DELIVERED IN THE SENATE OF THE UNITED STATES, DECEMBER 13, 1857.

The hour having arrived for the consideration of the special order, being the notion of the Senator from Illinois (Mr. DOUGLAS) to refer so much of the President's Message as relates to the affairs of Kansas Territory to the Committee on Territories-Mr. STUART said:

Mr. PRESIDENT: As stated by the Chair, the subject immediately before the Senate is the motion of the Senator from Illinois to refer that portion of the President's message which relates to the affairs of Kansas Territory to the Committee on Territories; but the subject which is before the Senate for discussion, is the question of admitting Kansas as an independent and sovereign State into this confederacy of States, under and by virtue of a constitution recently formed at Lecompton. Those who have preceded me in the debate, or at least some of them, felt embarrassed by the magnitude and importance of this ques tion. I freely confess that it is one of the most important questions that ean engage the attention of Congress. It is neither more nor less than the exercise of that power of Congress under the Constitution, which creates a new sovereignty, brings it into being, and adopts it as one of the States of this Confeder acy. And when we reflect how many men, distinguished in the public service for their great abilities, have expressed themselves against the extension of the number of States in this Union, and have warned their fellow-citizens against its consequences, lest the fabric itself should fall by its own weight, we may well consider this the most important function that the Constitution has clothed Congress with the power of exercising. In discussing a subject of such a character, I certainly shall bring to it all the consideration that I have been able to bestów. I shall do it with that respect which is due to the subject, and es pecially the respect due to those who differ from me in this body. If, in the course of this debate, I shall say anything which can offend the most sensitive of those who may differ from me, I shall regret it vastly more than he.

The power of Congress to admit States into the Union is the question which, in my judgment, lies at the very foundation of this discussion. The Constitu tion of the United States, in the third section of the fourth article, provides that "new States may be admitted by the Congress into this Union." The only limitations to the exercise of the power are found in the language that follows: "but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States con cerned, as well as of the Congress." It was well said by Mr. Attorney General Butler, in the Arkansas case, that the power of Congress over this question is - plenary. From the very nature of the question, it must be. It is subject only to the limitations provided in that article; and whenever a question is preBented as to the admission of a State into this Union, it must necessarily be deLemuel Towers, Printes

termined by the circumstances which surround and govern that particular ease, Why, sir, it is a power which authorizes the admission of foreign States, as well as those carved out of our own dominion; and this single statement will show to the mind of any gentleman, at a glance, that precedents, former laws of Congress, never can, and never ought to be, resorted to for the purpose of determining the power or the propriety in a particular case. I use the term "propriety" with a purpose. The power to admit a State necessarily carries with it the power to decline to admit; and when I hear gentlemen talking about the necessity, the imperious obligation that rests upon Congress to admit a State under a particular specified set of circumstances, I confess, sir, it is a doctrine that is not in accordance with my views of the Constitution. It may be very proper, for instance, to refuse to admit a State to-day, and it may be quite the reverse one year from to-day. Congress, and Congress alone, under the power conferred upon it by the Constitution, is to determine, not only the question whether a State shall be admitted at all, but it is equally clothed with authority to determine when it shall be admitted.

In connection with this subject, enabling acts have been discussed. They have an importance in a respect to which, by and by, I shall allude; but that an enabling act is necessary, indispensably necessary, in order to the admission of a State into this Union, I never heard any man pretend. It is not made neeessary by the Constitution itself; it has not been held necessary in any case that I know of, by the Congress of the United States; and when you come to consider the fact to which I have alluded, that the power exists to admit foreign as well as domestic States, you are forced to the conclusion at once, that no enabling act can be regarded as of indispensable necessity.

Sir, perhaps one of the most unfortunate results flowing from party diseussions of great constitutional questions, is the engendering of opinions and the enunciation of doctrines not only novel in their character, but many of them dangerous in their tendency to the permanency of our institutions. When I heard the honorable Senator from Missouri (Mr. GREEN) giving his views of the effect of an enabling act, I confess I was forcibly struck with the consideration to which I have just referred. He said that an enabling act, giving the assent of Congress to the formation of a new State, conferred on that State the authority, if Congress refused to admit it, to set up an independent sovereignty on its own account, out of the Union. Can that be true! Can it be true that the Constitution of the United States has conferred on Congress the power to do an act under the Constitution which shall overturn the instrument and destroy the Government! In other words, and more concisely, is it true that the Constitution confers upon Congress the power to commit suicide and destroy the Government? The idea of an independent State formed under the Constitution, and yet out of the Union, is an idea which cannot bear the light of investigation.

This makes it necessary to consider for a moment what is the purpose and character of an enabling act. The character of an enabling act is simply to authorize the people of a Territory to form a constitution and State government, for the purpose of being admitted into the Union, and for no other purpose. It is useful and safe, and I think ought to be adopted as a general rule because it enables Congress to define the boundaries of the new State, to require that the Constitution when formed shall be submitted to the people, and generally to exercise a proper control over the whole subje What is its language? Entirely consonant with its character-to form a constitution in obedience to the law of Congress, and submit it to Congress for the purposes of admission as a member of the Confederacy, and to abide by the result. If Congress refuses the admis sion, that is an end of the effect of the enabling act. The Senator from Missouri suggested that there was danger, permanent and paramount danger, to the interests of this country, by adopting the policy of passing enabling acts; and that it was better to give the assent after the constitution was formed, than to give it before. Whether given before or afterwards, it is but the assent of Congress that the Territory may be admitted as an independent sovereignty into the Union, but not made a State out of the Union.

What, then, is the great leading and fundamental principle which should control the action of Congress in the admission of a State into the Union! It is simply that the constitution of the new State shall be of a character not dangerous to our institutions; and that the people of the new State shall be satisfied with it, and ask for admission under it: that is all. The power of Congress is

to "admit" a State into the Union, not to coerce it. Congress would be but the verfest tyrant that ever existed on the face of the globe, if it had a power to coerce a State into the Union contrary to the will of the people composing that State. It lies, then, at the foundation of the question, as it does at the foundation of personal liberty, that Congress shall be satisfied-satisfied beyond reasonable dispute-that the people composing the State ask to be admitted. It should never be forgotten that it is a mere consent on our part-nothing more. The State proposes admission and Congress gives its consent.

Now, sir, all that I have to do on this question to-day is to apply the principles I have thus laid down, to the question of admitting Kansas into the Union under the Lecompton constitution. This renders it necessary that I should briefly advert to the past history and the present condition of the most unfortunate people of that Territory, politically considered. And first, in regard to the Kansas act. The country, for years, had been agitated in respect to the power of Congress to legislate on slavery in the Territories. Various opinions had been entertained and expressed. A portion of the people, and of the members of Congress, held that Congress possessed unlimited power over that question while the Territory remained in a territorial condition-that Congress possessed the power to exclude slavery or to adopt it. Others contended that Congress possessed the power to exclude but not to adopt. Others held, like my late distinguished colleague, now the Secretary of State, (Mr. Cass,) that Congress possessed no power over that subject whatever, but that the people of the Territories possessed full power over it during their territorial condition. Others, again, contended that neither Congress nor the people, while the Territory remained such, possessed any power whatever over the question, except to protect such property in slaves as should be carried into it.

With this diversity of opinion, entering, as it did, into the political discussions throughout the country and in Congress; endangering, as many good men thought, not only the peace and happiness of the people, but the safety and permanency of our institutions, and with a view, so far as the Democratic party was concerned, of settling it on some fair basis, the Kansas-Nebraska act was introduced. What was done by it! Language was employed that should confer on the people of the Territory the sole and exclusive control over this ques tion while they remained a Territory, subject only to the Constitution of the United States. I never heard any gentleman pretend that the use of those words, "subject only to the Constitution of the United States," changed the law in any respect; but this was the intention: whatever power Congress posessed should be conferred upon the Territory. Whatever power the people of the Territory possessed, of course they retained. If the power to legislate in respect to slavery rested in either place, the Kansas-Nebraska act conferred it on or left it with the people of the Territory. If it did not rest in either, then, of course, nothing was carried to the people by virtue of the act.

But, Mr. President, did anybody ever dream, while the Kansas-Nebraska act was under consideration here, that we were conferring any power on the people of the Territory when they came to form a constitution and ask admission into the Union! Was there a word uttered in debate, and has there been any considerable amount of opinion since the great Missouri question was agitated, that Congress possesses any power to control the action of a Territory in forming a constitution, and asking admission into the Union, as to what institutions it would establish? I think not. I should like to know if there is an honorable Senator here to day who believes that if the Kansas-Nebraska act had been repealed before the constitutional convention at Lecompton sat, the people of Kansas Territory, in framing their constitution, would not have had the entire right to have said whether slavery should have existed within its borders or not! If this be true, and I humble submit to the consideration of Senators that it is true, what then becomes of all these wire-drawn arguments out of the KansasNebraska act-seeking at one instant to show that it is an enabling act, and at another instant that it has conferred on that people a right they never had before-to adopt their own mode in framing a constitution! Why, sir, they had It without the act. If that section of the Nebraska act had been repealed a year ago, so long as that people were left in an organized form of government, they had the right to ask to be admitted into the Union, and it was for Congress to say whether they should be admitted or not.

Again, sir. The Senator from Missouri, with that skill in debate which gratified all of us who were attentive observers, in a sort of hand-to-hand scuffle

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with my friend from Illinois, said to him, this mode of getting up a constitu tional convention, and this mode of submitting it, is, on the part of the people of Kansas, their own way. I regretted to see that the honorable Senator from Pennsylvania, (Mr. BIGLER,) and the honorable Senator from Indiana, (Mr. FITCH,) had taken what my friend from Missouri considered a mere skillful weapon in debate, and laid it down as a fundamental principle. Had the Kansas-Nebraska act, in using that language, any reference to the mode and manner of executing it? None at all. It related to the character of the institutions, and not to the mode and manner of exercising their right in forming their institutions. The language of the act was, that Congress would neither legislate slavery into any Territory or any State, nor exclude it therefrom; but would leave the people perfectly free to form and regulate their domestic institutions in their own way. Does that mean anything more-did any body before ever dream that it meant anything more-than to say what should be the character of the institutions! Never.

Yet it is urged that it is an enabling act, and that, forsooth, they have got some power in virtue of that act which was never conferred on a Territory before. It has been found out, too, that there is language in that act giving to the Legislature the power to legislate on all rightful subjects. But both are unfounded. Why, sir, we began as far back as 1804, when we organized the Louisiana Territory, to tell the people of that Territory that they might legislate on all rightful subjects of legislation. You will find it in the Winconsin aet; you will find it in the Iowa act, and doubtless in many others. But is it a rightful subject of territorial legislation to destroy itself! I have undertaken to show that Congress has no power to destroy this Confederacy by giving its consent to an independent State out of the Union; and I repeat now, that uo territorial legislative body can have any right or authority to adopt a species of legislation which shall destroy itself.

But again, suppose Congress simply authorizes a legislative body to be formed in a Territory; does anybody pretend that it may not legislate on all rightful subjects of legislation without any specification of powers? Is it not true, legally and logically, that the effect of an enumeration of powers is to limit to that enumeration? The largest powers that can be conferred are conferred in general terms To establish a territorial government, authorize the election of a Legislature, and clothe them with power to legislate for the Territory, is a much larger authority than is conferred by a legislative grant enumerating the powers granted, because the enumeration of certain powers excludes the right to exercise any other. It will be found, on looking into the history of the legislation of Congress on this subject of territories, that enumerated powers have been used for that purpose, and for that purpose alone. They have been prohibited from interfering with the lands of the United States within their borders. They have been prohibited from taxing non-residents at a greater rate than residents, and in some other particulars. The enumerations have been to restrict, and not toenlarge their powers.

I have stated what was the purpose, object, and effect of the Kansas-Nebraska act. Was that act without an effect and without a meaning! Has it no legiti mate operation on this question! Certainly it has, and it was for that very reason that I felt myself bound to say, on the reading of the President's message here, and to say it not only with respect to the position that Mr. Buchanan occupies, but with a respect for him equal to that entertained by any gentleman in this body, that if I could agree with the reasoning of the President I might agree with his conclusions. Let me now state some of the grounds why I found myself and still find myself unable to agree with him.

The present history of Kansas is perhaps better stated by the President than it could be stated by myself. He says:

It is unnecessary to state in detail the alarming condition of the Territory of Kansas at the time of my inauguration. The opposing parties then stood in hostile array against each other, and any accident might have relighted the flames of civil war. Besides, at this critical moment, Kansas was left without a Governor by the resignation of Governor Geary.

"On the 19th of February previous, the Territorial Legislature had passed a law providing for the election of delegates on the third Monday of June, to a convention to meet on the first Monday of September, for the purpose of framing a constitution preparatory to admission into the Union. This law was in the main fair and just; and it is to be regretted that all the quali fed electors had not registered themselves, and voted under its provisions.

"At the time of eleation for delegates, an extensive organization existed in the Territory, whose avowed object it was, if need be, to put down the lawful government by force and le

establish a government of their own under the so-called Topeka constitution. The persons attached to this revolutionary organization abstained from taking any part in the election.

The act of the Territorial Legislature had omitted to provide for submitting to the people the constitution which might be framed by the convention; and in the excited state of public Teeling throughout Kansas an apprehension extensively prevailed that a design existed to force apon them a constitution in relation to slavery against their will. In this emergency it became my duty, as it was my unquestionable right, having in view the union of all good citizens in support of the territorial laws, to express an opinion on the true construction of the provisions concerning slavery contained in the organic act of Congress of the 80th May, 1854. Congress declared it to be the true intent and meaning of this act not to legislate slavery into any Terri tory or State, nor to exclude it therefrom; but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way. Under it Kansas, when admitted as a State,' was to be received into the Union, with or without slavery, as their constitution may prescribe at the time of their admission."

"Did Congress mean by this language that the delegates elected to frame a constitution should have authority finally to decide the question of slavery, or did they intend by leaving it to the people that the people of Kausas themselves should decide this question by a direct vote! On this subject I confess I had never entertained a serious doubt, and, therefore, in my instructions to Governor Walker of the 28th March last, I merely said that when 'a constitution shall be submitted to the people of the Territory, they must be protected in the exercise of the right of voting for or against that instrument, and the fair expression of the popular will must not be interrupted by fraud or violence.'

"In expressing this opinion it was far from my intention to interfere with the decision of the people of Kansas, either for or against slavery. From this I have always carefully abstained. Intrusted with the duty of taking care that the laws be faithfully executed,' my only desire was, that the people of Kansas should furnish to Congress the evidence required by the organie act, whether for or against slavery; and in this manner smooth their passage into the Union. In emerging from the condition of territorial dependence into that of a sovereign State, it was their duty, in my opinion, to make known their will by the votes of the majority, on the direct question whether this important domestic institution should or should not continue to exist. Indeed, this was the only possible mode in which their will could be authentically ascertained. "The election of delegates to a convention must necessarily take place in separate districts. From this cause it may readily happen, as has often been the case, that a majority of the people of a State or Territory are on one side of a question, whilst a majority of the representatives from the several districts into which it is divided may be upon the other side. This arises from the fact that in some districts delegates may be elected by small majorities, whilst in others those of different sentiments may receive majorities sufficiently great not only to overcome the votes given for the former, but to leave a large majority of the whole people in direct opposi tion to a majority of the delegates. Besides, our history proves that influences may be brought to bear on the representative sufficiently powerful to induce him to disregard the will of his Constituenta. The truth is, that no other authentic and satisfactory mode exists of ascertaining the will of a majority of the people of any State or Territory on an important and exciting question, like that of slavery in Kansas, except by leaving it to a direct vote. How wise, then, was it for Congress to pass over all subordinate and intermediate agencies, and proceed directly to the source of all legitimate power under our institutions."

For four years, ever since the Territory of Kansas was organized, the greatest amount of strife, of violence, of bloodshed, of murder, has been continuously rife there. Under these circumstances, what was to be expected of an irregular convention, one got up by the legislative authority of the Territory-a legislative authority which was set at defiance by a large portion of the people one which they had resolved they would not recognize, and scarcely aquiesce in! But it was done, and how was it done! It turns out, on examination, that in half the Territory no opportunity was afforded to the people to vote for delegates to the convention at all. The people in half the Territory have never been heard on this question. Can it be expected, then, that they will abide by the decision of the convention! Can it be expected that a people who have never been heard on the question of whether they will be admitted into this Union or not, shall submit to be forced into the Union! Sir, it never can be expected. In regard to this point, the President, in his message, says:

"The convention to frame a constitution for Kansas met on the first Monday of September last. They were called together by virtue of an act of the Territorial Legislature, whose lawfal existence had been recognized by Congress in different forms and by different enactments. A large proportion of the citizens of Kansas did not think proper to register their names and to yote at the election for delegates; but an opportunity to do this having been fairly afforded, their refusal to avail themselves of their right could in no manner affect the legality of the Convention."

I admit the truth of the President's proposition that if a full and fair opportunity had been given to the people of the Territory to vote for delegates to the convention, their refusal to do so could, in no manner, be taken advantage of by them; but what is the fact in reference to that point! Governor Walker, in his recent address, in treating of this point, uses the language which I will read, and Mr. Stanton, the acting Governor of the Territory, in communicating with the Territorial Legislature at its present session, says the same thing. Governor Walker says:

"I have heretofore discussed this subject mainly on the question that conventions are not sovereign, and cannot rightfully make a State constitution without submission to the vote of