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DELIVERED IN THE SENATE OF THE UNITED STATES, APRIL 7–8, 1856.

WASHINGTON:
PRINTED AT THE CONGRESSIONAL GLOBE OFFICE.

1856.

les 5321.23

HARVARD COLLEGE LISRARY

JUIN
CHARLES ELLIOTT FELSONS

MEMORIAL COLLECTION

KANSAS CONTROVERSY.

The Senate, as in Committee of the Whole, having under || able under the temptations presented by the Kanconsideration the bill to authorize the people of the Terri sas-Nebraska act; or, in other words, that the retory of Kansas to form a constitution and State government, || sponsibility for all the acts of violence which have preparatory to their admission into the Union, when they || been committed or threatened rests with the Conhave the requisite population

gress which passed that act. On the other hand, Mr. GEYER said : Mr. President, my posi- | the majority report places the responsibility where tion, as the sole representative of the people of I am disposed to place it-upon those who operMissouri in this Chamber, will not permit me to ate at a safe distance, and expose themselves to decline a participation in a debate which has no none of the dangers of the strife which they other attractions for me. I engage in it, there foment and promote. fore, as a work of necessity rather than one of Mr. President, the minority report undertakes taste and inclination. The circumstances under to apologize for my constituents, as well as for which it was inaugurated indicate the purpose to those who engaged in the contest at the instigamake political capital out of the disturbances in tion or under the patronage of associations in the Kansas, with a view to the pending elections, other States, but does it on an assumption that I State and Federal. In such a controversy I could || cannot admit, and I feel a stronger desire to vindihave no disposition to engage here in the Senate; || cate them against that apology than all else which but the debate has embraced questions of endur- | has been said in this Chamber. I cannot agree ing interest, of the legislative history and power that they have yielded to a temptation, which it of Congress in respect to the Territories, the con is said this law presented, and the encouragement stitutional and political relations of the States it gave to acts of violence and disorder; and that and people of this Union towards each other, and they have been unable to restrain themselves their reciprocal obligations and duties, as well as when unprovoked by assaults from another quarof the events in Kansas since the organization of ter; nor will I consent to accept for them a defense the government in that Territory. Upon some intended for their assailants, and which for that of these topics I intend to address the Senate, || purpose only, regards the acts of both parties as and especially on those which more immediately || justifiable, if not praiseworthy: concern the people of Missouri.

In order to sustain the conclusions of the mi. All agree that there have been disturbances in nority report, its author goes back a great disKansas, but we disagree as to their origin, nature, | tance, and brings under review “the action of and extent. The honorable Senator from New || Congress in relation to all those thirteen Terri. Hampshire (Mr. Hale) opened this discussiontories" which are now States of the Union, and by a bold denunciation of the President of the affirms that “it was conducted on a uniform prinUnited States as the instigator of mob violence ciple to settle by a clear provision the law in relain Kansas. This was followed by the Senator tion to the subject of slavery, by which it was from Massachusetts, (Mr. Wilson,] the Senator expressly prohibited or allowed to remain, not from Illinois, (Mr. TRUMBULL,) and the Senator | leaving it in any one of those cases open to confrom Iowa, (Mr. Harlan,) in an attempt to throw troversy—that this was done under a power too on the people of Western Missouri the entire clear to be doubted, and resulted in securing peace responsibility for these disturbances.

and prosperity-that by the act of the 6th of The subject having been referred to the Com- | March, 1820, a contract was made that Missouri mittee on Territories, we have two reports. That should be admitted without prohibition, and of the minority is founded on theory, differing | slavery forever abolished in the rest of the territory from all others, and affirms that the acts of all | ceded by France, north and west of that State parties engaged in the disturbances were justifi- ll that under this arrangement Missouri was admitted

as a slaveholding State, Arkansas organized as a It appears, then, that in seven of the thirteen Territory, anů slavery allowed therein, and after- | Territories named in the minority report, there words admitted as a slaveholding State. That in was no provision in the organic laws settling the 1850 a second contract was made, the slaveholding question of slavery, to which must be added New States agreeing that the organization of New Mexico and Utah, making nine out of eighteen, Mexico and Utah as Territories without prohibi organized before the passage of the Kansas-Netion should, together with the existing laws, settlebraska act, without prohibition or express recogforever the whole subject--that both the contracts, inition of slavery. It should be remembered also, called compromises, were broken and disregarded that the whole of the other nine were covered by the act of 1854-that this measure is a novel | either by the compact of 1787, or the so-called comexperiment, as well as a breach of faith, proclaim- || promise of 1820, recognized as such by the southing an open course for a race of rivalship, pro ern States, until they were obliged to surrender voking and encouraging a struggle for political all hope that it would be observed, convinced by supremacy, the necessary consequence of which successive repudiations that it never had been was strife in the Territory organized, and in that regarded by the other parties as obligatory on struggle it was justifiable, and even commendable, them. It is worthy of remark, also, that Confor all persons to engage individually, or by or gress did not undertake, nor did the southern ganized associations." These propositions I States ever ask them, to establish, or even to shall take leave to controvert.

recognize, slavery by law anywhere. The first attempt, under the Constitution, to But it is enough that, in all the Territories settle, by a clear provision, the law on the sub where slavery actually existed to any considerject of slavery in a Territory, was in 1819, in the able or general extent, and in at least two where it case of Arkansas during the first agitation of the did not in fact exist-making nine out of eighteen Missouri question. The first enactment of Con —there was no interference with the subject by gress prohibiting slavery anywhere was not in any Congress. So that the act of 1854 is not " a novel act for the organization of a territorial government, experiment." but in the act of March 6, 1820, authorizing the The legislation of Congress in relation to the people of Missouri to form a State government.

Territories is claimed in the minority report to All the territory northwest of the Ohio was "furnish a practical cotemporaneous construcembraced by the ordinance of 1787, passed by the tion" of the Constitution, establishing the power Congress of the Confederation. It contains two of Congress in the Territories on the subject of distinct parts: the first is an organic law for the slavery to be absolute and unlimited, and that, temporary government of the whole district. The beyond the possibility of doubt or apology for second consists of articles of compact between the skepticism. This position the honorable Senator original States and the people and States, in the said from Vermont (Mr. COLLAMER] has attempted to Territory, to provide, among other things, " for reinforce in his speech, and, as I entertain a very the establishment of States and permanent gove different opinion, 1 propose to examine the preernment therein, and for their admission to a share cedents upon which he relies. in the Federal councils on an equal footing with The ordinance of 1787 embraced all the terri. the original States.". This compact, the sixth tory northwest of the Ohio; and, although it was article of which prohibits slavery in the Territory, recognized by Congress after the adoption of the it was declared should "remain forever unalter- | Constitution in the acts organizing territorial able unless by common consent. Though the governments in that district of country, it was not ordinance was passed without constitutional au reënacted. The new government was bound by thority, it was regarded as a compact by Congress all the contracts of the Confederation. That obli. in their subsequent legislation under the Consti- gation, in respect to the ordinance of 1787, was tution. The obligation of the compact being recog- recognized by Congress in the acts referred to, nized, the organization of Territories within the which assented to the organic law already in force, tract of country embraced by the ordinance was but did not attempt to reënact or repudiate any made to conform to it; that is to say, the pro-"article of the compact between the original States hibition, which was declared to be perpetual, was and the people and States in the Territory. not repealed.

These acts of Congress were passed in the execuThere was no provision settling the law on the tion of a contract of recognized obligation, not subject of slavery in any of the acts authorizing under an independent power of legislation. And any of the territorial governments south of the here I take occasion to remark, that what ocOhio, and east of the Mississippi. Where the curred in respect to the recognition of the comgovernment was to be similar, or conform to the pact of 1787 occurred also in respect to the supordinance of 1787, the sixth article of the composed compromises at a later period. It appears pact was excepted. The acts for the organization that southern representatives, when they suppose of temporary governments west of the Missis-that they have made a contract, do not seek for sippi, prior to the year 1836, contain no provision, excuses to escape from its obligation, (although directly or indirectly, concerning slavery. In all it be not legal,) while it is observed by other these Territories east and west of the Mississippi | parties. Although the original compact was withthere was no provision expressly prohibiting, or out constitutional authority, they did not scrutiallowing slavery. All left it to be regulated by nize the powers of the Confederation in order to the local law, that is, non-intervention, the prin contest the legal validity of the sixth article, or ciple of the Kansas-Nebraska act, and of the com- any other of the compact or organic law conpromise of 1850.

tained in the ordinance; it was enough for them

to know that a compact was intended, and they was actually existing to any considerable or recognized the moral obligation to observe it. So, I general extent, as in Arkansas, “to suffer it to for thirty years after the Missouri compromise remain.” In that case there was a well-sustained so-called, and until they lost all hope of its recog-effort on the part of the northern Representatives nition or observance by the other parties, they to impose a prohibition, and finally there was a adhered to it with unwavering fidelity.

tie vote-eighty-eight to eighty-eight. Arkansas I passed over the act of 20 August, 1789, be was saved by the casting vote of the Speaker. A cause, although the honorable Senator from New majority of all the Representatives of every nonHampshire claimed it to be a reenactment of the islaveholding State, with perhaps one exception, ordinance of 1787, the proposition was abund- i voted in favor of the prohibition.* This, accordantly refuted by the honorable Senator from ing to the hority report, was a violation of prinGeorgia, (Mr. Toombs,) whose interpretation of ciple by every State, a majority of whose Reprethe act I understood to be assented to by the hon-sentatives voted to prohibit slavery in Arkansas; orable Senator from Iowa, (Mr. HARLAN;) and and the decision against the prohibition must be that is, to adapt the ordinance to the present regarded as a construction of the Constitution Constitution by transferring to the executive against the power claimed. department of the new government the power of The eighth section of the act of 1820, called appointing and removing officers vested by the or the Missouri compromise, was not passed in the dinance of the Congress of the Confederation, and execution of any power to organize territorial to provide for the case of vacancies in the office governments. It is either a compact, or an ordiof Governor. This is all that was intended or

nary provision of law; if the former, it is not a accomplished by the act.

precedent for any act prohibiting slavery in the The honorable Senator from Vermont [Mr. | Territories under the Constitution, independent COLLAMER) endeavors to sustain his proposition, of a compact. As an ordinary act of Congress, it that the disputed power over slavery in the Ter- depends for its effect wholly on the Constitution. ritories is established by the cotemporaneous | As a compact it may not be legally obligatory, construction of the Constitution, by referring to but it imposes a moral obligation on the parties the act of 1798, providing for the government of independent of the law. The act in question is Mississippi Territory, the first instituting a ter a precedent only as an ordinary act of legislation, ritorial government independent of any compact, passed, as the Senator from Vermont says, by and in territory over which the United States the southern States, and being repealed, or, more exercised jurisdiction, though Georgia claimed properly, declared " inoperative and void” by a adversely. That act did not purport to prohibit constitutional act of Congress, it ceases to be a or regulate slavery in the Territory, but left it to precedent of any authority, the local law by excluding the sixth article of the The legislation of Congress respecting slavery ordinance of 1787. The assertion of a general in the Territories, embraced by the eighth section power over the subject is inferred by the Senator of the act of 1820, is to be referred to the obligafrom a clause prohibiting the introduction of tion of the supposed compact, and not to the slaves from any place“without the United States." assertion of a constitutional power independent Was not the honorable Senator aware that this | of any compact. The prohibition of slavery clause depends on the power to regulate com north of 360 30' in Texas was by compact. merce, to prohibit the foreign slave trade, except between that State and the United States. " Its in States existing at the adoption of the Constitu- validity depends upon the power of Texas, and tion, prior to 1808, and everywhere in the United not upon any independent act of Congress, under States afterwards?

the Constitution. On the other hand, the acts The act of 26th March, 1804, providing for the for the organization of New Mexico and Utah government of the Territory of Orleans, (part of are precedents against the exercise of the power Louisiana,) was referred to by the Senator for claimed. the same purpose. It contains the same provision, The Senator from Iowa relies upon the acts of enacted under the same power, and prohibits also Congress enabling the people of the respective the introduction of slaves which had been imported States of Ohio, Indiana, and Illinois, to form into the United States against law, after the 1st constitutions; providing that they should not be May, 1798, or by any person other than a citizen repugnant to the ordinance of 1787, as examples of the United States, bona fide emigrants, and of the legislative construction of the Constitution, settlers. Of this act it is enough to say, that it in favor of the power claimed over the Territowas not passed under any claim of power to pro- ries; but it is obvious that the clause in question hibit or establish slavery in a Territory, but is was intended only to recognize the obligation of to be referred to the power before-mentioned. the compact, and not the exertion of an indeThe honorable Senator omitted, however, to state pendent power under the Constitution, otherwise that the act was repealed in less than a year by it must be regarded as nothing less than an the act of 3d March, 1805, and therefore it is not attempt to dictate a constitution, the assertion of available as a precedent, still less does it afford a power which no Senator here will attempt to evidence of the cotemporaneous construction maintain. claimed.

There is, however, a precedent in which the There was an attempt to abolish slavery in authority to dictate the provisions of a State conArkansas in 1819, in direct opposition to the stitution was asserted by Congress, independent principle which the honorable Senator from Vermont says was uniform, that is, “ where slavery

* See Appendix, No. 1.

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