35TH CONG....1ST SESS. for him, or when he is unable to labor, as when he labors; and he is not destined to suffer from hunger, or from cold, or even liable to be deprived of the little comforts and pleasures that cheer his humble lot in life, because of the vicissitudes of trade, the uncertainty of the seasons, or deficient harvests. Admission of Kansas-Mr. Olin. announced from his place the other day that there But, sir, this is not all. The existence of this class, say what you will, gentlemen of the North, Mr. Chairman, when I look to the future, I see has the effect of ennobling and giving dignity to a different sight. I remember that there is only the laboring white man. Labor though he may, a small portion of territory still to be occupied and no matter in how humble a position, he is by our people that is the peculiar domain of our still white. He belongs to the governing, the su- northern brethren. Within a few, a very few perior class. In law, he is not only the peer of years, the only new States presenting themselves the master of the slave, but if he possess intelli- for admission into this mighty family of nations gence, good manners, probity of character, he is will be States which have been established, which everywhere recognized, socially, as the peer of have grown up on the waters of the blue Pacific. his neighbor, whatever may be that neighbor's Will their people have this feeling? Will they superiority in wealth or in the extent of his pos- have the institutions that will make them join our sessions. In the South, Mr. Chairman, labor northern brethren in their warfare upon us? I does not degrade the white man, but the white believe not. I conceive, sir, that their position man elevates labor. The same disparities in for- will be widely different from that which has been tune exist among white men in the South as else-assigned to them in fancy by the Senator from where; but they do not there give rise to the same New York, and by his coworkers, his partners distinctions in rank which always result from that are to be in his approaching greatness. them where slavery does not exist. Looking to the west, across the vast Pacific, Asia lies in view-Asia which furnishes from her teeming millions, those thousands upon thousands of the free poor, dogged by want and destitution, which philanthropic England and philanthropic France are now engaged in bringing from their homes, in obedience to the demands of their planters in their tropical colonies, to fill, as indentured apprentices, the places in their cane fields which had been before occupied by slaves, of which their previous philanthropy had deprived them. Yes, sir, which furnishes the coolies which, under the protection of their laws, and of their flags, are transported to the cane fields of the West Indies, of Mauritius, and wherever else there are a soil and a climate favorable to the growth of tropical productions. And not only is the laboring white man more honored, and his labor more honorable, under our social system in the South, than elsewhere, but his labor is of a kind which exempts him, in a great degree, and will always continue to exempt him, from the fluctuations which have been, and always will continue to be, the curse of the laborer under a different social system. The species of labor which requires mere thews and sinews-physical strength, directed by the most ordinary human intelligence, is, with us, rarely performed by the white man. That is done by the inferior race, while the laboring white man is called on to perform the work that puts in requisition intellect and skill-mechanical aptitude, care, judgment, faithfulness. And as all labor of this kind is necessarily the helpmate of capital and not its subject, the demand for it is far more steady, and the laborers who supply it are comparatively free from the terrible evils which so frequently afflict all of the other classes of free laboring men. Ho. OF REPS. No, sir; our brethren there will have no choice. They must recognize the fact which the Almighty stamped upon these races when he created them inferior to the white man, and refuse to regard them as equals, or to admit them to the enjoyment of any of the political rights now freely accorded to our fellow white men who come among us to find new homes. I do not claim the spirit of prophecy, but I will venture to say this: that in my day, and before half a dozen years shall have passed by, it will have become the settled policy of the people on the Pacific slope to refuse to permit the individuals of the Asiatic races who come among them to become members of their political society; to deny to them the right to enjoy any of the political privileges or immunities accorded to citizens of the United States. There will be a discrimination against them because of their race. They will, in all likelihood, be subjected to the operation of the same system of laws which England has established in the Mauritius and Trinidad and the West India Islands, and which France is seeking to establish everywhere. What is that condition of society? The position of the people who are the subjects of this system of policy is one of inferiority; it is one of vassalage; it is one of quasi slavery. But whatever it may be, and however philanthropic England and imperial France may expatiate upon its civil advantages and moral beauties as contrasted with slavery, one thing is certain: the people among whom it exists will have no sympathy with that feeling which has displayed itself in many portions of the North. It will be found that among these people a new spirit will be born. And that spirit, sir, will be nourished by the streams of emigration and by the tide of commerce setting in on these shores, until it has swelled and expanded itself so as to fill the whole Pacific coast. It will ascend the valleys of the western slope. It will climb the Rocky Mountains; and when it has reached its summits, and From that continent mighty streams of emi- its colossal proportions and its glorious features gration will certainly flow in upon our western are displayed to our gaze as it casts its first glances Territories. And what, let me ask, must be the to the eastward, the demon of fanaticism will stand inevitable results of that emigration? The pop-rebuked, and the fell spirits of sectional hate and ulation thus thrown in upon them is of such a I civil discord will cower under its majestic prescharacter that it cannot assimilate with the people ence and flee forever from our confines. Then, I regret, Mr. Chairman, that I have not more inhabiting the United States. They are foreign Mr. Chairman, and then alone, will we again betime, for I would like to speak upon this subject to them in habits, foreign to them in their feel- come a united people. at length. But, though I have treated it in a hur-ings, foreign to them in their religion. They are ried manner, I trust that, I have said enough to show our northern brethren that they are in error when they assert that our social system in the South degrades labor, and debases the laboring white man. And I trust that I have also said enough to make those who are willing to look at what the past has imposed on other countries, and to divine from that past what the future will fasten upon us, to consider dispassionately and well whether there is any reason why the statesman and philosopher should look to the North in the boundless future with that spirit of exultation which the leaders of the Republican party have been so long accustomed to display in these Halls; or whether there is room for any well-grounded apprehension that the social system of the South is less favorable to the perpetuation of well-ordered republican government, or to the progress and advancement of a great nation in everything that concerns the freedom, equality, and permanent happiness of her people. I will now, Mr. Chairman, turn to the other subject to which I before referred, and proceed to show that the expectations of the Republican leaders, that the South is to be crushed out, that her people are to be deprived of all voice in the direction of the public policy and business of the country, because nearly all of the States which will be hereafter admitted into the Union will be hostile to her, are as unfounded as the representtions to which I have already called your attenion, with respect to the effects of slavery, were rroneous. of a different race and of a different nature. If they are admitted as equals, they would soon constitute a majority of the inhabitants. And what then? Would they not proceed to carry out their own views? to adopt their own civil institutions? establish their own religions? and to set up their manners and habits and usages? Certainly they would; and if admitted as equals these strangers would soon fill those vast territories, destined, as I hope and trust at no distant day, to be great seats of American empire, and Christianity would give place to Buddhism and to the worship of the god Fo, and of the long list of other idols that figure in their heathen mythology. The ministers of the meek and lowly Jesus would give place to the bonzes, and to the varied tribes of ignorant and besotted priests, who bow down before the misshapen and monstrous images of their gods; and the civilization, refinement, and elevated philosophy of the white races of Europe and America who now people those shores, would be trodden out by the pagan barbarism of the yellow races of Asia. For myself, Mr. Chairman, when I look to the future I feel persuaded that the leaders of the Republican party will be defeated in all of their deeplaid schemes; that an irresistible; an overruling necessity will soon repulse their ambitious attempts, and put a stop to this crusade against us. I feel, sir, that there is a Divinity above us, the great Disposer of human events, who shapes our ends, Rough hew them how we will." If we pass this crisis in safety, as I trust in God we may, what I see in the future makes me feel that we shall soon become the greatest people that the world has ever seen. We shall then be in a condition to grasp the rod of empire which lies within our reach; and then, sir, moving along the highway of greatness, this mighty people will sway the destinies of the whole civilized world. And if they themselves continue under the guidance of that wisdom and moderation which have hitherto distinguished their policy towards other nations, they will be enabled to discharge that high mission which the Almighty has, as I believe, imposed upon them, for the future good of the whole human family. ADMISSION OF KANSAS. OF NEW YORK, IN THE HOUSE OF REPRESENTATIVES, And now, sir, let me ask, is there any one who is disposed, in order to gratify the sickly sentimentalities of Exeter Hall, or the fanatical and ferocious dogmas of the Tabernacle, or the finespun theories of those who back the Kansas- SPEECH OF HON. ABRAM B. OLIN, shriekers of the North; is there any one, I say, who would stand idly by and permit such a wrong to be done to all true religion and civilization? I think not. And for one, sir, I do not hesitate to believe that it is both the right and the duty of the people there to look to it in time, and apply the needful remedy. Their position will force this question upon our brethren who are in posses- Mr. CHAIRMAN: I am well aware of the embarsion of the almost boundless regions beyond the rassment which every man must feel who rises to Rocky Mountains. And, sir, they will be com- address the House at this stage of the discussion pelled, by a political necessity, to decide it in faon this important question. No talents, however vor of the religion, the morals, the civilization, commanding; no acquirements, however extenand the refinement and manners of the white race.sive, would probably command the attention of The House being in the Committee of the Whole on the state of the Union Mr. OLIN said: 35TH CONG.... 1ST SESS. any respectable number of the House, Were I to consult my own wishes, I would content myself with giving a silent vote on the question when it comes to be presented to this House for decision. But it is due, in part to the people whom I represent-knowing as I do that my convictions of duty in regard to this measure correspond entirely with theirs-that their views should be expressed on this floor. It is due, also, to the expression of both branches of the Legislature of my State, as contained in their resolutions introduced into this House protesting against this measure, that I should speak in regard to it. I do not suppose that I shall be able to present this question in any new or striking light, or to give the House any information on this subject which it does not already possess. In reference to any practical results to be attained by further discussion of this question, I am very much of the opinion of the editor of the Washington Union, a paper which I seldom read, but which I happened to lay hold of yesterday, and which contained the following: "Forty set speeches in the House-forty hours of easyreading in a deliberative body-forty lay sermons on pohties in Congress! Why, it is worse than forty years in the desert, or forty days fasting in Lent, or the horrors endured by the forty thieves in their forty jars when the hot oil was poured in upon their frying bodies and souls." Now, in most of that I concur with the editor of the Union; and there is but one affliction, in my judgment, that a man could be subjected to, which would be worse than having to listen to speeches upon this subject on this floor, and that would be if a man were condemned to read the editorial effusions of the Washington Union by the hour. [Laughter.] The President tells us, in the remarkable message that accompanied this constitution, that there is a strange delusion existing in the country in reference to the affairs of Kansas. Now, sir, if that message contains a truthful representation of the affairs of that Territory, there is indeed a strange delusion, and that delusion exists with entire unanimity among the people whom I rep resent. Sir, the plain scope and tenor of that message is, that from the time of the formation of the government of that Territory, a large portion of its inhabitants-actuated by no conceivable motive, except such as is ordinarily charged in commonlaw indictments," instigated by the devil"-have been in open rebellion against the territorial government, and have been endeavoring to subvert that government. No fact, no circumstance is alluded to in the message, which is claimed to justify, palliate, or excuse resistance to the lawful government. Now, who does not know that a statement of that description is an untruthful, prejudiced, partisan, and false statement of the affairs of that Territory? Sir, there is a maxim in law, which is equally true in morals, that oftentimes the suppression of truth is equivalent to a falsehood. Who does not know, without reference to a single fact outside of this paper, that this message is not only a libel upon the people of the Territory, but a libel upon human nature itself? There never has been found-there never will be found, while human government remains but "the badge of lost innocence"-a people who have rebelled against an established government, from the mere love of rebellion. Men commit crime; the world is full of it; but they have the ordinary motives of crime. The President, however, in his view of the affairs of the Territory, has not found any motive or excuse which is claimed to palliate the conduct of that people. Mr. Chairman, I trust I have a becoming sense of what is due to the Chief Magistrate of this Republic. When I reflect that he occupies his present proud position by the voluntary choice of the people of this Republic, I bow to their majesty, and have toward the object of their choice no other feeling than that of reverence and respect. But when I read this message, when I remember the history of the people of Kansas and their countless wrongs, when I remember under what pretenses the Missouri compromise was stricken down, when I remember the pledges that were made in his name, when I remember the delusive plea that was set up of popular sovereignty-that this was a great Democratic measure, that the people were to be left entirely free to form their own institutions and to manage their affairs in Admission of Kansas-Mr. Olin. their own way, and the promise that all the powers of this Government should be exercised, if need be, to secure those rights, when I know and see that all these pledges have been shamelessly violated-when I remember all these things, it is difficult to restrain a feeling of something like indignation at this message, and of contempt for its author; and I think that that feeling animates the breasts of a vast majority of the American people at this hour. HO. OF REPS. opinion of Mr. Justice Campbell. They both concede the power of Congress to govern the Territories except in relation to the prohibition of slavery. I may be permitted to observe here that it is a curious fact to notice whence the Chief Justice of the Supreme Court chooses to derive the power to govern the Territories of the United States. Instead of resorting to the express language of the instrument itself, where the power is fully given in proper and apt language, as may be seen by consulting almost any elementary writer on the subject of law, he chooses to deduce or imply the power from certain other powers granted. The language is familiar to all: "Congress shall have power to make all needful rules and regulations respecting the territory, and other property of the United States." Now, instead of resorting to this clause as the source and origin of the power of Congress to govern the Territories, the court chooses to find that power in the right to acquire territory; and as that power is not to be found in the Constitu tion of the United States, and was for a long time questioned by its very founders, the court derives the right to acquire territory from the power given in the Constitution for Congress to admit new I do not intend to discuss the merits or demerits of the Kansas-Nebraska bill. As a question of policy originally it never received my approbation, and had I had an opportunity to vote upon it, it never would have received my assent. I am one of those who believe that Congress has power to govern the Territories of the United States, and that it can never safely dispense with the exercise of that power. It was claimed before the people that this Kansas-Nebraska bill contained a new revelation on this subject-that it embodied the great principle of popular sovereignty-that great principle that lies at the foundation of our Government, and ought to receive the sanction of the people of this country. But, sir, that principle was never contained in the Kansas-Nebraska bill. It never was designed to be put there origin-States into the Union. Now, why was this inally, and so far as it was claimed to have been there, we charged upon its authors that we believed it to be a fraud, and an intentional fraud; and the history of the country, I think, has shown that that charge was not only made in good faith, but that it was true. So far from containing the principle of popular sovereignty, it withheld from the people the exercise of certain essential and fundamental rights, without which no popular Sovereignty ever could exist, and without which there was nothing worthy the name of free government. Why, sir, we knew, the country knew, everybody knew that bill contained the machinery which, in the hands of corrupt and venal men, would enable them to control the affairs of that Territory, irrespective of the wishes of the people. What rights were withheld from them? The election of their Chief Magistrate. If they were fit to govern themselves, and to frame their own institutions, certainly they were fit to elect this officer, an officer possessed of a large and discretionary power. Not only was the election of their Chief Magistrate withheld from them, but judges were appointed for them over whom they had no control, and who were in no wise responsible to them. I have said thus much, Mr. Chairman, in reference to the policy of that measure, because the persons opposed to the admission of Kansas into the Union under the Lecompton constitution have been charged on this floor with becoming all at once the champions of popular sovereignty. Mr. Chairman, I propose to discuss, at some length, the power of Congress to govern the Territories of the United States. I deem this proper in reference to the manner in which the application of Kansas for admission into the Union comes be terpretation of the Constitution resorted to? If the court had contented themselves with resorting to that clause of the Constitution which grants this power, in apt and proper language, they would have been constrained to admit it to be a full and plenary power, and that it invested Congress with authority to make whatever rules and regulations respecting the territory of the United States Congress, in the exercise of its discretion, should think proper. But if the court should resort to some implied power from something else which was implied, the court could then fix the limitation upon this power, by implication, to suit themselves. Now, would it not be a curious study for an admirer of the Virginia resolutions of 1798 to ascertain how to imply a power to govern the territory of the United States from the power to acquire territory, which power must itself be implied from the power to admit new States into the Union-an implied power in the third degree. I think it would be an agreeable and pleasing occupation to some devotee of these Virginia resolutions of 1798 to see how this could be constitutionally and lawfully done. If there be one historical fact undisputed in reference to the formation of the Federal Constitution, I assert that fact to be that the power to admit new States into the Union was granted in the Federal Constitution with reference to the then existing Northwest Territory, and to the territory which was held by the then existing States under the expectation of a future cession of it to the General Government. The discussion which arose upon the Louisiana purchase, calling the attention of the founders of the Federal Constitution to that subject, when all the circumstances attending the formation of the Constitution were fresh in the recollection of living men, demonstrates benot made in reference to territory to be acquired. You all know the opinion of Jefferson on that subject. Anxious as he was for the acquisition of the Louisiana territory, he resolutely insisted that it could not be lawfully acquired unless the Constitution of the United States was amended. So it is manifest, if the power to govern the ter ritory of the United States is not to be derived from that clause of the Constitution which empowers Congress to make all needful rules and reg ulations respecting the territory, &c., and which clause received a practical interpretation in the first has been sanctioned for more than fifty years be Congress assembled under it, which construction yond dispute and controversy, then there is no power in Congress whatever to govern the Territories of the United States. fore the House at the present time; and inasmuch as it is claimed by the President and his friends to be here clothed with all the sanctions and formal-yond controversy that that grant of power was ities of the law. They contend, indeed, that this Lecompton constitution comes before this House with strict regularity, in every step of its formation. No one, I believe, denies the power of Congress over the Territories to govern them in any way it deems proper, provided it does not exclude slavery from them, or attempt to exercise any of the powers prohibited in the Constitution of the United States, such as the establishment of religion, &c. In the recent decision of the Supreme Court of the United States, known as the Dred Scott case, the power of Congress to govern the Territories is discussed to a very considerable extent. Permit me to call the attention of the House, for a moment, to some remarks of Chief Justice Taney, to be found on pages 54 and 55 of the volume printed by the order of the Senate: "The power to acquire territory necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be established necessarily rested in the discretion of Congress. It was their duty to establish the one that would be best suited for the protection and security of the citizens of the United States and other inhabitants who might be authorized to take up their abode there." I might also read in the same volume from the On the formation of the Federal Constitution certain powers were granted to the General Government, and others were reserved to the States, or the people of the States; and the exercise of certain powers was forbidden to Congress, the States, and the people. The aggregate of all these powers constitute what we call sovereignty-that is, all the powers that organized society may right 35TH CONG....1ST SESS. fully exercise for the protection and government of the members composing it. This power or sovereignty is necessarily incident to, and grows out of organized society-cannot be annihilated. Its full and free exercise may be restrained by force, or constitutional limitations. Now, it must certainly follow that the power to legislate upon the subject of slavery must be found in Congress; or its exercise prohibited in the Constitution; or it is conferred on the States; or is among that class of undefined powers reserved to the people of the States. But the rights reserved to the people of the States by the Constitution are rights which pertain to them as citizens of a State, and only while such citizens. The right, then, to legislate upon the subject of slavery in the Territories not being in the States or the people of the States, must necessarily be in the people of the Territory or in Congress. It cannot be in the people of the Territory, unless the people of the Territory are independent of the Federal Government. It follows, therefore, that power must be in Congress, and may be lawfully exercised, unless some provision be found in the Constitution expressly restraining that right. No such limitation is found, or claimed to be found, in that instrument. But it is attempted to insert in the Constitution an implied limitation upon the power of Congress over the subject of slavery in the Territories from considerations of public policy, and the recognition alleged to be contained in the Constitution of the right of property in slaves. But if we were to accede to the position assumed by the Chief Justice of the Supreme Court, that the power to govern the Territories was derived from the right to acquire territory, Congress would still have the right to prohibit slavery in the Territories, for the simple reason that the prohibition or regulation of that institution is confessedly within the scope of legislation. If the power to govern at all be vested in Congress, that power is absolute, unless restrained by constitutional limitation, the existence of which is not claimed or pretended. But it is said that the Constitution recognizes property of the master in his slave. Suppose it does. If the power to govern the Territories exists in Congress, may not Congress prohibit property being carried into the Territory? may they not prohibit a particular kind of property from being carried into the Territory? nay, may it not prohibit the citizens of the States themselves from going into the Territories? Surely gentlemen will not say that the regulation of each and all of these subjects is not within the scope of legislation. What are the limits of legislative power? Why, in the absence of constitutional restrictions, Congress may do everything of right, and lawfully, which organized society might do. It would be, what Blackstone affirms of the British Parliament, omnipotent. But the Supreme Court say these Territories can only be acquired for the purpose of being formed into States to be admitted into the Union, and that they cannot therefore be held and governed as colonies. Indeed! Suppose the Federal Government had power to acquire Territories for the purpose of admitting them into the Union as States, and Congress empowered to govern them during their territorial existence, and to decide upon their admission into the Union; under such a grant of power, would not Congress be the sole judge as to the manner of governing the Territory, when and how they should be admitted into the Union? or would such a power vest authority in the Supreme Court to determine how Congress should govern them? To whom is Congress responsible for the exercise of this power? The power to acquire territory is conceded, and the power to govern it while it is held as a Territory is conceded. Where, then, is the limitation that the court can impose on the exercise of this power? Where is the discretion vested as to how long the Territory shall be held, and when it is to enter into the Union? Congress is the sole Fudge. But, the court say, or rather the Chief Justice, hat "the right of property in a slave is distinctly nd expressly affirmed in the Constitution." Admission of Kansas—Mr. Olin. Nothing, as a matter of fact, can be further from the truth than this proposition. The only two clauses relied on to prove this proposition are-first subdivision, section nine, article one, is: "The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year 1808, but a tax may be imposed on each person," &c. The second clause, where this recognition is found, is: "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such labor or service may be due." Now, in relation to the first provision this most extraordinary language is used by the Chief Justice: "The right to traffic in it [slaves] like an ordinary article of merchandise and property, was guarantied to the citizens of the United States, in every State that might desire it, for twenty years." And here is to be found that provision of the Constitution of the United States which recognizes and guaranties the right of property in slaves. Consider the full import of that word guarantied! That is, to insure the title-to make certain as if with covenants-the title of the man who chooses to traffic in that merchandise. Why, look at that provision of the Constitution. It was simply a restriction on Congress from exercising (what was confessedly a power given to Congress) for the period of twenty years the power to prohibit a traffic which the civilized world has denounced as piracy, and consigned to the gibbet the guilty wretch who engages in it. Power was given Congress to prohibit the slave trade, but in granting that power, its exercise was restrained for twenty years. And this language, by a kind of Jesuitical judicial jugglery, is tortured into an express recognition of property in slaves by the Chief Justice of the Supreme Court. Can a grant of constitutional power, to take effect at the expiration of twenty years from the grant, authorizing Congress to inflict the extreme penalty of death on the guilty wretch who should engage in this infamous traffic, be properly, justly, and necessarily construed as a recognition of property in the articles of traffic thus prohibited, or a guarantee of title? Let us look at the other section from which this doctrine is evolved. This section recognizes no property in man, in that sense, in which we use the word property when speaking of articles of merchandise. It simply recognizes the fact that persons, in some of the States, by the laws of such States, may be held to service; and when they escape into another State, prohibits such State from interfering to discharge such persons from service or labor, but provides they shall be delivered up on claim. It affirms nothing of the rightfulness or the contrary of the relation; but, for the sake of peace and quiet, it prevents one State from interfering with such legal relations as some other State may institute among its citis zens or people. It is conceded this provision applies as well to persons bound to service for a term of years, as to slaves. If it affirms property in slaves, it affirms property in apprentices, which is absurd. It is the same abuse and misuse of language as the honorable gentleman from Tennessee [Mr. MAYNARD] indulged when he affirmed a man had a property in his wife, his child, and his ward. It neither approves or condemns the relation; it only provides each State shall determine its propriety and legality for itself. I have thus discussed at some length the power of Congress to govern the Territories of the United States, because, in my judgment, it was necessary, in order to understand correctly and to appreciate the position assumed by gentlemen on this floor, that the application now before us for the admission of Kansas into the Union as a State, is a legal application, and that, notwithstanding all the frauds in connection with it, in every stage of the proceeding, in consequence of its legality and formality there is something like a legal obligation resting upon this House to admit her into the Union under that constitution. I have before stated that the Supreme Court, in its discussion Ho. OF REPS. of the power of Congress to govern the Territories, concedes this right to be in Congress to the fullest extent, with the qualification that I have before alluded to. I do not understand that it is denied upon this floor that the Congress of the United States has power to govern this Territory. Gentlemen who have advocated the admission of the Territory under this constitution have sought in various ways to find what, in the former history of this Government, has answered the purpose of, or been denominated, an enabling act; because it would be a bald and difficult proposition to support here, if Congress has power to govern the Territories, that the people of a Territory may at any time when they see fit to do so, assemble a convention and frame a constitution, and by that act entitle themselves to admission into the Union as one of the States of the Union. There has, therefore, been an industrious effort to find some power in the past legislation of the country in reference to this Territory that would subserve the purpose of an enabling act and authorize the formation of a constitution by this people. The honorable gentleman from Tennessee, [Mr. SMITH,] has, with marked ingenuity, found an enabling act in the treaty made with France in the purchase of Louisiana; and that I may do the gentleman no injustice, I will read from his speech in the House upon this question. He says: "I need not enlarge upon this, because, as I before stated, there is an enabling act for the formation of a State government for the Territory of Kansas, dated anterior to the passage of the Kansas Nebraska bill. I know, sir, that some, who heretofore belonged to the Democratic party, are of opinion that there ought to have been an enabling act-such as the distinguished Senator from Illinois, [Mr. DOUGLAS] -but at the same time admit that an enabling act is not necessary to the formation of a constitution. Upon examination, I find that the treaty between the United States and France, of the 30th April, 1803-that treaty which is the supreme law of the land-provides: what? That Congress shall pass an enabling act? No, sir; but it provides that the people of the Territory of Kansas, which is a part of Louis. iana Territory, shall be admitted into the Union as a State or States, as soon as practicable. "The following is the article of the treaty referred to: "That the inhabitants of the ceded territory shall be incorporated into the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and inmunities of citizens of the United States; and in the mean time shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.'" Now, sir, it does strike me that the honorable gentleman must have been very hard pushed, to resort to the provision of that treaty to find an enabling act that would authorize the people of the Territory of Kansas to come into this Union as an independent State whenever they chose to do so, by virtue of a compact entered into between this Government and the Government of France. Why, sir, there are a thousand answers to this proposition. If that were an enabling act, when were the people of the Territory authorized to form a constitution? What were to be the limits of the Territory? How large or how small were the States to be? How many inhabitants must the Territories contain, before they were entitled to come into the Union? Were all these things left in the discretion of the people in the Territories themselves? But, the gentleman undoubtedly knew, as a lawyer, that whatever the provisions of these treaty stipulations were, the compact was not between this Government and the people then in the Territory, but between this Government and the French Government. If Congress chose to violate any of the provisions of that treaty, what was the remedy of the people of that Territory? Did it lie in the courts of the United States? Did it lie anywhere? I know not how the theory of the power of governing the Territories may change in a few years. It is possible, that by-and-by the Supreme Court will issue a mandamus commanding Congress to admit these Territories into the Union, upon the theory that there was an enabling act in the treaty. But, suppose it to have been a compact, which it was not, with the people of the Territory, and that they could, in some sort of sense, enforce the obligations of that treaty: why every man, woman, and child in the Territory, at the time of its acquisition, had been admitted into the Union long before the formation of this territorial government. The compact was perfectly performed in all its case is there any obligation, or propriety even, in submitting a constitution to the vote of a people. parts, and it is not the people of Orleans Territory framed, but that they thereby give their assent to Mr. Chairman, an ingenious and honorable gentleman from Virginia [Mr. GARNETT] has found an enabling act in the Nebraska bill; not in that portion of the act where the President has found it, but in another portion of the bill. I am not at all surprised at this; for we have so many, so various and contradictory readings of the Kansas-Nebraska bill, it is manifest that everything and anything can be found in that bill that anybody desires to find in it. I believe the gentleman from Connecticut [Mr. BISHOP] has found the whole Levitical law in it, except that portion which prohibited eating pork. The enabling act, according to the view of the honorable gentleman from Virginia, is to be found in these words: "That the legislative power of the Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act." What was the act? It was an act organizing a Territory, and creating a Legislative Assembly empowered to make such necessary rules and regulations as were proper for a Territory during its territorial existence. It was the ordinary power of legislation conferred upon the Legislature of a Territory. There is nothing about forming a constitution here contained; and how could such a power be implied, when such power would subvert the territorial government under which they professed to obtain the authority? But the President has found this power in another clause of the Kansas bill-in the clause known as the stump speech-and which is in these words: "It being the true intent and meaning of this act not to legislate slavery into any Territory 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, subject only to the Constitution of the United States." On this point the President has used the following language in his special message: "That this law recognized the right of the people of the Territory, without any enabling act from Congress, to form a State constitution, is too clear for argument. For Congress to leave the people of the Territory perfectly free,' in framing their constitution, to form and regulate their domnestic institutious in their own way, subject only to the Constitution of the United States,' and then to say they shall not be permitted to proceed and frame a constitution in their own way, without an express authority from Congress, appears to be almost a contradiction in terms." The President says this proposition is too plain for argument. Sir, there is something still plainer than this proposition; and that is, that the President has dishonestly interpolated language in that clause not to be found in the act, and which perverts its entire scope and meaning; and that without that interpolation, no man, even with talents of an angel, could make even a plausible argument for the President's proposition. It is generally conceded that the people of the Territory have the right to form their constitution. But it is said they may delegate that power, and when they do delegate that power the constitution they form is as much the act of the people as though sanctioned by a direct vote of the people. Suppose this proposition were granted: where is the evidence that the people of Kansas ever intended to part with the right to vote for or against any constitution which might be framed? Is it found in the act of voting for a convention? or in voting for delegates to the convention? Why, that is the only practical mode of framing a constitution at all; and if this mode of framing a constitution furnishes conclusive proof that the people did part with the right to approve or disapprove of a constitution when framed, then there never can be an instance in which it is necessary to submit a constitution to a vote of the people; for if the act of calling a convention and electing delegates to it be sufficient and conclusive proof that the people not only desire a constitution to be || 66 Admit, for the sake of argument, that a people may give their assent to the terms of their fundamental law before it is framed, as well as afterwards-but in this case there is no evidence of such assent, unless it may be found in the act of calling a convention and voting for delegates: and I have before shown, if that proves assent in one case it proves it in all cases, That the majority of the people have the right to form their constitution, all agree; but, it is said, inasmuch as they may delegate that power to others, they are as much bound by the act of their delegate as though formed by themselves. That the maxim, qui facit per alium, facit per se," applies here. This proposition will, I think, on examination, be found based on an abuse of language and a confusion of ideas. What is meant by the phrase, the people may delegate the power to frame a constitution? Is it meant that the people may consent to give to John Calhoun and company, or any other set of men, the right to draw up such a form of government as they please, and agree in advance to give their assent to such constitution, whatever it may be? If that is what is meant, the proposition thus far is a harmless one, and may be true; but we have no evidence that any such delegation of power has been made. If it be said that the calling of a convention and the election of delegates is itself a delegation of power to frame such constitution as the convention please, then I answer that the people can never, upon that principle, form their own constitution; for if the people meet in mass convention, they must, of necessity, depute some one or more to frame the fundamental law. They cannot all do it; they can only give or withhold their assent to what is done by their agent, delegate, or committee. The legal maxim quoted, has no more application than the famous Latin maxim put in the mouth of General Jackson, by Jack Downing: "E pluribus unum, sine qua non." This legal maxim expresses an elementary principle in the law of agency, that when a man procures an act to be done by another person, which act affects some third person, such third person may hold him responsible who procured the act to be done, in precisely the same way and to the same extent as though the person himself did the act, instead of procuring it to be done by another. Now, where the right of no third party intervenes, this rule has no application whatever. Here was no third party to be affected at all. Strictly speaking, it is an abuse of language to call the delegates of the conventions the agents of the people. The idea of agency involves the doing of acts for a principal, affecting some third person. The relation of delegates to the people would be more accurately expressed by that of servant than agent. I think I have shown that in no proper sense have the people of that Territory been permitted to frame their fundamental law. This is asserted by the President to be their right; and his friends and supporters on this floor ought to be estopped from disputing it. HO. OF REPS. ADMISSION OF KANSAS. SPEECH OF HON. H. BENNETT, IN THE HOUSE OF REPRESENTATIVES, The House being in the Committee of the Whole on the state of the Union Mr. BENNETT said: Mr. CHAIRMAN: A select committee was ordered by the House, authorized to send for persons and papers, and instructed to inquire whether the Lecompton constitution was acceptable and satisfactory to a majority of the legal voters of Kansas; and to inquire into all the facts connected with the formation of said constitution, and the laws under which the same was originated; and into all such facts and proceedings as have transpired since the formation thereof, having relation to the question or propriety of the admission of said Territory into the Union under said constitution. The contradictory statements of the different parties, the allegations contained in the President's Kansas message, and the charges of fraud in relation to the Lecompton constitution, all required this investigation to be made, that the whole truth should be known before Congress acted upon the admission of Kansas. For this purpose a select committee was ordered by the House. No bill was referred to it, nor was it authorized to report any measure for the action of the House. It had no legislative duty to perform. Its whole duty was to send for persons and papers, and take evidence of the facts upon the subjects of inquiry referred to it, and to report the facts and the evidence to the House for its consideration. It was strictly a committee of investigation. The Speaker, by appointing a majority of this committee opposed to the investigation and to the resolution of the House by which it was ordereda thing unprecedented in appointing a committee of this kind, and in violation of all sound parliamentary precedent and authority-placed an insurmountable obstacle in the way of proceeding with the investigation without some further order or action by the House. No witness has been called or examined, and no evidence desired by those in favor of the investigation has been al lowed to be taken. The proceeding has unfortu nately been conducted as a party question, and the majority of the committee have persistently overruled the minority in all their attempts to comply with the order of the House, and proceed with the investigation. The majority have per mitted copies of a few papers to be procured, such as go to sustain their line of argument in favor of the Lecompton constitution, which were open and public, and within the reach of every member of Congress without the aid of a committee. But they have refused to take any evidence which would go to controvert their positions or allegations. In effect, the majority of this committee, by a strict party vote, have refused to proceed and take evidence and examine witnesses, and have, by their action, overruled and disobeyed the order of the House, upon the ground that in the view they entertain the whole inquiry is immaterial; holding this constitution as a legal record complete and perfect, that no evidence could contradict or impeach, and no fraud could vitiate or destroy. This posi tion is as unsound as the course of the majority is indefensible. But it has been gravely argued by an honorable gentleman, [Mr. GARNETT,] I believe from Virginia, that the constitution need not have the express consent of the people, since our Government was not a pure democracy, but a representative The action of a court required to investigate the Government. This is that kind of logic which facts in relation to a disputed deed, that should alproves that a part is not only equal to the whole, low its production, but refuse all evidence to show but is the whole; which designates the entire sys-it a forgery, or that it was obtained by fraud, no tem of our Government from a single feature of it. It is true, this Government is sometimes said to be a representative Government, and sometimes a popular Government, or a Government of the people; and this language is all sufficiently intelligible when properly used. But did it never occur to the honorable gentleman, what constitutes this Government a representative Government--a popular Government? Is it not your Constitution your organic law-framed by the people? Sir, the hour is past to which, by the rules of debate, we are restricted, before I have had time to touch those topics upon which I most desired to speak. one would justify or defend. Yet, that does no state the case so strongly as it may be stated against the action of the majority of this committee; as in that case the court would not only take the evidence, but decide upon it. The position of this committee was more like that of an examiner directed to take the evidence in a cause, having no power to decide upon it, but to return it for the consideration of the court, who should set up his opinion that the court ought to act in the case without proof, and should therefore re fuse to take the evidence and return only his views and opinions to the court instead of the evidence directed to be taken. 35TH CONG....1ST SESS. Admission of Kansas-Mr. Bennett. The question of the effect of the evidence was not to be decided by this committee; that would be to substitute their opinion for the judgment of the House. That question would properly arise after it was taken, and when it was considered by the House, and not before. And upon that sub-with the order of the House! In one word, there ject there might be great differences of opinion. Each member would be entitled to judge and decide for himself, with all the facts before him. And the majority of the committee, in overruling the judgment and order of the House, and in substituting their views, have not only disobeyed its authority, but deprived every member of his right to have the facts before him, and of judging and deciding thereon for himself. be some evidence of its genuineness, as well as of the election of the delegates according to the law. That election was to be held after a census and registry of all the legal voters! There is no evidence this was done. What a full compliance has been no legal evidence of any fact taken before the committee. The House might as well not have ordered the committee as to have one thus appointed, and thus refusing to act. III. ENABLING ACT. The Territories of the United States are under the government and control of Congress. No legal proceedings can be taken to organize a State The House and the majority of said committee government in a Territory, except by the authority of Congress. Any proceeding adopted in the are directly at issue. Whether the dignity and auTerritory for that purpose, (without such authorthority of the House shall be maintained and its order enforced, or, in this manner, overruled and ity,) whether originating with the Legislature or the people, can only be regarded as an unauthordefeated, is a matter to be decided by the House. The duty of the minority in this respect has been ized voluntary application, and is entitled to no performed by calling its attention to the subject, consideration, except as an expression of the senand stating the facts as an explanation and apol-shown to be the expression of the will of a matiments and wishes of the people. If it is clearly ogy on their part for not proceeding with the investigation, namely, that they were prevented from doing so by the action of the majority, which, at the last meeting, after directing one of their number to make a report, adjourned the committee without day. II. EVIDENCE TAKEN. The majority of the committee say the only proof they deem material is documentary, "about which there can be no dispute. 23 Had that been the opinion of the House, no investigating committee would have been ordered. The majority return an opinion that the facts to be investigated are immaterial; in other words, they are in favor of the Lecompton constitution, no matter how dishonest and fraudulent it may be, and no matter how much the people may be opposed to it. Therefore, all the evidence proposed, they say, is immaterial; yet they present quite an imposing statement in their report as a full history of this constitution. 1. The law to take the sense of the people as to calling a convention. 2. The law to call the convention. 3. The registry and apportionment. 4. The proceedings of the convention. 5. The constitution. 6. The vote as to the pretended adoption of the constitution. All these they deem material. And they say they permitted the following to be taken as immaterial: 7. The law of December 17, 1857, submitting the constitution to a fair vote. 8. The result, as certified, of that election. 9. Mr. Calhoun's statement to Senator GREEN. When this statement is examined, it will be found that no evidence has been taken, of any kind sought or contemplated. The laws referred to as published, and the constitution as presented, all could have, and they have, in no way been proved before the committee. How these laws have been executed, or what has been done under them, is not shown. There is no proof as to the proceedings taken under the first law. It is said only a few votes were given, and that it could in no sense indicate the sentiment of the people. There is no evidence, even, which way the majority was, so far as votes were given. There is no evidence as to the number of people there are in Kansas; but the best evidence to be had would not make its whole popalation fifty thousand-not enough to entitle it to admission, or to a single Representative in Con gress. The proceedings under the law to elect delegates are not shown. A copy of an extract of a Kansas newspaper has been obtained, which is not evidence, and which, if admitted, only shows that the law was not complied with. The result or vote at this election is not shown. The proceedings of the convention are only shown by producing a part of a mutilated journal, called the journal of the convention, but not proved in any way. An extract from a newspaper, and part of a journal, mutilated and not proved, is the sum total of facts, or evidence of facts, obtained by this committee. The last part of the journal, that which might show something as to the adoption of the constitution, or about its submission, has been taken off. There is no proof the constitution is as adopted by the convention. It has been in suspicious hands ever since, and there should Ho. OF REPS. last of which it was fairly adopted. At each of these elections a larger vote was given than was given for the Lecompton delegates. And if ever those not voting should be held as assenting and concluded, it should be so held in this instance. The people of Kansas have, then, " in their own way, and in strict accordance with the organic act, framed a constitution and State government," "which is republican in form," according to the President's own theory. This constitution framed at Topeka was, in truth and in fact, the act and deed of the people of Kansas, made by them, without any dictation, and in their own way. If no enabling act was necessary, it was strictly legal and regular. And, in any view, it was as legal regarded. Besides, it was fairly submitted to, and and regular as the Lecompton constitution can be adopted by, the people. The other never was. As early, then, as December, 1855, there had been a State constitution not only made, but adopted by the people, and the Territory was prepared for President insists, " no authority existed in the admission as a State. If, after that time, as the Territorial Legislature which could possibly destroy its existence or change its character," then the whole of the proceedings of the Lecomptonite The Territorial Legislature, as such, has no were irregular and void. For the law to elect the power to call a convention to form a State consti- Lecompton delegates was passed by the Territotution, in order" to subvert" the territorial gov-rial Legislature in February, 1857, more than a jority of the people, Congress may adopt it; otherwise it should be rejected. ernment. In the case of Arkansas this was so decided by the Attorney General, Mr. Butler. He said: "To suppose that the legislative powers granted to the General Assembly include the authority to abrogate, alter, or modify, the territorial government established by the act of Congress, and of which the Assembly is a constituent part, would be manifestly absurd. Consequently, it is not in the power of the General Assembly of Arkansas to pass any law for the purpose of electing members to a convention to form a constitution and State government, nor to do any other act, directly or indirectly, to create such new government. Every such law, even though it were approved by the Governor of the Territory, would be null and void; if passed by them, notwithstanding his veto, by a vote of two thirds of each branch, it would still be equally void." In the case of Michigan, the President (then in the Senate) held the same doctrine. He said: "No Senator will pretend that the Territorial Legislature had any right whatever to pass laws enabling the people to elect delegates to a convention for the purpose of forming a State constitution. It was an act of usurpation on their part." But the President and his friends insist that the organic act, in this case, conferred upon the people of Kansas the right to form their State constitution in their own way. If this were conceded, the authority was given to the people, and not to the Legislature. The authority granted to the Legislature is specified in that act, and none was given in any form to call a convention to form a State constitution. If the act authorized the people to form a State constitution, it was independent of the Legislature; and the Topeka constitution was made and adopted in a legal and regular manner. IV. TOPEKA CONSTITUTION. Early in 1855, and long before the Lecompton fraud was planned, impelled by the alarming condition of the Territory, the people took proceedings to form a State constitution, to ask admission as a State, and place themselves under the protection of law. The first convention of delegates elected, met at Topeka on the 19th of September, 1855. They made no constitution, but provided for a fair election of delegates to a constitutional convention in October, 1855. And at a general election, delegates were fairly elected from the whole Territory, by a vote of two thousand seven hundred and ten, all voting who chose to vote, and the rest assenting, according to the latest Democratic creed. The delegates assembled and proceeded to form a free-State constitution-one as unobjectionable as that of any State in the Union. That convention directed the constitution to be submitted to a vote of the people for their adoption or rejection, at an election to be held on the 15th of December, 1855. At that election, it was voted upon and adopted by a vote of between two and three thousand, only forty-six votes being given against it. As before, this election was fair, and all had an opportunity to vote, and all were therefore concluded. This movement originated with the people. It was three times before them at elections, at the year after the people of Kansas had, in their own way, made and adopted a constitution, and prepared the Territory for admission as a State. V. LECOMPTON CONSTITUTION. The first proceedings for the Lecompton convention were taken, not by Congress, or by the people of Kansas, but by the so-called Territorial Legislature. This was irregular and wrong. 1. If it had been a legal Legislature it had no power to do thus. "It was an act of usurpation," according to the President. 2. This was not a legal Legislature; it was them. It was an unlawful assembly, imposed not elected by the people; it could not represent upon the people of Kansas by foreign violence and votes, as has been established by legal evidence, taken by order of the last Congress. Congress could not make this illegal assembly the real representatives of the people. It never attempted to do so, as has been erroneously assumed. The people refused to recognize it. And in the last Congress the House of Representatives denied its authority and declared all its proceedings void. The following is a copy of the preamble and first section of the act as passed by the House: "Whereas the President of the United States transmitted to the House, by message, a printed pamphlet purporting to be the laws of the Territory of Kansas, passed at Shawnee Mission, in said Territory: and whereas unjust and unwarranted test oaths are prescribed by said laws as a qualification for voting or holding office in said Territory; and whereas the committee of investigation sent by the House to Kansas report that said Legislature was not elected by the legal voters of Kansas, but was forced upon them by non-residents, in violation of the organic act of the Territory, and having thus usurped legislative power, it enacted cruel and oppressive laws: Therefore, "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all rules or regulations purporting to be laws, or in the form of law, adopted at Shawnee Mission, in the Territory of Kansas, by a body of men claiming to be the Legislative Assembly of said Territory, and all acts and proceedings whatsoever of said Assembly, are hereby declared invalid, and of no binding force or effect." For both reasons the law calling the convention was void. But even that law was never complied with. 3. The census and registry were never made as required. The law under which the delegates to the Lecompton convention claimed their election, passed by this unauthorized and illegal Legislature, is said to be a fair law." It required a census to be taken, and a registry of all the legal voters in the Territory to be made, before that election; the lists of voters to be carefully corrected by the probate judges; one copy of such corrected lists to be filed with the Governor, another with the Secretary, and copies of the voters in each election district to be printed, and generally distributed among the inhabitants; one copy to be delivered to each judge of elections, and three copies to be posted up at each place of voting. And no person was to be permitted to vote whose name did not appear on such corrected lists. After the census and registry ` |
