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35TH CONG...1ST SESS.

Mr. PHILLIPS. Well, sir, my colleague's speech was made fifteen months after the invasion; and the question of slavery he then said was the only question in issue. [Laughter.] He is good authority in this particular, and I like to quote him. But, sir, I have other authority, for I see that he is not satisfied with himself as authority on this question. I will back my colleague up with so much that he will not be ashamed of the position he then took. Governor Walker said:

"The President asked me to undertake the settlement of that momentous question [that means slavery] which has introduced discord and civil war throughout your borders, and threatens to involve you and our country in the same common ruin."

He tells them:

"I cannot too earnestly impress upon you the necessity of removing the slavery agitation from the Halls of Congress and presidential conflicts."

And again:

"That in no contingency will Congress admit Kansas as a slave or free State, unless a majority of the people of Kansas shall first have fairly and freely decided this question for themselves."

Mr. MONTGOMERY. I would like to ask my colleague whether the question of slavery was ever submitted?

Mr. PHILLIPS. If the gentleman wants to know, I can tell him that it was submitted, and surely he will not deny it.

Mr. MONTGOMERY. I do deny it most emphatically. The question of the importation of slaves from other States was submitted, and was the only one submitted. The question of the existence of slavery there was never submitted. Slavery now exists in Kansas, and by that constitution is fastened upon the people of Kansas

now and forever.

Admission of Kansas-Mr. Phillips.

from the earliest moment, it seems to have been
determined by the professing majority that they
would have rule or ruin. Their absenting them-
selves from the polls was not accidental. It was
the result of deliberation and combination; and
now, forsooth, when things have been regularly
done, and the convention has given to the people
the decision of the only question which those high
in authority have pronounced as the only one upon
which the people differed, they turn round and
say that a majority did not vote, and ask you if
you will take that as an expression of the will of
the majority, when only a minority voted.

I have some instances, with which my col-
leagues are familiar, in which a minority have
made a constitution, and have amended it; and I
say to them that, on almost every occasion on
which the question of amending the constitution
has been before the people of Pennsylvania, a
majority of the people have not voted for it; but
still it has been carried by the votes of a minority
of the voters. When there is a contest about men,
there is an anxiety'of feeling; but when the contest
is one of principle, of establishing organic law-
men may talk as much as they please, but I put
facts against arguments-the minority seem to
control, for the majority do not vote. It may be
that they did not feel an interest in the question;
that they had no time, and perhaps no desire, to
look into the question involved; or they have had
confidence in those who prepared the constitution
or amendments; but certain it is, for some reason,
be it what it may, they failed to vote.

Ho. OF REPS.

who did go to the polls to act for them. The convention having submitted to the people the only question in issue, and the people having voted upon it, it remains a part of the constitution. I have thus shown, I trust, that there is no law requiring the constitution to be submitted to a vote of the people. If there is any such, I have not been able to find it. All principle, precedent, and, I was going to say, very much of practice is against it.

.

Now, let us consider what the constitution is. In the first place, is there a doubt that the people may wipe away every provision of it as with a breath? What is a constitution? A State constitution differs very materially from the national constitution. Gentlemen who cite the Federal Constitution, though upon the side I am endeavoring to sustain, are in error. The Congress of the United States can do nothing which the Constitution does not authorize. Our powers are limited; our hands are tied; and for what we do we must find our authority in the Constitution. In regard to a State constitution, exactly the reverse is the case. The members of a State Legislature may do every act of legislation which the constitution does not restrain nor prohibit. There can be no doubt about that; and I need cite no precedent for such a plain and recognized principle. When we came to form a Federal Constitution, it was accomplished by the surrender of certain powers by the States themselves. Distributed as the powers of government usually are, the legislative body of a State has the sovereign legislative power In 1835, the people of Pennsylvania were called of the State, controlled and limited only by the upon to vote either for or against a constitutional constitution. The national Constitution is an enconvention, as they pleased. The same year, larging, a granting, instrument: not so, however, upon the same day, and at the same election, with a State constitution; it is a restraining instruthere was a contest for Governor. The number|ment; and, if the constitution of Kansas has reof people who voted for Governor was one hundred and ninety-nine thousand seven hundred and twenty-seven-within two hundred and seventythree of two hundred thousand. The votes in favor of calling a convention to revise the constitution were eighty-six thousand five hundred and seventy. What will gentlemen say to this. The convention was legally called. Nobody doubted the truth of the doctrine proclaimed by Governor Walker, that those who did vote controlled those who did not. Eighty-six thousand votes only, out of two hundred thousand voters, called that convention. We have another remarkable instance. When the new constitution was submitted and adopted by the people of Pennsylvania, in 1838, two hundred and fifty thousand one hundred and forty-six people voted for Governor, and yet the new constitution was adopted with only one hundred and thirteen thousand nine hundred and seventy-one voting for it.

Mr. PHILLIPS. I am glad my colleague has defined his position on that subject. We will know where to find him hereafter. Mr. MONTGOMERY. There is no trouble in finding me at any time.

Mr. PHILLIPS. I will show my colleague that the question of slavery was submitted to the people of Kansas. The constitution had been made, and the slavery question was the only one submitted. They were told that it would be submitted; but they were told, they were warned, that if they did not vote, they delegated their rights to those who did vote. They were told by Governor Walker, they were told by Secretary Stanton, that such would be the effect of absenting themselves and withholding their votes. They were never told that the constitution itself would be submitted to the people; for the Legislature had not undertaken to direct the convention to do it, but left it to the convention itself.

strained either the people at any time, or the Legislature until after 1864, I have been unable to discover it. I say, too, if the restraint does apply, as the gentleman from South Carolina [Mr. KEITT] undertook to assert, the constitution would not be republican, according to my notions.

Mr. Chairman, this clause of the Constitution, so much talked about, it seems to me has not been rightly applied. There are two or three clauses in the constitution of Kansas which we must look at in this connection. The clause which prohibits an alteration of the constitution until after the year 1864, operates only upon the Legislature; and it interferes in no manner with that other clause by which the right of the people is expressly reserved and recognized. I should contend for the right of the people at all events; but when gentlemen stand here and say that they are opposed to the admission of Kansas because the constitution is not a good one; when they are willing that this strife should continue in Kansas; I want to say to them -not that I expect to convince anybody, for I fear that we rush too blindly to conclusions on political matters for that-that there is in this constitution of Kansas an express recognition of the people's right to change their constitution when they please. Those gentlemen who undertake to say that they are restrained from doing so until 1864, fall into an error in confounding the application of that Mr. MONTGOMERY. They had no right. section with the section which applies solely and Mr. PHILLIPS. It is very well to find a pre-exclusively to the people. This right of the people text when one wants to find fault.

Mr. MONTGOMERY. Had all the people the right to vote in the case of Kansas?

Mr. PHILLIPS. I know of none who were excluded from voting.

Mr. MONTGOMERY. There were nineteen counties in Kansas that had not the right to vote.

Mr. PHILLIPS. That is begging the question. My colleague knows that those who do not choose to exercise their rights have no rights.

Why, sir, some years ago, in Pennsylvania, when it was undertaken to change the constitution of that State, when the law was passed by the Legislature for calling a convention, one of the most distinguished lawyers living, one of those who gave the fame and name of "a Philadelphia lawyer," which I am afraid those who came after do not so well deserve, objected to the law on the ground-and I trust I may be considered as reading it now, (Appendix A,)-because it undertook to tell the convention in what form the constitution should be submitted and adopted. The law provided that, after the convention had finished their labors, they should adjourn for four months, Another instance has occurred in Pennsylvanot to submit the question to the people, but so nia, since my colleague has been a member of this that the members could learn the will of their Congress. While there were three hundred and constituents, by familiar intercourse between the sixty thousand votes polled at the election in 1857, representatives and constituents, and then act in for Governor, the highest vote polled both for and accordance. William Lewis put upon record his against the proposed amendments to the constitudissent to this feature of the law, on the groundtion was less than forty per cent. of that number. that the Legislature, an inferior body, had no right For one of the amendments the highest vote cast to undertake to control the convention, a superior body, composed of delegates just fresh from the people-a direct emanation of the people. Will my colleague tell me why an inferior body should prescribe rules for the government of a superior body? Will he, with all his ideas of popalar sovereignty, tell me what body he recognizes higher than a convention of delegates selected by the people to frame a constitution for them? I agree that the convention of Kansas ought to have submitted the constitution which they had framed to a vote of the people; it would have been better to do so, though I do not believe that it would have removed the difficulty, because,

was one hundred and seventeen thousand one hundred and forty-three, and twenty-one thousand four hundred and twelve against it. One hundred and thirty-eight thousand five hundred and fifty-three out of three hundred and sixtythree thousand and eighty-one voters in Pennsylvania adopted those amendments; and under those circumstances I have no doubt my colleague will acknowledge that the amendments have been adopted and are a part of the organic law of Pennsylvania.

Now, in the case of Kansas, if the election was a legal and a lawful election, those who stayed at home, as Governor Walker says, authorized those

is recognized everywhere. It is recognized in the
Declaration of Independence, which declares the
self-evident truth:

"That all men are created equal; that they are endowed
by their Creator with certain inalienable rights; that among
these are life, liberty, and the pursuit of happiness. That-
to secure these rights, governments are instituted among
men, deriving their just powers from the consent of the
governed; that whenever any form of government becomes
destructive of these ends, it is the right of the people to alter
or abolish it, and to institute a new government, laying its
foundation on such principles, and organizing its powers in
such form, as to them shall seem most likely to effect their
safety and happiness."

The constitution of Kansas recognizes it in the fullest possible manner, and that clause which relates to 1864 is operative only upon the Legislature, and in language so plain that no man can doubt, except those who choose willfully to do so.

Now, sir, those two clauses are not inconsist

ent. The one applies to the people and the other
to the Legislature. This enumeration of rights
says the constitution shall not be construed to
deny or disparage others retained by the people.

Mr. KUNKEL, of Pennsylvania. I desire to

35TH CONG....1ST SESS.

ask my colleague a question, for I really feel some interest in his opinion upon this point. I understand him to say that the clause of the constitution forbidding a change before 1864 applies to the Legislature. I understand him to say that another provision of the constitution provides for a change by the people before 1864, or after, as the || case may be.

Mr. PHILLIPS. Yes, sir, at any time. Mr. KUNKEL, of Pennsylvania. Now, sir, what I propose to ask my colleague is in the way of a practical question: I find that the resolution of the Democratic convention of our own State, which has just adjourned, contends for this same power, and says the people have it by "regular || process." Now, I want to know from him how he would propose that the people should exercise the power?

Mr. PHILLIPS. I will tell the gentleman. They shall petition the Legislature, who shall authorize them to have a convention.

Mr. KUNKEL, of Pennsylvania. But the Legislature have no power before 1864.

Admission of Kansas-Mr. Phillips.

that this ought to be construed now. The Legislature took the same ground. It was opposed then as it is opposed now. It was insisted that the "regular process" was the process of the council of censors. But the Legislature overruled that, and said, "You gentlemen who compose the council of censors may propose amendments, and if you do, it must be in the form prescribed; but the people have, at the same time, the right to amend or reform the constitution at their pleasure;" and the Legislature declared, and the people exercised this right. This was not done without a struggle of mind and argument; the minority insisting that the only regular process was through the council of censors, and that any other attempted mode was in itself a violation of the constitution, presented plausible, yet unsound, reasons for their opposition to the call of a convention. A constitution was framed in 1790; it had in it no clause providing for its change or amendment. Yet who dared to dispute the right of the people to have a change when they desired it? They have the undoubted and hitherto undenied right either to make an entire constitution or to amend the existing instrument.

Mr. Chairman, what is this clause in the constitution of Kansas?

Mr. PHILLIPS. The gentleman is wrong. The Legislature have power to propose legislative amendments at any time, and the restraint upon them is only after that time. I have a number of precedents upon that point. The constitution of Pennsylvania imposes a similar restraint upon the Legislature; and yet my colleague will not rise here and tell us that the people of Pennsylvania general election, two thirds of the members of each House are so restrained, and cannot have a convention.

Mr. KUNKEL, of Pennsylvania. I contend that they are not restrained. They have a high revolutionary right to change their government, just as the people of Kansas have; but it is not a right by "regular process."

Mr. PHILLIPS. Well, I contend for the right by regular process. I want to put down the exercise of these revolutionary rights in Kansas. I want to substitute regular process for the strong arm of violence, with which the Territory has been too long governed.

The people of Pennsylvania may have a convention when they please, but the Legislature cannot propose amendments oftener than once in five years. There are two sections in the constitution of the State of Pennsylvania similar to the two in Kansas; one acknowledging and declaring the right of the people at all times, and the other preventing and restraining hasty and too frequent legislative action. I will refer my colleague to a precedent. In 1776, Pennsylvania had a convention, over which Benjamin Franklin presided, and they framed a constitution which contained a clause in reference to the right of the people, in similar phraseology to the clause in the constitution of Kansas. And it contained another clause ten times as strong as the one in the Kansas constitution, which provided that there should be a council of censors, two thirds of whom should propose amendments to the people. (Appendix B.) The censors met and would not propose amendments to the people. A majority were in favor of it; but not the requisite two thirds. They adjourned over till another year. The people then tried again to have their constitution amended by what they supposed was the only "regular process," but the council of censors again refused. The constitution was defective in many things. It had some good things in it, but it was imperfect, and its radical defect was that it provided for but one branch of the Legislature. When the council of censors refused to call a convention to propose amendments, or to propose amendments themselves, the majority of that council addressed the people, and, speaking of those who opposed the measure, said, "Their sullen no in this council cannot rob you of your birthright."

They did not consider it a gift, an acquired right; they claimed it as a born-right, a birthright, of which they could not be deprived, especially by a clause operative only upon that council, and ineffectual upon the people whose rights and powers had been preserved by the other clause. Mr. KUNKEL, of Pennsylvania. That was revolution.

Mr. PHILLIPS. No, sir; it was not revolution; it was regular process. It was put upon the ground that there was a reservation in that constitution similar to the one here, and that that re

servation was to be construed as I am contending

"SEC. 14. After the year 1864, whenever the Legislature shall think it necessary to amend, alter, or change this constitution, they shall recommend to the electors at the next

concurring, to vote for or against calling a convention; and if it shall appear that a majority of all citizens of the State have voted for a convention, the Legislature shall at its next regular session call a convention," &c.

Now, will any gentleman upon this floor contend that that section interferes with the other clause, giving to the people the right to amend their constitution?

Mr. STANTON. I wish to inquire of the gentleman from Pennsylvania whether he holds that, cuting it is prescribed, it can be exercised in any where a power is granted, and the mode of exeother mode except that prescribed? •

Mr. PHILLIPS. Of course not; but I tell the gentleman from Ohio that there is express power granted to the people, and that there is no restriction upon the Legislature until after 1864. This is not a grant of power, but a restraint upon it. When you undertake to restrain a legislative body, and to deprive them of rights, you say it in words that here, which the gentleman will recognize, of the cannot be misunderstood. I have the authority Topeka constitution. [Laughter.] The Topekaites knew how to restrict the Legislature, when they wanted to do it.

I have said that this clause is operative only upon the Legislature; but I mean to show that it is not operative until after 1864. Will the gentleman from Ohio, [Mr. STANTON,] a good and eminent lawyer as he is, undertake to say that he is not familiar with law after law beginning, that after such a day such and such shall be the law? And will he rise here and assert that it will be the law until the day specified arrives? I will show the gentleman the language which is used when the object is to prohibit anything being done before or up to a given day. I read from the Topeka constitution, this Republican instrument which it is insisted shall be the basis of the admission of Kansas:

"SEC. 4. No convention for the formation of a new constitution shall be called, and no amendinent to the constitution shall be, by the General Assembly, made before the year 1865, nor more than once in five years thereafter."

They recognized the difference between the two -the people and the Legislature. When conventions want to prohibit the exercise of that power they use language that cannot be misunderstood. If any one takes up the statute-books of the United States he will find hundreds of laws beginning, that from and after a particular day there shall be such law, and surely no member will argue before this body that before the time specified the law is operative or in force. I say that this clause in the constitution of Kansas is not of any effect whatever till 1864. It then takes its place there, if not previously altered or expunged. It may not have been so intended. The Topeka constitution is very different. It prohibits the amendment of the constitution effectually before the year 1865. If this clause was intended to have a different effect, its framers have overreached themselves. If it was intended for good, I can very well understand

HO. OF REPS.

the argument that, having made a new constitution, and infallibility not being allotted to man, legislative amendments should be encouraged up to 1864; so that, by that time, experience might show its merits or defects. But at that time, the constitution having been six years in existence, it was thought should not be changed by hasty legislative action, nor except by two thirds, and in a more deliberate manner than previously. If the motive was bad, then these men have signally overshot their mark. I say you cannot take up the statutes of State Legislatures, or the acts of Congress, without finding laws enacting that after a day such shall be the law; and if that has been construed to mean that the law should not go into effect till that time, I want to see the judge who would construe differently a restriction contained in this clause upon the legislative power.

I hold the doctrine that the Legislature of a State has all the sovereign legislative power, except such as is for necessary purposes reserved, either expressly or by implication, to the people. It is not new doctrine that I am enunciating here; but I have been astonished at the ground taken by some members in this matter. I do not know that they want, willfully, to pervert the condition of things; but the idea is absurd that, because a certain clause in a constitution declares that the Legislature shall be restricted, after a certain time arrives, from amending it, except in a particular way, that it is to be construed so as to restrain their action before that time arrives. Until after 1864 it is inoperative, as though it had been said that the clause should not be inserted in the constitution till that time arrives.

I quarrel with no man because he differs in opin ion with me. I agree with the gentleman who is made a party test or not. last spoke in not deeming it essential whether this I believe that this constitution has been framed with all the requirements of recognized law; and I, for one, will never sanction the rebellion that created resistance to it from the moment of its inception. I have given the highest authority, among the opponents of the admission of Kansas, to show that it was regular in everything, down to its submission to a vote of the people. I have pointed gentlemen to the case of the constitution of my own State made in 1790, which was not submitted to the people, and it remained unaltered for forty-eight years. I can refer them to State after State, whose constitutions were not so submitted. The State of

Indiana had a provision in her constitution that it should only be amended every twelfth year; and was accepted without a murmur of illegality. but a new constitution was made in another year, ercise of sovereign power by the people, would The man who would attempt to restrain the exmeet that doom which every public man would

want to avoid.

Now, what do we gain by admitting Kansas place, do we violate any principle? If we do, I with this Lecompton constitution? In the first will not vote for it. Popular sovereignty! A great respect the professed majority in Kansas here with their Topeka constitution, and say that can have for popular sovereignty when they come the people of Kansas cannot and shall not amend their constitution for eight or nine years! Sup pose this is a bad constitution! Suppose that it admits slavery, and that the people do not want it there! I do not believe that slavery can exist there; I have not an idea that it can; and as it cannot exist there as an institution, I would' rather see it out of the constitution. I do not ob ject to the existence of slavery in a State where the people desire it. I do not want it in my State; but I do not object to the fullest enjoyment of it in a State where the people desire its existence. But whether it is the slavery or any other clause that is obnoxious to the people, I put my finger stitution when they think proper; and I challenge on the clause that the people may alter their congentlemen to point to any clause which says that it

prohibits the amendment of the constitution at any time-immediately, if the people choose it.

These are the views that I entertain. Unlike preceded me, I have no apology to offer for avow the gentleman from Indiana [Mr. ENGLISH] Who ing the principles I hold, and which have been adopted by the party to which I am proud to be long-that party through which alone the har

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them to proceed further. When the convention meet, they will look to the source of their authority for instructions and recommendations, both as to adjourning, and as to other matters, and act with a prudent discretion therein; and as fluence of this House, I dissent from the resolution, as being calculated to intreneh on the rights of the people and on the free deliberations of their representatives in convention, and have recorded my reasons in justification of my conduct."

(B.)

From the Constitution of Pennsylvania, of 1776.

"In order that the freedom of this Commonwealth may be preserved inviolate forever, there shall be chosen by ballot, by the freemen in each city and county respectively on the second Tuesday of October, in the year one thousand seven hundred and eighty-three, and on the second Tuesday in October, in every seventh year thereafter, two persons in each city and county of this State, to be called the Council of Censors, who shall meet together on the second Monday of November next ensuing their election; the majority of whom shall be a quorum in every case, except as to calling a convention, in which two thirds of the whole number elected shall agree, and whose duty it shall be to inquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty, as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution; they are also to inquire whether the public Commonwealth, in what manner the public moneys have taxes have been justly laid and collected in all parts of this

mony of the country can be preserved. To me, it is immaterial whether this act shall, or shall not, be accompanied by a declaration or condition by Congress that the people shall have, at all times, that discretion ought not to be biased by any supposed inthe right of altering their constitution. You might as well insert a declaration that the sun shines; the two propositions are equally plain, without the declaration of them. I will vote for such a declaration, for it asserts expressly only what is there by necessary implication; and because, if there be any room for doubt, it will remove that doubt. I will vote for it in any way; either as a declaration, a proviso, or a condition; although I believe it is there already. Recognizing the right of the people of Kansas to alter their constitution when they please; and recognizing the right of the Legislature, at any time before the year 1864, by the vote of a bare majority, to propose amendments, if the people do not wish to go through the form of having the entire constitution changed, and if they are only dissatisfed on one clause; and entertaining the belief that the admission of Kansas into the Union is a measure of national peace, and that the strife which would follow its rejection would envelop and affect every man in the country, I most earnestly trust that calm counsels will prevail, and that the matter may be put in such a shape as the gentleman from Indiana has just hoped it might be, to cominand the votes of himself and others. I hope there may be no dissensions in a party on which depend the success and quiet of the country; and I promise gentlemen that, if that is done, there will be no more disaffection nor disorder; because I do not believe that the people of Kansas are so suicidal or so fratricidal as to continue dissensions and discords when the Federal Government shall have removed its forces from the Territory, and relieved it from territorial dependence. If that be the result, Mr. Chairman, I am sure that all will be satisfied who have contributed to bring it about. [Here the hammer fell, the hour having expired.]

[APPENDIX.

(A.)

Resolutions of the Legislature of Pennsylvania. "Resolved, That in the opinion of this House, it is expedient and proper for the good people of this Commonwealth to choose a convention for the purpose of reviewing and, if they see occasion, altering and amending, the constitution of this State.

"Resolved, That in the opinion of this House, a convention being chosen and met, it would be expedient, just, and reasonable, that the convention should publish their amendments and alterations, for the consideration of the people, and adjourn at least four months previous to confirmation." Protest of William Lewis.

"I dissent, because, although I admit, in the fullest extent, that it will be proper for the convention to submit to the consideration of the people the plan of government which may be formed, and, although I fervently wish that sufficient time will be afforded them to deliberate thereon, I am so far from being satisfied of the right of this House to enter into any resolutions respecting it, that I cannot but consider them as unwarrantable assumptions of power. The resolution agreed to must be intended to have some weight and influence with the convention, or it would not have been proposed; and as that weight and influence, so far as they operate, must tend to prevent the unbiased exercise of their own minds, in a matter submitted to them by the people, and not by this House, they must be highly improper. An adjournment by the convention is a thing in itself so desirable, that were its members to be appointed by this House, and to derive their authority from it, I should not only be for recommending, but directing the measure. But the convention must be chosen by the people, in whom alone the authority is lodged, and will derive all their powers from them. They will sit, and they ought to act, both as to adjournments, and in all other respects, independent of this House, and should not in the one case, any more than in others, be influenced by it. Being to be chosen by the same people with ourselves, it is rather assuming in us to suppose that their wisdom, virtue, or discretion will be less than our own, and unless we distrust their prudent exercase thereof, it does not become us, to whom the business does not appertain, to dictate to those to whom it belongs. They will doubtless receive from their constituents and duly respect such instructions and recommendations as they may think proper to give, but ought not to receive any from us, who, as a body, have no right to interfere, and who, as individuals, will have a voice with other members of the com

Tounity.

The people may think that an adjournment of four months is too long or too short, and may recommend as they may think proper; but we have no right to think or to act for them. If we have a right to resolve that an adournment is proper, we must have an equal right to resolve hat it is improper; or that any matter in the formation of The government is right or wrong, according to the prevailErg ideas in this House. In our resolution respecting the lection and the meeting of the convention, we are authorzed by the wishes of the people, manifested to us; but we ave no authority of our own, and are not warranted by

been disposed of, and whether the laws have been duly executed. For these purposes they shall have power to send for persons, papers, and records; they shall have authority to pass public censures, to order impeachments, and to recommend to the Legislature the repealing of such laws as appear to them to have been enacted contrary to the principles of the constitution.

"These powers they shall continue to have for and during the space of one year from the day of their election, and no longer. The said council of censors shall also have power to call a convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people; but the articles to be amended, and the amendments proposed, and such articles as are proposed to be added or abolished, pointed for the election of such convention, for the previshall be promulgated at least six months before the day apous consideration of the people, that they may have an opportunity of instructing their delegates on the subject."

(C.)

Reasons for dissenting from the call of a Convention. "Because we are of opinion that this House is not competent to the subject. We are delegated for the special purposes of legislation, agreeably to the constitution. Our authority is derived from it and limited by it. We are bound by the sanction of our solemn oaths to do nothing injurious to it, and the good people of Pennsylvania have, in the constitution, declared the only mode in which they will exercise the right of a community to reform, alter, or abolish government,' as being the manner most conducive to the public weal.

"Because this measure at once infringes the solemn compact entered into by the people of this State with each other, to be ruled by fixed principles; will render every form of government precarious and unstable ; encourage factions, in their beginning contemptible for numbers, by a persevering opposition to any administration, to hope for success; and subject the lives and liberties of the good people of this Commonwealth, and all law and government, to uncertainty; render everything that is dear subject to the caprice of a factious and corrupt majority in the legislature; destroy all confidence in our government; and prevent foreigners from giving that preference to Pennsylvania as an asylum from oppression which we have hitherto experienced."]

KANSAS-LECOMPTON CONSTITUTION.

DEBATE IN THE SENATE.

MONDAY, March 15, 1858.

The Senate having under consideration the bill (S. No. 161) for the admission of the State of Kansas into the Union, and Mr. WADE having concluded his speech in opposition to the bill, the debate was continued as follows:

Mr. MASON. In the remarks which I am to submit on the subject before the Senate, I desire to review as briefly as I may the history of the events and causes which have brought the question of African bondage into discussion before the American Congress, in connection with the expansion of the country in the addition of new States.

The question of slavery, as it has existed upon this continent now for more than two hundred years, was, before our colonial independence, a subject of no contention whatever between the colonies-none that I have been able to trace. It was found, after the Declaration of Independence, when the colonies, before that time perfectly in

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SENATE.

dependent of each other, came together to form a common Government, in a spirit of fraternity that I wish could actuate States and statesmen now, that the existence of African bondage was, to a large extent, confined to the southern States; but still it existed in all the States. The subject of this form of servitude became a question of discussion in the Federal convention, upon the inquiry whether those subject to it should be treated, in the formation of the Government, as an element of political power. It constituted a part of their population; it was their property, conceded on all hands; and it became immediately a sine qua non to the formation of any common Government, on the part of the southern colonies, that their African slaves should constitute an element of political power in the colonies where they were found. It was a subject of great debate, as all Senators know who have looked back into the history of the country.

Many most disturbing questions arose in that convention-questions naturally springing out of the dissimilarity of interests and the dissimilarity of their pursuits or labor-questions between the planting States and the commercial and navigating States, and other questions that arose upon the demand of the smaller States to stand as equals in the Confederacy, by an equality of representation in one branch of the national Councils; but there lay at the bottom of all, as was conceded by the patriots and statesmen of that day, this question of domestic servitude in the population of the southern States, as the most difficult to adjust. Senators will find, in looking back to the proceedings of that convention, that one of its greatest minds, and most illustrious members-I mean the late James Madison-when there seemed to be almost an irreconcilable rupture between the large and the small States, on the question of equal representation, told them, all that could be overcome; should they go back and settle the political relations of African bondsmen in the Confederacy, they would find the rest of more easy adjustment. It was done, and resulted in the stip

ulations of the second section and first article of the Constitution, by which three fifths of the slaves were to be computed in fixing decennially the ratio of representation, thus constituting the slave population an element of political power.

Now, sir, statesmen may look at this subject as they please, but they will be brought, of necessity, back to this very question of representation of the slaves as the true point of division between the different sections of the country. Sir, if it was fixed by the Constitution as an element of political power in the South, the sickly sentiment of the North, now so sedulously nursed by their politicians, against African bondage, would find little sympathy at their hands. Let us meet the question, then, as men and as statesmen, and, I trust, also as patriots.

When did it first arise since the Confederation -I mean the question of political power in the Confederacy resulting from this slave representation? It was first agitated in the attempt made in the year 1820, upon a question exactly such as agitates our councils now-the admission of a new State into the Confederacy. What was attempted then? To make it a condition of admission that the State should abolish slavery within her limits; and, if 1 recollect aright the history of that day, a distinguished Senator on this floor, then representing the State of New York, (Rufus King,) frankly avowed that the purpose of the condition was to impair the political power of the southern States. He honestly avowed it. Without subterfuge or evasion, it was then frankly avowed, that the condition sought to be imposed on Missouri, was to prevent the expansion of political power in the South, by the constitutional right of slave representation.

What was the result? The State of Missouri, then constituting a part of that large country derived by us from France as the Territory of Louisiana, was admitted upon condition—a condition unknown to the Constitution. The State of Missouri was admitted upon condition that a parallel of latitude should be drawn across the whole Territory of Louisiana; and whilst slavery should be excluded north of it, there was no guarantee that it should be admitted south of it. The prohibition was that north of the parallel of 36° 30′, this

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involuntary servitude, as it was termed, should be forever excluded. And this unconstitutional restriction became handed down, in the traditionary history of the times, as the "Missouri compromise."

Mr. President, I have yet to see the southern statesman, looking back to the history of that day, and to the consequences which followed, who does not deplore in his heart that a final stand on the part of the southern States, based on the securities of the Constitution, was not made there and then, and no step taken backwards. But the law passed, Missouri was admitted upon condition that involuntary servitude, except for crime, should be forever prohibited north of the line prescribed; and that passed, as I have said, in the traditionary history of the day, as a compromise.

Well, we have believed, on our side, ever since that, compromise or no compromise, it had no warrant in constitutional law. Time ran by, and it was acquiesced in. There was no express agreement, but a sort of tacit understanding, for the peace and repose of the country, that if, on one side they would fairly commit themselves to that line, we would assent that slavery should not extend north of it if they would assent that it should be extended south of it. How were we met? This line honorable Senators from the North, and those whom they represent, now speak of as a line founded in sacred compact, that was intended to give repose and peace to the country, and did give it; and yet when in after years further territory was acquired west of the territory of Louisiana, and the proposition was made to carry out the "compromise" by extending the line, it was met by a decided refusal. Here, in 1848, when we were organizing the Territory of Oregon, it was insisted that this interdict should be placed on that Territory, far north as it was, and the proposition was made-not from me; I had the honor then of a seat upon this floor, but no such proposition ever came from me-but a proposition was made from southern men, again, if they could, to secure the repose and peace of the country by extending that line to the Pacific; and according to my recollection, almost every vote from the northern States was against it.

So far to the contrary were they, indeed, from adhering to any compromise, that on the very first proposition to organize a territorial government in one of the new Territories, public men, representing the interests of the non-slaveholding States, exhumed from the dust of a half century the ordinance of 1787, and presented it to the country as a chart of republican freedom from our fathers, containing within it, as they alleged, a repudiation of the condition of slavery, and recommended it for a like interdict in all the new Territories, giving birth to what was called, from the gentleman who first presented it, the "Wilmot proviso." The ordinance of 1787, or this clause in the ordinance, has been resorted to from that day to this, as evidence that, even before the foundation of the present Government, our fathers looked to a power in the United States to affect, by emancipation or otherwise, the condition of African bondage on the continent.

Mr. SEWARD. I am glad to know that he

was.

Mr. MASON. Unlike the honorable Senator, I was a boy in those days, and take it from history and tradition. In a letter to Robert Walsh dated November 27, 1819, Mr. Madison said:

"With respect to what has taken place in the Northwestern Territory, it may be observed, that the ordinance giving its distinctive character on the subject of slaveholding, proceeded from the old Congress, acting with the best in tentions, but under a charter which contains no shadow of authority exercised. And it remains to be decided how far the States formed within that Territory, and admitted into the Union, are on a different footing from its other members as to their legislative sovereignty.

"Whether the convention could have looked to the existence of slavery at all in the new States, is a point on which I can add little to what has been already stated. The great object of the convention seemed to be to prohibit the increase by the importation of slaves. A power to eman cipate slaves was disclaimed; nor is anything recollected that denoted a view to control the distribution of those within the country. The case of the Northwestern Territory was probably superseded by the provision against the importation of slaves by South Carolina and Georgia, which had not then passed laws prohibiting it. When the exist ence of slavery in that Territory was precluded, the imporchecking it was by narrowing the space open to them. It is not an unfair inference, that the expedient would not have been undertaken if the power afterward given to terminate the importation everywhere had existed, or even been anticipated. It has appeared that the present Congress never followed the example during the twenty years preceding

SENATE.

a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the dis trict, and report then to Congress from time to time, which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress; but afterwards, the Legislature shall have au thority to alter them as they shall think fit."

With a further provision, that when the population should amount to five thousand they should have power to elect representatives, &c., to a Territorial Legislature.

Such were the relations subsisting between a Territory and the United States in the very first Territory that was organized under the old Congress.

I would remark here, incidentally, that I do not recollect, and have not made the research to asIcertain, whether Mr. Madison was a member of the Continental Congress at the time this ordinance passed.

Mr. SIMMONS. He was, sir.

Mr. MASON. So I presumed; and he was a member of the Federal Convention sitting in Phil

tation of slaves was rapidly going on, and the only mode of adelphia at the same time and engaged in framing

the prohibitory epoch."

I would say, then, to honorable Senators and to the country, if any argument is to be derived from this source, in favor of the doctrines of restraining the distribution of slaves upon the continent, that they would derive the true argument from the policy known to belong to our fathers of that day, and carried out as soon as they were permitted to do it by the Federal Government, in the abolition of the slave trade altogether. This was an attempt, by limiting the area in which slavery could be used in thus excluding it from the Northwest Territory, so far to discourage or diminish importation of slaves. And it clearly follows, if any argument is to be derived from this manifestation of a policy by the Continental Congress in regard to slavery, its truth and its strength lies in the subsequent prohibition of the foreign slave trade, as soon as such power could be exercised by Congress.

It is a little curious, however, that, in all the commendations which we have heard from certain quarters upon this ever-memorable, able, and truly republican paper, the ordinance of 1787, honorable Senators have not connected with it what is found in that same clause prohibiting involuntary servitude, and afterwards incorporated into the Constitution of the United States-a clause providing for the rendition of fugitive slaves. In the same sixth article of the ordinance the proviso is:

"That any person escaping into the same from whom

labor or service is lawfully claimed in one of the original
States, such fugitive may be lawfully reclaimed and con-

veyed to the person claiming his or her labor or service, as
aforesaid."

What were

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the Constitution.

We all know how large a share Mr. Madison had in perfecting and maturing the leading political measures of that day; and there can, then, be little doubt that he has given the true history and object of this prohibitory clause in the ordinance

of 1787.

Mr. President, years after the pseudo-compromise, made on the occasion of admitting the State of Missouri, this sixth article of the ordinance of 1787 was exhumed, perverted, and successfully applied, without warrant of constitutional law, by the Congress of the United States, under the name of the "Wilmot proviso," to the Territory of Oregon; thus showing a determination on the part of Congress, whatever result might follow, to carry out that policy, in prohibiting the expansion of slavery on the continent. We all know the deep sensation produced at the South by the adoption of this proviso: the interdict was denounced as unconstitutional; and although applied to a Territory far north of the Missouri line, it was looked upon at the South as the manifestation of a fixed policy to prevent the further extension of a slave population, which if persevered in could only end in dissolution.

In 1848, after the peace with Mexico, we ac quired a large territory from her, embracing California. It became necessary to provide gov ernments for the population actually there, not in California alone, but in New Mexico; and instantly upon the proposition to organize territorial governments for these people, then living without a government, this demand of interdiction was at once set up in both Houses of Congress. It was successfully resisted so far as to prevent its being done, but at the cost of leaving these people whom we had acquired under the faith of treaty, without a government for a period of some two years. I want to trace the history frankly, and I hope truthfully, that we may the better understand the exact position of the question now presented on the admission of Kansas. Under the auspices of a very able and successful statesman of that day from Kentucky, the late Mr. Clay, a new scheme of adjustment was suggested to the American people, by a series of what were called compromise measures. I will not go over them here further than to show the result to have been the violent admission of an additional non-slaveholding State, with an equivocal postponement of the question of future prohibition of slavery in the

new Territories.

If the public mind of America, which has been thus violently drawn to this truly great republican paper of 1787, would look at it in all its provisions, and all its tendencies, it would show to them what really constituted at that day what I have always claimed constitute now the true political relations subsisting between a Territory of this Government and the Government itself, and that would put an extinguisher forever upon the misuse or perverse use of the idea of popular sovereignty in Territories; not by dogma, but by the proofs to be drawn from that paper. the relations between the Government of the United States under the Continental Congress, and I was one of those who were opposed to this this immense domain generously surrendered by my own State for the purpose of cementing a Fed-promise made between a majority and a minority new (so styled) compromise. I never knew a comunless on a basis by which the majority succeeds in establishing a position for further aggression at a future day; and I think the history of all the compromises on the institution of slavery, so far as they have progressed, warrants that conclusion Union as a free State, not objected to by southern It was done. California was admitted into the men because it was a free State, but objected to because of the machinery that was put in practice to produce that very effect.

Now, Mr. President, the people of that day have all passed from among us, but they have left some memorials behind; and I have one here from the same venerated man to whom I have before alluded, showing in what policy that clause in the ordinance of 1787 was founded. It was not intended in any manner to affect the condition of African bondage, as it then existed upon the continent. It was aimed as a blow against the foreign African slave trade, and nothing more. I will read it. In a letter addressed by Mr. Madison, in 1819, to Robert Walsh, then, I think||eral Union, and inviting the fraternity of the peothe editor of an abolition newspaper in Philadel-ple? What were its provisions? Was there anyphia thing like sovereignty recognized in the people Mr. SEWARD. He edited a newspaper. You who went there anything like a right to govern themselves independent of the Federal Government? No; the very opposite. The ordinance

said an abolition newspaper.

Mr. MASON. I did.

Mr. SEWARD. I never knew that. Mr. MASON. That is my recollection. I will say a newspaper.*

*Mr. MASON is not certain that Mr. Walsh's newspaper

was established in Philadelphia so early as 1819. But his recollection is distinct, that, after the slave question arose in 1820, he did conduct an abolnion press in that city.

itself declares that the lawgivers of the people who
went there should be officers appointed by Federal
authority. The Governor and judges constituted
the legislative tribunal for that Territory. The
legislative power in the Territory is thus disposed
of by the ordinance of 1787:

"The Governor and judges, (appointed by Congress,) or

Governments were organized for the Territories of New Mexico and Utah as a part of this system of compromise, and there, as I have said,

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without meeting the issue directly, southern men were again called upon to surrender thus much of their position. They insisted that the principle of interdiction on the part of Congress should be repudiated in those Territories. This was not done, although a new principle was adopted in the organization of these territorial governments, so far as the question of slavery was concerned. Our position always had been that the Constitution, proprio vigore, recognizing the condition of African bondage on the continent, protected it in the Territories everywhere; and therefore it was not competent to Congress to legislate against it any more than it was competent to Congress to legislate against every other of the provisions of the Constitution. But that direct issue was evaded, and the Territories were then organized on this basis: that they should at once have legislative councils by representatives of their own; that to these legislative councils should be committed all subjects of rightful legislation under the Constitution; and that as to the question of slavery it should be decided by the people of the Territory themselves, but not until they were ripened into a State government and applied for admission as such.

SENATE.

appeal-what? He says to the American people,
there is but one way to manage this Government
on that subject; the way in which the French phy-
sician in the play managed his patients. I will
get
rid of the disease, says the doctor, even if it
necessary to carry the patient with it. The
court shall be reorganized, says that Senator-for
what purpose? That he may sap the foundations
of our popular Government, and the rights and
liberties of this people, to effect the lawless pur-
poses of his Abolition confederates. The court
shall be reconstructed or reorganized; that is to
say, if those with whom he acts get possession of
the Federal Government, the offices held by the
judges are to be vacated, and in their place are to
be put supple instruments to do the will of the
Senator's associates upon the Government of the
country. That is the purpose of the honorable
Senator from New York, avowed to the country
and to his party as their theory of action in the
administration of the Government.

tors on the other side, whose specially is to prevent the extension of slavery, and thus ultimately to extinguish it, were a part of the majority that carried those measures; but I do mean to say that, so far as I could gather the sentiment of the American people in the States, slaveholding and non-is slaveholding, those compromise measures, as measures of peace, were acceptable to them, and received their approbation. And yet, in 1854, when it was proposed, in organizing the new Territories of Kansas and Nebraska, to do nothing more than to carry out the principles adopted in 1850, it was met in limine with the sternest opposition. A part of the compromise of 1850 was that the question of slavery in the Territories was to be left as their constitution should prescribe when they were admitted as States into the Union. Until then, and whilst in a territorial condition, it followed that this question must be left unaffected, except by the Constitution of the United States. There was no prohibition of slavery in the organic law. The people of the Territory, under the reMr. President, I remember some years ago, straints of the Constitution, could not prohibit it; when I was then a very young member of the conand thus the true principle of compromise was, vention that sat in Virginia to alter the constitution that slavery was to be left to climate, until a final of that State, of which, among the very illustrious This was a step gained on our part, and a very policy should be established by the people who men then remaining with us, the late John Marimportant one. We denied the power of Con- were to be affected by it, when they attained the shall, Chief Justice of the United States, was a gress to interdict slavery in a Territory, but Con- maturity of State government. The whole of member, the question was about remodeling the jugress exercised it notwithstanding the denial. We both the Territories of Kansas and Nebraska lay dicial tenure. In our early institutions, I believe, denied the right of the occupants of the Territory, north of the parallel of 36° 30′, and thus within in every State-certainly in mine, and in all that while in the territorial form, equally to prohibit the interdict of the Missouri law of 1820. By that I now recollect-the tenure of the judicial office slavery in the Territory. And this was substan-law, slavery had been prohibited north of that was during good behavior, or, in effect, during life. tially conceded, because the laws organizing those parallel. How then could the question of slavery The popular mind got hold of the opinion that this governments left the question of slavery an open be left open until the people should form a State stable tenure worked an irresponsibility in the question, and not to be decided by the people of government, unless in the mean time that prohi-judges requiring reform, and the proposition was the Territory until they had matured a State gov- bition was removed? to limit the tenure to a term of years. That ernment. It took away any power of interdiction great and illustrious man made a speech against from the occupants of the Territory while in a it, among the very few speeches which he made territorial form. So the law was passed. It was in that body; one of that judicial exactness and objected to in some quarters, even in the South, conciseness that illustrate his great mind. I reas leading to the doctrine of squatter sovereignty; member well, in speaking of the judicial tenure, but that imputation, I think, was very success- Thus at last, and by a series of legislation, the how very opposite his views of government were fully met by showing that the people of the Ter- principle was attained of non-intervention by Con- to those now promulged by the honorable Senaritory, to whom the whole subject of legislation gress, as regarded slavery in the Territories. This tor from New York in regard to the judicial office. was given, were remitted directly to the Consti- was the great principle both of the compromise. He said, as the experience of a long life and a great tution of the United States as the limitation of their measures of 1850 and the Kansas act of 1854; by intellect, that "the greatest curse which an angry power; and further, that the condition of slavery it the South has stood, and by it we mean stead-God could inflict upon a sinning people would be was not to be legislated upon for its exclusion or fastly to abide. It was a departure from the its establishment while it remained in the terri- established policy between the Federal authoritorial form. ties and the territorial governments. There had always been reserved, even in 1850, what was reserved in the ordinance of 1787-a power in Congress to disaffirm the legislation of the Territories. This power was not reserved in the Kansas-Ne-pected, held secret and corrupt intercourse with braska bill, showing the clearest purpose of the law, not only in what it said, but in what it failed to say, to remit the people who might go there to self-government whilst in a territorial state, subject only to the restraints of the Constitution. We knew Congress was a most unsafe depository of a power to mold the domestic institutions of a Territory; and so far as slavery was concerned it was safer to transfer the question from Congress to the people who were to be affected by it.

Such were the provisions of the laws organizing territorial governments in Utah and in New Mexico. It was known very well, as resulted, that no practical effect could ever be derived from leaving the question of slavery in that condition with respect to those Territories, because, the laws of climate being far more inexorable than the laws of man, slaves never would go there, because they would be of no value. We had the paper guarantee, though no practical consequences arose; and therefore the question never was agitated afterwards in reference to those Territories.

We came, in 1854, again to the organization of territorial governments, in consequence of the great expansion of our country continually taking place. Nebraska, then an Indian country, lying contiguous to one of the slaveholding States, and adjacent to another, offered her tempting soil to emigration and settlement. It was determined that that Territory should be divided into two parts-the northern to be called the Territory of Nebraska, and the southern the Territory of Kansas. It was generally believed-I certainly was one of those who believed that, although African slavery would hardly penetrate into the northern portion, the Territory of Nebraska, yet that, as regards Kansas, being contiguous to the State of Missouri, which had a very large and a very valuable slave population, and adjacent to the State of Arkansas, the natural consequence would be that the population of those two States would be largely thrown into it, together with their slaves.

I say, then, that good faith to the compromise measures of 1850 required that this interdict should be removed; and it was done accordingly in the Kansas-Nebraska act of 1854, by declaring the law of 1820 null, inoperative, and void.

So much for the disposition of the slavery question by the Kansas act. The principle of nonintervention by Congress recommended it to the South; and it contained, moreover, a full and final repudiation and abrogation of the odious Mis

souri interdict of 1820.

Since that day, upon a case properly made in
the Supreme Court of the United States, the ques-
tion has been decided by the highest judicial tri-
bunal of the land, composed of judges who, by
the tenure of their office, ought to be presumed to
be divested of all interest or feeling further than
to do what is right, to be guided alone by that
great judicial star which leads judicial minds to
attain the truth, and to enforce it; and the ques-
tion coming before them, the Supreme Court have
decided that the law of 1820 was unconstitutional
and void, thus confirming what had been the sub-
stantial declaration of Congress in its later policy
of territorial organization. What is said of that

In organizing these Territories, what was done?
Nothing, in fact, but to carry into effect the prin-
iples of the new compromise, as it was called, of on the other side? The honorable Senator from
1850. There had been a very large number in New York, [Mr. SEWARD,] as to whose dramatic
both Houses of Congress, who commended the representation of what never passed between the
egislation of 1850 to the country, as great meas- judges of that court and the President, I shall say
res of peace and reconciliation, and sang ho- nothing, after what fell from the honorable Sena-
annas to the illustrious name of the very distin- tor from Louisiana, [Mr. BENJAMIN,] says to the
uished gentleman who projected and carried American people in reference to this high and im-
hem through. I do not mean to say that Sena-portant act of judicial power by the last court of

to leave them to a dependent judiciary"-a great truth which lay at the foundation not of the structure alone, but of the security of our Government. But what does the honorable Senator from New York say? That the Supreme Court of the United States, believed to be not only pure but unsus

an incoming President to obtain a political end; and he announces to the American people that when the party with which he acts gets into power, they will take care that the court shall interpose no obstacle to their pathway, for they will reorganize that court--I presume to put it out of their way! That is the substance of the declaration.

Mr. SEWARD. I know that the honorable Senator from Virginia is entitled to the course of his argument, and I have not the least disposition to interrupt him or embarrass him in it. I only rise because, being here, and hearing the honorable Senator, and sitting silent, it might perhaps be inferred that I assented to the justice of the description which he gives of my expectations in regard to the reorganization of the judiciary, to say that, at the present session of Congress, I had already given notice, before I made the speech on which the honorable Senator comments with so

much severity, of a bill to reorganize the Supreme and Circuit Courts of the United States in such a way as to equalize the representation of the several States in the courts as far as possible, according to their Federal population, and at the same time to secure greater facility and dispatch to business. That plan, at some future day, I shall bring in. I need not stop now to say what it is for it is not matured in my own mind. I do not care to confess or to deny any particular system which may be attributed to me in regard to the mode in which it shall be done. I expect to propose a feasible one, a reasonable one, a just one, and one which every Senator of the United States will approve, or ought to approve, because it will be conservative in its character, and at the same time it will be just as it is necessary.

Mr. MASON. From the corrupt practices suggested by the honorable Senator as passing be

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