“That, whenever it shall appear, by a census to be taken
under the direction of the Governor, by the authority of
the Legislature, that there shall be 93,420 inhabitants
(that being the number required by the present ratio of
representation for a member of Congress) within the limits
hereafter described as the Territory of Kansas, _the
Legislature of said Territory shall be, and is hereby,
authorized to provide by law for the election of delegates_ by
the people of said Territory, to assemble in Convention and
form a Constitution and State Government, preparatory to their
admission into the Union on an equal footing with the original
States in all respects whatsoever, by the name of the State of
Kansas.”[97]
Now, Sir, consider these words carefully, and you will see, that,
however plausible and velvet-pawed they may seem, yet in reality
they are most unjust and cruel. While affecting to initiate honest
proceedings for the formation of a State, they furnish to this
Territory no redress for the Crime under which it suffers; nay, they
recognize the very Usurpation in which the Crime ends, and proceed to
endow it with new prerogatives. It is _by authority of the Legislature_
that the census is to be taken, which is the first step in the work.
It is also _by authority of the Legislature_ that a Convention is to
be called for the formation of a Constitution, which is the second
step. But the Legislature is not obliged to take either of these steps.
To its absolute wilfulness is it left to act or not to act in the
premises. And since, in the ordinary course of business, there can be
no action of the Legislature till January of the next year, all these
steps, which are preliminary in character, are postponed till after
that distant day,--thus keeping this great question open, to distract
and irritate the country. Clearly this is not what is required. The
country desires peace at once, and is determined to have it. But this
objection is slight by the side of the glaring tyranny, that, in
recognizing the Legislature, and conferring upon it these new powers,
the bill recognizes the existing Usurpation, not only as the authentic
government of the Territory for the time being, but also as possessing
a creative power to reproduce itself in the new State. Pass this bill,
and you enlist Congress in the conspiracy, not only to keep the people
of Kansas in their present subjugation throughout their Territorial
existence, but also to protract this subjugation into their existence
as a State, while you legalize and perpetuate the very _force_ by which
Slavery is already planted there.
I know that there is another deceptive clause which seems to throw
certain safeguards around the election of delegates to the Convention,
_when that Convention shall be ordered by the Legislature_; but out
of this very clause do I draw judgment against the Usurpation which
the bill recognizes. It provides that the tests, coupled with the
electoral franchise, shall not prevail in the election of delegates,
and thus impliedly condemns them. But if they are not to prevail
on this occasion, why are they permitted at the election of the
Legislature? If they are unjust in the one case, they are unjust in
the other. If annulled at the election of delegates, they should be
annulled at the election of the Legislature; _whereas the bill of
the Senator leaves all these offensive tests in full activity at the
election of the very Legislature out of which this whole proceeding
is to come_, and it leaves the polls at both elections in the control
of the officers appointed by the Usurpation. Consider well the
facts. By existing statute establishing the Fugitive Slave Bill as
a shibboleth, a large portion of honest citizens are excluded from
voting for the Legislature, while, by another statute, all who present
themselves with a fee of one dollar, whether from Missouri or not, and
who can pronounce this shibboleth, are entitled to vote. And it is a
Legislature thus chosen, under the auspices of officers appointed by
the Usurpation, that you now propose to invest with parental powers
to rear the Territory into a State. You recognize and confirm the
Usurpation which you ought to annul without delay. You put the infant
State, now preparing to take a place in our sisterhood, to suckle the
wolf which you ought at once to kill. The marvellous story of Baron
Munchausen is verified. The wolf which thrust itself into the harness
of the horse it had devoured, and then whirled the sledge according to
mere brutal bent, is recognized by this bill, and kept in its usurped
place, when the safety of all requires that it should be shot.
In characterizing this bill as _the Remedy of Injustice and Civil War_,
I give it a plain, self-evident title. It is a continuation of the
Crime against Kansas, and as such deserves the same condemnation. It
can be defended only by those who defend the Crime. Sir, you cannot
expect that the people of Kansas will submit to the Usurpation which
this bill sets up and bids them bow before, as the Austrian tyrant set
up the ducal hat in the Swiss market-place. If you madly persevere,
Kansas will not be without her William Tell, who will refuse at all
hazards to recognize the tyrannical edict; and this will be the
beginning of civil war.
Next, and lastly, comes _the Remedy of Justice and Peace_, proposed by
the Senator from New York [Mr. SEWARD], and embodied in his bill for
the immediate admission of Kansas as a State of this Union, now pending
as a substitute for the bill of the Senator from Illinois. This is
sustained by the prayer of the people of the Territory, setting forth
a Constitution formed by spontaneous movement, in which all there had
opportunity to participate, without distinction of party. Rarely is any
proposition presented so simple in character, so entirely practicable,
so absolutely within your power, and promising at once such beneficent
results. In its adoption, the Crime against Kansas will be all happily
absolved, the Usurpation it established peacefully suppressed, and
order permanently secured. By a joyful metamorphosis this fair
Territory may be saved from outrage.
“Oh, help,” she cries, “in this extremest need,
If you who hear are Deities indeed!
Gape, Earth, and make for this dread foe a tomb
_Or change my form, whence all my sorrows come_![98]
In offering this proposition, the Senator from New York has entitled
himself to the gratitude of the country. Throughout a life of
unsurpassed industry and of eminent ability, he has done much for
Freedom, which the world will not let die; but than this he has done
nothing more opportune, and he has uttered no words more effective than
the speech, so masterly and ingenious, by which he vindicated it.
Kansas now presents herself for admission with a Constitution
republican in form. And, independently of the great necessity of the
case, three considerations of fact concur in commending her. First,
she thus testifies her willingness to relieve the National Government
of the considerable pecuniary responsibility to which it is now exposed
on account of the pretended Territorial Government. Secondly, by her
recent conduct, particularly in repelling the invasion on the Wakarusa,
she has evinced an ability to defend her government. And, thirdly, by
the pecuniary credit she now enjoys, she shows undoubted ability to
support it. What can stand in her way?
* * * * *
The power of Congress to admit Kansas at once is explicit. It is found
in a single clause of the Constitution, which, taken by itself, without
any qualification applicable to the present case, and without doubtful
words, requires no commentary. Here it is.
“New States _may_ be admitted by the Congress into this
Union; but no new State shall be formed or erected within the
jurisdiction of any other State, nor any State be formed by the
junction of two or more States, or parts of States, without the
consent of the Legislatures of the States concerned, as well as
of the Congress.”
New States MAY be admitted. Out of that little word _may_ comes the
power, broadly and fully, without any limitation founded on population
or preliminary forms, provided the State is not within the jurisdiction
of another State, nor formed by the junction of two or more States,
or parts of States, without the consent of the Legislatures of the
States. Kansas is not within the _legal_ jurisdiction of another
State, although the laws of Missouri are tyrannically extended over
her; nor is Kansas formed by the junction of two or more States; and
therefore Kansas _may_ be admitted by Congress into the Union, without
regard to population or preliminary forms. You cannot deny the power,
without obliterating this clause. The Senator from New York was right
in rejecting all appeal to precedents as entirely irrelevant; for
the power invoked is clear and express in the Constitution, which is
above all precedent. But since precedent is enlisted, let us look at
precedent.
It is objected that the _population_ of Kansas is not sufficient
for a State; and this objection is sustained by under-reckoning the
numbers there, and exaggerating the numbers required by precedent. In
the absence of any recent census, it is impossible to do more than
approximate to the actual population; but, from careful inquiry of the
best sources, I am led to place it now at 50,000, though I observe that
a prudent authority, the “Boston Daily Advertiser,” puts it as high as
60,000; and while I speak, this remarkable population, fed by fresh
emigration, is outstripping even these calculations. Nor can there be
doubt, that, before the assent of Congress can be perfected in the
ordinary course of legislation, this population will swell to the large
number of 93,420, required in the bill of the Senator from Illinois.
_But, in making this number the condition of the admission of Kansas,
you set up an extraordinary standard._ There is nothing out of which
it can be derived, from the beginning to the end of the precedents.
Going back to the days of the Continental Congress, you find that in
1784 it was declared that 20,000 free inhabitants in a Territory might
“establish a permanent Constitution and Government for themselves”;[99]
and though this number was afterwards, in the Ordinance of 1787 for
the Northwestern Territory, raised to 60,000, yet the power was left
in Congress, and subsequently exercised in more than one instance, to
constitute a State with a smaller number. Out of all the new States,
only Maine, Wisconsin, and Texas contained, at the time of admission
into the Union, so large a population as is required in Kansas,--while
no less than _fifteen_ new States have been admitted with a smaller
population, as will appear by the following list, which is the result
of research, showing the number of “free inhabitants” in these States
at the date of the proceedings which ended in their admission.
Vermont 85,399
Kentucky 61,247
Tennessee 66,650
Ohio 45,028
Louisiana 41,896
Indiana 63,897
Mississippi 25,938
Illinois 40,156
Alabama 48,871
Missouri 56,364
Arkansas 42,635
Michigan 87,273
Florida 32,500
Iowa 78,819
California 92,597
But this is not all. At the adoption of the National Constitution
there were three of the old Thirteen whose respective populations did
not reach the amount now required of Kansas: these were Delaware,
with only 50,209 free inhabitants; Rhode Island, with only 68,158
free inhabitants; and Georgia, with only 53,284 free inhabitants. And
even while I speak, there are at least three States, with Senators on
this floor, which, according to the last census, do not contain the
population now required of Kansas: I refer to California, with only
92,597 free inhabitants; Delaware, with only 89,242 free inhabitants;
and Florida, with only 48,135 free inhabitants. So much for precedents
of population.
In sustaining this objection, it is not uncommon to abandon the strict
rule of numerical precedent, and to allege that the population required
in a new State has always been, in point of fact, above the existing
ratio of representation for a member of the House of Representatives.
But this is not true; for no less than three States, Mississippi,
Arkansas, and Florida, being all Slave States, were admitted with a
free population below this ratio. So much, again, for precedents. But
even if this coincidence were complete, it would be impossible to press
it into binding precedent. The rule seems reasonable, and in ordinary
cases would not be questioned; but it cannot be drawn or implied from
the Constitution. Besides, this ratio is in itself a sliding scale. At
first it was 30,000, increased in 1793 to 33,000, and thus continued
till 1813, when it was put at 35,000. In 1823 it was 40,000; in 1833 it
was 47,700; in 1843 it was 70,680; and now it is 93,420. If any ratio
is to be made the foundation of binding rule, it should be that which
prevailed at the adoption of the Constitution,--or at least that which
prevailed when Kansas, as part of Louisiana, was acquired from France,
under solemn stipulation that it should “be incorporated in the Union
of the United States, and admitted _as soon as possible_, according to
the principles of the Federal Constitution.” But this whole objection
is met by the memorial of the people of Florida, which, if good for
that State, is also good for Kansas. Here is a passage.
“But the people of Florida respectfully insist that their
right to be admitted into the Federal Union as a State is not
dependent upon the fact of their having a population equal
to such ratio. Their right to admission, it is conceived,
is guarantied by the express pledge in the sixth article of
the treaty [with Spain] before quoted; and if any rule as to
the number of population is to govern, it should be that in
existence at the time of the cession, which was thirty-five
thousand.[100] They submit, however, that any ratio of
representation, dependent on legislative action, based solely
on convenience and expediency, shifting and vacillating as the
opinion of a majority of Congress may make it, now greater than
at a previous apportionment, but which a future Congress may
prescribe to be less, cannot be one of the _constitutional_
‘PRINCIPLES’ referred to in the treaty, consistency with
which, by its terms, is required. It is, in truth, but a mere
regulation, not founded on principle. No specific number
of population is required by any recognized principle as
necessary in the establishment of a free Government.… It is
in no wise ‘_inconsistent with the principles of the Federal
Constitution_’ that the population of a State should be less
than the ratio of Congressional representation. The very case
is provided for in the Constitution. With such deficient
population, she would be entitled to one Representative. If
any event should cause a decrease of the population of one
of the States even to a number below the _minimum_ ratio of
representation prescribed by the Constitution, she would
still remain a member of the Confederacy, and be entitled to
such Representative. It is respectfully urged, that a rule or
principle which would not justify the _expulsion_ of a State
with a deficient population, on the ground of inconsistency
with the Constitution, should not exclude or prohibit
_admission_.”[101]
Thus, Sir, do the people of Florida plead for the people of Kansas.
Distrusting the objection from inadequacy of population, it is said
that _the proceedings for the formation of a new State are fatally
defective in form_. It is not asserted that a previous enabling Act of
Congress is indispensable; for there are notorious precedents the other
way: among which are Kentucky, in 1791; Tennessee, in 1796; Maine,
in 1820; and Arkansas and Michigan, in 1836. But it is urged that in
no instance has a State been admitted whose Constitution was formed
without such enabling Act, or without authority of the Territorial
Legislature. This is not true; for California came into the Union with
a Constitution formed not only without any previous enabling Act,
but also without any sanction from a Territorial Legislature. The
proceedings which ended in this Constitution were initiated by the
military Governor there, acting under the exigency of the hour. This
instance may not be identical in all respects with that of Kansas;
but it displaces completely one of the assumptions which Kansas now
encounters, and it completely shows the disposition to relax all rule,
under the exigency of the occasion, in order to do substantial justice.
There is a memorable instance, which contains in itself every element
of irregularity which you denounce in the proceedings of Kansas.
Michigan, now cherished with such pride as a sister State, achieved
admission into the Union in persistent defiance of all rule. Do you ask
for precedents? Here is a precedent for the largest latitude, which
you who profess deference to precedent cannot disown. Mark now the
stages of this case. The first proceedings of Michigan were without any
previous enabling Act of Congress; and she presented herself at your
door with a Constitution thus formed, and with Senators chosen under
that Constitution, precisely as Kansas does. This was in December,
1835, while Andrew Jackson was President. The leaders of the Democracy
at that time scouted all objection for alleged defects of form,
employing language strictly applicable to Kansas. There is nothing
new under the sun; and the very objection of the President, that the
application of Kansas proceeds from “persons acting against authorities
duly constituted by Act of Congress,”[102] was hurled against the
application of Michigan, in debate on this floor. This was the language
of Mr. Hendricks, of Indiana:--
“But the people of Michigan, in presenting their Senate and
House of Representatives as the legislative power existing
there, _showed that they had trampled upon and violated the
laws of the United States establishing a Territorial Government
in Michigan_. These laws were, or ought to be, in full force
there; but, by the character and position assumed, they had set
up a Government antagonist to that of the United States.”[103]