“Conventions were original acts of the people. They depended
upon inherent and inalienable rights. The people of any
State may at any time meet in Convention, without a law of
their Legislature, and without any provision, or against any
provision, in their Constitution, and may alter or abolish the
whole frame of Government as they please. The sovereign power
to govern themselves was in the majority, and they could not be
divested of it.”[104]
Mr. Buchanan vied with Mr. Benton in vindicating the new State.
“The precedent in the case of Tennessee … has completely
silenced all opposition in regard to the necessity of a
previous Act of Congress to enable the people of Michigan to
form a State Constitution. It now seems to be conceded that our
subsequent approbation is equivalent to our previous action.
This can no longer be doubted. _We have the unquestionable
power of waiving any irregularities in the mode of framing the
Constitution, had any such existed._”[105]
“He did hope that by this bill all objections would be
removed,--and that this State, so ready to rush into our
arms, would not be repulsed, _because of the absence of some
formalities which perhaps were very proper, but certainly not
indispensable_.”[106]
After an animated contest in the Senate, the bill for the admission
of Michigan, _on her assent to certain conditions_, was passed, by 23
yeas to 8 nays. You find weight, as well as numbers, on the side of the
new State. Among the yeas were Thomas H. Benton, of Missouri, James
Buchanan, of Pennsylvania, Silas Wright, of New York, and William R.
King, of Alabama.[107] Subsequently, on motion of Mr. Buchanan, the
gentlemen sent as Senators and Representative by the new State received
the regular compensation for attendance throughout the very session in
which their seats had been so acrimoniously contested.[108]
In the House of Representatives the application was equally successful.
The Committee on the Judiciary, in an elaborate report, reviewed the
objections, and, among other things, said:--
“That the people of Michigan have without due authority formed
a State Government; but, nevertheless, _that Congress has
power to waive any objection which might on that account be
entertained_ to the ratification of the Constitution which they
have adopted, and to admit their Senators and Representatives
to take their seats in the Congress of the United States.”[109]
The House sustained this view by a vote of 153 yeas to 45 nays.
In this large majority, by which the title of Michigan was then
recognized, will be found the name of Franklin Pierce, at that time a
Representative from New Hampshire.
But the case was not ended. The fiercest trial and the greatest
irregularity remained. The Act providing for the admission of the new
State contained a modification of its boundaries, and proceeded to
require, as _a fundamental condition_, that these should “receive the
assent of a Convention of delegates elected by the people of the said
State, for the sole purpose of giving the assent herein required.”[110]
Such a Convention, duly elected under call from the Legislature, met
in pursuance of law, and, after consideration, declined to come into
the Union on the condition proposed. The action of this Convention was
not universally satisfactory; and in order to effect admission into the
Union, another Convention was called, _professedly_ by the people in
their sovereign capacity, without authority from State or Territorial
Legislature,--nay, Sir, borrowing the language of the present
President, “against authorities duly constituted by Act of Congress,”
at least as much as the recent Convention in Kansas. The irregularity
of this Convention was increased by the circumstance that two of the
oldest counties of the State, comprising a population of some 25,000
souls, refused to take part in it, even to the extent of not opening
the polls for the election of delegates, claiming that it was held
without warrant of law, and in defiance of the legal Convention. This
popular Convention, though wanting popular support coextensive with the
State, yet proceeded, by formal act, to give the assent of the people
of Michigan to the fundamental condition proposed by Congress.
The proceedings of the two Conventions were transmitted to President
Jackson, who, by message, 27th December, 1836, laid them both before
Congress, indicating very clearly his desire to ascertain the will
of the people, without regard to form. The origin of the popular
Convention he thus describes:--
“This latter Convention was not held or elected by virtue of
any Act of the Territorial or State Legislature. It originated
from the People themselves, and was chosen by them in pursuance
of resolutions adopted in primary assemblies held in the
respective counties.”[111]
And the President then declares, that, had these proceedings come to
him during the recess of Congress, he should have felt it his duty,
on being satisfied that they emanated from a Convention of delegates
elected _in point of fact by the People of the State_, to issue his
proclamation for the admission of the State.
The Committee on the Judiciary in the Senate, of which Felix Grundy
was Chairman, after inquiry, recognized the competency of the popular
Convention, as “elected by the People of the State of Michigan,”
and reported a bill, responsive to their acceptance of the proposed
condition, for the admission of the State without further terms.[112]
Then, Sir, appeared the very objections now directed against Kansas.
It was complained, that the movement for immediate admission was the
work of “a minority,” and that “a great majority of the State feel
otherwise.”[113] And a leading Senator, of great ability and integrity,
Mr. Ewing, of Ohio, broke forth in catechism which would do for the
present hour. He exclaimed:--
“What evidence had the Senate of the organization of the
Convention? of the organization of the popular assemblies who
appointed their delegates to that Convention? None on earth.
Who they were that met and voted we had no information. Who
gave the notice? And for what did the People receive that
notice? To meet and elect? What evidence was there that the
Convention acted according to law? Were the delegates sworn?
And if so, they were extrajudicial oaths, and not binding
upon them.… Were the votes counted? In fact, it was not
a proceeding under the forms of law, for they were totally
disregarded.”[114]
And the same able Senator, on another occasion, after exposing the
imperfect evidence with regard to the action of the Convention,
existing only in letters and in an article from a Detroit newspaper,
again exclaimed:--
“This, Sir, is the evidence to support an organic law of a
new State about to enter the Union,--yes, of an organic law,
the very highest act a community of men can perform: letters
referring to other letters, and a scrap of a newspaper!”[115]
It was Mr. Calhoun, however, who pressed the opposition with the most
persevering intensity. In his sight, the admission of Michigan, under
the circumstances, “would be the most monstrous proceeding under
our Constitution, that can be conceived, the most repugnant to its
principles and dangerous in its consequences.”[116] “There is not,”
he exclaimed, “one particle of official evidence before us. We have
nothing but the private letters of individuals, who do not know even
the numbers that voted on either occasion. They know nothing of the
qualifications of voters, nor how their votes were received, nor by
whom counted.”[117] And he proceeded to characterize the popular
Convention as “not only a party caucus, for party purpose, but a
criminal meeting,--a meeting to subvert the authority of the State,
and to assume its sovereignty,”--adding, that “the actors in that
meeting might be indicted, tried, and punished.”[118] And he expressed
astonishment that “a self-created meeting, convened for a criminal
object, had dared to present to this Government an act of theirs, and
to expect that we are to receive this irregular and criminal act, as a
fulfilment of the condition which we had prescribed for the admission
of the State.”[119] No stronger words are employed against Kansas.
The single question on which all the proceedings then hinged, and
which is as pertinent in the case of Kansas as in the case of Michigan,
was thus put by Mr. Morris, of Ohio: “_Will Congress recognize as
valid, constitutional, and obligatory, without the color of a law
of Michigan to sustain it, an act done by the People of that State
in their primary assemblies, and acknowledge that act as obligatory
on the constituted authorities and Legislature of the State?_”[120]
This question, thus distinctly presented, was answered in debate by
able Senators, among whom were Mr. Benton and Mr. King. There was one
person, who has since enjoyed much public confidence, and left many
memorials of an industrious career in the Senate and in diplomatic
life, James Buchanan, who rendered himself conspicuous by the ability
and ardor with which, against all assault, he upheld the cause of the
popular Convention, which was so strongly denounced, and the entire
conformity of its proceedings with the genius of American Institutions.
His speeches on that occasion contain an unanswerable argument at
all points, _mutato nomine_, for the immediate admission of Kansas
under her present Constitution; nor is there anything by which he is
now distinguished that will redound so truly to his fame, if he only
continues true to them. The question was emphatically answered in the
Senate by the final vote on the passage of the bill, where we find 25
yeas to only 10 nays. In the House of Representatives, after debate,
the question was answered in the same way, by a vote, on ordering the
bill to a third reading, of 140 yeas to 57 nays; and among the yeas is
again the name of FRANKLIN PIERCE, a Representative from New Hampshire.
Thus, in that day, by triumphant votes, did the cause of Kansas
prevail in the name of Michigan. A popular Convention, called
absolutely without authority, and containing delegates from a portion
only of the population,--called, too, in opposition to constituted
authorities, and in derogation of another Convention assembled under
forms of law,--stigmatized as a caucus and a criminal meeting, whose
authors were liable to indictment, trial, and punishment,--was, after
ample debate, recognized by Congress as valid; and Michigan now
holds her place in the Union, and her Senators sit on this floor, by
virtue of that act. Sir, if Michigan is legitimate, Kansas cannot be
illegitimate. You bastardize Michigan, when you refuse to recognize
Kansas.
But this is not all. The precedent is still more clinching. Thus far I
have followed exclusively the public documents laid before Congress,
and illustrated by the debates of that body; but well-authenticated
facts, not of record here, make the case stronger still. It is
sometimes said that the proceedings in Kansas are defective because
they originated in a party. This is not true; but even if it were true,
yet would they find support in the example of Michigan, where all the
proceedings, stretching through successive years, began and ended in
party. The proposed State Government was pressed by the Democrats as a
_party test_; and all who did not embark in it were denounced. Of the
Legislative Council which called the first Constitutional Convention
in 1835, all were Democrats; and in the Convention itself, composed of
eighty-seven members, only seven were Whigs. The Convention of 1836
which gave the final assent originated in a Democratic Convention, on
the 29th of October, in the County of Wayne, composed of one hundred
and twenty-four delegates, all Democrats, who proceeded to resolve:--
“That the delegates of the _Democratic party_ of Wayne,
solemnly impressed with the spreading evils and dangers which
a refusal to go into the Union has brought upon the people
of Michigan, earnestly recommend meetings to be immediately
convened by their fellow-citizens in every county of the State,
with a view to the expression of their sentiments in favor of
the election and call of another Convention, in time to secure
our admission into the Union before the first of January next.”
Shortly afterwards, a committee of five, appointed by this Convention,
all leading Democrats, issued a circular, “under the authority of
the delegates of the County of Wayne,” recommending that the voters
throughout Michigan should meet and elect delegates to a Convention to
give the necessary assent to the Act of Congress. In pursuance of this
call, the Convention met; and as it originated in an exclusively party
recommendation, so it was of an exclusively party character. And it
was the action of this Convention that was submitted to Congress, and,
after discussion in both bodies, on solemn votes, approved.
The precedent of Michigan has another feature, which is entitled to
gravest attention, especially at this moment, when citizens exerting
themselves to establish a State Government in Kansas are openly
arrested on the charge of treason, and we are startled by tidings of
maddest efforts to press this procedure of preposterous Tyranny. No
such madness prevailed under Andrew Jackson,--although, during the
long pendency of the Michigan proceedings, for more than fourteen
months, the Territorial Government was entirely ousted, and the
State Government organized in all its departments. One hundred and
thirty-seven different legislative acts and resolutions were passed,
providing for elections, imposing taxes, erecting corporations, and
organizing courts of justice, including a Supreme Court and a Court of
Chancery. All process was issued in the name of the People of the State
of Michigan. And yet no attempt was made to question the legal validity
of these proceedings, whether legislative or judicial. Least of all did
any menial Governor, “dressed in a little brief authority,” play the
fantastic tricks now witnessed in Kansas; nor did any person wearing
the robes of justice shock high Heaven with the mockery of injustice
now enacted by emissaries of the President in that Territory. No, Sir:
nothing of this kind then occurred. Andrew Jackson was President.
Again I say, do you require a precedent? I give it. But I will not
stake this cause on any precedent. I plant it firmly on the fundamental
principle of American Institutions, as embodied in the Declaration
of Independence, by which government is recognized as deriving its
just powers only _from the consent of the governed_, who may alter or
abolish it, when it becomes destructive of their rights. In the debate
on the Nebraska Bill, at the overthrow of the Prohibition of Slavery,
the Declaration of Independence was denounced as “a self-evident lie.”
It is only by similar effrontery that the fundamental principle which
sustains the proceedings in Kansas can be assailed. Nay, more: you
must disown the Declaration of Independence, and adopt the Circular
of the Holy Alliance, which declares that “useful or necessary changes
in legislation and in the administration of states _ought to emanate
only from the free will and the deliberate and enlightened impulse of
those whom God, has rendered responsible for power_.”[121] Face to
face I put the principle of the Declaration of Independence and the
principle of the Holy Alliance, and bid them grapple. “The one places
the remedy in the hands which _feel_ the disorder; the other places
the remedy in those hands which _cause_ the disorder”; and when I thus
truthfully characterize them, I but adopt a sententious phrase from
the Debates in the Virginia Convention on the adoption of the National
Constitution.[122] And now these two principles, embodied in the
rival propositions of the Senator from New York and the Senator from
Illinois, must grapple on this floor.
Statesmen and judges, publicists and authors, with names of authority
in American history, espouse and vindicate the American principle. Hand
in hand they now stand around Kansas, and feel this new State lean on
them for support. I content myself with adducing two only, both from
slaveholding Virginia, in days when Human Rights were not without
support in that State. Listen to the language of St. George Tucker, the
distinguished commentator upon Blackstone, uttered from the bench in a
judicial opinion.
“The power of convening the legal Assemblies, or the ordinary
constitutional Legislature, _resided solely in the Executive_.
They could neither be chosen without writs issued by its
authority, nor assemble, when chosen, but under the same
authority. The Conventions, on the contrary, were chosen and
assembled either in pursuance of recommendations from Congress
or from their own bodies, _or by the discretion and common
consent of the people_. They were held even whilst a legal
Assembly existed.… The Convention, then, was not the ordinary
Legislature of Virginia. It was the body of the people,
impelled to assemble from a sense of common danger, consulting
for the common good, and acting in all things for the common
safety.”[123]