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SPEECH

OF

HON. JOHN J. CRITTENDEN,

OF KENTUCKY,

ON THE

ADMISSION OF THE STATE OF KANSAS.

DELIVERED IN THE SENATE OF THE UNITED STATES, MARCH 17, 1858.

C N

The Senate having under consideration the bill to admit the State of Kansas into the Union-Mr. CRITTENDEN said:

I feel how inadequate I am, Mr. President, to add anything to the various arguments that have been employed on this subject during the long discussion through which we have passed; and yet I should not perform my duty, according to my views, if I omitted to express my sentiments and feelings on the subject before the Senate. I do not intend to occupy your time with exordiums, sir. The right of the people to govern themselves is the great principle upon which our Government and our institutions all depend. It seems to me that this great principle is not inapplicable to the present subject.

The President of the United States communicated to us an instrument called the constitution of the people of the Territory of Kansas, and he has, with unusual earnestness, advised and recommended to us to admit Kansas under that constitution, as a State, into this Union. The question, as it has presented itself to my mind, involves an inquiry as to the matters of fact bearing upon this instrument of writing, and whether these authorize us to regard this instrument as the constitution of the people of Kansas. Is it their constitution? Does it embody their will? Does it come here under such sanctions that we are obliged to regard it, or ought to regard it, as the permanent, fundamental law and constitution of this new State! I do not think it comes with such a sanction, or ought to be regarded as the constitution of the people of Kansas. Sir, I shall not occupy your time long on this point.

What are the evidences that it is so? It is made by a convention, to be sure, called under the authority of an act of the Legislature of Kansas. It is made by delegates regularly elected by this people, and prima facie it would appear that it had the sanction of the people of Kansas; but I think there are evidences of a higher character to show that it is not so, that it is but in appearance a constitution, and not in reality.

In the first place, the fact is established beyond all controversy that an overwhelming majority of the people of Kansas are opposed to this instrument as their constitution. The two highest officers of the Federal Government lately there under appointment from the President of the United States, Governor Walker and Secretary Stanton, both assure us of that fact upon their personal knowledge. That is high evidence to establish the fact that it is against the will of an overwhelming majority of the people upon whom it is to be imposed as a constitution.

That constitution in part was submitted to the people. I shall not stop now to inquire how it was submitted, whether fairly or not. A part of it was submitted, however, to the people, and, upon a vote taken by the people on the clause thus submitted, it received six thousand votes, and a little more. These are the sanctions with which it comes to us. To this extent, it would seem to have the popular approbation. But, sir, when you come to look a little further into the investigations

Printed by Lemuel Towers.

Checked May 1913

which have taken place in that Territory, it appears that of those, six thousand votes, about three thousand were fictitious and fraudulent. That is reported to us by the minority reports of our Committee on Territories; that is verified to us by the proclamation issued by the President of the Council and the Speaker of the House of Representatives of the Territorial Legislature of Kansas. These high officials, who were invited by Mr. Calhoun to witness the counting of the votes which were returned to him, certify from their personal knowledge that more than two thousand of the three thousand votes which were given at three precincts in the counties of Johnson and Leavenworth were fictitious votes. I only call your attention to this in order that it may appear truthfully who it was that approved of this con

stitution.

That vote was taken on the 21st of December. Before that vote was taken, however, a Legislature, which was elected in October last, and which met on the call of the acting Governor, Mr. Stanton, in December, passed an act postponing that vote from the 21st of December to the 4th of January. On the 4th of January, under the provisions of that act, a question was taken upon the constitution itself broadly. It provided that the question should be taken upon the Lecompton constitution with slavery, upon the Lecompton constitution without slavery, and generally upon the constitution itself. Upon that occasion, over ten thousand voted against the constitution; and the Legislature of the Territory of Kansas have passed resolutions unanimously protesting against the reception by Congress of this instrument as the constitution of the State, declaring that it was obtained by fraud, and that it has not the sanction or concurrence of any, except a small minority of the people. This is the substance of their resolutions.

Now, I ask you, sir, upon this evidence, as a judge, to say whether this is the constitution of the people of Kansas or not? whether the evidence before you is that it is an instrument signifying their will and declaring that general and permanent law upon which they wish their government to be founded? Unless you shut your eyes to the vote taken on the 4th of January, here is a direct popular evidence and protest against the constitution; and, even supposing the whole of the six thousand votes which were given for it on the 21st of December to be true and real votes, fairly expressed, it shows that there were ten thousand other people in the Territory of Kansas who are opposed to this instrnment and who have legitimately declared their opposition. Here is the solemn act of the Legislature of the Territory protesting against it. These are recorded evidences, as much so as the constitution itself is a record, having the same legal sanctions and the same legal title to our faith and our confidence. How are you, in law, to make any difference between these testimonials; to say that you will give effect to one and will reject the other; that you will give effect to that which testifies for the minority of the people, and will reject that which testifies for the majority of the people; that you will accept that which was first given, and reject the last expressions of the popular will?

It is these last expressions of the popular will that ought to govern on every principle, just as much as that a former law must yield to a subsequent law in any point of conflict between them. The last evidence, then, is the vote of the people on the 4th of January, of ten thousand against it; and the evidence nearly cotemporaneous with that is the resolutions of the Legislature of Kansas, protesting and imploring you not to accept this instrument, that it is a fraud and an imposition upon them. I want to know why it is that this evidence is not entitled to our consideration and to have effect? The President, it seems to me, has given us a most unsatisfactory reason. The President says that in recommending the adoption of this constitution to us, as implied in the admission of the State, he has not overlooked the vote of ten thousand against the constitution given upon the 4th of January; he has considered it; but he holds it, and he holds the law of the Territorial Legislature under which that vote was taken, to be mere nullities. Why? The law was passed by the regularly elected Legislature of the Territory providing that a vote should be taken on that day; and why not? Is there anything in the organic law, is there anything anywhere that forbids it that more forbids it than the passage of the act for calling a convention by a previous Legislature?

The President had anticipated that the constitution itself, in whole, and not in part, was to be submitted to the people. The Governor had so contemplated, and had so assured and promised the people. The President regrets that it was only submitted in part. He regrets that the entire constitution was not submitted. Though he accepts as an equivalent the partial submission, he regrets that it was not submitted as a whole. The Territorial Legislature, after this constitution was published, immediately afterwards passed a law to have a vote taken upon the entire

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constitution, which the President had preferred, and which Mr. Walker, the Gover-a nor, had preferred, What do they do but carry out and act in perfect accordance with the wishes and opinions of the President and Governor? And yet the President, I who was for a general submission, and would have preferred it, says the act of theit Legislature, in accordance with his opinion, is a mere nullity. Why Bacause, he says, by the previous acts of the people and of the territorial government the Terri-i tory was so far prepared for admission into the Union as a State. That is the reason. [ He gives no application of it, but announces as a reason that it was so far prepared because the constitution had been made, ready to be offered to Congress, though that constitution had not yet been submitted to the people when this law was passed. That was her condition; that was the preparation she had made. The only prepara tion was, that under the authority of a previous Territorial Legislature, a convention had been held, and a constitution made and published.

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That was the condition of her preparation; and, because of that preparation, the Territorial Legislature had no power whatever to pass a law to take a popular vote!! upon the adoption of that constitution, to see what the people thought of it; to collect the evidence of the public will! What could the Territorial Legislature do,, to satisfy themselves, to satisfy the country, to satisfy the just rights of the people, but to say a vote shall be taken on the 4th of January next, in which all the people shall declare their assent to, or disapprobation of, this constitution as an entire in-of strument! What is there in this preparation to prevent it? What force had the constitution? Could the constitution, unaccepted by you, unauthorized by you, parasts. lyze and annihilate the legislative power which your act of Congress had conferred upon the territorial government? Does not that power, and all that power, remain as perfect as when you granted it? And could the power which your act gave be diminished or lessened by any act of mere territorial authority? It is palpable that it could not. No matter what act might be done by the people of Kansas, call it by what name you please-law of the Territorial Legislature, constitution made by the people-no matter by what name you call it the supremacy of the Government: of the United States remains untouched and unimpaired, and all the power of terri torial legislation which it gave may be exercised by the Legislature. Njego

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Of what avail is this constitution until accepted by Congress, and the State ad- i mitted upon it? Whom does it bind? Is it anything more than a proposition by the people of Kansas that "we shall be admitted with this instrument, which we offer as our constitution?" What more is it? Does it bind anybody? Where does: it derive its authority? The organic law authorized no legislation by a convention. The convention could exercise no legislative power which Congress had given, because Congress gave its power to a Territorial Legislature, to be elected in a certain manner, and to be exercised in a certain manner. The convention could exercise no legislative power. It bound no one. It did not bind the future State; for, until you accepted it, what prevented the people from calling a convention the next day, and altering or modifying it according to their own views? Is there anything of reason, of argument, or of law, to support such a proposition as that the people are restrained from making another constitution because they have proposed one not yet accepted and acted upon by Congress? I think not.

In my judgment, we have a precedent on our books which shows I am right in this view, in

asked for case of Wisconsin. She presented herself here with a constitution, and

admission according to the boundaries which she had assumed and declared: in that constitution. Congress admitted her, but admitted her conditionally only. Congress objected to the boundary. It included a portion of territory which Con gress thought did not properly, belong to her. It admitted her, however, as a State conditionally; that she should hold another convention and assent to the new boun-i dary that Congress prescribed; and upon that assent being thus given, the President. was to proclaim it, and without further proceeding, she was afterwards to be a State in the Union. What did the people of Wisconsin do? Did they proceed according to this act of Congress, and call a convention simply for the purpose as required by the act of Congress, of assenting to this altered boundary? No, sir; we hear no more of that. They passed that act by, called another convention, made another. constitution, applied to Congress, and were admitted at a subsequent session.

Was not their state of preparation greater than the preparation of the Territory. of Kansas? Here Wisconsin was not only in a state of preparation, by having made a constitution, but that constitution, with a single exception, had received the appro bation of Congress, and she had authority to call another convention for the solitary and particular purpose of assenting to the boundary. She passed it by as she might well do. Her people said, "it is a wiser and more satisfactory mode to pass by this

act of Congress and to act upon our acknowledged rights as a Territory to call a convention, make a new constitution, and submit that to Congress, passing by the President, and the President's proclamation, and receving our adoption and admission from the hands of Congress;" and they did so.

If they could do that, if, prepared as they were, that preparation did not preclude them from making another constitution, how is this less state of preparation, on the part of Kansas, to preclude the Territorial Legislature, not from performing the high act of calling a convention, but simply of taking another vote on a constitution which was yet to be proposed to Congress? Can any reason be shown? No, sir, none. That constitution was inoperative. How long would it have operated? Suppose circumstances had occurred which had prevented any application to Congress for years, how long would this instrument have retained its vitality and retained its vigor and authority? One year? A short-lived instrument. Two years! Three years? Four years? How long? Suppose the president, Calhoun, had put this instrument in his pocket and kept it there all the days of his life, would it all the days of his life have restrained the people of Kansas from taking other steps and calling other conventions, and making other constitutions

If its authority would not have continued a lifetime, how long could it continue? No man can set a limit; and the conclusion, therefore is that it never had any binding influence-at any rate, never such binding influence (and that is all I am required to show) as to have prevented the people, if they had changed their minds after making the first constitution, from calling another convention, and resorting to all means necessary for the establishment of another constitution, and then to offer it to you. It is theirs to offer, and ours to dispose of, and they are free up to the last moment to make known to Congress what is their will and what is their determination in relation to the fundamental law of the State which they are about to establish.

Is not this all perfectly clear to our reason? Are there any fictions of law; are there any technicalities springing out of these instruments, govering their force and effect, to prevent this conclusion? Is this constitution to be made up into a little plea of estoppel against the people? Are the little rules which we are to gather from Westminster Hall, the little saws in actions at law that do well enough to decide little questions of meum and tuum among A, B, and C, to be applied as the measure to those great and sovereign principles on which States and peoples rest for their rights and their liberties? No, sir. This is a great political question, open, free to be judged of according to God's truth and the rights of the people unrestrained, unencumbered, unimpaired by any fiction or by any technicality which could prevent the full scope of your justice and your reason over the whole subject.

Therefore, sir, this state of preparation of the Territory of Kansas for admission into the Union has no effect. The argument is not applied; the fact is merely stated that there is a state of preparation, and there it would be necessary to stop on any doctrine on that subject; for, in my own judgment, no argument can be made even of any ordinary plausibility to show that the state of preparation restrains the people of their natural and indefeasible right and their legal right as proclaimed by you to form with perfect freedom their own institutions before they come into the Union. There is no technicality about it.

Here, it seems to me, applies that great principle to which I adverted at first, that the people have a right to govern themselves. I mean of course according to the constitutions and laws such as they have. This people had no constitution, could have no constitution; and when the act of the Territorial Legislature was passed requiring a vote to be taken on this constitution, they had full authority to pass that law. Their hands were not bound. Here was a great act about to be done, an act to bind the State, to give it a new character, to give it new institutions, to put upon it a constitution-that panoply of the rights of all. This was the great act to be done; it is an act which none but the people can do through themselves or their proper representatives. It is in all cases directly or by reference the act of the people. The laws which they establish are not of that transient character which can be made to-day and repealed to-morrow. They are made for permanency. They are the great immutable and eternal truths and principles on which all government must rest. They are expected to be permanent. The people delegate to others the power of passing temporary and repealable laws. They reserve to themselves the great right of passing those which are permanent and can only be repealed by themselves.

Was it not of consequence, was it not of importance to know the will of the people, whether they really did approve of this constitution which was about to be of

fered to Congress-a law which, when Congress puts its imprimatur on it by admitting the State, is to be permanent? Would it be any harm to take the vote over and over again? What objection could there be to it? You might have said "it is an unnecessary care of the people's rights; you have had their decision once; therefore, it is not necessary to have it again;" but out of abundant care, and abundant zeal you may choose to take it again and again, and ascertain whether there may be change or variation in the public opinion. Who can say aught against it? Do you object to it because it is taking too great care of public liberty, paying too great respect to popular rights? Nobody will take that ground.

But it may be said you might delay the application to Congress by these repeated elections. Not at all. You must avoid that as far as you can. In this case it has not delayed it. In this case this vote was taken before this constitution came before you; while it yet slumbered in the hands of President Calhoun. No objeetion can be made, then, that this was made the cause of, or intended merely for the purpose of delay. The result shows that it was necessary and proper. The result shows that notwithstanding the vote of six thousand, though all real, here were ten thousand who were opposed to it. I say, therefore, this is not the constitution of the people of Kansas. It may in a certain sense be a constitution offered by the convention to the people of Kansas; but which the people of Kansas by ten thousand majority have rejected, have lawfully rejected in the last vote, as it was lawfully approved by the six thousand first voting in the preceding December.

I say, then, Mr. President, upon the record evidence, upon all the evidence, this is not the constitution of the people of Kansas. It is not the constitution under which they desire that you shall admit them into the Union. Now, will you, against their will, force them into the Union under a constitution which they disapprove? That is the question. You know the fact that ten thousand against six thousand are opposed to the constitution. You know that by the act of their Territorial Legislature they entreat you not to admit them with this constitution. They tell you, moreover, as one of their reasons, not only that they disapprove of the whole constitution, but that it is particularly hateful to them because the votes given for it, or apparently given for it, were, to a great extent, fraudulent and fictitious. The Legislature tells you that nine-tenths of the people there are opposed to it.

Now, would it not be strange, that under these circumstances, we should, without any motive for it that I know of, as the common arbiters of all Territories and States to the extent of our constitutional power, force her into the Union? What motive can we have, what right motive, with the knowledge of all these facts, to force her into the Union, and to enforce upon her this constitution? I cannot feel myself authorized to do such a thing. Of course I do not impugn the motives and the views of others, who, taking a different view, act from impressions different from mine. They act upon one view, and I upon another; but viewing the subject as I do, it seems to me that to do this is a plain, unmistakable violation of the right of the people to govern themselves.

I have endeavored to show you, sir, that this is not the constitution of the people of Kansas, according to the recorded evidence of their will. It seems to me, furthermore, that this constitution is a fraud. It is not only not their constitution, according to their will, but it is got up and made in fraud, to deprive them of their rights. I believe that, and I think it can be shown.

The President of the United States has furnished us an argument on this subject, and it has been oftentimes repeated here in the debate of course a plausible and ingenious argument, as all must admit, even those who deny the solidity of the reasoning. What is the argument? The President says that the sense of the people was taken, and proved to be in favor of calling a convention. The convention was called; delegates were elected; those delegates made a constitution; that constitution was submitted to the people in part, and approved by a vote of six thousand, taken according to law. Well, all these, you will observe, constitute a tissue, a long series of little legalities, regularities, and technicalities; and the reasoning of the President is founded on technical points on each of these facts. You must admit all the facts. Yes, sir, the facts are all true; and if they alone constituted the case, the conclusion would be fair and right that this constitution has been regularly made; that this constitution has been sanctioned by the people as well as by the convention. But is there no more in the case than this? There is a great deal more in the case than this.

When frauds have been alleged and charged against this government of Kansas, gentlemen say, "ah, but these frauds were in other elections; these frauds do not particularly and specifically touch this constitution, or the proceedings which led to

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