Kansas -- The Territories. -- Speech of Hon. Lewis Cass, of Michigan, Delivered in the Senate of the United States, May 12-13, 1856.
The Senate, as in committee of the whole, resumed the consideration of the bill (S. No. 172) to authorize the people of the Territory of Kansas to form a constitution and State government, preparatory to their admission into the Union, when they have the requisite population.
Mr. CASS proceeded to address the Senate. He said:
Mr. PRESIDENT: The bill under discussion relating to Kansas presents itself in a double aspect to the consideration of Congress. It involves not only the present condition of that Territory, and the measures proper to be taken with reference to it, but it involves also the general principles connected with the Territories of the United States, and the extent, as well of their rights, as of the constitutional power of Congress over them. I propose to submit to the Senate some remarks upon both these topics, but principally upon the latter — not only on account of the importance of the subject, but also on account of the many and discordant views, and the elaborate discussions, to which it has given rise in this body, and in the co-ordinate branch of the national legislature. I shall commence with the relations between the United States and their Territories, but shall endeavor first to redeem from obloquy a cherished American principle, which lies at the foundation of free institutions.
This principle has been designated as popular sovereignty, squatter sovereignty, territorial sovereignty, and marked by other sneering terms, used contemptuously as nicknames, rather than descriptively as definitions, and which has served to cast reproach, and often designedly, upon a great element of human freedom, and to bring it into discredit.
This system of tactics originated during the progress of the controversy concerning the admission of California, when it was contended that the government established there in self-defence, by the people, ought not to be recognised; and, among other reasons, because they were squatters — that was the cant phrase — and did not own the land: as though American citizens, borne by the accidents of life to a part of the national domain without the limits of an organized State or Territory, are destitute of all rights, and, in the absence of established law, can establish no law for themselves; and, as a corollary, that the only true sovereignty is landlord sovereignty. Sir, this is strange doctrine for this great republic, boasting of its political equality, and for this middle of the nineteenth century, boasting of its political progress and intelligence. It carries us back to the worst periods of the world, when man was nothing, and lands, and trees, and rocks, were everything.
On a former occasion I adverted to the happy manner in which this artificial and unjust state of society was ridiculed by Dr. Franklin, in one of his practical apologues, more powerful than argument; but it is so appropriate to this discussion, that I am tempted again to call it into the service of human rights. A property qualification is required (said the American parable-maker) to entitle any one to enjoy political privileges. To-day a man possesses a jackass, and is therefore a voter. To-morrow the ass dies, and the vote dies with him. To whom did the vote belong, to the ass or to his owner? I am not political casuist enough to answer the question; I leave its solution to him who believes in the necessary connexion between the money-box and the ballot-box. One hundred thousand American citizens found themselves without law in California, soon after its cession to The United States. Congress refused or neglected to make any arrangement for their government, leaving them exposed in the terrible evils of anarchy. By all the laws of God and nature they were justified, as a measure of self-defence, which is as incident to communities as to individuals, in providing for their own safety — existence, indeed — by the institution of a government. They did so, and came here for admission, and were met by reproaches, and harsh epithets, and delays, almost refusal, and were characterized as landless and lawless adventurers. That they were landless was neither their crime nor their fault; that they did not continue lawless, they owed to their own firmness and intelligence, not to our justice or sympathy. They did, as the self-exiled adventurers had done centuries
2before them, when they landed upon this continent, and "combined themselves together (these are memorable and historic words) in a civil body-politic;" and never did human government rest upon a truer basis than did these political systems in the infancy of the settlements upon the coasts of the Atlantic and the Pacific oceans.
The misapprehension or misrepresentation, which has prevailed respecting the doctrine of those who maintain that American citizens, thrown as waifs upon an unoccupied strand, have a right, in the absence of law, to provide it for themselves, and have at all times other natural rights, of which they cannot be deprived without their own consent, except by the authority of the constitution of the United States, serves to show that strong prejudices have been at work, mingling themselves with the investigation of this interesting subject. The proposition that our citizens are not political slaves, and have rights which Congress neither gave nor can take away, was first called squatter sovereignty by way of derision, and yet receives the same appellation, but now in sober earnest; and if not with the purpose, certainly with the effect, of identifying the name with absurd or dangerous doctrines. I heard it said here, after the imposition of this sobriquet, that squatter sovereignty was a claim to divest Congress of its rights over the public land. Six years have passed away, and no such pretension has been advanced; and he who should seriously advocate it would hardly need the certificate of a physician to prove his qualification for a mad-house.
This principle of self-government is confounded with revolution, and it is charged with making that extraordinary remedy an ordinary legal right. Sir, no true believer in the doctrine, that American citizens possess rights in the Territories, includes in that proposition the right of revolution. That is an extraordinary resource against oppression, belonging to all political communities, and to be resorted to by each at its discretion, and upon its responsibility. Free as our government is, I can foresee cases, not probable, scarcely possible even, in which this great measure of self-defence might become necessary and justifiable. If a Territory, having passed legally into a State, should apply for admission into the Union, and the application should be rejected, unless with the imposition of conditions destructive of its true equality — such as a requisition to exclude slavery, or to do any other act not prescribed by the constitution — a State, under these circumstances, would have a right, in the words of the Declaration of Independence, to dissolve the political bands which connect it with an unjust government, and to claim admittance, as a distinct member, into the family of nations.
It seems also to be supposed by many that the advocate of squatter or popular sovereignty, assuming the name as an established one — and for myself I shall not quarrel with it, considering the doctrine so good that it could survive a much more powerful assault than this baptismal one — advocates also the right of the people of a Territory to change the government at their pleasure; and I have heard it maintained that the recent attempt to establish a State government in Kansas must be supported by every advocate of this doctrine, if he would preserve his own consistency. Sir, I believe in no such pretension. I never advanced or defended it, nor shall I defend it now. Although cases have occurred where the measures for the establishment of a State government have had their initiation in the local legislature, yet they originated in, and were justified by, peculiar circumstances. But an attempt to change the government by a partial popular interference, without the intermediation of Congress, or of the Territorial legislature, finds no Support in any views I have ever presented upon this subject. And the dangers attending the public tranquility, which must necessarily accompany a voluntary effort like that among an excited people, divided in opinion, are enough to deter me from favoring it.
In brief, sir, this is my creed upon this subject:
1. I believe that American citizens have rights in the Territories, whether they own land or not.
2. Those rights are independent of Congress, and neither derived from nor granted by that body.
3. It is the duty of Congress to organize governments for the Territories; and if that duty is refused, it is the right of the people to do it for themselves.
4. The change from a Territorial to a State government should not be undertaken without the vote of the majority of the people, authorized by law to be taken; for without such authority it is obvious that the whole transaction becomes a spontaneous one, which will be supported by its partisans only, and in which those who are opposed to it will take no part, and the result, therefore, will be no indication of the true views of the people. And the foundation will be laid for bitter dissensions, and the resisting and the intruding governments will each find partisans and enemies.
Sovereignty is, in no proper acceptation of the word, applicable to the Territories of the United States. They are dependencies of the general government, and possess no attribute of independence.
But the question is, what political relation do they bear to that government, and what powers can it constitutionally exercise over their inhabitants? Are these inhabitants destitute of all rights, and subject to the uncontrolled will of Congress? And can that body "sell them into slavery," as coolly asserted in the House of Representatives by a member from Indiana?
Those who maintain that the people of the Territories have certain inalienable rights, maintain just what our fathers contended for, first by argument, and then by arms, in opposition to a similar assumption of uncontrolled power of legislation by the British Parliament, which
3declares that HIS MAJESTY IN PARLIAMENT HAS THE RIGHT BY STATUTE TO BIND THE COLONIES IN ALL CASES WHATSOEVER.
What rights have the people of the Territories?
They possess all those natural rights, "written," — as Lord Chatham said, when he nobly advocated their existence and obligation in the House of Lords — "written in the great volume of nature," which are not taken from them, and intrusted to Congress by the constitution of the United States.
The inquiry, then, is, not into the rights of the people, but into the constitutional power of Congress to interfere with them; and this, too, under a government not only of limited but of granted powers, and which can exercise no authority not conferred by express provision, or by necessary and proper implication, for these are the words of the BOOK.
And still more: a government whose very corner-stone is the inseparable connexion between power and representation, and which seeks to extend its jurisdiction — and one, too, which penetrates into the most hidden recesses of private and domestic life, over distant communities, which have no participation in this far away legislation — no means to keep a foreign law-giver from its hearthstone.
What power, then, has the federal legislature over the territories of the United States? To THE LAW AND TO THE TESTIMONY.
The word "territory" is not to be found in the federal constitution as applicable to a political community. It occurs there but once, and in the following clause:
"The Congress shall have power to dispose of and make all needful rules and regulations concerning the territory or other property of the United States."
(Not shall have power to make laws to govern people.)
The Supreme Court has decided, and the meaning is undeniable by any one possessing but a slight knowledge of the laws of English syntax, even without such decision, that "the term ‘territory,’ as here used, is merely descriptive of one branch of property, and is equivalent to the word ‘land;’ and Congress has the same power over it as over every other property of the United States."
The clause, by this construction, may be thus read: The Congress shall have power to dispose of and make all needful rules and regulations concerning the land and other property of the United States. Here is no grant of political power, no jurisdiction over the lives and persons and property of American citizens, but only an authority to take care of and sell the public land — such an authority as a land-owner may properly exercise. If the word "territory" means a political community, and not land merely, it follows that, as Congress may dispose of it, they may sell every territory, people and all; and this, too, though the whole land may have been previously disposed of to purchasers, and not an acre left to the United States. And this tremendous, unlimited power over American citizens, involving all the issues of life and death, is derived from a simple grant to regulate and sell land. And this regulation must be "needful," says the constitution. Needful for what? For the regulation and sale of the property. Not needful for the constitution of the United States, nor for any of the ends for which that compact was formed — such as the general welfare, the establishment of justice, and others, as Mr. Adams contended some years since; for such a construction is not only in the very face of any just rule of interpretation, but it would prostrate the barriers of the constitution, leaving all powers to be considered needful which any party might desire to exercise. This is the very consequence foreseen and foretold by the legislature of Virginia in their memorable resolutions of 1799, as the result of this indefensible latitude of construction: "That it would have the inadmissible effect of rendering nugatory or improper every part of the constitution."
And, in this connexion, I may ask, what has the relation of husband and wife, or of parent and child, or of master and servant, to do with the property of the general government? Or how does that government acquire any jurisdiction over these conditions of society, under the pretence that it is needful for the management of their property? And I may ask as much respecting a note of hand, or any of the infinite variety of the concerns of life, for the protection of which governments are instituted. Can construction be further construed?
I desire to know, if this clause is the foundation of the authority exercised by Congress over the Territories, how it happens that this authority has been exercised over thousands of square miles in the various Territories, not one foot of which was ever the "territory" — meaning the property — of the United States; as in the State of Ohio, when a part of the Northwestern Territory, over a superficial extent equal to one-fourth part of the State, being the Connecticut western reserve, extending one hundred and twenty miles east and west, and the Virginia military reservation, embracing the whole country between the Sciota and the Little Miami rivers, both of which districts of country were reserved by those States respectively, when they made their cessions, and never belonged, not the smallest portion of them, to the United States; and in the State of Tennessee, when the Southwestern Territory, over more than seven-eighths of its area, disposed of by the State of North Carolina before its act of cession, and never conveyed to the United States; and over vast regions in Florida, Louisiana, Arkansas, Missouri, and almost every other territory where rights to land had been acquired by individuals before the cession of the country, and were held independent of the United States. As in these cases there was no "territory," or land, to dispose of or regulate, there was nothing on which the
4constitutional provision could operate. And the inquiry is equally pertinent as to the continuance of this power after the public land is disposed of — how it carried with it legislative authority over the extensive districts — sold to the Ohio Company, and to John C. Symmes, in that part of the Northwestern Territory, now the State of Ohio, before the general government went into operation; and how it happens that, when a tract is sold and thus ceases to make a part of the public domain, the power of government over it does not cease, if that power is derived from the constitutional authority to regulate, not private, but public property? In such a case, the power passes with the object; and this clause is just as applicable to private property in the State of New York as to private property in a political Territory.
I have heretofore shown, upon this floor, that there were twelve principles or provisions of the constitution from which this uncontrolled power of congressional legislation over the people of the Territories is deduced. I have no purpose to re-examine them upon this occasion, and shall do little more than enumerate them, adding three auxiliary powers since discovered; and I do so merely to call attention to this multitude of derivative clauses, each with its advocates, as a significant fact, furnishing a powerful presumption against the existence of a despotic authority — a foundling wandering about the constitution in search of ifs true parentage.
These assumed provisions and principles — for there are both — are as follows:
1. The land regulating and selling power, to which I have already referred.
2. The war and treaty making power.
3. The right to admit new States.
4. The implication clause of the constitution, attaching itself to the right to sell the public land.
5. The rights of ownership.
6. The right and duty of settlement.
7. The attribute of sovereignty.
8. The nature of government.
10. The principle of agency and trust.
11. That provision of the constitution which declares that "all debts contracted or engagements entered into before the adoption of the present constitution, shall be as valid against the United States under this constitution as under the confederation."
12. There are those who admit that the ordinance of 1787 was "passed by the old Congress of the confederation, without authority from the States;" and among these was Mr. Adams, late president of the United States, who contended, not that the clause respecting debts and engagements confirmed the former, but that it "had been tacitly confirmed by the adoption of the present constitution of the United States, and the authority given to Congress to make needful rules and regulations for the territory." Surely it cannot be necessary to investigate such a foundation of power under a government which derives all its authority, not merely from express grants, but which is still further restricted in its operation by the emphatic declaration that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Never was the abuse, I might almost say the use, of power more jealously guarded; and we yet here find the sixth Chief Magistrate, in the very infancy of the Republic, maintaining, as a ground of congressional jurisdiction, that it exercise had been "tacitly confirmed" by the adoption of the constitution, and by the authority to regulate and sell the public land; not by a grant of power, but by the usurpation of it — by "tacitly" assuming that the engagement clause confirms the authority, while expressly admitting that it does not. I leave, without further comment, this rule of interpretation to those who can find either wisdom or safety in its application.
I have said that three new sources of power have recently been discovered to justify congressional interposition, and I now add that these are:
13. The right and duty of guardianship.
14. The transmissible power, by which the constitution of another country is substituted for that of the United States.
15. What may be called the paternal power, which places the general government in loco parentis.
Mr. President, I repeat that I have no design to enter into an investigation of the reasons which are urged in support of these various derivations whence the power of government is deduced, or rather whence it is not deduced, contenting myself with leaving them where I left them upon a former occasion. I shall depart from this determination in one or two cases only, and I do this in consequence of the presentation of new views, or of views presented with new force.
The majority of the Committee on the Territories, in their recent inquiry into the true foundation of the power to establish Territorial governments, have sought it, and seem to believe they have found it, in the provision of the constitution, that "new States may be admitted by the Congress into the Union," &c. I can trace no such grant to such an authority. It proceeds upon the inadmissible pretension that the federal legislature may take any appropriate means, not merely to enable it to exercise a granted power, but to exercise an independent power over which it has no control.
Mr. President, some years since this whole subject of the right of congressional jurisdiction over the Territories was learnedly and laboriously investigated in both wings of the capitol. It
5was then maintained, as now, among various sources of authority, that the right to admit new States carried with it the power to establish governments. "There are two purposes for which territory is held," said one of the most able and experienced members of the Senate, "the disposition of the soil and the creation of new States. Now, the right of governing new territory is necessary to the efficient exercise of both objects." And yet one power is expressly given and the other withheld; and we are called upon to assume the latter, as if it were actually granted, for reasons as numerous almost as the speakers, but which would render a written constitution a plastic instrument, to be formed and moulded at the will of its creature, the legislative authority.
"The purpose," (of the right of government,) said another distinguished Senator, "is to train up a nation of freemen, and to fit them to share in the privileges of this Union." And the doctrine is pushed to as latitudinarian an extent as the loosest constructionist can desire. "Whatever," said the speaker, "is necessary to this object, Congress is authorized to do."
The majority of the Committee on Territories, and the two members of the Senate whose opinions I have quoted, equally derive the authority to govern our colonial establishments from the power to admit new States into the Union. Whether with the same views to justify the action of Congress, or, in other words, with the same views as to the connexion between the power of government and the power of admission, so as to render the former a true constitutional auxiliary of the latter, I am at a loss to determine. The senatorial predecessors of the committee, in the annunciation of the origin of the power, trace it to the duty or necessity of training up freemen, and fitting them to share in the privileges of the Union, and to the training up of these infant communities under such institutions as may fit them to become members of our great confederacy.
The following paragraph contains the position assumed and maintained by the committee; and, in whatever light it is viewed, it appears to me equally erroneous in theory and dangerous in practice:
"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 admission into the Union? If so, the right of Congress to pass the organic act for the temporary government is clearly included in the provision which authorizes the admission of new States."
I do not understand these views of the committee. When analyzed, it will be found that the power of instituting a Territorial government is claimed in a double capacity — first, as a means to enable Congress to enable the people to form and mould their institutions; and, second, to establish a State government. The forming and moulding of political institutions is a figurative expression — a dangerous process of reasoning in strict investigations; but it seems here to imply their adoption, and then their change, from time to time, till the work is completed by its adaptation to the wants or will of the community. In another part of the report it is declared, that the people must be left "entirely free" in the exertion of the rights of self-government; entirely free to regulate their domestic institutions and internal concerns in their own way, for such is substantially the proposition. This is a full measure of self-government; and, if the doctrine is correct, whatever provision in the organic law interferes with it interferes also with the constitution, and is void. The people, therefore, upon this political theory, must be left free to regulate, "in their own way," the election of governor, the appointment of judges and other officers, and the nature and extent of their duties, as well as the system of jurisprudence, or they are deprived of this "true freedom."
Experience is certainly desirable in the work of establishing a new system of laws for a new country — a state of things designated as "preparatory" to that permanent condition which admission to the Union brings with it. How far the committee consider this chrysalis state a kind of school in which the knowledge of self-government is to be acquired does not distinctly appear; whether the people are to be enabled to form and mould their institutions with a view to their practical operation during their subordinate condition, or as a means of learning how to exercise the rights and privileges which are to become their heritage. We have seen that distinguished senators have heretofore maintained upon this floor that the last object is the one which really confers upon Congress this disputed power. And the process of the committee would seem to indicate somewhat kindred views in the application of the power, as it indicates an identity of views in its derivation. For it is worthy of observation — perhaps, indeed, a significant fact — that the protection of life and property and the preservation of order, the great objects of human governments, are not even alluded to by the committee as reasons for congressional interposition, nor is the necessity of legal organization for any such purposes sought to be derived from any express grant of power. There are those, and Judge McLean is among them, who, while they deny the authority to establish Territorial governments as directly included in the power to dispose of and regulate the public land, yet derive it as an incident from that provision, because the establishment of order among the emigrants would facilitate the sale and settlement of the land. Mr. Rhett also maintained that doctrine in the House of Representatives. But the committee, while claiming the same power, do not attempt to show in what manner it is an incident, or, in other words, how its exercise is necessary and proper to the exertion of the right to admit new States. They say, indeed, that the organization of a Territory is necessary and proper as a means of enabling the people thereof to form and mould their institutions, but there they stop. What bearing this work of forming and moulding has
6upon the act of admission, so as to render it a just incident of that great power, we may in vain search the report to discover.
The doctrine is repeated, though in somewhat different language, in another part of the report; but with the same defect in the process. We are told that "the organic act" "must leave the people entirely free to form and regulate their domestic institutions and their internal concerns in their own way," "to the end that, when they attain the requisite population and establish a State government, they may be admitted into the Union," "on an equal footing," &c. But we are not told how this "end," admission, is reached by the means indicated, the regulation of internal concerns; and I cannot supply this hiatus in the argument by maintaining that the power of government may be assumed, in order, by the establishment of law, that the prosperity of those remote communities may be promoted, and their population augmented with a view to their admission into the Union, because the adoption of such a principle might lead to very fearful consequences. It proceeds upon the assumption that Congress may, by virtue of the power to admit new States, take such measures as it may judge best calculated to facilitate their formation, and application and admission. A large discretion would be the result of the establishment of this doctrine, and how it might be used or abused it were presumptuous to foretell.
The right to exclude slavery from each Territory, as an avowed means of promoting its growth and prosperity, would soon find friends and advocates in Congress, and perhaps, ere long, enough of them to make that measure a permanent one; and, as it is, the theory of the committee places the denial of this power of exclusion upon no very safe foundation; for it is urged upon the ground that the State must be admitted into the Union upon an equal footing with the original States. The proposition is incontrovertible; but its application to the intermediate condition of Territorial existence is not so clear. It would render all previous congressional interference void upon the formation of a new State; all prohibitions of slavery would fall before the will of the people. But if the true reason for the restraint upon the action of Congress is given by the Committee — to wit: equal admission after the formation of a State constitution — it is difficult to see how this condition of things is to operate until the arrival of the period of political sovereignty. That the exercise of such an act of intermediate authority might have the effect to encourage the settlement of the country by a population favoring the restriction, there can be no doubt. But the question does not touch the effect upon emigration to the Territory, but upon the admission of the State. If the people composing it at the time of application for admission become free from all restraints but those imposed by the constitution upon sovereign States, then this great principle can hardly be said to have been violated, whatever circumstances may have preceded this last condition. That they are thus free is maintained, and justly, by the committee, because this equality is one of the fundamental principles of our institutions. Those who believe that civil government is essential to the new Territories, and that the right of Congress to establish it — the duty rather — is the result of necessity, whether arising from implication or otherwise, hold opinions which are free from this difficulty and danger, as Congress can exert its power no further than the necessity extends, and cannot reach the domestic relations of the people. In fact, if the view of the committee be the true one, it is not easy to prescribe boundaries to congressional legislation.
I have already said that the power to establish these temporary governments was not claimed by the committee as a means of securing public order; nor, if it were so claimed, do I see what effect such a measure could have upon the power of admission, which does not come into operation till the temporary organization is terminated, unless, indeed, the inadmissible one to which I have alluded, of controlling the condition of the country.
As to the exercise of political rights by any portion of the American people as a means of improving their capacity for self-government, and of fitting them for any change before them, it is a principle of organization unknown to our institutions. Governments are not established as schools, where "free men are to be trained," and "fitted to become members of our great confederacy." And nothing but an entire misapprehension of the true functions of the general government could lead to this fundamental error, as to the nature of its just operation. This whole subject has been made the victim of false analogies instead of the object of constitutional inquiries; nor has the heresy been more prevalent in any branch of the controversy than in the derivation of the power of government from the necessity of political instruction. Our Territories are settled by our citizens, who all their lives have enjoyed the privilege of self-government. A man knows as much in a Territory as in a State, and is just as capable of discharging his political duties. He does not pass the boundary to learn the lesson of a freeman, but he passes it in order, by a life of industry and enterprise, to improve his condition, and to grow with the growth of the country.
I have said that the power of congressional government is claimed by the committee, not only as a means of enabling the people to form and mould their institutions, but also as a means of establishing a State government, preparatory to admission into the Union. I am here at fault again, and it is as to the "necessary and proper" connection between the institution of a government and its avowed purpose, which is to justify the action of Congress — namely, the establishment of a State government. Assuming that the power to establish States is among the granted powers which carry "necessary and proper" incidents with them, is the machinery of Territorial governments an incident necessary to the exercise of this power by Congress? I confine the inquiry to this single purpose, leaving out of view the necessity of civil organization
7for the wants of society, because the latter is ignored by the committee, and the former constitutes the only ground on which they place this congressional right of interposition. I repeat, is the means constitutionally adapted to the end? The postulate is, that Congress may establish Territorial governments, in order to enable the people to establish State governments. But how? The only means known to our system is by the election of conventions. And how are these bodies to be elected? Cases have occurred, though they are the exceptions, which have been justified by the circumstances, in which the local authority has taken the initiative in calling conventions. But this is not a proceeding which the committee would sanction as an established one. The "means" to which they refer is the action of Congress authorizing the election and the convocation of a convention. And what, then, is left to the agency of a Territorial government in this change of political condition? The power to petition Congress, or, instead of that measure, the power to call upon the people to do so, either by vote or by direct application. And this interference, which is an assumed authority, exhausts the whole power of these Territorial legislatures. And we are now brought to this inquiry, is this intermediation, confined to this single object, such a necessary means as to justify the creation of a Territorial government with a jurisdiction extending over all the concerns of life? Why is any intermediation necessary? Why cannot Congress exercise the power itself, if it possess it, and receive the application of the people, and then provide for the election of a convention? Or, why not make early and previous provision, by which the wishes of the people can at any time be ascertained, thus rendering any other interference, either general or local, unnecessary?
This principle was once adopted by the Congress of the confederation. It was in 1784, in an ordinance, the predecessor of that of 1787, and in some respects it superior, for it avoided the contested points which have made the latter a subject of long and bitter controversy; such as the articles of contract and the want of power to regulate governments, &c. It authorized the people upon any Indian cession to establish temporary governments for themselves; and it went still further, indicating the course for the Congress of the constitution to take, proper, not only in itself, but also, if all its authority over this subject is derived, as the committee intimates, from a power to enable the people of a Territory to establish a State government. That seems to have been the opinion in 1784 of the Congress of the confederation respecting the extent of its own authority. The ordinance provided:
"That when any such State shall have acquired twenty thousand free inhabitants, on giving due proof thereof to Congress, they shall receive from them authority, with appointments of time and place, to call a convention of representatives to establish a permanent constitution and government for themselves."
If, then, Congress has the constitutional power to enable the people of a Territory to establish a State government, it can exert that power without intermediation, and no other agency is required for that purpose. Still less is it necessary, or constitutional — if other means are resorted to — that they should far exceed the necessity which can alone call them into being. If Territorial governments are required only as the means of enabling the people to apply to Congress to call a convention, how happens it that such governments are not confined to the object of their institution? Judge McLean lays it down as a principle —
"That implied powers can only be exercised in carrying into effect a specific power; and this implication is limited to such measures as shall be appropriate to the object. This is an admitted and safe rule of construction. It is believed to be the only one which has been sanctioned by statesmen and jurists. Powers exercised beyond this are not derived from the constitution, but must depend upon unlimited discretion, and this is despotism."
This principle, in effect, receives the sanction of the committee, who admit that the organic law, deriving its validity from the power to admit new States, must be exercised with reference only to that end, and that "beyond that point the authority cannot extend." Then, sir, the constitutional power is to admit new States. The necessary means, forming the implied power, is an authority to enable the people to establish a State government; or, in other words, to form a State, by providing for the calling of a convention. What, then, becomes of the principle of limitation laid down by Judge McLean, and by the committee, that an implied power must be exercised, so far only as is necessary to carry into effect a granted power? — a principle by which the committee except from the jurisdiction of Congress the subject of slavery, and which, if carried to its legitimate conclusion, would except every power but the one which touches the convocation of a convention. How, then, are all the issues of life and death, all the social and political relations, all the objects for which governments are instituted — how are they brought within the jurisdiction of a local legislature, instituted for a single constitutional purpose, and that purpose connected with the action of the people in the formation of a new State? Is not this the "diffusive and ductile interpretation" of Mr. Madison? Does the power to admit new States create, in the words of Mr. Jefferson, a necessity, "invincible by any other means" than the complete organization of Territorial governments? I content myself with proposing these questions asked by two of the great expounders of constitutional law, avoiding the embarrassment of answering them.
Mr. President, the Senator to whom I first referred, as tracing the right to establish Territorial governments to the power to admit new States, calls the act of admission the erection of a new State. This is a grave error, and certainly much of the reasoning of the committee indicates their participation in it. The erection or formation of new States, and their admission into the Union, are separate and independent acts; the former belonging to the people, the latter
8to Congress. Congress may rightfully pass any laws, necessary and proper — these are the words on the TABLET, for carrying into effect its granted power. What is the granted power touching new States? It is to admit them, and by virtue of that high trust to make legislative provision for all the measures which justly belong to that step in the career of self-government, such, perhaps, as ascertaining the wishes of the inhabitants, the taking of a census, and other proceedings having a direct bearing upon the act of admission. Congress cannot precede its exercise for an almost indefinite period of time, by a series of measures relating not to the act itself, but to the government and institutions of a country over which the national legislation has no just control. Does not such a boundless latitude of construction, to quote the expressive language of Mr. Jefferson, "swallow up all the delegated powers" and leave to Congress to substitute its own will, under the name of discretion, for all the safeguards of the constitution? I find myself no clear power even to pass laws for the assembling of conventions, but it has often been done, though not always; and as its exercise calls for no interference with the rights of the people, but is designed to aid them in their progress to State sovereignty, I am not disposed to censure the practice.
In reviewing the history of our legislation over the Territories, it is obvious that the moulding of their own institutions by the people, whether with a view to knowledge or to admission, has constituted neither the motive for the action of Congress, nor the object it has sought to attain. It is numbers, not political intelligence, which have regulated the entrance of States into the Union. When the system was commenced each State had one vote in Congress; and there would have been neither justice nor policy in permitting these small communities, with their sparse population, to take their places as coequals in the confederacy. They had therefore, to occupy subordinate positions, till their numbers should enable them to share the duties and expenses, as well as the rights of the Union. If this condition is considered a school for the acquisition of political knowledge, to "fit them to become members of our great confederacy," then there was much injustice done to some of the scholars, or they did great injustice to themselves, as is shown by their respective periods of tuition; for while the school of Ohio, under the name of a Territorial government, continued fourteen years, that of Tennessee occupied but six years, Louisiana seven years, and Iowa nine years; and while Alabama, the most precocious of the family, underwent but two years' "training," Michigan, it would appear, the least gifted of the sisters, required thirty years in order to be prepared for the full rights of "majority." I need not say, sir, that all this analogical illustration is a mere effort of the imagination, and that the change was the result of numbers depending, for their augmentation, upon the rapidity of emigration. And as to the agency of the people in moulding their institutions, as the foundation of civil government, the idea in a pleasant one, but it will hardly bear a close scrutiny. From the first Territorial government in 1787 to the last in 1854, there has not been one where the people have had the actual control of their institutions, so as to be able to "mould" them agreeably to their will. In all the earlier Territories, till within a few years indeed, there was a period called the first grade of government, when the laws were passed by the governor and judges, and during which the people had no more concern in the administration of their public affairs, executive, judicial, or legislative, than they had in those of China. When the free white male population, above the age of twenty-one years, reached the number of five thousand, then a legislature was organized, consisting of a house of representatives, elected by the people, and of a council appointed by the President from a list furnished by the house.
I need not pursue this investigation to show how limited was the participation which the inhabitants had in the management of their political interests. After the cession of Louisiana an act of Congress was passed giving authority to the President, (Mr. Jefferson) to prescribe the manner in which all powers, "civil, military, and judicial," should be exercised. A poor school this for the people, but a good opportunity for a one-man "moulding" of institutions. The power, however, could not have been in safer hands. I am well aware, sir, that these harsh examples of congressional interference settle no questions of constitutional law. I refer to the course of our legislative proceedings with relation to the Territories, to show that the reason given by the committee for the institution of these governments will not fully bear out the exercise of the authority in a single instance. Certainly a favorable change, for some time, has been going on in our system of Territorial administration. The interference of the general government has been relaxing, and the political condition of the people improving. And I am happy in being able to render a tribute of justice to the honorable Senator of Illinois, the chairman of the Committee on the Territories, by saying, that he has lent his powerful influence to these meliorations. The latest Territorial acts — those for the government of Kansas and Nebraska — introduced and most ably advocated by the Senator, are marked by this feature. They are more liberal, more just I should say, than any organic laws that preceded them. They surrender the absolute veto of the governor, and the supervisory power of legislation by Congress. But even in these, and still more in other late acts — those for the government of Oregon, New Mexico, Utah, and Washington — there are provisions incompatible with the power of the people to form and mould their institutions at their own pleasure, and which make it undeniable that some other foundation than this must be resorted to as a justification for congressional action. In fact, it is difficult to see why this principle, if the true one, does not carry with it the entire right of government, uncontrolled by any external dictation; as, without exemption from interference, both in the Territory and elsewhere, the attainment of the very
9object alleged to be the justification for the establishment of a government may be defeated, and their institutions prevented from being formed and moulded by the people.
I propose to review, very briefly, the reasons which have recently been offered in favor of the derivation of the power of governing the Territories from that clause of the constitution which rendered the new government responsible for the engagements of the old. During the last autumn there was quite a flourish of trumpets, either at the fancied discovery of this origin of congressional authority, or at the powerful arguments by which it was vindicated. This laudation was behind the time; for years ago this branch of the subject was fully considered and fairly exhausted. But the honorable Senator from Georgia, [Mr. TOOMBS,] in his able and interesting remarks upon these Kansas difficulties, to which we all listened with so much interest and pleasure, a short time since, presented views of this question upon the interrogatory of the Senator from New Hampshire, [Mr. HALE,] which met, like everything which falls from him, the careful attention of the Senate. I think the Senator was led into error; and as that error materially affects the positions he reached, I consider it important to examine it with a view to correct some of the conclusions.
In the first place, it is evident to me, not less from the subject-matter than from the words and the context, that the phrase, "debts contracted and engagements entered into," was never intended to touch the exercise of political power.
In the next place, the "engagements" referred to in the constitution must be "valid," in order to be obligatory by virtue of this clause. This self-styled compact never had any claim to validity — none whatever; it was void from its initiation.
1. Because the Congress of the confederation never had, as Mr. Madison said, "the least color of constitutional authority to establish Territorial governments," much less to make irrepealable compacts to regulate their destiny in all time to come. From the first word to the very last of the articles of confederation, there is not one which looks even to this power, or has the remotest reference to it. Let him who doubts this position examine the constitution of the confederation, and he will soon find his doubts removed.
2. A compact is an agreement — nothing more, nothing less; "a mutual appointment," as Johnson says, "between two or more to do or to forbear something."
There was evidently in the minds of the framers of that ordinance an impression of their want of legislative power; and they sought to supply this defect of authority by endeavoring to convert what should have been an act of legislation into a compact or contract. Now, a contract must have two or more parties, each assenting to the instrument of agreement. But it is all idle to talk about the compacts in this ordinance of 1787. The articles so designated are destitute of the very first elements of reciprocal obligation. This arbitrary declaration is unilateral; it never had more than one party. That party was the Congress of the old confederation "overstepping its power," to borrow again the authority of Mr. Madison. The other party should have been the "people and States" (these are the descriptive words) of this new Territory, where there were then no States, and very few people. No assent was ever asked, none was ever given, either then or since, either expressly or by the most remote implication. Had the land been sold to the settlers upon condition that they should be considered as yielding their assent to this perpetual and unchangeable obligation, such an attempt to extort an unwilling obedience, and to barter great political rights and State equality for an unworthy consideration, though not defensible, might yet have been less reprehensible than this open attack upon the will of the people, the fundamental principle of the institutions of our country. But there was no resort to this expedient. The land was sold without condition, and the compact depends for its efficacy upon its own arbitrary authority. It must be recollected that, at the time this ordinance was passed, there were many thousands of people living in this Territory, settlers upon the Wabash, in the Illinois country, in the Detroit country, at Green Bay, at Prairie du Chien, and elsewhere, little colonies scattered over this extensive region, mostly relics of French enterprise; and they were all entitled by the treaty of peace to the privileges of American citizens. And still more it was declared in the deed of cession of Virginia; and as one of the conditions, that they should be "protected in the enjoyment of their rights and privileges." A precious kind of protection that, which inaugurated a new government by a falsely-styled compact, perpetually binding this transferred population to the most solemn obligations, without their assent, and even without their knowledge. These ancient inhabitants of the country constituted the counter party then actually existing; and this compact, by a kind of legislative legerdemain, was made forever binding upon them and their descendants. Why, sir, if there had been but one man in that country, instead of the thousands who occupied it, he would not have been bound by a contract he knew nothing of, and to which his assent was never asked. As to making a contract with unborn States and millions, by the simple act of a foreign body constituting itself one of the parties, and acting for the other, and without demanding its assent, now or hereafter, for all time to come, had we not witnessed the zeal with which this utter contempt of all the principles of law and ethics is maintained and defended, we might well doubt whether a single man could be found to contend for such a monstrous usurpation.
Mr. President, the honorable Senator from Georgia, in discussing this branch of the subject, and in alluding to the transfer of the Territorial governments from the confederation to the constitution, remarked that "by that constitution Congress was bound by all the contracts of the old government." He then quotes the first act of Congress, extending the new power over the Territories, and making some necessary changes in the provisions of the ordinance to
10accommodate it to the changed state of things, and thus continues: "The ordinance purports on its face to be a contract between the people of Virginia, the inhabitants of the Northwest Territory, and the government of the United States, perpetual and unchangeable, except by consent of all parties." The error to which I have already referred lies in the view here presented, and it is sufficiently important to require correction. Sir, the ordinance of Congress of July 13, 1787, for the government of the Northwestern Territory, is no compact so far as respects that government, nor does it purport to be one. There is a prevalent misapprehension upon this subject, and the sooner it is cleared up the better. That ordinance contains twelve clauses, or sections, providing for the establishment of a government, and eventually of additional governments over the extensive region north of the Ohio river. All the arrangements, including those for the appointment of officers, the definition of their duties, the qualification of voters, and various other details necessary to this new political condition, are amply provided for. And all this is done in the ordinary form of legislation, claiming no peculiar sanctity, and repealable at any time by the existing law-making power. After making these arrangements for temporary governments, the only legitimate object of congressional legislation over a distant people deprived of representation, the ordinance proceeds with the declaration, that "it is hereby ordained by the authority aforesaid, that the following articles shall be considered as articles of compact between the original States, and the people and States in the said Territory, and forever remain unalterable unless by common consent;" and then follow six sections purporting to be those far-famed articles of compact.
1. The first insures the freedom of religious worship.
2. The second guaranties certain principles of the English common law, such as the trial by jury, and other well-known features of that code, which are ingrafted into our system. In the progress of political improvement, should the northwestern States deem it important to introduce changes into their jurisprudence by attempting to meliorate some of these provisions, they would find themselves deprived of the first attribute of sovereignty, and would be compelled to ask the consent of Congress, if this doctrine of the perpetual obligation of the ordinance is the true one.
3. The third section recommends the encouragement of schools, and the preservation of good faith towards the Indian.
4. The fourth declares that the Territory shall forever form part of the Union, and regulates its duties in relation to it.
5. The fifth provides for the establishment of boundaries, and for the admission of these new States.
6. The sixth prohibits the introduction of slavery.
These are the articles of compact, and all of them; and it will be seen they have no relation, none at all, to the establishment of Territorial governments. And it follows beyond contradiction, that, so far as concerns those temporary organizations, this ordinance is no compact; nor does it derive any vital force from that clause of the constitution which provides for the immunity of engagements, thus conferring a power of legislation which would otherwise be destitute of any validity.
The Senator from Georgia will now perceive the misapprehension to which he has lent his high authority. The six sections of the ordinance, called articles of compact, did not purport to be, as he supposes, "a contract between the people of Virginia, the inhabitants of the Northwestern Territory, and the government of the United States." They assume to be a contract "between the original States, and the people and States in the said Territory;" and so far from its "having been accepted by all three of the parties," it was never accepted by the original States, unless the passage of the law is called an act of acceptance; and as to the people and States of that new region, they were never asked for their consent, and of course never gave it. What is meant in these declaratory clauses by the States, as contradistinguished from the people, as I do not know, I shall not attempt to explain. The State of Virginia was no party to this contract, except in her capacity as one of the members of the confederacy, and therefore could not accept it. In her deed of cession to the United States, she provided that the expense of subduing the country should be refunded to her, and made arrangements for the reservation of land for her troops; and declared, as a condition of the grant, that the country should be divided into States, not less than one hundred nor more than one hundred and fifty miles square, providing, at the same time, for their admission into the Union. Congress enlarged the size of the States, and reduced the number to three, with power to increase that number to five; and it thus became necessary to ask the assent of Virginia to this change in the political organization of the country. That assent was given, and this is all the participation that Virginia had in the ordinance of Congress of 1787. She never acted on the subject of the Territorial governments, nor was she, as an independent State, any party to the exclusion of slavery from that region.
3. To pursue the investigation, I observe, in the third place, that this perpetual compact — constitution, in fact — has been declared invalid by the Supreme Court of the United States.
4. And, in the fourth place, admitting its validity and its operation as a constitutional "engagement," confirming the action of Congress over the Northwestern Territory, what becomes of the vast territorial regions since acquired by the United States, and where there have been no "compacts," followed by "engagements," to carry jurisdiction with them? Whence is derived the power to govern, among others, the Territories of Kansas and Nebraska, and to
11regulate their internal affairs, including all the relations of life? I turn over this question to those who advocate the extensive operation of the word "engagements" in the constitution.
5. And, in the last place, this inviolable compact has been coolly violated by Congress, without the slightest objection, and after a full report upon the subject to the Senate.
Among the irrepealable clauses of that compact is one, which provides that there shall be not less than three, nor more than five, States in the Northwestern Territory. Congress, after providing for five States, now Ohio, Indiana, Illinois, Michigan, and Wisconsin, made provision for another, at its pleasure, in the country north of Wisconsin and east of the Mississippi — forming part of the territory over which the ordinance of 1787 extended. So much for the irrepealable compact.
I now return to the three new sources of power, the reward of recent investigations, and which are, as I have said:
13. The right and duty of guardianship.
14. The transmissible power, by which the constitution of another country is substituted for that of the United States.
15. What may be called the paternal power, which places the general government in loco parentis.
The first of these has been recently urged in the House of Representatives, and the latter in the Senate. I leave them both without argument — epitaphs, I may say, for they will soon need them, as their tenure of life must be a brief one — contenting myself with suffering the Senator from Iowa, [Mr. HARLAN,] to whom we owe the discovery of the second, to state his proposition in his own language. Illustrating it by the annexation of Louisiana, he said that "the United States, by a direct purchase, succeeded to all the rights and sovereignty possessed by the grantor, and hence became the actual, full, complete, and exclusive sovereign of the Territory." And afterwards: "It was a pact of the dominions of France; she was its absolute sovereign. Hence the government of the United States must have succeeded to the same unrestricted rights, and may hold, exercise, and enjoy them, until she chooses to confer them upon another sovereignty."
I am not going to employ my time, and that of the Senate, so badly as to argue this point; to undertake to refute the proposition, that the Congress of the United States may seek its authority, not in our constitution, but in that of a foreign government, and thus transfer to a republic the powers of an absolute monarchy. The error of the speaker is obviously in deducing the power of Congress from the attribute of sovereignty, as I trust a few remarks I propose to make will show. For the third of these sources of power we are indebted to one of the most experienced and intelligent Senators who ever occupied a seat among us. He said upon that occasion, "the Territories are the children of the States — they are minors, under twenty-one years of age, and it is the business of the States, through their delegations in Congress, to take care of these minors until they are of age — until they are ripe for State government — then to give them an equality with their fathers." And, he added, with characteristic emphasis, "that is the law and the sense of the case." And thus the constitution is not to be merely interpreted, but it is to be interpolated, and its supposed omissions are to be supplied by useless analogies, drawn from youth and age, and applied with equal rashness and confidence where there is no reason for application. Analogy is not only utterly erroneous as a foundation of the means of construction even, but here it is destitute of any point of similitude; for the duration of a Territorial government has no connexion with the years of its organization, as that depends wholly on the amount of population; a Territory being entitled to admission into the Union as soon as it possesses sixty thousand inhabitants, according to the original arrangement, even if that event occur within six months after the establishment of its temporary government.
No reflecting person, sir, who reads in the annals of mankind the story of the never-halting tendency of every government to increase its power, can contemplate, without some anxiety, the additional proof which we are contributing to the experience of the world upon this subject. Analogies derived from physical, are transferred to political life, and become the foundation of some of the highest operations of government; and because a parent may rule a child, therefore Congress may rule the Territories. Attributes of national independent existence, like sovereignty, which carry with them coequal rights among the Powers of the world, but which confer no authority upon any department of our government, unless written down in the constitution, are appealed to as grant a of substantive power, to be exercised at the will of Congress. There is no general grant of the right of legislation in the constitution. Its provisions on that subject are as cautious as they are wise and clear. "All legislative power HEREIN GRANTED," says our charter, "shall be vested in a Congress;" and then follows the enumeration of its powers, with the declaration that all powers not granted are reserved, &c.
The word "sovereign" is not to be found in the constitution, and yet it is pressed into hourly and daily service in the investigation of our relations with the Territories, on one side to justify the exercise of unlimited congressional power, and on the other to prove that, as the Territories are not sovereign, the people living there have no political privileges. Strange deductions these, in a government of limited powers and of equal rights! And the Committee on the Territories, in their report, speak of the "sovereignty of a Territory remaining in abeyance, suspended in trust for the people till admitted," &c.; and, if I understood correctly the honorable Senator from Mississippi, [Mr. BROWN,] in his remarks the other day, he approved and
12adopted these positions; and perhaps I should do so too, if I comprehended them; but as I do not, my incredulity may be pardoned. It seems to me, that this transfer to our government of some of the technical niceties of the English common law, which gladdened the hearts of Coke and his school in the days of legal metaphysics, is to mistake equally our age and our country. The simple fact repels all these subtleties. That fact is, that no one claims sovereignty for the Territories; or, in other words, no one claims that they are independent nations. That attribute, with respect to them, is not in abeyance; it is not in existence, any more than their membership of the Union or any other power depending ultimately on admission. When admission comes, it confers these powers and conditions; until that time it is a mere act of fancy to suppose they are existing, and must be held by somebody, in trust for somebody else, lest they perish. They may never come into existence, for that depends on a state of things which may not happen; such as the amount of the population, the wishes of the people, &c. All these nice and learned distinctions give no jurisdiction to Congress. If they did, they would make that body what the constitution has not made it, a kind of reservoir, holding all that is given, and all that can be taken. There is no such power in the book. You can find in the constitution no recognition of sovereignty in Congress; nor, if there were, is any grant of power attached to that condition. That instrument grants authority to Congress to declare war. If that authority were not thus delegated, will any man venture to assert that Congress might assume it by virtue of the sovereignty of the nation?
In the people of the United States resides the sovereignty of this country; and we may go to the elementary writers to ascertain what rights that high attribute gives to us among the Powers of the world; but we must go to the constitution of the United States to ascertain what department of the government, if any, can exercise those rights; and if we do not find it written down there, the power belongs to the States or to the people. And I have recently seen speculations in some of the public journals which show that this constitutional fallacy has "increased, is increasing, and ought to be diminished." The following extract furnishes proof of its extent:
"We cannot conceive how any doubt can arise as to the full, perfect, unlimited, and sovereign power of the federal government over the Territory of Kansas as the agent or trustee of the existing States." * * * "These States can only exercise their sovereign, administrative, and governmental rights through the instrumentality of the Territorial governments."
Full, perfect, unlimited sovereign power! Large words these, and large would be their extent. They carry with them Wilmot provinces, and every other tyrannical infliction it may please the calculation or the caprice of Congress to vent upon the people; and all this power comes not from the constitution, but "from the purchase of Louisiana, and the subsequent extinction of the Indian titles," which gave us the territory "to dispose of and govern as we pleased for the common benefit of all the States." I suppose the constitution gives the right of foreign acquisition, and that it is derived from the treaty-making power. When territory is acquired, it comes under the operation of the constitution, and Congress must go to that expressed will of the American people to ascertain its powers before it can exercise them. This annotator maintains that acquisition gives Congress the power of disposal and of government. It gives the title, but the power to dispose of the "property" is expressly given by the constitution; and had it not been so given, it could not have been exercised while the power of government is an omitted case, unless, indeed, it is an incident to a granted one, and is not to be supplied by attributes and analogies.
These views, sir, previously announced, as we have seen, by the Senator from Iowa, [Mr. HARLAN,] and as establishing the right of Congress to prohibit slavery in the Territories, are also announced in one of the most respectable and justly-esteemed journals in our country, though certainly with no concurrence in that conclusion. But how it is to be avoided I know not, and cannot conjecture.
In the days of the patriarchs of the Democratic faith — of the great teachers in the school of strict construction — such a derivation of the authority of the general government would have been denounced as a dangerous heresy. Jefferson, and Madison, and Taylor, and Mason, and their political coadjutors, went to the constitution for the powers of Congress, and not to the code of Napoleon, nor to the code of Powhatan, or Pontiac, or Tecumseh. And these, and other pretensions I have not time to examine, to enumerate even, and which hardly need refutation, abound in the debates and discussions which this subject, prolific in heresies, has called forth. I leave them, not in their strength, but in their weakness, and proceed to say that, if the power to regulate and sell land — for this is the grant, and all the grant — conveys full legislative authority over this property, and over all persons living not only upon it, but in the same region of country, making man the mere incident of property — never were words more unhappily chosen, and never was a character for clearness and perspicuity, which has been heretofore universally accorded to the phraseology of the constitution, more unjustly acquired. The Senator from New Hampshire [Mr. HALE] has attempted, as others have attempted before him, to derive full legislative power from the words "rules and regulations," because, being enacted by legislative authority, they are, in effect, laws. I am not going, sir, into the subtlety of this investigation. All I have to say is, that the very fact that the convention provided for the adoption of rules and regulations respecting the public land is a strong presumption that there was something different from the ordinary exercise of legislative power. When they
13provided for legislation over the District of Columbia, and the reservations of the United States, they did not call it rules and regulations, but they called it by the proper term, legislation, conveying, as it did, full jurisdiction over American citizens, and all the concerns of life. The convention used the terms "rules and regulations," because they did not grant general powers of legislation, but power to govern and regulate the property of the United States. The intelligence of the convention would be but little esteemed, if, at the commencement of the constitution, instead of the present provision, that "all legislative powers herein granted shall be vested," &c., they had said that all the powers to make rules and regulations herein granted shall be vested, &c.; or if, instead of the enactment of the eighth article, that "this constitution and the laws of the United States which shall be made" &c., "shall be the supreme law of the land," it had been declared that this constitution, and the rules and regulations which shall be made, &c., shall be the supreme rule and regulation of the land.
I will merely add, Mr. President, that the word "territories," inserted in the eighteenth clause of the eighth section of the first article of the constitution, which grants legislative power to Congress over the District of Columbia, and over the reservations or cessions for forts, &c., in the several States, would have conveyed all the rights of government, and would have placed the relations between these political communities and the national legislature beyond doubt or dispute; and so would seven words, "Congress shall exercise legislation over the Territories," to adopt the phraseology of the clause just referred to and used by the convention, when it intended to grant the power of government in exceptional cases. But the constitution contains no such clause nor words, and their place is not to be supplied by forced constructions, founded upon no just principle of interpretation, and at war with the first elements of human freedom. As Judge McLean well remarks, "Such a power was given in relation to the District of Columbia, and it was equally necessary in regard to other Territories;" but it is not there, and no power but that of the people can place it there.
The cause of the failure of the convention to make provision in the constitution for the government of Territories was well explained by the senator from Missouri [Mr. GEVER] in his powerful and interesting discussion of this general subject. The ordinance of 1787, which preceded the signing of the constitution, had exhausted the territorial possessions then belonging to the United States. It provided for the political organization of the whole western territory, as it was called, being the country north of the Ohio and east of the Mississippi, making both temporary and permanent arrangements for its condition. And this accounts for the fact that the proposition of Mr. Madison, to make provision for a power of government, was negatived in the convention, evidently under the conviction that the whole subject had been disposed of by the ordinance of 1787; but the power of regulation and sale, making part of the proposition, was accepted and adopted into the constitution, because the title yet remained in the United States.
Much of the confusion which accompanies this subject has obviously arisen from confounding the word "territory," as used in the constitution, with the word "territories," as applied by law and by custom to political communities, as the term "colonies" is applied in England; and to such an extent has this gone, that we find the phrase often quoted as a constitutional provision, that Congress shall have power to regulate the Territories of the United States.
Mr. Venable said in the House of Representatives:
"Sir, the constitution provides for Territories as property, and authorizes Congress to dispose of and make all needful rules and regulations."
And what is less excusable is the commission of the same error by Chancellor Kent, who, in his Commentaries on the Constitution, equally misquotes that instrument, making it read:
"Congress shall have power to dispose of and make all needful rules and regulations respecting the Territories or other property of the United States."
Had we retained the appellation "colonies" this confusion would have been avoided, and this claim of political jurisdiction never have arisen under the power to sell land, for then we should have had no double meaning attached to the same word.
The political organization of the Territories is not provided for in the constitution any more than it was provided for in the old articles of confederation. With respect to the latter Mr. Madison said that, in creating temporary governments over the Territories, Congress had acted without the least color of constitutional authority. He justified the act by "the public interest, the necessity of the case, [which] imposed on them the task of overleaping their constitutional limits." And he added: "yet no blame has been whispered."
And such is precisely the condition of the relation between Congress and the Territories under the constitution; and such, and no other, is the justification, excuse rather, as far as it goes, for congressional action — what Mr. Jefferson calls "an excess of authority, for which a representative is responsible, when," as he says, "he must throw himself upon his country for his excuse for doing the act." And such act must extend no further than to comply with the necessity which calls it into being. I call the attention of the senator from New York to the language of Mr. Madison, which I have quoted.
The following extract is from an able review of the subject by Judge McLean:
"The true construction of the constitution is, that implied powers can only be exercised in carrying into
effect a specified power, and this implication is limited to such measures as shall be appropriate to the object. This is an admitted and safe rule of construction. It is believed to be the only one which has been sanctioned by jurists and statesmen. Powers exercised beyond this are not derived from the constitution, but must depend upon unlimited discretion, and this is despotism. Now there is no specific power in the constitution which authorizes the organization of Territorial governments. Such a power was given in relation to the District of Columbia, and it was equally necessary in regard to the other Territories. But if this power is implied from the specific power given to regulate the disposition of the public lands, it must, under the above rule, be limited to means suitable to the end in view. If Congress go beyond this in the organization of a Territorial government, they act without limitation, and may establish a monarchy. Admit that they may organize a government which shall protect the land purchased, and provide for the administration of justice among the settlers, it does by no means follow that they may establish slavery. This is a relation which must be created by the local sovereignty. It is a municipal regulation of limited extent, and necessarily of an equally limited origin. It is a domestic relation over which the federal government can exercise no control."
Judge McLean lays down the proper boundary of congressional interposition. It should be confined to the organization of governments, leaving untouched the domestic relations, whether of husband and wife, of parent and child, of master and servant, or of any other of the social conditions "over which the federal government can exercise no control." And this is in conformity with the views of Mr. Madison, who said:
"This power of governing the people without representation is in suspension of the great principle of self-government, and not to be extended further, nor continued longer, than the occasion might fairly require."
The power, then, however derived, is confined to the establishment of Territories, and to the organization of their governments, leaving the inhabitants in possession of the rights of internal administration, to be exercised at their pleasure, subject only to the constitution of the United States.
Beyond this establishment and organization there is no necessity for the action of Congress, as the people are fully competent to administer their own domestic affairs, and the power, being derived from necessity, stops where the necessity ceases. In a written constitution like ours, where we have a perpetual standard, to which legislative powers may be applied, and by which their obligation may be tested, the authority of precedent is entitled to far less weight, than where political institutions depend upon tradition for their organization. There is no doubt but that the constitutional government early placed itself, with respect to the Territories, in the relation previously occupied by its confederated predecessor, and went on with the same legislative and executive work; but, so far as we know, this process provoked no investigation. There is not the slightest reason to believe that, for many years after the adoption of the constitution, the constitutional principles involved in this exercise of power were made the subject of examination. The cotemporaneous debates reflect no light upon this subject. It seems to have been conceded, or silently acquiesced in, without direct concession, that Congress should proceed and fulfill the functions, which had been discharged by the legislature of the confederation; and it was not till 1820, upon the approach of the Missouri controversy, that this question underwent a searching investigation. Certainly, the sub silentio assumption of jurisdiction is but a sandy foundation for the exercise of power under the constitution as vigilantly guarded as ours. It wants something far more solid than that to justify the superstructure of authority which we have seen erected upon it. In this uncertainty we are left without the means of judging what different clauses of the constitution were relied upon by different members of the legislature, each in support of his own opinion, whether the land-disposing power, the State-admitting power, the treaty-making power, or any other power, through the long catalogue of enumerated grants, including the action from necessity, as the grant which conferred this jurisdiction upon the national legislature. Opinions then may have been as various as they are now. Surely the assumption of the right of legislation under these circumstances carries with it no such weight of opinion as would give any authority to the interpretation of a doubtful constitutional principle. The fact is, that thirty years of legislation are lost, so far as regards the effect of precedent; and till the Missouri compromise there was no such contest of mind as, when continued, is sure to separate truth from error, and to establish the ascendency of the just principles of the constitution.
So far as respects my own personal views, I beg leave to say that my opinion of the want of constitutional power in Congress to exercise political jurisdiction over the Territories has been long entertained and expressed. In the Washington Globe of March 31, 1832, may be found a review of the decision of the Supreme Court upon the Cherokee question, in Georgia, which was written by me, and read to and approved by General Jackson, and by my colleagues of the cabinet, and in which I said:
"The power to dispose of and make needful rules and regulations respecting the property of the United States, and the power to exercise general jurisdiction over persons upon it, are essentially different and independent. The former is general, and is given in the clause referred to. The latter is special, and is given in another clause, and confined to the federal district, and to places purchased by consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings."
The principle of the establishment of local governments by a metropolitan authority, and the administration of such governments by those over whom they operate, is familiar to every American. It forms a memorable chapter in our colonial history, its violation by the British Parliament having constituted the great political oppression, which led to the war of independence. It was announced in the declaration of the Continental Congress of 1774, in these words: The English colonists "are entitled to a free and exclusive power of legislation in
15their several provincial legislatures, where their rights of representation can alone be preserved in all cases of taxation and internal polity," &c.
From the preceding considerations it follows that, when Congress establishes a Territory and organizes its government, it has exhausted its power, and the people of such Territory have the right to adjust every question of their "internal polity," to use words rendered dear by the patriarchs of the Revolution, in the mode most acceptable to themselves, subject only to the constitution.
In these days of political metaphysics it has been objected to this view of the relations subsisting between the general government and its Territories, that there is not a fixed tangible boundary between the power of the superior authority and that of the dependent one; that in the organization of these temporary governments Congress have assumed many powers incompatible with Territorial self-government; and those thus objecting would, therefore, test the existence of a principle of human freedom by its liability to abuse. No doubt but these organic acts have gone too far in interfering with the rights of people deprived of representation in the body assuming to govern them. Those legislators who find in the constitution a direct grant of unlimited power, have only their own discretion to consent in its exercise; but those who deduce such an authority from the necessity of the action of Congress to preserve social order, or to carry into effect any granted power, are bound not to exceed the limits prescribed by their own principle, but to leave to the people the enjoyment of all rights compatible with this duty of organization. Certainly there may be honest differences of opinion as to the necessary extent of these paramount regulations, providing the rules of administration, touching the appointment of officers, the qualifications of voters, and various other points relating to the institution of a government. For myself I believe that the federal legislature has gone too much into detail in this exercise of a power which, as Mr. Madison said, is in suspension of human freedom, and that the management of all their concerns, after setting the government in operation, should be left to the people themselves. But, after making allowance for these different views, when we come to the internal affairs of a remote Territorial people — to those sacred domestic relations, which no foreign authority can touch without an act of unmitigated despotism — we reach a practical boundary which no Congress of Washington or of Westminster should overstep. There is no necessity to justify such interference, and therefore no rightful power to assume it. Our revolutionary fathers were too clear-headed to lose themselves in the mazes of such subtile logic, and admitted the principle of organization, even with the doubts which might sometimes arise in its practical application.
The people of the Territories do not derive this attribute of self-government — the power of internal legislation — as a boon from Congress. All they derive from that body is the opportunity of exercising it; and even this they may rightfully assume by their own act, whenever the national legislature refuses, or unreasonably delays, measures of organization; as in the case of California, where the people were driven, in the maintenance of social order, to those first principles of self-defence, which belong not less to communities than to individuals, and which neither predicates nor copulas, nor all the apparatus of verbal logic, can wrest from them. I do not speak of a revolution. That is the ultimate resort for oppression. I speak of rights and necessary acts within the proper allegiance of a colonial community to a paramount authority.
The just foundation of local legislation is laid down in the Declaration of Independence, wherein it is said: "Legislative powers, incapable of annihilation, have returned to the people at large for their exercise." RETURNED, to the fountain whence they issued — to the people to whom they belong — not to king, Congress, nor Parliament.
It will be observed that in this analysis I have examined the question as a general one, within the constitution, of the legislative power of the people of the Territories under acts of organization, where no specific objects are enumerated over which legislation may extend. The Kansas-Nebraska acts, however, render a decision of the general question unnecessary, for they contain an express grant — recognition rather — of the right of the people of these Territories to regulate the condition of slavery for themselves, unless prohibited by the constitution of the United States. Is there such a prohibition? I believe there is not; and I submitted my views upon the subject in this body at some length on the passage of these acts. I will not go over the question again at this time, for I feel that I am already trespassing too much on the indulgence of the Senate.
But I will add, sir, that the honorable senator from Mississippi [Mr. BROWN] mistakes the position of the two distinguished gentlemen, to whom he alluded in his remarks the other day, if, as I understood him, he supposes that in their opinion the people of a Territory ought not to have the right to regulate the question of slavery for themselves. These gentlemen are the President of the United States, and the chairman of the Committee on Territories, the member from Illinois, [Mr. DOUGLAS.] I am gratified in being able to assure the senator from Mississippi that they have both announced their adhesion to this American principle of self-government. The former calls it "the true principle of leaving each State and Territory to regulate its own laws of labor according to its own sense of right and expediency." The latter, when the Kansas and Nebraska acts were under discussion, took the opportunity of referring to and reaffirming the sentiments on this subject which he had avowed and supported while the bills for the establishment of governments in Utah and New Mexico were under consideration. When a proposition was pending at that time, prohibiting the local legislatures from legislating on the subject of slavery, he observed:
"I wish to say one word before this part of the bill is voted upon. I must confess that I rather regretted that a clause had been introduced into this bill providing that the Territorial governments should not legislate in respect to African slavery. The position that I have ever taken has been that this and all other questions relating to the domestic affairs and domestic policy of the Territories ought to be left to the decision of the people themselves, and that we ought to be content with whatever way they may decide the question, because they have a much deeper interest in these matters than we have, and know much better what institutions suit them than we who have never been there can decide for them."
"I do not see how those of us who have taken the position which we have taken, (that of non-interference,) and have argued in favor of the right of the people to legislate for themselves on this question, can support such a provision without abandoning all the arguments which we urged in the presidential campaign, and the principles set forth by the senator from Michigan in that letter which is known as the Nicholson letter. We are required to abandon our platform. We are required to abandon those principles and to stultify ourselves, and to adopt the opposite doctrine, and for what? In order to say that the people of the Territories shall not have such institutions as they shall deem adapted to their condition and their wants."
And yet again:
"But I do say, that if left to myself to carry out my own opinion, I would leave the whole subject to the people of the Territories themselves, and allow them to introduce or abolish slavery as they may prefer. I believe that is the principle on which our institutions rest."
Mr. FOOT. The usual hour for adjournment having arrived, if the senator from Michigan will yield the floor I will move an adjournment.
Mr. CASS. I yield to the senator's suggestion.
This morning the further consideration of the subject was resumed at the usual hour, and the honorable senator from Michigan thus concluded:
Mr. President, yesterday I submitted to the Senate a view and review of the constitutional principles which regulate the relations between the United States and their Territories, and of the course of legislation with regard to those dependencies; and to-day I propose to submit some remarks upon the state of things in Kansas, and upon the measures which Congress is called upon to adopt.
Mr. President, I am not going into a detailed examination of the occurrences in that Territory which render our interposition necessary, especially after the investigation which they have undergone, and which we have read in reports and listened to in debates. I shall deal only in general facts, with a view to general conclusions.
In the first place, sir, allow me to observe, that whatever unjustifiable proceedings have taken place in Kansas — and there have been too many of them — they have not shaken, in the slightest degree, my conviction of the right of man to govern himself, nor my confidence in the salutary operation of that true principle of human authority. I have read and heard sneering remarks upon the so-called failure of the experiment of popular sovereignty, preposterously called an experiment, after our experience of generations — remarks made, I have no doubt, by those who desire a failure. Even were it so, it would not touch the question, unless we are prepared to test the truth of a great principle by its accidental abuse. The political organization of our country is the history, as well as the exemplification of popular sovereignty for a long series of years. Glorious has been its work, and more glorious will it be hereafter; and yet there is scarcely a State in the Union in which, at some period of its existence, commotions have not broken out, and the laws been resisted, and sometimes the most alarming consequences threatened. But these have all happily passed away; and while leaving their memory a warning, leaving it also a proof that free institutions carry with them the power of self-conservation and the means of safety. And in all this time, and during many a day of trial and danger, not one human life has been sacrificed to avenge the law, or to restore its supremacy! What other country can say as much since the first institution of governments after the dispersion of the descendants of Adam upon the plains of Shinar? I am satisfied, from some examination, that there was a greater waste of human life and treasure in the riots of London, in 1780, than there has been in this country in all the acts of resistance to the public authority which are found in our history, colonial or independent. Does the experience of the world show that man is fitter to govern others than himself, and that power is safer with the few than with the many? Let history answer this question, and answer also the indignant interrogatory of Mr. Jefferson, "Have we found angels in the form of men to govern us?"
There were peculiar circumstances attending the institution of government in Kansas to which, and not to the principles that regulated it, are the lamentable proceedings to be traced. Those principles were wise and just, and not a voice has been raised in their condemnation among the people over whom they were to operate. From the 4th of July, 1776, to this day, they have been the American guides of political organization; but at this time they were applied to a country beset with external, rather than internal, difficulties and dangers. These arose out of the question of slavery, which seems destined by its opponents to be an eternal subject of agitation — a subject which, though never sleeping, becomes quadrennially more violent as the presidential term approaches its renewal. This is its recurring season, and time and experience
17teach us no lesson of wisdom or forebearance. My sentiments on the general subject of this slavery excitement are already before the county, and events as they pass by serve but to strengthen my convictions. I listened with deep interest the other day to the masterly effort of the senator from Alabama, [Mr. CLAY,] who, while doing justice to his constituents, did honor to himself and to the Senate. Though I dissented from some of his remarks and conclusions, yet in the general scope of his observations there was great force and justice — considerations, of the gravest character, appealing to every true-hearted American. While I listened to the complaints he spread before us in behalf of the South against the North, I wished I could deny their justice, but felt that I could not; and as he proceeded with his recapitulation, I felt also that this eternal warfare against one half of the Union has become as disgusting by its repetition as it was unjust in itself and dangerous in its consequences. I begin to have as little charity for many of those engaged in this crusade as sympathy with the movement itself. The South intermeddies not with the social institutions of the North; let the North exhibit the same spirit of toleration, and we shall be the strongest and the most contented, as we are the freest, nation on the face of the globe. We have been told here, time and again, recently and formerly, that there in no design to interfere with slavery in any of the States of the Union. The power is disavowed as well as the purpose; but the disavowal is contradicted by events that are hourly passing before our eyes. He who believes in a higher law, of whose extent and obligations he is the judge, and which justifies him in disobeying a human law, is prepared to follow the fantasies of the wildest imagination. What is the constitution to him who has a constitution of his own, overruling and overriding the laws of his country? Why, sir, in the House of Representatives during the present session of Congress, a member from New York maintained that "slavery in the United States is unconstitutional, and therefore unlawful." "The constitution, both in spirit and express terms, repudiates slavery and bars its existence."
And even now we are just told, by a resolution of the "American Anti-Slavery Society," "that the right to enslave a human being, on any pretence whatever, is not a debatable question, any more than is the right to commit adultery, burglary, highway robbery, or piracy."
And we are told, in another resolution, "that they are struggling to drive slavery out of the land." It requires a good deal of moral courage, in the face of such declarations, to contend that no one entertains a design to interfere with slavery in the States. No man of ordinary sagacity can doubt the tendency of the doctrines which are disseminated in high places and in low places upon this whole subject, and that are addressed to passions more easily excited than allayed. Among other dangerous signs, a spirit of fanaticism is evoked, before which the guarantees of the constitution may be prostrated, as easily as the marks on the sand are obliterated by the incoming tide of the ocean. It is already doing its work, and this is the most alarming symptom in this terrible national malady. It is fostered and encouraged by men professedly servants of the Most High, and ministering at His altar. It prostrates the judgment and almost paralyzes the conscience, and prepares the excited mind for strange delusions and dangerous deeds. The scene which lately passed at New Haven, when God's day and God's house were desecrated by appeals to fierce passions to stimulate men to action, instead of being devoted to their true purpose of guiding and restraining them, was a spectacle to be contemplated with regret, with indignation indeed, and alarm. The temple at Jerusalem was defiled by the money-changers, who converted it into a bank of that day, and made it a scene of abominations. Our Saviour drove them out, saying, "It is written, my house shall be called the house of prayer, but ye have made it a den of thieves." The house of prayer is now made an armory for the collection of weapons to arm Americans against their countrymen: and clergymen are not indeed money-changers, but gatherers and distributors of carnal, not of Christian weapons, to fight the battles of the flesh, and not the battles of the faith, forgetting that "all they that take the sword shall perish by the sword;" and that they are warned by the apostle of the Gentiles that "the weapons of their warfare are not carnal," &c.
Mr. President, to preach the gospel of Jesus is work enough for any human heart and intellect. He who devotes himself to this duty and then goes after strange gods, entering the field of politics and mingling in its strife and bitterness, does more injury to the cause of true religion within the sphere of his labors, than the writings of Voltaire and Hume, and all the other infidel authors who ever sought, by their sneers and malign influence, to destroy human confidence in the most precious gift of God to man. And it is a consolatory proof of the reality of revealed religion, that it is equally triumphant over the assaults of its open enemies and the indiscretion, or something worse, of its professed friends.
I have already remarked that the intention to interfere with slavery in the States is disavowed, and therefore the more immediate theatre of these labors of strife is the Terriories, over which there is no constitutional grant of power in relation to this subject; and if there were, there would be no justice in its exercise, because it is a question which the people are competent to determine for themselves, and which cannot be determined for them by a foreign body, where they have no representation, without violating a great principle of self-government, the very foundation of our institutions, in defence of which our fathers engaged in a contest with the mightiest nation on the face of the globe. I have no patience with Americans who thus condemn the patriots of the Revolution, casting dirt on their fathers, as the eastern phrase is, and seek to exercise a power over another which they would suffer no man to exercise over themselves. Upon the very first attempt they would indignantly resist at home the interference
18they so loudly call for elsewhere. Their consciences, which now dictate violent action, where self is not concerned, would soon learn their true duties when their own rights were in question. And the zeal, violence, indeed, with which this claim to govern others, without their own consent or co-operation, is asserted and prosecuted in the very face of our whole history, is a moral phenomenon, betokening some strange hallucination.
And it is a part of the prevailing system of aggression to excite and nourish prejudices against the South by making slavery the perpetual theme of denunciation, and too often of misrepresentation, as though, if it were all its enemies say of it, the present generation, of whose social system it makes an essential part, were responsible for its introduction, or could terminate its existence. It came to them by inheritance, not by their own co-operation; and when or how it is to cease is known only to Him who holds nations, not less than individuals, in the hollow of His hand, for it is beyond the sagacity of man to discover. The emancipation of nearly four millions of human beings of a different caste and color and condition, living in a state of servitude, among a superior race — superior in numbers, in power, in intellect — is a fearful question, which no right-minded man can contemplate without the deepest solicitude. I am not presumptuous enough to say how it could be done. But of this I am certain, that it is a matter which should be left to those whom it vitally interests, and who alone can decide it. If it were in my power to set free, to-morrow, every slave in the United States, I would not do it. I think the act would be followed by fearful convulsions, the apprehension of which should cause the wisest to pause and the firmest to tremble. The result of the experiment which England made in the Antilles, has not been such as to encourage other countries to follow the example. The standard English historian, Allison, in a new volume of his great work, which has just issued from the press, tells the story in melancholy terms. He says:
"The effect of the emancipation of the negroes has been to ruin our planters, stop the civilization of our own negroes, and double the slave trade in extent, and quadruple it in its horrors."
"Disastrous as the results of the change have been to British interests, both at home and in the West Indies, they are as nothing to those which have ensued to the negroes themselves."
To emancipate a comparatively small number of slaves in a West Indian island, which may be covered by the troops and surrounded by the fleets of the mother country, is one thing. To do the same deed of liberation in a far-spreading region, measured not by miles, but almost by great circles of the globe, and destitute of a military force to restrain the revengeful promptings or the dangerous suggestions of suddenly-acquired freedom, is another and quite a different thing. Believing that slavery is a misfortune to any country, I hope that it will come to an end in ours; but it must be in God's good name, and in some far away day, when master and slave are prepared for it.
In the prosecution of this warfare against the character, the tranquillity, and the rights of the South, the press, not less than the pulpit, has been made an active coadjutor, and the world has been inundated with log-cabin books, and other productions of equal fairness and value, and about as worthy of credit as the travels of the renowned Gulliver, too often drawing their facts from the imagination, and their conclusions from the dictates of a wild or false heart, or of a disordered head. Sir, I am no defender of the South. It needs not my aid. It has powerful advocates here and elsewhere, able to assert its cause; and the latest among them, who has volunteered in this commendable work — the member from Louisiana, [Mr. BENJAMIN] — in his address to the Senate a few days ago, made an appeal to American justice and patriotism which I have never heard surpassed in vigor of intellect, or in true eloquence. The undivided attention of this high body was a just tribute to the effort of the gifted speaker. As a man loving my country, and jealous of her name and fame among the nations of the earth, I feel indignant at these atrocious calumnies upon a large portion of my countrymen, and I have no disposition to conceal nor to repress that feeling. I know something of the condition of the slaves; and I believe, as I have before said in this place, that they are treated with all the humanity which can reasonably be expected in their situation — with a humanity honorable to the proprietors as a class, and, to say the least of it, quite as well as they would be in the northern States, had this kind of servitude survived till this day, and far better than by many, whose philanthropy is shown by the railing and reproachful words they utter, and not by the relief they contribute to human misery.
I know something also of the condition of the poverty-stricken population of Europe, of a large portion of the inhabitants who lie down in sorrow and get up in care, and who pass their lives in want, and many of them in a state of destitution utterly unknown in this country. And I have seen more misery in the proudest capitals of Europe than I ever saw in our own favored land, among white or black, bond or free. The condition of slavery has existed since the earliest ages of the world, and regretted as it is, and must be, by the moralist, it is a great practical question, which every established community must arrange for itself. The Revolution found it in most of the States, and there it was at the adoption of the constitution, and in many it yet remains, making part of the rights and guarantees of the confederation. To touch it by the general government would be to shake to its corner-stone our whole political edifice. And disavowed as that purpose is by many of those who are engaged in this warfare, and who take counsel from discretion, seeing the full time has not yet come, it should be obvious to the most superficial observer that the inevitable tendency of this state of quasi hostilities is to weaken the fealty and attachment to the Union; to create a morbid excitement, by which the mind and the heart are intently fixed upon one object, the abolition of slavery to the exclusion
19of many a true work of charity, and to the extinction of many a kindly and patriotic sentiment, and also to the imminent hazard of following the institution, with hostile views, wherever it exists, as regardless of the rights of others as of the constitutional securities which protect it. It would almost appear as though the whole stock of philanthropy — of talking philanthropy I mean — in portions of the country were exhausted upon the black man, and that the men of our own race were out of the circle of human sympathy. All this would be but regretable were it not rendered serious by its danger. Its effect is but too palpable in the heart-burnings it has created on each side of the line of separation. This condition of the public mind excites my apprehension, and ought to awaken the attention and arouse the exertion of every true patriot before the evil day is upon us, and the deed of disunion shall be done.
When the Kansas act was passed it was hoped that the great principle of self-government embodied in it would lead to the tranquil adjustment of much of this controversy. It was looked upon as the olive branch, announcing the recession of the waters of bitterness. And such would it have proved had the people of the Territory been left to regulate this subject for themselves. The times indeed were not as propitious as they would have been had a better spirit prevailed at the North. The fugitive slave law had been opposed, and its operation vilified and obstructed. Laws had been passed incompatible with the provisions of the federal constitution, and confessedly from hostility to the South, and other acts were done, and sentiments avowed, of the most unfriendly character, which are too fresh in general recollection to require recapitulation. And under these circumstances commenced the settlement and the government of Kansas.
I have said that I had no purpose minutely to recall the untoward events which accompanied the progress of this movement. I have read with care the narrative compiled by the senator from Illinois in his report, and while it is marked with signal ability, it seems to me to be marked also with a commendable regard to the truth. I have rarely read a more powerful State paper, and in my opinion it entitles its distinguished author to the thanks of the country.
It is easy to trace the disturbances in Kansas to their true source — to external interference. That portion of the Union connected with slavery, and where it is not merely a question of servitude, but also of safety, were in much and just excitement at the unconstitutional assaults upon this element of their social system. And this moment was chosen by the partisans of abolition in the northern States to organize emigrating parties, supplying them with assistance described by a learned professor at New Haven "as moral encouragement and material aid in money or arms." And these new implements, not of agriculture, but of death, were designed for human bodies, instead of a virgin soil; and, as the same literary gentleman said, while defending this charitable contribution, they "were to be wielded by strong hands and directed by courageous minds." And "this material aid" was commended to the precaution of the emigrants, who were advised to hasten on to the promised land, not for their own sakes, looking forward to the reward of industry and enterprise in a new country, but as soldiers, to fight a political battle, with such weapons, whether of law or of iron, as circumstances might render expedient. It is not surprising that the approach of these new adventurers, avowing designs peculiarly obnoxious to the neighboring State of Missouri, should excite alarm, and lead the people to combine in order to resist combinations.
I am accounting for this state of things, not justifying it — and the solution is found in the ordinary principles of human nature. Confederations, to bring about great public purposes by those who seek them, are sure to be met and resisted by antagonistic [unknown]. I think there was no justification for the interference of persons in the northern States who did not intend to emigrate to Kansas, with a view to control the political course of the emigrants, and to pledge them to a particular line of policy, stimulating their feelings while supplying the means; and it is my deliberate opinion, that those who planned and promoted this scheme are morally responsible for many of its deplorable consequences. At the same time, I think that the emigrant who went to Kansas to become a bona fide settler, was in the exercise of his constitutional right, when he proclaimed his purpose by lawful means to oppose the introduction of slavery, and when he followed that purpose to its consummation at the polls. But I cannot say the same of the irruption of citizens from Missouri, some armed and some unarmed, who entered Kansas, with no design to become residents, but to control the political power of the Territory with a view to political action. I believe the extent of this unfortunate movement has been overrated: but, after making all reasonable deductions for exaggeration, enough yet remains to excite regret, and to call for condemnation. The sanctity of elections is the very palladium of our liberty. The places where they are held should be holy ground, where neither fraud nor violence should be permitted to enter. And, above all, they should not be entered by armed parties, with a view to subject this living element of freedom to lawless violence — thus bringing dishonor upon our institutions, and weakening respect for the laws, and impairing their obligations. I cannot be restrained by any considerations from this expression of my regret and disapprobation.
Passing now, sir, from these topics, I shall briefly refer to the occurrences in Kansas connected with the organization of its government, in order to ascertain how far the Executive is justly liable to the censures we have heard proclaimed, and what course it becomes Congress to adopt in the present conjuncture of affairs there. The majority and minority reports of the committee afford all the facts necessary to a just appreciation of the circumstances. I shall therefore deal mostly with results.
The organic law made provision for the institution and operation of the government. The principal agent was the governor, and under his directions the preparatory measures were all
20taken, and the elections held. Evil passions were abroad, and in some of the districts irregular and violent proceedings took place, of which the committee reports give us the history. But the necessary returns were made, and both branches of the legislature were declared constituted, and were recognised by the proper authority. Some of the returns were contested, but the seats of the majority of both bodies, forming a legal quorum for each, were not disputed, so that there was no just presence for denying the legal organization of the legislature. There is no need, for any purpose I propose to myself, to pass in review the local controversy concerning the first election, the setting aside of the returns by the governor, the second election held by his order, or the ultimate decision of the council and house as to the persons entitled to the contested seats in those respective bodies; because, after the convocation and organization of the legislature, the qualification of its members was a subject within its own jurisdiction, as an incident of its existence; as much so as the power to preserve order. And that jurisdiction could not be rightfully disputed without the interposition of Congress, however it may have been excried unless made a question before a judicial tribunal. This principle is universal; and the proceedings of a legislature cannot be invalidated by any allegation of erroneous decisions respecting the qualification of its members.
In the progress of this inquiry we are now brought to the accusations against the Executive. What are they and how are they prosecuted and maintained? But before proceeding to the consideration of this branch of the subject, I must request the attention of the Senate to an episode in the progress of our investigation, which comes to relieve the monotony of the work. The honorable senator from New York [Mr. SEWARD] has placed himself prominently among those who seek to charge the occurrences in Kansas to the President; and he tells us, in advance, that those who do not adopt the course which he recommends — that is, the immediate admission of Kansas — will reject it in "the hope of carrying African slavery into that new Territory." His speech was heralded before delivery, and applauded after it; and it is evidently considered by those who concur in his opinions as the test and standard of their views and purposes. It has been carefully prepared, and is an elaborate assault upon the President, "an elaborate misconception," to borrow the language applied to him by the senator and an unsparing denunciation of the course of the administration and of the views of a majority of the Senate, while it is made the vehicle of opinions peculiar to the senator, some of which are rather shadowed forth than distinctly announced. These considerations, not less than the high character of the speaker, give special importance to his effort; and I propose, therefore, to examine it with some attention, in order to condemn and correct portions of his statements and doctrines more particularly obnoxious to animad version.
But while I shall do this plainly, as the importance of the subject demands, I shall do it, I trust, in a proper spirit and with kind personal feelings towards the Senator. I shall apply to him no allusion nor epithet — for it is not my habit — that ought to offend even fastidious delicacy, except such as is applied in his speech to the President of the United States; and I mean to make my application more just than his. And I shall do this in the hope that this lesson of the return of the chalice — not poisoned, but vituperative — may be profitable. That it is just, no one will question who considers that these assaults, not of argument but of language — of offensive language, upon the President, are not the result of hasty impulse, yielded to in the heat of debate, but of cool premeditation, prepared in the closet and recited in the Senate. In thus dealing with hard and bitter words and personal imputations towards the Chief Magistrate of the country in relation to the performance of his official duties, if the senator forgot the respect due to that high functionary as well as to himself, he should have recollected the respect due to the Senate, and, still more, to the country. There is no excuse for his having spoken of what he calls the President's defenses as "indirect," "irrelevant," "ill-tempered," "sophistical," and "evasive;" of the President's "disingenuousness," "distortion of the constitution," "false and impertinent issue," "ambitious imbecility," "betrayal of his trust," "obscure and unfair statement," and for having made use of other harsh language, heard then with regret and surprise by almost all, and now recalled by me with pain.
"Believe the prophets of God," said the King of Judah, when all the men of the kingdom, with their wives and their children, had taken refuge in Jerusalem, dismayed at the invasion of the Moabites. "Believe the prophets of God, so shall ye prosper." And the senator from New York, more emphatic than impassioned, has read this portion of Jewish history, and pressed it into his service. "Senators of the free States," said he, "I appeal to you: believe ye the prophets? I know ye do." And what is the application of this oratorical apostrophe? I grieve at the lamentable descent — at the fall from the dignity of style and subject. "You know, then," he continued, "that slavery neither works mines nor quarries;" nor do other deeds of utilitarian value, which he enumerates. To believe the prophets in the days of old was the safety of Israel: to believe the prophets in the days that are upon us is the safety of mines, of quarries — and of abolition. We were warned, in the time of our Saviour, that false prophets should come to seduce "even the elect." They are already upon us. May the God of our fathers and our own God incline the hearts of the American people to reject their evil counsels, and to hold on to our precious heritage of Union!
I consider the senator's address upon that occasion one of the most extraordinary displays of legislative oratory it has ever been my fortune, good or bad, to listen to. How he ventured upon some of his statements, upon many of his assertions and conclusions — upon the personal imputations which abound in his speech, and upon a new edition of the higher law doctrine,
21freshly enunciated, but not amended, I confess my inabilitv to comprehend. Instead of a full commentary upon this effusion, "this studied, partial, and prejudicial history," to borrow again from the senatorial vocabulary prepared for the President, I shall restrict myself to transferring from it to the Senate some of its most salient passages, leaving them, almost without remark, to tell their own story and the objects of their author, and to carry with them their own refutation.
The speech of the senator must be yet vivid in the recollection of the Senate. However intended, it came upon us with a kind of theatrical effect. Instead of being a grave and severe discussion, befitting the subject and the place, much of it took on the appearance of scenic representation; and we had an impeachment, in a "comedy of errors," rather than a dispassionate statesmanlike investigation. And in this contribution — whether to justice or party, let the country decide — the honorable senator performed all the pacts necessary to the success of the piece. First, the author; he then assumed the various and incongruous characters of prosecutor, of witness, of defendant, and of judge, with due gravity and dignity, "citing the President" to the bar of the Senate conducting the trial, and pronouncing the condemnation.
If the failure has been a signal one, those who know the Senator will be sure to attribute it to the weakness of the cause, which could not be saved even by the acknowledged power of the advocate.
After giving his version of the troubles in Kansas, connected with the organization and proceedings of the legislature, and "an obscure and unfair statement it is" — this is another extract from the speech, and spoken of the President — the senator enters upon his principal object, the inculpation of the President, without fear and without reserve, as he says, but with the self-confidence of one who declares he is aware of the gravity of the charges — with the self-confidence, indeed, of the great Roman orator, when he arraigned the proconsular robber of Sicily before the Roman senate. He prefers what he calls his charges, which are made up of his version of the transactions transferred to the President. Here they are:
Armed bands from Missouri seized the polls, overpowered or drove away the inhabitants, usurped the elective franchise, deposited false and spurious ballots, procured official certificates by fraud, &c.
The legislature established a complete and, effective foreign tyranny over the people of the Territory.
These high-handed transactions were for the express purpose of establishing African slavery in the Territory by force, &c.
Then come the application and the guilt.
The President has been an accessory to these political transactions, with full complicity in regard to the purpose for which they were committed.
He has adopted the usurpation, and made it his own, and is now maintaining it with the military arm of the republic.
And thus are the charges against the President prepared, and thus is he shown to be guilty.
A plain tale will put this down.
The President was officially informed that danger of resistance to the law was to be apprehended in Kansas; and in conformity with his duty he directed the military force in that Territory, when called on by the proper Territorial authority, to and in the maintenance of the laws. This is the head and front of his offence. And all the epithets preferably employed on this occasion to describe the tyranny on one side and the abuse and oppression on the other, and to create a corresponding public reprobation and indignation, have reference to this single act — nothing more, nothing less. The matter lies within the narrowest compass, and may be summed up in two propositions:
First, the legislature of Kansas being organized, clothed with legal forms, recognised by the officer, to whom that duty was assigned by law, and in full operation, the President had no more right to interfere with that body than the legislature had to interfere with him.
Secondly, it was the legal duty of the President to direct the military force of the United States to aid in enforcing the law in Kansas, when properly informed there was danger of resistance.
So much for the sophism (another extract) of an accusation. And now for the sophism of a defence. The senator speaks and respeaks of the President's defences — that is the word — as though a formal indictment had been found against him, and he had as formally defended himself against many charges.
On the 31st December, 1855, the President, in his annual message to Congress, made a brief allusion to the affairs of Kansas, and made some very just and opportune remarks on the political agitation arising out of the assaults upon the southern States; and on the 24th of January succeeding he communicated in another message a detailed statement of the origin, progress, and condition of the troubles in the Territory.
And these executive documents, laid before Congress and the nation in obedience to the requisition of the constitution, the senator designates as the President's defences, thus imposing on the unwary the impression of a real trial and defence instead of a rhetorical exhibition. And with such pertinacious gravity does he follow out his system of tactics that one of his first complaints against the President is that he did not wait till his accuser, the youngest born of the republic, as he rather facetiously denominates Kansas — a State born before its birth — had appeared at the Capitol to prosecute him, but unfairly made his [unknown] Congress before the proper time. That is, when divested of all tropes, the President actually communicated to Congress and to his constituents, the American people, two messages, containing his views of the state of affairs in Kansas, and rendering an account of his stewardship, before the new candidate for admission into the Union had appeared here by her "two chosen senators and one representative." Unheard of "tyranny," "suppression," "usurpation," "oppression," "subjugation," "submission," "disfranchisement," "mockery," and whatever other obnoxious epithets industry can collect or ingenuity can apply to excite apprehension against the President for the "impertinence" and guilt at communicating messages to Congress.
The "disingenuous views" (another loan) taken by the senator of the powers and duties of the President are among the strangest constitutional heresies to which this claim to rule Americans without representation, and in contempt of their feelings and rights, has given birth. I comprehend clearly enough his object, which is to excite political indignation; but I fail entirely to comprehend how he fixes upon the President, even to his own satisfaction, any neglect of duty, still less any charge of a determination to introduce slavery into Kansas; for that is distinctly asserted, and without the shadow of proof. There is one portion of his speech which is mystical — indeed, almost a myth — where, personating the speechless people of the Territory — the word is his — he comes forward in a theatrical manner, stretching forth the wand of NewYork, and, holding in his hand the impeachment of George the Third by the Congress of 1776, impeaches, in the words of the Declaration of Independence, the President of the United States.
He then goes on to apply to the President the complaints made against the King of England, arranging eleven clauses in formal succession, each with its charge of omission or of commission, in the very language of that immortal State paper, substituting Kansas for the colonies, and the Republican Chief Magistrate for the anointed Potentate, beginning:
"He has refused to pass laws for the accommodation of the people," &c.
"He has called together legislative bodies at a place unusual, uncomfortable," &c., "for the purpose of fatiguing them into compliance with his measures."
"He has prevented legislative houses from being elected," &c., "because they would oppose, with manly firmness, his invasion on the rights of the people."
"He has created a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance," &c.
"He has kept among us in time of peace standing armies," &c., "to compel our submission to a foreign legislature," &c.
And so on to the end of the chapter of colonial grievances against Great Britain.
Really, Mr. President, I can hardly treat this subject with the decorum due to our position and functions. Has the Senator from New York formed so poor an estimate of the intelligence of his associates here, or of his countrymen anywhere, as to suppose that one man can be found who believes that the President of the United States possesses the same powers in our Territories as the sovereign of England possesses in her colonies? — for hers they are in the eye of the law. With the exception of the appointment of some five or six officers, and the authority to remove them, the President has as little legal power in the Territories as the Senator from New York, unless, indeed, there is violent opposition to the laws; when, if he is legally informed of the danger, he must use the force the law places at his disposal to preserve and restore public order and tranquility. And yet an American Senator dares, in his place, to say that "Kansas is to-day in the very act of revolution against the tyranny of the President of the United States;" thus identifying the constitutional action of the Executive with that tyranny which gave birth to the American Revolution. And after this startling proposition the Senator indulges in some rather incomprehensible reflections on "the profound philosophy of revolutions," the value of which escapes my penetration. And the profundity of this ethical sentiment is illustrated by the discovery that "the President is assumed, by the people of Kansas, to entertain a resentment which can never be appeased, and his power must, consequently, be wholly taken away;" that is, the Kansas public, or a portion of them, believe the President is displeased with them, and therefore they must have a revolution — and therefore "they have constituted themselves a State," and come here asking admission into the Union. And all this is "the profound philosophy of revolution."
The Senator is quite didactic in his speech, and passes happily and readily from one topic to another — from the philosophy of revolution to the philosophy of propagandism; and condemns the President for censuring the "propagandist attempt to colonize the Territory with opponents of slavery." The President censures, and justly, the external interference in the affairs of Kansas, by which efforts were made, in various States, to propagate "their social theories" in that Territory. And this is reproved by the Senator as launching severe denunciations against what he says the President calls "propagandist attempts." And then follows a eulogy upon that "great element of colonization which has peopled the western continent;" as though the adventurers who fled from civil and religious tyranny, and sought refuge here, came not to enjoy their opinions, but to disseminate them, and to live the lives of missionaries; and still more, as though the pious men who devote themselves to spreading the Gospel of Jesus, are but co-laborers with the political partisan who stays at home and stimulates others to carry agitation abroad, and to propagate secular opinions dangerous to the peace and tranquility of another community.
There is a school of social, or rather anti-social, propagandism, composed of zealous and active disciples, followers of Proudhon, who maintain that property is robbery. They have faithful coadjutors in this country, whose industrial congress, as it was called, in laying down their creed, resolved, among other things, "That, by the land reform, we understand the entire abolition and annulment of all property value or ownership in the soil," &c.
I do not accuse the Senator of participating in these sentiments. He has powerful motives, from his success in life, for abjuring them; but I recollect that in a speech he made not long since in the city of New York, when be commenced by hailing the city, as he commenced here by saluting the Senate — a fashion of salutatory introduction, preluding one's self or one's topic, more honored by the breach than by the observance — he supported views which, it appears to me, originate in the same kind of obliquity of moral vision, or in something not as pardonable. He announced that there was an aristocracy in this country; that aristocracies are created by privileged classes; that slaveholders constitute one of these classes. And why this attempt to excite popular indignation against a portion of our fellow citizens by conferring upon them an obnoxious designation? The slaveholder owns slaves because the law permits it. Conscience and sound policy, said the Senator, prohibit it. The landholder owns land as he is allowed to do by law. Proudhon and his school say that conscience and sound policy prohibit it, for it is robbery.
Here is the same principle, differing only in its specific application. All who come within it are equally aristocrats. A privileged class is created by the Senator from New York, and is made a kind of raw head and bloody bones because it holds one species of property. But there are neither peculiar privileges nor exclusive rights attached to [unknown]; for every man in a slave State may by law, without distinction, possess it. And why does not the denomination equally apply to the holders of every species of property — to the holders of real estate, of money, of stock, of manufacturing establishments, which concentrate and control labor, and to every other article which constitutes the wealth of society, and the object and the reward of laudable industry and enterprise? It is easy to raise prejudices upon this subject. It is easy to conceive their operation upon the human mind, and how the man who has a coat is considered an aristocrat by him who has none. It is an old story in human experience, as the Senator knows, for he has studied the history of Rome, and referred us to the conduct of her tribunes. The office does not exist in this country; but one of the abuses which made it memorable — that of pandering to popular prejudices — is among us carefully cherished and often faithfully practiced.
Now, this, according to the Senator, he who goes abroad to teach "his social and political theories," is a missionary of propagandism, and his character is not changed by the nature of his doctrine; and he who censures his ill timed zeal or wicked purpose casts reproach where never prince, king, emperor, or president, cast reproach before. The [unknown] of the Gospel of Jesus Christ is brought down to the level of these political agitators. "The only common element of all these forms was propagandism." He exemplifies these
23forms by the various settlements in this country, attributing some to a zeal for religion, others to a zeal for slavery, and others to a zeal for free labor. The injunction of the risen Saviour, "Go ye forth, therefore, and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost," is degraded by such an association. And I can discover no other motive for this desecration, but a desire to represent the President as condemning a great principle of human action. The Senator's test of the right to teach and preach anything is shown by the inquiry, "Does any law of nature or nations forbid?" The great law in the everlasting code of the Gospel, of doing as you would be done by, forbids every American from such propagandist interference with the internal affairs of another State or Territory as will tend to raise agitation, or to endanger the public peace and tranquillity. Leave to others the liberty you claim for yourself — the liberty to conduct their own affairs in their own way — and there will be no need of the perversion of the true principles of propagandism to justify unjustifiable acts.
In the pleasant town where the Senator resides is a dishonorable home provided by retributive justice for unfortunate outcasts, whose crimes, if not expiated, are justly punished there. I doubt not but that many a man has gone there, and will yet be followed by many another, victims of false and dangerous theories, who have been taught that there are aristocrats in the land — privileged classes; that property is robbery, and that what God made for all, the few have no right to appropriate to themselves; and that he who wants may justly take his share, wherever he finds it, of which another has unjustly deprived him. The Senator from New York has not yet reached the full measure of his faith, though his denunciations against one kind of property necessarily lead to the whole doctrine. A little spark kindleth a great fire. It is dangerous to tamper with human passions. Better is it to instruct than to stimulate them. And the Senator, by devoting his acknowledged talents to this work and withdrawing from his present field of excitement, will acquire more permanent fame than ever followed political agitation.
When the senator proceeds to establish, as he says, the truth of his conclusions, he gives us an inkling of the philosophy of evidence, asking what kind he must bring forward to support the impeachment, and finally falls back upon what he dignifies as presumptive proofs. And presumptuous, indeed, it is to endeavor to fortify such grave charges by idle — I might say, following his example, "impertinent" — suggestions, at once so feeble in themselves and so remote in their application. There are no less than thirty of these barren suggestions, spread out in formidable array, and they constitute about as curious an exhibition of judicial "distortion" as the whole history of evidence affords. I shall stop neither to recapitulate nor to dissect them, limiting myself to garnering a few from the abundant harvest-field, but sample enough to establish the true character of the whole crop.
He begins by observing that such presumptive evidence is derived from the nature and character of the President's defences, again intimating that the President had actually come forward to defend himself from the senator's accusations. And then follow the thirty interrogatories, or, in other words, the thirty proofs. Here they are, or rather specimens of them:
"Why did the President plead at all on the 31st of December last, when the new State of Kansas was yet unorganized, and could not appear here to prefer her accusations until the 23d of March?"
Divested of mysticism, this means, as I have before said, why did the President presume to communicate to Congress the state of affairs in Kansas? I have too much respect for the Senate to do more than to let the senator ask this question — and such a question. Again:
"Why, if he must answer so prematurely, did he not plead a general and direct denial?"
Say guilty or not guilty in his message. This rather smells of the shop. It is too technical.
"Why did he interpose the false and impertinent issue whether one State could intervene by its laws or by force to abolish slavery in another State?"
To borrow an expression from the senator, this certainly "clinches conviction."
"Why did he arraign so unnecessarily and so unjustly, not one, but all of the original States?"
"Why did he drag into this case, where only Kansas is concerned, a studied, partial, and prejudicial history of the past enlargements of the national domain?"
"Why did he submit a second plea in advance?"
Translated — "Why did he render an account to Congress of the state of matters in Kansas?"
Why did he "denounce Massachusetts?" Another "misrepresentation." This denunciation was the expression of regret as to the course of some of the northern States and their citizens.
On what evidence does he say that there were "mutual complaints," &c., in Kansas, as though it were not a fact universally known? Why does he argue that Governor Reeder alone had power to receive and consider the returns of elections, &c., "when he knows that the governor, being his own agent," &c. A less profound statesman would say that officer was the agent of the law.
"Why was Governor Reeder replaced by Mr. Shannon, who immediately proclaimed" the legislature as legal, &c.?
"The President virtually confesses" his guilt, by presenting a system of maxims and principles invented to justify him.
There are yet other exhibitions attending this rare process, and resulting from the peculiar views of the senator, or from the sextuple capacity of accuser, prosecutor, witness, defendant, jury, and judge, in which he presents himself, that are not unworthy of passing notice.
Because the President enforces the laws of the United States in Kansas, by that act "he adopts the usurpation and makes it his own."
Kansas has thus been revolutionized, (by being prevented from making a revolution,) and "is prostrated at the foot of the President."
Because the President says, in his annual message to Congress, that if there should be obstructions to the federal law, or organized resistance to the Territorial law in Kansas, assuming the character of insurrection, it would be his duty to suppress it, therefore, "he menaces the people of Kansas with a threat that he will overcome and suppress them." This is no menace; it is only a warning to the law breaker, whoever he may be.
"The President's mind was oppressed; was full of something too large and burdensome to be concealed, and yet too critical to be told," and, therefore, he told it to Congress and to the country.
One of the most reprehensible passages in the whole speech of the senator is that where he draws a parallel between Christianity and abolition, anticipating for the latter the miraculous progress which proves the divinity of the former. "Abolition," he says, "is a slow but irrepressible uprising of principles of natural justice and humanity," &c. "I may, however, remind slaveholders that there is a time when oppression and persecution cease to be effectual against such movements," &c. "Christianity, blindly maligned during three centuries by praetors, governors, senators, councils, and emperors, towered above its enemies in a fourth; and even the cross on which its founder had expired, and which, therefore, was the emblem of its shame, became the sign under which it went forth evermore thereafter conquering and to conquer. ABOLITION IS YET IN ITS FIRST CENTURY." To which I add, may it be its last — the last of external interference in the domestic concerns of other communities.
He who runs may read that the purpose of all this irreverence is to elevate this fanatical and political firebrand to an equality with the Gospel of Jesus Christ.
The President laments that the election of a delegate to Congress could not have been held early enough to enable the House of Representatives to judge of the election, and thereby decide the question of qualification of voters; therefore, the President regretted that there was not a merely formal election of the legislature, "in fraud of the organic law, and of the people of Kansas, and of the course of natural justice and humanity." And this great injury would have been the result of the judgment of the House of Representatives of the United States.
Because the President can see no legal power possessed by him to examine into the validity of the election in Kansas, therefore it is "ambitious imbecility." What condition of the human mind is described by this phrase I leave to the adept in ambitious rhetoric to explain.
The President openly lent his "official influence and patronage to the slaveholders of Missouri;" the proof of which is, that he knew their purposes, as the senator says, and did not interfere to prevent them; or, in other words, to assume powers the law has not conferred upon him.
The President is forcibly introducing and establishing slavery in Kansas.
"The Congress of the United States can refuse admission to Kansas only on the ground that it will not relinquish the hope of carrying African slavery into that new Territory."
This is another bold assertion, sir, but that is its only claim to concurrence. I shall vote to refuse admission to Kansas; and, at the same time, I hope that neither African slavery, nor any other kind of slavery, will be established there; and I believe, if the senator and his political friends will cease their agitation, that Kansas will eventually be a free State. At the same time, whether slavery is to be established there or not, my course will be the same. I shall maintain the principle which leaves that question to the people, and I shall rest satisfied with their decision, trusting that the question may he determined by them, uninfluenced by any external interference, whether from Missouri or Massachusetts.
But, sir, I have not time to follow the senator in his "extraordinary inconsistency" — another phrase coined by him for the President. I must hasten on, and leave that task to those who consider it a useful one. The Kansas legislature, under its panoply of legal form, was as independent of the Executive as the Executive was of that body. The only case which admitted legal interference was the case that occurred when, there being danger of opposition to the law, and that danger having been duly made known, the President promptly took legal measures for the preservation of the public peace. For that act of wise precaution he is entitled to the commendation of the country. It has probably prevented a civil war among the people themselves, and perhaps an insurrection against the United States. After the organization of the Kansas legislature there were two modes of proceeding open to all those who considered themselves aggrieved. Ones was to resort to lay judicial tribunals, and the other to appeal to Congress. Neither measure was adopted. In the mean time the legislature went on with its work of law-making; and its labors have been exposed to severe criticism, as well as to grave censure — whether justly or not does not affect the inquiry we are engaged in, which turns upon the legal powers of the legislature, and not upon the wisdom or the folly of their exercise. Though I am free to confess that, while the great body of the code they enacted is marked with wise and salutary provisions, and may favorably compare with the legal systems of our older States, offences are created, and prohibitions and penalties provided, irreconcilable with the first principles of human freedom, and revolting to American feeling. Determined to examine this whole subject dispassionately, I determined also to express my opinion frankly, and to condemn or approve, as justice should seem to me to require; and in the condemnation I am now pronouncing I am acting in that spirit. I am not to be led — misled rather — by opinions like those we have heard putting constructions on these laws inconsistent with their plain import, and declared when public sentiment had pronounced them indefensible. Those entertaining such opinions speak for themselves; but I read the terms employed by the legislature, and judge for myself. They are unequivocal, and the proceeding is a reproach to American jurisprudence.
Disregarding the two legal remedies within their power, the citizens of Kansas opposed to the action of the legislature resorted to a revolution. This is what the senator from New York calls the movement, while he approves it; and this is what it would have been if carried into operation. A convention was elected, and quickly convened, and it as quickly formed a constitution, making provision for its operation, without the sanction of Congress, as soon as approved by a popular vote. This vote it received; and if wiser counsels finally prevailed, and the constitution was not forcibly carried into operation during the existence of the government instituted by Congress, and a collision thus avoided, the result formed no part of the original plan. That constitution is now before us.
And why this precipitate act of revolution, which, if consummated, would have brought those participating in it into direct collision with the government of the United States? Why not ask Congress for a redress of grievances arising out of a law enacted by itself? No man can doubt the power of Congress to watch the operation of its own laws, and to provide all necessary remedies for their mal-administration. Nor ought any man to doubt that if this whole matter had been properly presented by petition from the people at the commencement of the session, there would have been an impartial and rigid inquiry, followed by such measures as justice might have required. Instead of that course, we are now asked to give our sanction to these revolutionary proceedings by confirming them, and thus to establish a principle incompatible with future tranquility in the Territories, and holding out encouragement for future resistance.
Now, sir, this application will not receive my vote. I will agree to set no such example. The immediate effect would be to render operative a constitution for Kansas, the work of but one portion of a people divided by internal dissensions, being a portion arraying itself against the law, instead of appealing for redress to this high tribunal of the nation, competent to administer it. The course proposed by the committee on the Territories is free from objection, and I shall vote for it. It is to submit to the whole people, and by legal authorization, the question of the institution of their own government, and not subject one portion to the work of another, thus perpetuating divisions, which it is the interest of the country to terminate as soon as possible. Warned by the past, I think we should provide for the future by adequate penalties in the organic laws against all unlawful external interference in the affairs of the Territories, and especially against the entrance of armed persons or parties to control or overawe the elections; and I submit for consideration, whether some provision of that nature is not now required at our hands; whether it would not be a just measure in itself, and a proper tribute to the purity of elections — a great conservative principle, dear to every right minded American. Let us have no more armed invasion from without, not insurrection within.
Mr. President, many and signal have been the interpositions of Providence is our favor since the commencement of our national existence. We have been carried forward in a career of prosperity unexampled in the history of the world. Difficulties and dangers have beset us upon the right hand and upon the left; but we have safely passed through them, gathering strength in our progress till we have nothing to fear but ourselves and the just judgments of God. A question is around us, among us, exciting angry passions, and arraying one portion of the country against another — a sectional question, the most difficult and delicate with which we have to deal. And a way has been found to deal with it which requires no sacrifice of principle, of pride, or of opinion, by one part of the confederation to the other, but their mutual submission of the controversy to the operation of the great doctrine of the right of man to govern himself, the only solid basis of republican governments. And the dispensations of Providence towards us have never been marked with more kindness than in inclining the hearts of the American people to seek refuge from impending danger in this, the only means of averting it. There is no other ground on which we can stand together. The wisdom of man can discover no other. But this is holy ground, sanctified by a living principle, and rising above a world of waters, which has been spreading out over the land. I trust it will yet stay the flood, and rescue us from the only peril which the patriot contemplates with doubt and apprehension.