the proper control; and to hold that control, and to fix and make permanent and operative their sovereignty, they must put it in the form of a constitution. That is the only security for popular sovereignty. Therein it exists, and therein alone can it exist. It is not true that the people cannot bind themselves, and are not bound, by the restrictions of their constitution. They may rebel against their own constitution; they may violate their own law and constitution, just as they could violate the law or constitution of any other people; but it does not follow that, because they could do that, they have not created a political obligation on themselves by a constitution, only to amend that instrument in the guarded, temperate, gradual method which the constitution may have provided for and prescribed.

Sir, I am sorry to have occupied the time of the Senate so long I can say, with the President of the United States, that on this important occasion I have endeavored to do my duty, with a full sense of my responsibility to my God and to my country. Under the conviction that the best results to be obtained under the present circumstances, unless some material amendment can be made to the bill, will be attained by rejecting this constitution, I shall give my vote against it; but so anxious am I to conclude this subject, that I intend, before it is finally acted upon by the Senate, to propose an amendment. This would not be the proper time to offer it; I am not prepared now to offer it; but the effect of it will be to admit Kansas into the Union upon condition that this constitution of hers be submitted to a fair vote of the qualified electors of Kansas, to be ratified by them; and if so ratified, the President, on information of the fact, shall proclaim it à State of the Union without further proceedings; and, if it be not ratified, to have a new constitutional convention convened. My amendment will be an enabling act in effect, but admitting Kansas for the present.

KANSAS-THE TERRITORIES.

SPEECH

OF

HON. LEWIS CASS, OF MICHIGAN,

DELIVERED

IN THE SENATE OF THE UNITED STATES, MAY 12-13, 1856.

The Senate, as in committee of the whole, resumed the consideration of the bill (S. No. 172) to authorize the people of the Territory of Kansas to form a constitution and State government, preparatory to their admission into the Union, when they have the requisite population. Mr. CASS proceeded to address the Senate. He said:

Mr. PRESIDENT: The bill under discussion relating to Kansas presents itself in a double aspect to the consideration of Congress. It involves not only the present condition of that Territory, and the measures proper to be taken with reference to it, but it involves also the general principles connected with the Territories of the United States, and the extent, as well of their rights, as of the constitutional power of Congress over them. I propose to submit to the Senate some remarks upon both these topics, but principally upon the latter-not only on account of the importance of the subject, but also on account of the many and discordant views, and the elaborate discussions, to which it has given rise in this body, and in the co-ordinate branch of the national legislature. I shall commence with the relations between the United States and their Territories, but shall endeavor first to redeem from obloquy a cherished American principle, which lies at the foundation of free institutions.

This principle has been designated as popular sovereignty, squatter sovereignty, territorial sovereignty, and marked by other sneering terms, used contemptuously as nicknames, rather than descriptively as definitions, and which has served to cast reproach, and often designedly, upon a great element of human freedom, and to bring it into discredit.

This system of tactics originated during the progress of the controversy concerning the admission of California, when it was contended that the government established there in self-defence, by the people, ought not to be recognised; and, among other reasons, because they were squatters-that was the cant phrase-and did not own the land: as though American citizens, borne by the accidents of life to a part of the national domain without the limits of an organized State or Territory, are destitute of all rights, and, in the absence of established law, can establish no law for themselves; and, as a corollary, that the only true sovereignty is landlord sovereignty. Sir, this is strange doctrine for this great republic, boasting of its political equality, and for this middle of the nineteenth century, boasting of its political progress and intelligence. It carries us back to the worst periods of the world, when man was nothing, and lands, and trees, and rocks, were everything.

On a former occasion I adverted to the happy manner in which this artificial and unjust state of society was ridiculed by Dr. Frank in, in one of his practical apologues, more powerful than argument; but it is so appropriate to this discussion, that I am tempted again to call it into the service of human rights. A property qualification is required (said the American parable-maker) to entitle any one to enjoy political privileges. To-day a man possesses a jackass, and is therefore a voter. To-morrow the ass dies, and the vote dies with him. To whom did the vote belong, to the ass or to his owner? I am not political casuist enough to answer the question; I leave its solution to him who believes in the necessary connexion between the moneybox and the ballot-box. One hundred thousand American citizens found themselves without law in California, soon after its cession to the United States. Congress refused or neglected to make any arrangement for their government, leaving them exposed to the terrible evils of anarchy. By all the laws of God and nature they were justified, as a measure of self-defence, which is as incident to communities as to individuals, in providing for their own safety-existence, indeed-by the institution of a government. They did so, and came here for admission, and were met by reproaches, and harsh epithets, and delays, almost refusal, and were characterized as landless and lawless adventurers. That they were landless was neither their crime nor their fault; that they did not continue lawless, they owed to their own firmness and intelligence, not to our justice or sympathy. They did, as the self-exiled adventurers had done cenChecked

May 1913

turies before them, when they landed upon this continent, and "combined themselves together (these are memorable and historic words) in a civil body-politic;" and never did human gov`ernment rest upon a truer basis than did these political systens in the infancy of the settlements upon the coasts of the Atlantic and the Pacific oceans.

The misapprehension or misrepresentation, which has prevailed respecting the doctrine of those who maintain that American citizens, thrown as waifs upon an unoccupied strand, have a right, in the absence of law, to provide it for themselves, and have at all times other natural rights, of which they cannot be deprived without their own consent, except by the authority of the constitution of the United States, serves to show that strong prejudices have been at work, mingling themselves with the investigation of this interesting subject. The proposition that our citizens are not political slaves, and have rights which Congress neither gave nor can take away, was first called squatter sovereignty by way of derision, and yet receives the same appellation, but now in sober earnest; and if not with the purpose, certainly with the effect, of identifying the name with absurd or dangerous doctrines. I heard it said here, after the imposition of this sobriquet, that squatter sovereignty was a claim to divest Congress of its rights over the public land. Six years have passed away, and no such pretension has been advanced; and he who should seriously advocate it would hardly need the certificate of a physician to prove his qualification for a mad-house.

This principle of self-government is confounded with revolution, and it is charged with making that extraordinary remedy an ordinary legal right. Sir, no true believer in the doctrine, that American citizens possess rights in the Territories, includes in that proposition the right of revolution. That is an extraordinary resource against oppression, belonging to all political communities, and to be resorted to by each at its discretion, and upon its responsibility. Free as our government is, I can foresee cases, not probable, scarcely possible even, in which this great measure of self-defence might become necessary and justifiable. If a Territory, having passed legally into a State, should apply for admission into the Union, and the application should be rejected, unless with the imposition of conditions destructive of its true equality-such as a requisition to exclude slavery, or to do any other act not prescribed by the constitution-a State, under these circumstances, would have a right, in the words of the Declaration of Independence, to dissolve the political bands which connect it with an unjust government, and to claim admittance, as a distinct member, into the family of nations.

It seems also to be supposed by many that the advocate of squatter or popular sovereignty, assuming the name as an established one-and for myself I'shall not quarrel with it, consider ing the doctrine so good that it could survive a much more powerful assault than this baptismal one-advocates also the right of the people of a Territory to change the government at their pleasure; and I have heard it maintained that the recent attempt to establish a State government in Kansas must be supported by every advocate of this doctrine, if he would preserve his own consistency. Sir, I believe in no such pretension. I never advanced or defended it, nor shall I defend it now. Although cases have occurred where the measures for the establishment of a State government have had their initiation in the local legislature, yet they origi nated in, and were justified by, peculiar circumstances. But an attempt to change the government by a partial popular interference, without the intermediation of Congress, or of the Terri torial legislature, finds no support in any views I have ever presented upon this subject. And the dangers attending the public tranquillity, which must necessarily accompany a voluntary effort like that among an excited people, divided in opinion, are enough to deter me from favor-ing it.

In brief, sir, this is my creed upon this subject:

1. I believe that American citizens have rights in the Territories, whether they own land or

not.

2. Those rights are independent of Congress, and neither derived from nor granted by that tody.

3. It is the duty of Congress to organize governments for the Territories; and if that duty is refused, it is the right of the people to do it for themselves.

4. The change from a Territorial to a State government should not be undertaken without the vote of the majority of the people, authorized by law to be taken for without such authority it is obvious that the whole transaction becomes a spontaneous one, which will be supported by its partisans only, and in which those who are opposed to it will take no part, and the result, therefore, will be no indication of the true views of the people. And the foundation will be 'aid for bitter dissensions, and the resisting and the intruding governments will each find partisans and enemies.

Sovereignty is, in no proper acceptation of the word, applicable to the Territories of the United States. They are dependencies of the general government, and possess no attribute of independence.

But the question is, what political relation do they bear to that government, and what powers can it constitutionally exercise over their inhabitants? Are these inhabitants destitute of all rights, and subject to the uncontrolled will of Congress? And can that body "sell them into slavery," as coolly asserted in the House of Representatives by a member from Indiana?

Those who maintain that the people of the Territories have certain inalienable rights, maintain just what our fathers contended for, first by argument, and then by arms, in opposition to a similar assumption of uncontrolled power of legislation by the British Parliament, which

declares that HIS MAJESTY IN PARLIAMENT HAS THE RIGHT BY STATUTE TO BIND THE COLONIES IN

ALL CASES WHATSOEVER.

What rights have the people of the Territories? They possess all those natural rights, "written, "----as Lord Chatham said, when he nobly advocated their existence and obligation in the House of Lords-" written in the great volume of nature," which are not taken from them, and intrusted to Congress by the constitution of the United States.

The inquiry, then, is, not into the rights of the people, but into the constitutional power of Congress to interfere with them; and this, too, under a government not only of limited but of granted powers, and which can exercise no authority not conferred by express provision, or by necessary and proper implication, for these are the words of the BOOK.

And still more: a government whose very corner-stone is the inseparable connexion between power and representation, and which seeks to extend its jurisdiction-and one, too, which penetrates into the most hidden recesses of private and domestic life, over distant communities, which have no participation in this far away legislation-no means to keep a foreign law-giver from its hearthstone.

What power, then, has the federal legislature over the territories of the United States? To

THE LAW AND TO THE TESTIMONY.

The word "territory" is not to be found in the federal constitution as applicable to a politi→ cal community. It occurs there but once, and in the following clause:

"The Congress shall have power to dispose of and make all needful rules and regulations concerning the territory or other property of the United States."

(Not shall have power to make laws to govern people.)

The Supreme Court has decided, and the meaning is undeniable by any one possessing but a slight knowledge of the laws of English syntax, even without such decision, that "the term 'territory,' as here used, is merely descriptive of one branch of property, and is equivalent to the word 'land;' and Congress has the same power over it as over every other property of the United States."

The clause, by this construction, may be thus read: The Congress shall have power to dispose of and make all needful rules and regulations. concerning the land and other property of the United States. Here is no grant of political power, no jurisdiction over the lives and persons and property of American citizens, but only an authority to take care of and sell the public land-such an authority as a land-owner may properly exercise. If the word "territory " means a political community, and not land merely, it follows that, as Congress may dispose of it, they may sell every territory, people and all; and this, too, though the whole land may have been previously disposed of to purchasers, and not an acre left to the United States. And this tremendous, unlimited power over American citizens, involving all the issues of life and death, is derived from a simple grant to regulate and sell land. And this regulation must be "needful," says the constitution. Needful for what? For the regulation and sale of the property. Not needful for the constitution of the United States, nor for any of the ends for which that compact was formed-such as the general welfare, the establishment of justice, and others, as Mr. Adams contended some years since; for such a construction is not only in the very face of any just rule of interpretation, but it would prostrate the barriers of the constitution, leaving all powers to be considered needful which any party might desire to exercise. This is the very consequence foreseen and foretold by the legislature of Virginia in their memorable resolutions of 1799, as the result of this indefensible latitude of construction: "That it would have the inadmissible effect of rendering nugatory or improper every part of the constitution."

And, in this connexion, I may ask, what has the relation of husband and wife, or of parent and child, or of master and servant, to do with the property of the general government? Or how does that government acquire any jurisdiction over these conditions of society, under the pretence that it is needful for the management of their property? And I may ask as much respecting a note of hand, or any of the infinite variety of the concerns of life, for the protec tion of which governments are instituted. Can construction be further construed?

I desire to know, if this clause is the foundation of the authority exercised by Congress over the Territories, how it happens that this authority has been exercised over thousands of square miles in the various Territories, not one foot of which was ever the "territory "-meaning the property-of the United States; as in the State of Ohio, when a part of the Northwestern Territory, over a superficial extent equal to one-fourth part of the State, being the Connecticut western reserve, extending one hundred and twenty miles east and west, and the Virginia military reservation, embracing the whole country between the Sciota and the Little Miami rivers, both of which districts of country were reserved by those States respectively, when they made their cessions, and never belonged, not the smallest portion of them, to the United States; and in the State of Tennessee, when the Southwestern Territory, over more than seven-eighths of its area, disposed of by the State of North Carolina before its act of cession, and never conveyed to the United States; and over vast regions in Florida, Louisiana, Arkansas, Missouri, and almost every other territory where righ s to land had been acquired by individuals before the cession of the country, and were held independent of the United States. As in these cases there was no "territory," or land, to dispose of or regulate, there was nothing on which the

constitutional provision could operate. And the inquiry is equally pertinent as to the continuance of this power after the public land is disposed of how it carried with it legislative authority over the extensive districts-sold to the Ohio Company, and to John C. Symmes, in that part of the Northwestern Territory, now the State of Ohio, before the general government went into operation; and how it happens that, when a tract is sold and thus ceases to make a part of the public domain, the power of government over it does not cease, if that power is derived from the constitutional authority to regulate, not private, but public property? In such a case, the power passes with the object; and this clause is just as applicable to private property in the State of New York as to private property in a political Territory.

I have heretofore shown, upon this floor, that there were twelve principles or provisions of the constitution from which this uncontrolled power of congressional legislation over the people of the Territories is deduced. I have no purpose to re-examine them upon this occasion, and shall do little more than enumerate them, adding three auxiliary powers since discovered; and I do so merely to call attention to this multitude of derivative clauses, each with its advocates, as a significant fact, furnishing a powerful presumption against the existence of a despotic authority-a foundling wandering about the constitution in search of its true parentage. These assumed provisions and principles--for there are both--are as follows:

1. The land regulating and selling power, to which I have already referred.

2. The war and treaty making power.

3. The right to admit new States.

4. The implication clause of the constitution, attaching itself to the right to sell the public land.

10. The principle of agency and trust.

11. That provision of the constitution which declares that "all debts contracted or engagements entered into before the adoption of the present constitution, shall be as valid against the United States under this constitution as under the confederation."

12. There are those who admit that the ordinance of 1787 was "passed by the old Congress of the confederation, without authority from the States;" and among these was Mr. Adams, late President of the United States, who contended, not that the clause respecting debts and engagements confirmed the former, but that it "had been tacitly confirmed by the adoption of the present constitution of the United States, and the authority given to Congress to make needful rules and regulations for the territory." Surely it cannot be necessary to investigate such a foundation of power under a government which derives all its authority, not merely from express grants, but which is still further restricted in its operation by the emphatic declaration that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Never was the abuse, I might almost say the use, of power more jealously guarded; and we yet here find the sixth Chief Magistrate, in the very infancy of the Republic, maintaining, as a ground of congressional jurisdiction, that its exercise had been "tacitly confirmed " by the adoption of the constitution, and by the authority to regulate and sell the public land; not by a grant of power, but by the usurpation of it-by" tacitly " assuming that the engagement clause confirms the authority, while expressly admitting that it does not. I leave, without further comment, this rule of interpretation to those who can find either wisdom or safety in its application.

I have said that three new sources of power have recently been discovered to justify congressional interposition, and I now add that these are:

13. The right and duty of guardianship.

14. The transmissible power, by which the constitution of another country is substituted for that of the United States.

15. What may be called the paternal power, which places the general government in loco parentis.

Mr. President, I repeat that I have no design to enter into an investigation of the reasons which are urged in support of these various derivations whence the power of government is deduced, or rather whence it is not deduced, contenting myself with leaving them where I left them upon a former occasion. I shall depart from this determination in one or two cases only, and I do this in consequence of the presentation of new views, or of views presented with new force.

The majority of the Committee on the Territories, in their recent inquiry into the true foundation of the power to establish Territorial governments, have sought it, and seem to believe they have found it, in the provision of the constitution, that "new States may be admitted by the Congress into the Union," &c. I can trace no such grant to such an authority. It proceeds upon the inadmissible pretension that the federal legislature may take any appropriate means, not merely to enable it to exercise a granted power, but to exercise an independent power over which it has no control.

Mr. President, some years since this whole subject of the right of congressional jurisdiction over the Territories was learnedly and laboriously investigated in both wings of the capitol. It