thrown away, as perfectly in-red on them to make it binding. My answer to operative-" subject to the Constitution of the the whole of the President's argument on that United States?" that is, you may make a Con-point, and to the argument of the Senator from stitution, but it must be such a Constitution as Georgia on that point, is, that if this is not an does not contravene the Constitution of the enabling act, (which the Senator from Georgis United States. That very clause shows that it admits it is not,) then there is no more legality was not intended as an enabling act. in the act of the Legislature of Kansas, in calling It was not considered to be an enabling act. a Convention, than there is in the act of the I should like to ask the honorable Senator from people of Kansas calling the Topeka Convention. Georgia, if he considered it an enabling act, why They can do it in the one form or the other, prehe so soon afterwards introduced a bill into this vided they do it peaceably; and yet on that the body, which was passed by the Senate, to enable whole argument is predicated. The President the people of Kansas to form a State Constitu- or the person who drew this message, whoever tion? Was that construction put on it at the he may have been, saw the difficulty. It was s celebrated meeting at the house of the Senator part of his object to show and to convince the from Illinois, when that enabling act was agreed country that here was legality on one side and upon, to be reported to Congress, and to be carried illegality on the other; and therefore he interthrough Congress, if possible? Was it supposed polates the words of which I have spoken into that the organic act itself contained an enabling this provision of the organic law, and says, after act, rendering that unnecessary, and that under that interpolation, that the organic law is itself it the people of the Territory of Kansas might an enabling act. If correct in that, he is corgo forward and form a State Constitution, pre-rect in his conclusion. The Senator from Georparatory to being admitted into the Union? It was not the construction placed on it by the Democratic party, by the friends of the bill; and the honorable Senator from Georgia thinks the friends of the bill are those who alone are competent to understand and construe it, and that nobody else can understand it properly. I point his attention, therefore, to his own construction, and I ask him if he considered that clause of the organic act on which I have been commenting, and on which the President commented, and into which he interpolated the words of which I have spoken, as an enabling act, authorizing the people of Kansas to frame a State Constitution? Mr. TOOMBS. I will answer the question with pleasure. I did not then, do not now, and never have so considered it. Nor do I consider an enabling act necessary. I think it oftentimes a convenient mode. I act with or without it, accord-them, not having the right to call a Convention ing to the circumstances of the case.
gia says he is not correct. I agree with the Senator from Georgia, and therefore, as I think, the conclusion does not follow. There is no legality in it; that is to say, there is no binding legality.
What right had the Legislature to act conclusively on that subject to say, "We appoint a place of meeting at such a time; the people of Kansas may come and vote at such a time; and we prescribe a test oath to those who may choose to vote on the question of calling a Convention?" Who gave them authority to make that test oath, and apply it to the people of Kansas? Where did they get it? It is precisely as much rebellion as was the formation of the Topeka Constitution, against the constituted Government, although done by the Legislature. This Legis lature-having no such authority conferred on
given them by the original organic law-underMr. FESSENDEN. I am very happy to get take to say that at such a day, and such an hour that admission from the Senator from Georgia. of the day, the people of Kansas shall vote on It is made with his customary frankness and the question of whether a Convention shall be clearness. Having admitted it, I propose to ask called to make a Constitution, and only such per him another question. If it was not an enabling sons as, take a particular kind of oath shall be act, where does he get the legality of all these allowed to vote. Where did they get the authorproceedings of the Legislature of Kansas? If ity to make any such rule? From the organic they had no authority conferred on them by Con- law? No, says the Senator from Georgia; no, gress to call a Convention for the purpose of say I; and no, must every man say who is not at framing a Constitution, preparatory to the admis-liberty to do as the President has—and that is, to sion of that Territory into the Union as a State, where does the legality of their action come from?
Mr. TOOMBS. The Territorial Legislature. Mr. FESSENDEN. What authority had they? They had no such authority conferred on them. They might call a convention to petition; they could not make it binding. Unless Congress confers the authority on a particular Legislature to do that very act, what authority has that Legislature more than another? What can they do but petition? What can they do but recom
interpolate into that clause the words, "in framing their Constitution," and thus to make out the argument. The whole foundation of bis argument fails; and therefore his allegation, that here has been legality on one side and illegality on the other, fails. I aver that the Topeka Constitution is as legal as that—as legal in its form, as legal in its inception, as legal in all the steps that have been taken with regard to it, in every particular; as much within the purview of the power of the people under that clause in the organic law, as the action of the Legislature.
I deny the legality of the first Legislature, as I stated; and I deny, too, the assertion of the honmorable Senator from Georgia, that it has ever been admitted or recognised by Congress. I say it Hit has never been recognised in any shape or form. The Senator appealed to the fact that at the last session of Congress, in the general appropriation bill, we made a provision for the payment of the Legislature of Kansas. Congress, at the previous 12 session, refused to make that appropriation. When we made it at the last session of Congress, it applied only to a future Legislature. It applied to the one now in existence. It could not go into operation until the beginning of the fiscal year, last July, going forward to next July. The first Legislature had become defunct; it had ceased to perform its functions; a new one was to be elected, and, that fact being known, Congress made provision for its payment-not for the last one; that has not been made to this day; and under a law of Congress, which the chairman of the Committee on Finance well understands, the President cannot apply money thus appropriated for the service of the current year, from last July until the next July, to the payment of a preceding debt for a Legislature whose term of office had expired.
But admitting the legality of the Legislature, usurping though it was, and admitting also that it had been recognised by Congress, nothing follows, except that its action was advisory. So was the action of the Topeka Legislature. The people were not bound by one more than the other; one was not more rebellious than the other; one had as much force as the other, because the substratum, the authority from Congress to the Legislature to call a Convention, and prescribe rules for that Convention, was wanting.
being abhorrent to a large portion of the people of Kansas? Why place the question in that form? If it was the will of the people, if they had any idea that a majority of the people of Kansas would sustain it, why not submit the question fairly to the people of Kansas, without any of those restrictions? It is not a sufficient answer to satisfy my mind, to say that all legal, forms have been complied with. Why was it not done?
Another answer is made in the thunder tones of the last vote of the people of Kansas, when, the question being submitted to them by the Legislature now existing in that Territory, they threw a majority of over ten thousand votes against that Constitution! Is that no answer? Shall we not receive it as proof?
The honorable Senator from Georgia, on this particular matter, said, in answer to the inquiry which I now make, why the present Legislature might not repeal the Convention law, or might not order a new vote to be taken on the Constitution, to ascertain what is the will of the people of Kansas, that its power was exhausted. What power was exhausted? Where do they get any power on the subject? He admits that they had no power from the Congress of the United States. There was no enabling act; no power to frame a Constitution had been conferred on them, from any quarter whatever; and yet he says the power was exhausted. The power that they assumed was exhausted; but, if it is in the power of a legal Legislature of Kansas to call a Convention and have the action of the people on a portion of the Constitution, is it not in the power of another Legislature of the same Territory of Kansas to call a meeting of the people, in due form, to pass upon another question connected with If I am right in this position, the only question the same subject, and the whole subject? If he that remains is, does it fairly represent the peo- had shown us where the power' was derived ple of Kansas? Does the vote, taken under these from, if he had shown that the Congress of the circumstances at that particular period of time, United States had ever conferred any power on represent the will of the people of Kansas, fairly the Legislature of Kansas to act on that quesexpressed? I have commented on that. It is a tion, it would be one thing; but denying that, question of fact, and it is a question of fact for and admitting that no such authority was conus to settle; and we are not precluded by the as- ferred, he yet says, in answer to a question put sertion that here is legality on one side and ille- by the honorable Senator from Wiscousin, [Mr. gality on the other. Have the people of Kansas, DOOLITTLE,] the power was exhausted. I should by any act of theirs, under any circumstances, at like to have him, or some other Senator, show any time, manifested clearly to the Congress of me, and show the country, whence was the derthe United States their desire that the Lecomp-ivation of this power; and to answer the queston Constitution should be accepted, and that they should come into the Union as a State under it? That is the question submitted to us as the tribunal to decide it. What have we against it? What have we to reply? To what facts can we appeal, as an answer to any allegation that it was so ? We have in the first place the admitted unfairness and dishonesty of the whole proceedings from the beginning. I have adverted to them, and they are matter of history. If it was supposed that they would fairly represent the will of the people of Kansas, (and it was designed they should,) why not submit the whole Constitution fairly to them? Why present to them two slave Constitutions, and bid them take their choice between those two? Why accompany those two with an oath to support one or the other, both
tion decisively, if they had none conferred on them, how they could exhaust that which they never possessed? and why the existing Legisia. ture has not the same right and authority to pu the question to the people of Kansas, that the previous Legislature had?
The President and the honorable Senator from Georgia agree on one point, and that is, as to who are the people; and I agree with them. The people, in the language of this law, and as we understand it with reference to suffrage, are those people who are legally qualified to vote. Such questions, I also agree with them, are not to be settled in mass meeting and without form, but are to be settled in due form by those who have the authority to exercise the right of suffrage. But this statement, which was argued at such
length, and which nobody would ever think of denying, avoids the true question at issue. The question at issue is, whether a fair opportunity has been accorded to this very people to exercise the right of suffrage on this question; and that the President and the Senator from Georgia, who undertakes to defend the message, have not discussed at so much length. They assume it; they take it for granted; we deny it. What is the argument to sustain it? Simply that, in ascertaining the will of the people, in the form prescribed, at the time prescribed, with reference to the Lecompton Constitution, all the forms of law prescribed by the Legislature have been complied with. I dislike, exceedingly, to hear, as the sole answer to such allegations, that the thing was formally done.
The honorable Senator from Georgia is an eminent lawyer, and he knows that to be no answer in courts of law. It is no answer to an allegation of fraud, to say that the forms have been complied with; and, as a matter of history, we know that there is no more dangerous mode of attacking the liberties of a people, than under the forms of law. It has been well remarked that, for hundreds of years, Rome was a tyranny, exercising at the same time the forms of republican institutions. Tyrants always keep up the forms as long as they are able, when defrauding the people of their rights, because in that manner they are able to prevent, perhaps, that outbreak which would follow a resort to absolute physical force. Charles the First lost his head for tyrannizing under the forms of law; James, his son, lost his throne for the same reason; and our ancestors wrested this country from Great Britain for attempting to tyrannize over them under the forms of law. Yet this is the only answer that is made-"here is a legal form." The Legislature thus forced on the people of Kansas assumed to appoint a time for a Convention to provide a mode of voting; and that Convention assumed to make a Constitution. They assumed to put it to the people; they prescribed their own forms, and followed out their own manner of doing it; and now, when we come forward and say, that from the beginning to the end they designed to defraud and did defraud the people of Kansas, the answer is, "We cannot go into that subject, for it was all done under legal form." My reply is a very simple one that fraud vitiates everything.
What were these forms? Let us enumerate them in distinct order, so that they may be understood by the people. A Legislature was forced on the people of Kansas, in due form, by a Missouri invasion. Does the honorable Senator from Missouri (I do not see him in his seat) want proof of that? The proof is found in the records of the committee of the House of Representatives that investigated the subject. Nobody has undertaken to deny it. The Legislature acted without legal right, as I have demonstrated, but in due form, in appointing a Convention, but they prescribed a test oath, which rendered it unavailing. My honorable friend from Vermont, who sits beside me, [Mr. COLLAMER,] informs me that I am mistaken on that point, and he says
the test oath has been repealed. A portion of it might have been repealed, but the whole of it was not.
Mr. COLLAMER. That portion requiring an oath to support the fugitive slave law had been repealed.
That was part of the test oath. That may have rendered it more odious; but still the objection lies to the principle, that no Government in the world, such as ours, act ing under a republican form, has a right to establish any test oath at all, with reference to the exercise of the right of suffrage, or go any further than adopt such measures as are neces sary to show that a man is qualified to vote. That was the next step.
A census was taken, in due form, not including one-half of the people of the Territory. Next, the members of the Convention forfeited their pledges. What were those pledges? If we may trust to what has been cited here, and not con tradicted, a large proportion of the members of the Convention pledged themselves to submit the whole Constitution to the people. These pledges were broken; and I heard a very singular excuse given for this the other day, by the honorable Senator from Mississippi, [Mr. BROWN,] who said that their constituents had released them from their pledges-that they had been released by the people to whom they had given them. I should like to know how or in what form that release was given. They held themselves out to the people, on paper, pledging their honor that, if elected delegates to the Convention, they would submit the Constitution to the people. They refused to do so-they forfeited their word after they were elected. Having been elected, they refused to perform their promise. It is charged on them, and the excuse is, that those to whom they made the promise released them from the obligation of keeping it. I should like to ask the honorable Senator from Virginia, [Mr. MASON,] with his high sense of honor, (and I believe it is higher with no man,) whether he could be excused from an obligation thus given in wri ting, by any individuals who might come to him, and say, "We do not hold you to it; party pur poses require a little different disposition." Honorable men never would make such an excuse for breaking their word of honor thus given. So long as there was a single voter who threw his vote for me, or might have thrown his vote for me, on my written word or my spoken word that I would act in a particular manner, I should deem myself base if I could retain the office thus bestowed on me, and at the same time refuse to redeem the pledge that I had made.
The next step that was taken under the forms of law was to present two slave Constitutions, (as I have before stated,) and tell the people of Kansas they might take their choice between them, provided they would swear to support the one which might get the majority of votes.
The last step in this proceeding, under the forms of law, was to return six or seven thousand votes as cast on the Constitution on the 21st of December, when it is satisfactorily shown that no more than two or three thousand were thrown.
election is brought before the very tribunal which is appointed by the Constitution to settle the question?
Does any Senator ask me where I get my authority for this? I get it from the same authority to which the President appeals to show that there was rebellion in Kansas-Governor Walker and My conclusion, then, Mr. President, on all this Secretary Stanton. They say it, and nobody matter, is, simply, that the President of the Uniundertakes to dispute it. ted States, in sending this communication to us, Now, all these forms having been complied his written argument, has deliberately chosen to with, pledges having been forfeited, the question omit the most important facts in the case, as well not submitted, and a cheat in the vote, we are known to him, or which should have been as well told that legality is all on one side, and illegality known to him, as any man; for he cannot plead on the other, and we are bound to take the re- ignorance. They are facts apparent on the recsult; in other words, that this is a legal ratifica- ord-palpable, plain, unmistakable. He has tion. That is the principle laid down, and it omitted to state them, and he has stated others amounts to this: that because it has never been which are disproved by the record accompanysubmitted, therefore, it has been legally adopt-ing the message. It has been shown over and ed-a logical conclusion to which I am entirely unable to give my assent.
What is the reply which is made to the allegation of fraud? The honorable Senator from Georgia makes it. His reply is, that it must be investigated in the proper place. What is the proper place? Is not this the tribunal? Where is the question to be settled, if not here? Are not we the tribunal to settle the question whether Kansas shall be admitted as a State under this Constitution? Are not we the tribunal to settle whether the matter has been fairly submitted to the people of Kansas, and whether they have adopted the Constitution? It comes before us for action. If a better tribunal than this can be found to settle the question definitely, I wish the honorable Senator had pointed it out.
The votes on the Constitution are returned to Mr. John Calhoun. He is the man who forfeited his pledge; he is the man who broke his word; he is the man who promised to submit this Constitution to the people of Kansas, and refused to do so. The votes are to be returned to him; he declares them; he claims no power to go behind the returns; and he is the person to make a conclusive return on this subject. When we wish to inquire into the truth of these allegations, and judge whether this Constitution does fairly express the will of the people of Kansas, is it enough to reply, "the question has been settled by Mr. Calhoun, and he is the proper tribunal; and the Congress of the United States, in deciding whether or not Kansas is to come into the Union as a State, has no right to inquire whether a fraud has been committed or not, or whether the will of the people of Kansas has been expressed or not?" I reply again, that the Senator from Georgia, for he is an eminent lawyer, well knows the principle that fraud vitiates everything, no matter what. It vitiates the record of a court of law. It sets aside a judgment. This is claimed as a judgment of the people of Kansas; a judgment that is conclusive by virtue of the decision that has been made there by a person who is a party to the whole thing. It is claimed as a judgment. We ask to go behind it, and inquire into it. It is said we are precluded. On what principle? Not on the principle of law, for if fraud will vitiate the record of a court, and enable any proper tribunal to inquire into it, I wish to know why fraud will not vitiate an election, as has always been held from the foundation of the Government to the present time, when that
over again, beyond all power of contradiction, and I take it few men can be found with hardihood to deny it, that the vote of December 21st, on the Constitution, does not express the will of the majority of the people of Kansas. The attempt is merely to estop us, and to say that, by virtue of the success of these fraudulent prac tices, the people of Kansas have no right to inquire into the matter. Sir, I deny the principle. It exists neither in law, nor in equity, nor in legislation, nor anywhere where truth and justice prevail. Therefore, what I have to say in reference to that matter is, that considering the question in that point of view, this Constitution presents itself to my mind as an outrage, deliberately planned, followed up remorselessly, and perhaps, from the indications we have had, designed to be carried through and imposed on the people of Kansas. All I have to say is, that it will meet with my resistance, feeble as it may be, here, so long as I am authorized to act on it, under the forms of the Constitution of the United States.
Sir, I have considered this question so far wholly with reference to the simple point whether, in the exercise of what is called popular sovereignty in Kansas, there has been any adoption by the people of that Territory of the Constitution thus presented. That is only one branch of the remarks which I intended to present to the Senate, and the Senate will pardon me if, on this occasion, I go a little further, and treat of what I believe to be still more important, at any rate, as important, and, as affecting my mind as materially, with reference to the whole subject. I have presented the question on the ground of popular sovereignty. The party to which I belong have rejected the idea of popular sovereignty in the Territories, from the beginning. We do not reject the idea that the people have a right to rule. We admit it in our principles and our practice; but we have rejected the idea that Congress had a right to change the whole form in which it had been accustomed to exercise authority over the Territories of the United States, and lay those Territories open to Slavery when they were free, under the name of giving the people the right to prescribe their own institutions in their own way. Since this doctrine of popular sovereignty has been forced on ussince it has been adopted, to a certain extentwe have been compelled to yield to it. We were in hopes, that even in the exercise of that principle, of the right which it was said the