SPEECH OF n/' HON. SHERRARD CLEMENS, OF VIRGINIA % ON THE PRESIDEiNT'S KANSAS MESSAGE; DXUTER£D SN THE HOUSE OF REPRESENTATIVES, FEBRUARY 18, 1658 = WASHINGTON: SPRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 1858. Adoo Q89 d ,"' > SPEECH The House being in tlic Committee of the Whole on the state of i)ie Union — 1 Mr. CLEMENS said: _ ' Mr. ^hairman: Tlie evening before the battle of Talavcra, in Spain, the armies of England and France encamped on the opposite banks of a river which, guiltless of human blood, still flowed between them; and the soldiers of each, as the shades of evening; hastened on, came quietlj/down to the brinlc.of the water and filled their canteens in preparation for the gory work of the inorrow. Sir, we who have hoped tliere was to be, and would be, some cessation to fiatricidal striff, that we had reached at last the palm tree and the foun- tain in the great Sahara of political life; and that, in the great principles of the Governrnent as es- tablished by law. Patriotism would intrench it- self so strongly that we might well bid defiance to a world in arms, now find ourselves, as erewhile, ranged alrtngeach side of a belligerent line of op- posing camps, marked out, as distinctly as that gleaming river in Spain which divided the con•^ querers and the conquered. While the white flag of Peace still flaps m the breeze, let us go down to the limpid streanfi and quietly drink together, whatever may be the fate of the country. Sir, I am not here to indulge in any sentiment of objurgation or of reproach. The Representa- tive of a larger white population than any member from Virginia, coming, as I do, from a partof the State jammed up like a wedge between Ohio and Pennsylvania — my people having many precious connections with both — finding amongst my im- mediate constituentsa large mass of northern men, who have built up manufacturing establishments, and devoted thei,r enterprise, energy, and capital to the development of the resources of my native city and State — I profe.'^s to speak on all questions here which apparently wear a sectional phase, without one particle of acrimony, but at the same time with the emphasis which is due to the time and the occasion. . Sir, a venerable man, weary with the cares of State; who has been for forty years in the ser- vice of his country, at home and abroad; who has illustrated her history in every political depart- ment by the high emprise of his statesmknshi|*; with no child to inherit his well-earned fame, but giving to a still united people all his love; with bo amljition before him, except to discharge honestly the high functions pertaining to the most majestic position upon earth — is now upon his political trial ! On the steps of yonder portico, but a few fleeting months ago, in the presence of assembled tliou.''.ands of his countrymen, he took a solemn oath to support the Constitution of the United States; under which it was his imperative duty to take care that the laws shall be faithfully exe- cuted. At the very outset of his administralioa the difficulties which surrounded him seemed al- most insuperable. Poison, in the covered dish; internecine war; civil strife; geographical preju- dice; treason, with its bold, brazen, and defiani front; ambition, with its cool, plotting, unscra- pulous schemes; bankruptcy, with the hands of Briareus, throwing curses in his path; seditiori, with its ear-kissing arguments; sharp-toothed ua- kindness, lied as a vulture to his heart, until, like Lear, deserted by his own kin in the midst of the pitiless storm, he might well say — I " Close pent-up guilts, I Rive your concealing continents, and cry Tliose dreadl'nl summoners grace. £ am a man. More sinn'd against, tliaii sinning." Sir, I am not here as his unreasoning advocate^ I am not here to prate of blind loyalty to him,ar to any other man; but as one of the humblest of those who stood by him in a fiercer trial than this,' I shall not submit, come what may, to see hitn wounded in the house of his friends. Pass with me, then, sir, from the petty consid- eration of who shall be Earl of Durham, or who shall be Vicar of Bray — from the heated arena, where mingle iheexacerbationsand pnjudicesana j passions of the hour — back to the earlier and better ! days of the Republic, and let us see how far the President can be sustained, either by precedent or by existing law, which he would have been recreant to himself if he had not faithfully en- forced . First,then,of the case and the law. On theSCtli day of May, 1854, the Conling act, to liold a convention for the purposeof forniingaconstitution preparatory to admission into the Union; and the time, place, and manner of holding the convention, with the qualification of voters in the eleciion of its dele- gates, were all specifically prescribed. 'I'liey be- came a people only when they organized as a State; before, they were underllie legislation ofCongiess, nt-:d were called inhabitants. Their political rights as a people remained, therefore, in abeyance, un- til they passed into the condition of a State. The passage of this act, apparently changing the tor- litorial policy of Congress, but in reality adopting an old princi|'le, awakened unprecedented oppo- sition. Tlu; whole country was convulsed. Tiie dread of Madison was upon us, when he declared with almost prophetic solemnity: •• Should a state of parties arise foiiiided on geo!»raphierily of the people of Kansas, they cannot now avoid the issue which ihey have voluntarily and persist- ently made. On the one side, therefore, we have a portion of the people of Kansas and the Teriitoruil Le- gislature, by resoluliiins now on file ammig the proceedings of this House, setting up the Topeka constitution, formed by a voluntary assemblage, without law, without even the semblance of law, and against the consent of the established author- ilies; on the other, we have the Lecoinpton con- stitution, created under lejral sanction, and sup- ported by a regular succession of legal authority. Both constitutions were stil)milied to the people; but in each case there was a vast difference in the mode of submission. The Topeka constitution, without permitting a vote on the subject, foiever prohibited slavery; and it was presented to the people with the alternative of either voting for it as it stood, or having no State government at all. The Lecompton consiitution — embodying all the inaierial parts of the Topeka consiituli(>n, consti- tutional privileges, bill of rights, and all, includ- ing the clause prescribing the mode of making amendments at'ter ]8G4,and affirming merely the decision of the Supreme Court in the Dred Scott case — was submitted to the people as a constitu- tion with slavery or without slavery, as they might themselves detiymine. The mere man- ner of the submission, therefore, specifi'd in the schedule, could not fix upon the people of fvan- sas a-constitiilion in any essential particular dif- ferent from tiie Topeka constitution, except upon the siiiijle, isftlaicd question of slavery) wliicli was left to their free decision, so far as they could control it, under the Federal Constitution as ex- pounded by tiie highest judicial tribnn'al in the land. On the one side, therefore, we have a Ie2;al movement, carried out to a practical result, in def- erence to Judicial nuthoriiy. On the other side we have ilii' embodiment of loose massps, acting upon what they choose to term organic sover- eignly, not only without the sanction of Isiw, l)ut in open defiance of all established authority. We have legality on one side, and lawlessness on the other. The then existing Legislature of Kansas hav- ing empowered a eonveniion of delegates to form a government, with the single condition that the same should be republican, it may becomeessen- tial to inquire whether, in that view, it is neces- sary to submit the same to the people for ratifica- tion, to give it validity. Can such a constitution be formed by the people of any Territory in defi- ance of all law, and all existing legal authority? Can thev, in primary meetings, witliout law, by the simple power of numbers, fi-ame a govern- ment within an already established government, and, without express legal sanction, ovi-rthrow it? Sir, under the principles of our Government, this, wheth&r in a Siaie, or in a Territory, is not re- form, it is revolution; and the Federal Govern- ment is armed with express power to suppress it, not only by the Constitution, but by the act of 1795. Our fathers anticipated just such questions, from tlie prevalence of unsound doctrines, as we have had to meet; and it was fii'si proposed in the Federal convention " that a republican constitu tion, and its existins; laiv^, ought to be guarantied to each State by the United States:" but it was finally modified toguaranty to each State a repub- lican form of govcrnmetii. •JN'ow, as the Consti- tution specifies tiiat the on Iv condition which shall be required of a State, preparatory to admission into the Union, is that her constitntion must be a repui'lican one; and as the Constitution specifies the same condition for the continuance of a State in the Union as is required for her admission into it, let us see what that term "republican" means. Sir, under our system of government everybody knows that the people are the original source of all political power; yet there is no mode for a ma- jority to manifest their will except in conformity with and m subordination to established law. The very objects of constitutions are to litnit and de- fine the powers to be exercised by the officers to whom the people may commit the different de- Eartmenls of the government; and the people, by oth constitutions and laws, impose restraints upon their own rapacity, violence, and pi>ss>ons; and the majority, not less tliati the minority, are bound by all, until a li!ga land constitutional change is made, [t was well said by Madison, in the de- bales in the Virginia Convention, on the adoption of ihe Federal Constitution, ihal — "The lurhulciico, violence, nnd ahuse of power hy the majniity liaiiip iiix hm tiie risiils of llie iiiiiiorily, liavc pro- duced lactiuiis and coiMniotioiis; aiid tliese, in reiiulilics, wore than any ellier caii.-e, h;ive produced despoli.in. W we go over llie wliole. history o.'ancieiM and modern repub- lics, we sliall find tlieir de.struclioii lo h.ive generally result- ed from those causes. If we oon.oirier the peculiar condi- tion of the Uiiiteil States, and go to the sources t)f tiial diversity of sonliment which pervades its iiiliahitaiits, we shall find ffreat danger to fear that the same causes may teriniMate hcrciit the same fatal effects which tliey produced in tliose repuhlics." Sir, according to the principles of our GnverH- ment, it is the majority of votes given at tiny pre- scribed election, and not the votes withheld by the people, which inust determine the result. The Constitution of the United States might have been adopted and put in operation by a niinority of the whole people. A rninority of the people of the United States may elect a President. A mi- nority of the people may forever prevent all amen^ ment to that instrument. A minority of the people of any State may adopt the constitution if a ma- jority prove derelict to their duties and refuse to vote. Not less than seven States of this Union, whose constitutions have been submitted to the people within the last twenty years, are imw or- ganized by a minority; and 1 call the attention of the gentleman" from Pennsylvania to this pregnant fact, for, as in the case of that State, if the care ie taken to compare the vote cast against the consti- tution, and then estimate and add to it the vote which was not given at all, it will be found in every instance that the aggregate outnumbers the vote which was given in the affirmative. The last con- stitution of Pennsylvattia was adopted i^i the year 1836 i>y a minority of the whole people of Peni>- sylvania. And yet you talk to me of popular sov- ereignty. Such was the case in Virginia. The last constitution of Virginia is the act of a minority of the people, if you estimate the number of votes cast in the regular State election. All our expe- rience proves that the vote given upon the ratifi- cation or reje'ction of any State constitution is rel- atively smaller than the vote cast at any excited political election. The reason possibly may be that the fundamental principles of our Govern- ment are so well settled that one State constitution is merely the reflex or transcript of another; and the people feel stronger the necessity of selecting proper men lo carry out those principles, than they do in the mere elemental enunciation of the prir>- j ciples themselves. Sir, the whole theory of our Government pro- I ceeds upon the assumption that the people cannot 1 be in default, or derelict to themselves, because the power, subject to legal restriction.*, is always in their own hands. After a constitution has been put in operation, they are esto])ped from resorting to any means todisturb it, except the legal means; and using these, and these alone, they can only remedy the consequences of their own folly in ab- staining from voting, or in absenting themselves from the polls. These undeniable trutl's have a direct application in the case now before us; and for that reason I ask that three editorials from ihe Herald of Freedom, the organ of the Repulilican parly in Kansas, may be jmblished herewith as appendix No. 1. The great American idea— that which distin- guishes this from all other Governments which have ever existed — consists in the exercise of the powers of the people by delegation or represent- ation. While popular sovereignly, acting by ma- jorities, must act under the laws, it is precisely because the people cannot act in mass that the & right to choose a representative is each ciiizen's jiorlion of organjc sovercis;n power. Before the will of tlie people be ascerttiincd, the law must prescribe the mode and the manner in wliich that will shall be desij^nated and expressed. If any portion of the people, it boots not why, do not choose to avail themselves of ilieir own rights under the law, they must necessarily and unavoid - ably be governed by those who do. Any other liberty than this is not American liberty; it is Parisian liberty; it is Mexican liberty. The op- eration of our system under these restrictions becomes harmonious and beautiful; and tlie ballot- box with us Incomes as infaililile as the mafcic box of the enchanter, which healed every wound and cured every disease. The American distinction between a convention and a Lej^islatiire implies only a difference in power and authority. A Legislature can act under a consliluiion; and it is the only cnm|-)elent l)ody to fnll a Convention to change it. Thiou;{ii these mediums the whole powerand maji^siy of the peo- ple are as fully exer.'ised as if each man v/ere pres- ent as an active participator. It is, indeed, the percolaiion of the will of the people through the Legislature, and thence through a convention, thai, like the filtiaiion of water through porous stones, clears and purines it. The peofilecan ex- ercise no«ct of supremacy or legislation at all, except by assembling all in a mass convention of the whole Siale,and taking the vote by the head, or by chosen representatives. As the first is im- possible, the last became here the grand advanced ideain politics; and theexerciscof individual sov- ereignty was made to consist in the choice of rep- resentatives, with such powers as tiie people de- cided to give them. The very powercompetent to bind the people in other respects is coflipetent to bind them in the foiiiiation of a constitution. The idea of re.submission to the people themselves of a constitution for ratification or rejection, or legis- lative acts which they had expressly authorized, was not the idea of republicanism at the era of the Revolution, nor at the lime the Federal Constitu- tion was forined. That great instrument, the most majesiic product of intelli-ct in the v.'orld, is not the work of the j^eople of the Union, as a whole or as an aggrei:ate mass. There is no provision anywliere in it, nor no law passed under it, nor no stipulation by the Federal convention, by which it was possible to ascertain whether a ma- jority of the whole peo[)le of the United States, counted by numbers, were in favor of it or not. John Adams, in one of his letters to Jay, says if it had been submitted directly to the pef)ple, it would have lieen voud down. It came very near being defeated in several of the Stale coi.venlions by the delegates of the peojile who were empow- ered to consider it. It was the discussion and scrutiny of deliberative bodies which saved it, to throw Its broad blessings over this continent. Four of the present States of this Union, contain- ing a majority of the whole population, could have rejected the Constitution, and yet it would have been bindin<;as a Constitution of the United States upon the nine Stales wJiich ratified it, containing a"minr)iity of the peofile. The D(K-.laration of Independence itself, was not the act of the people, counting by the head. Thai great deed which changed our relations to the whole world, never was submitted to the people. It was the work of delegates appointed by a con- vention in each of the colonies, each colony acting for itself. They were vested with aiji^neral grant of power, " to consent and agree to ail m-asures which said Congress shall deem necessary to ob- tain redress for American grievances." They announced themselves as acting as the represent- atives of the United Slates, in general Congress assembled, whet) they appealed to thi; Su|)reme Judge of the world for the rectitude of their inten- tions. Rlif>de Is and existed from the Revolution up to 184;2, under a r()yal charter from Cliarles II., granted in 1663. But from the first colonial constitution, formed by Vir^iniii 5th July, 1776, down to the last of the original Thirteen, not one of them was submitted to the people; but their delegates, in convention assembled, ordained and estal)lishe(l them, in compliance with the plenary powers granted to them by the peoj)le themselves, or the Legi.^laiure. In the case of Maryland, whoso constitution was adr>pted on the ]4ih of August, 1776, it was expressly provided that nothing in il, is form of goverinnenl which relates to tlie eastern shore particularly, shall at any time hereafier be altered, unless for the alteration and confirmation thereof at least two thirds of all the members of each branch of the General Assembly shall concur. But the principle for which we are cmUending may be made at once apparent by the casi> of Rhode Island, the merits of which were brought before the Supreme Court, in the trial of Luilier vs. Borden. Voluntary meetings of the people, without the consent of the existing charter gov- ernment, or any law^ for the purpose, were held, and resulted in the choice of deli-g.Htes to form a newconsiituiion to be sul)miited to the people for their ratification or, rejection. Those who were opposed to the mode took no part in the proceed- ings, and refused to vote. The delegates thus chosen met in convention, and submitted their work to the people under voting (jualifications and officers prescribed by themselves. Those who were op- posed to the proceedings, again vifused to vote. On the returns of the election, however, tin' conven- tion declared that the constitution was ado[)ted by a majority of the people of the Stale, und at- tempted to put il in operation by elections for all officers to serve under it, and the new government was accoriTingly organized, and came in direct conflict with the old one, which had niwer re- ceived the sanction of the people by a direct vote, although they had lived under it for two hundred years. The convention proceeded upi^n I he gen- eral principles that the sovereiKiity of the pcMijile is supreme, and may act in forming government against an already existing Kovernmenl wilhout law; and that they are the sole judges of iht^ form ofjgoverninent best calculated to promote their own hapfiiness. The result was, the two govi'rnmeiits were brought into the necessity of deciding the contest by arms, as must be the case in every in- stance of the kind. Till! charter eovernineni was sustained, and the Legislature under it — the only competent body — called a convL'iition, and a con- stiiution was formed by it which is now in opera- lion. A republican constitution, then, means a system of funiiamentnl rules, prin'iples, and ordinances, for the government of a State or nation, fnrmid and adopted under legal restraints and with Irsral sanction. 1'his was the idea of our fathers. This is the idea embodied in the Federal coinpadt. Sir, this doctrine of the people acting- in mass upon |>rimarv organic sovereignty, is found prac- tically exemplifit'd nowhere, on the face of this globe, hut in the single canton of Appenzel, in Switzerland, where, in the midst of the eternal glaciers, all the males over twenty-one years meet semi-annually to legislate, each with arms in his hands! Prance, in the wildf-st, bloodiest, period of her revolution, had it; and it found its fittest exem- plification when its grpat prototype and advocate, Marat, pro|iosed,a Dictator, with a cannon btill chained to his leg, that he might always be in the power of the people; or, v/hen the infuriated mob gathered >«i the foot of the guillotine, and like hu- man ghouls and vampires, lapped up the warm blood which streamed beneath the glittering blade! Oursystem was expressly formed to guard against these dire results. Shall we countenance a prin- ciple which must inevitably leave it in ruins? Shall v/e, shall this Union, countenance a prin- ciple which will [ilungeus into all of the excesses of the wildest period of the French revolution? On the adoption of the Federal Constitution by the States, their constitutions remained the same: and they were changed from time to time only in the mode therein prescribed. Sir, the very prin- cijile of the KaiL-ias and Nebraska bill, and the issue now presented to the country by the Le- compton constitution, was eml)odied in the case of Vermont, before the Constitution of the United States was formed, and under the old Articles of Confederation. Vermont v/as the first State ad- mitted into thft Union. Her present existence dates back to the year 1791. Ten years before, 4n June, 1781, the existing Legislature of Ver- mont proposed terms of union to the American Congress. She was, at that Ukie, and for many ■years afterwards, involved in contests with New Hampshire and New York, in regard to jurisdic- tion and boundaries of land; for tlien, as iio!!.-, in- creased empire brought, as it always brings, mul- tiplied perplexities. Congress refused the prolTer, without the consent of the coterminous States, and assumed the prerogative of h-gisiating upon tlie rights of Veiinont, and controlling her local government, without lier consent. On the 9th day of January, 1783, Governor Chittenden re- plies, on the part of the Legislature, in one of the most characteristic State papers on record. As it is not generally accessible, i beg;' leave to append hereto an extract from it, and from the address of the General Assembly of Vermont, in the f(U-m of an appendix, marked No. 2. In both of these documents the ground is taken that Congress can- not exercise any other than delegated authority; that they have no right to interfere in the internal police or government of any Territory or State; that they have not the right to make or unmake States, within or without the Union. They avow that such a power involves the whole doctrine of Great Britain in regard to the Colonies; and they declare, Vv'hen ihey are call;;d upon to abrogate the laws of Vermont, reverse the solemn decisions of her courts of justice, and overthrow the whole civil government, they think themselves justified to God and the world when they say they cannot comply with such requisitions! I Sir, these bold words come down to us from t!io I most northern State of this Union; from the tur- I moils atid carnage of the Elevolution, to act as a j talisman of safety in the very arena of fratricidal I bitterness and geogra[ihical su-ife. It is well, therefore, to go back to the spirit and sentiments of these pioneers of the Green iVIountains, who, in the midst of an American war with Great Brit- ain, the dependency of Canada on their northern border, and thus, with the stronscst motives to make common cause against the Confederacj' which fiirmed her southern lines, and with which then there was a subsisting. controversy, yet had enough of enduring valor to maintain untainted the true republican principle in the face of almost irresistible temptations. Honor, ail honor, sir, to such heroism v/herever it may be found, and I come from wh«it quarter it may ! It has in it the I soul of Ethan Allen! I Sir, considering the position of thp.t State this moment, so far as the policy advocated by her oa this floor may be indicative of her SiUiMments, i point back to her earlier and better era with pecu- liar exultation. The principle to which s!ie ad- hered then, carried out by her now, would make her — '• A"! fflorious as the British Queen renowtm'l, Who sucked the poison from her hiubaiiil';) wound !" Mr. MOHRILL. I have no objection to the course of remark the gentleman is |>ursuing; but I desire that he shall mark this great difFerence between Vermont atui Kansas: that Vermont was never a colony of Great Britain, nor was she ever a Territory of this Union. Mr. CLEMENS. Vermont belonged to the existing colonies of New Hampshire and New j York. What is the record ? The record is, that ; this claim, set up by the fieople of Vernmnt, was i neveracknowledged by this Government, and she came into the Union only with the consent of New Hampshire and New York. I am glad the gen- \ tleman has made the interruption. I was endeav- 1 oring to show that tlie whole action of this Gov- ernment, in regard to its territorial policy, main- tained the doctrine that the legally exisiing powers at the time were acknowledged, that tiieir rights were maintained, and I was bringing this result to a practical exemplification in the case of Kansas. I thank the gentleman for his opportune interrup- tion. Sir, I take the doctrines of Vermont, laid down before, long before, her native son, nov/ the cyn- osure of tlic great West, was born, and find, in her example, a sufitcient rebuke to the vagaries of the hour, it required no enabling act to bring lier into the Union. Her constitution was estab- lished in 1777 by a convention authorized " to form a government." But the act was silent as to the ratification of the same by the people; and iheconvetuion, therefore, under the plenary power given, ordained it at once, without submission. The getiileman from Vermont sits this very mo- ment upon this fioor urJer the action of tluitcon- v.'ntion. He is bound by it to this hour, berause there has been, from that day to this, a regular 8 fiuccpssion of legal authority recognized by the Federal Giivcriimem. In 1791 a convention was i called by the Vermont Legislature to decide upon ' the extiidiincy ofherentering the Federal Union. The coiivtniiiin determined favorably the quis- tion. They nuified the Constitution of the Uni- ted States, and applied to Congress by petition for admission. On the presentation of the con- stitution, which had been adopted in 1777, thir- teen y._'ars before, on the 4ih day of March, 1791, Vermont was admitted into the Union. Sir, what was the case with KenMicUy, which came next in order.' Previous to 1789, nine dif- ferent conventions had been held in Danville, to determin.' upon the contest between the mother, Virginia, and the daughter, Kentucky; and each one seems to have been attended with a bitter- ness more and more intensified. While this strife was still going on, the Federal Constitution was adopted, and Kentucky was placed in new relu- j tions to the existingGovernment. Great ferments ] prevailed. Discord among the people ran riot. Four conventions were held in quick succession. I Separation from Virginia by violent means was i ©penly proposed; partisan leaders, with their i bands of marauders, devastated the Territory;' all law was set at defiance, and civil war seemed i almost inevitable. If those who conceive the .scenes j in Kansas for the last few years have been with- < out a paialle], will but investigate the intestine | feuds in Kentucky — the combinations against the j laws and riglitl'ul authority of Virginia— and the' same slate of things in what is now Tennessee, | against the Government of North Carolina, it will j be found, that, now as then, human nature is still ! the same; and that when bodies of men determine \ to place themselves in rebellion au:aiiist (-xistino- 1 forms of society, specious pretixts will always ! be found to delude the people. In the face of all j efforts to the contrary, the rightful authority of I Virginia was maintained by herself and the Fed- I erijil Government, till, pn the 18th day of Deceni- 1 ber, 1789, Virginia, as the only competent legal i autliority, passed a law so remarkal)le in its pro- 1 visions that I must now be content with the brief- j est possible al)stracl, and affix the whole hereto i in an Appendix, as No. 3. i The law provides for two conventions; one a i provisional convention to determine on the expe-j diency of separating from Virginia, with authority ! to fix upon a day after the 1st day of November, ! 1791, wlien the laws of the State should cease to { Ojierate. The authority;, however, to .supersede the jurisdiction of Virginia was made dependent' upon the assent of the United Slates to the erec- 1 lion of s.iid State, whicii was required to be given i after the Isi day of November, or somi! coiTveni- } ent time thereafter. This convention was armed with power to take measures for the election of an- other convention, on some day before the author- ity of Virginia should cease, and after the Istday ' of November, 1791, " with full power to frame I and establish a fundamental constitution of gov- , ernment." Congress, by an act passed February | 4, 1792, recite the act of Virginia and refer to the j foct that a convention cf delegates have petitioned j Congress to consent that on the Isl d ly of .Tune, | 1792, Kentucky should be formed into a new Stale and received into the Union; and in con- formity thereto, the act provides that Kentucky shall at that lime be admitted. Here was a case in which the consent of Congress was givi>n with- out any State coiistiluVon having been formed at all, at f'e time the act wai parsed; for, in compliance with the law of Virginia and the authority given to the second convention, the constitution of Ken- tucky was not formed till the 19th of April, 1792, after the act of Congress had been passed The authority given by the Legislature of Virginia was construed by its terms to be plenary and com- plete, and the convention which formed the con- stitution of Kentucky, established the same with- out submitting it to the people. In this case, as in every other, since the foundation of the Gov- ernment, the lawful authorities were maintained and supported by actual legislation. The admission of California, even, with an in- adequate population, under a convention called together by a general of the Army of the United States, surrounded by his officers and his camp, and who might Iiave carried out the congruiiy,an(i written his civil proclamatjon, calling a constitu- tional convention, on a drum-head, was not an exception, althougl), as the gentleman from Mis- sissippi has so well intimated, the wild cattle of the plains were lassoed and brought into the Union under ^itasi legal authority; for it was claimed that the right to govern was correlative to the right of acquiring territory, and the government under conquest and military authority was, for the time being, from the very necessities of the case, competent and lawful. Sir, this whole ques- tion was presented in the selt'-styled Republic of Frankland, now the State of Tennessee. In 1784, a convention of delegates elected by the people, without law, and without the consent of North Carolina, (within v/hose jurisdiction the territory was,) met at Jonesborough and formed a consti- tution. Under this, an Assembly met and elected John Sevier, Governor, together with judges, and all other State officers, civil and military. This conslilutioii was the Topeka constitution of the time. All dependence upon North Carolina was denied, and they absolved themselves from her sovereignty and jurisdiction. In 1785, Governor Martin, of N, thirty-three delegates appearid at Fal- rn(uith, el('ctrd by the people without uutliority of ii\w, and ori^anized themselves into a convention for the purpos<' of considering v/hether they would erect themselves into a separate State. The Gov- ernor of Massachusetts protested against these proceidiiigs, precisely as the Governor of North Carolina had done, and which we have already explained ; but notvvithstandinrescribes the qualification of voters; provides " that a majority of the voles returned to the pres- ident of the convention shall determine the ques- tion of the adoption or rejection of the constitu- tion;" for while it was made the duty of the con- vention to form a constitution of government, tlie delegates were required to sul)mii it to the people; and all those authorized to vote for delegates were required " to give a vote in writing," expressing approbaiion or disapprobation of the constitution so f)repared. The act went further than this; for it conferred on the president of tht; convention all the powers of the Governorand Council of Mas- Siiciuisetts, until a new Governor could be chosen. It will be found in full, in the second volume of Massachusetts laws. This was liu! fiist example in American poli- tics, so far as my researclu-s have gone, in which a constitution was directly submitted to the vote of the pt:o|>le. It inoceeded uptm the correct and unquestionable principle tliat it is connpetent for the people to limit the authority of their own agents and representatives in electing them; and it is for this very reason they are bound wtum plenary powers arc given. In this sense, the Le- compton convention having full authority to or- dain and establish a constitution l)y the organic act, it was not necessary to submit the constitu- tion to the people at all; and the mode ofsulimis- sion adopted in the schedule is therefore free from all the oljjections which have been urged against it, because, in submitting it to the people as a con- stitution with slavery, or as a constitution with- out slavery, the convention in effect ordained and established it as a fundamental form of govern- ment, v/hich the}' iiad by law a right to do, and left the only element of distraction to be decided at the polls. In every constitution since that of Maine, sinbmitted to the people for ratification or rejection, no discretion lias been left to the dele- ! gates to the convention; but they have been re- quiiTd,.by the act creating them, to refer their I work to popular supervision. Louisiana herself I is not an exception; for although the law calling 1 her last convention embraced the pov/er only of I proposing amendments to thp constitution, the new one was submitted as a whole, because the 1 convention, instead of remodeling, revolutiotiized ! tlie whole structure of the government. I [Elere the hammer fell.] I Mr. BURROUGHS obtained the floor. i Mr. CLEMENS. I beg leave to ask the unan- imous consdntof the House to finish wluitl have to say. Several Memeer9. Go on; no objection. Mr. JONES, of Tennessee. I insist on the ob- servance of tlie rule. Mr. STANTON. I move that the gentleman from Virginia have leave to pui>i!sh his retnarks. Mr. CLEMENS. I appeal to the gentleman from Tennessee to let me have five minutes longer. My argument is incomplete, and it is i)ut an act of justice that I should be ailowid to complete it. Mr. JONES, ofTennessee. The committee has no right to suspend the rules. The CI-IAIRMAN. The Chair has so decided. Mr. BURROUGHS. I am entirely willing that the genlleinan shall be allowed to finish liis speech out of my time. Mr. CLEMENS. 1 thanlc the gentleman from Nev/ York; and I will remember his courtesy an- other time. In Pennsylvania, by act of the29th March, 1836, a convention was called to propose amendments to the constitution, to be submitted to the people thereof, for their ratification or rejection. Wis- consin, by an act calling a convention, January 31, 1846, required theconsiilution to be submitted; and Congress carried out this fundamental coiuli- lion, in admitting the State into the Union, by exacting the assent of the qualified electors, as prescribed by the organic law of the Territorial Legislature. This was not, therefore, a precedent on the part of Congress, but a simjile affirmance of the restraints imposed on the convention by the representatives of the people. Iowa jireseiits a case j)recisely similar. By the act of the Terri- torial Legislature, passed January 17, 184fi, the convention v.'ere authorized to submit the consti- tution to the qualified voters of the Territory; and x> 11 ionijross, in tlie. act admitting Iowa, required a jmpliance with this cardinnl provision. In Vir- iniii, by act of March 18, 1851), it was made the lUy of the president of the convention to certify a jpy of the constitution to the General Assernlily, lat a law miglit be passed for taking the sense of le good people of the Commonwealth thereon, "heact in regard to Minnesota — passed February S, iS^l , under the patronage of a prominent .epul>lican,anda ]jresent member of this House — 'as the first instance in the history of the Gov- rnnirnt where Congress re'quii-ed a constitution ) be submitted to the people of a proposir-d State, ■here they, through their Territorial Legislature, id not themselves exact it. The act in question was passed hy the Repub- can party, and was a violation of the established rinfi|ile of leaving the people of a Territfu-y per- clly free to form tlntir government in their own ay, because they might have preferred to vest lat power in delegates or representatives. .But ley Were deprived of that liberty, and compelled ( test the constitution liy a vote at the p(d!s. The isiilt has been, that we have luul tv/o separate con- ?ntioiis in Minnesgta, and eairh one endeave.red > outstrip the other in the radicalism of its enaet- leiits, wiih a view to a popular triumph. Here, leti, we fiiid the true line of deir.ark^liini betweeti .epiiblicanism of the Revolution and that of our ay; and instead pf forinitig,by high-minded men, .abli; governments for posterity, we have had institutions changed lil\e the horns of the moon, lid whole Stales gravely proposing to determine, y the vote of a nriere majority at the polls, whether white man was not in every respect equal to an .fricflii negro. Sir, we are verging every hour ito the excesses of an unbridled popular licen- ousness, which, in the hallowed name of the peo- le, is repudiating the judgments of tne highest lui'ts in the land; breaking through all leonstitu- onal restraints, and destroyingall the checks atid alances our fathers formed, and wliich they pre- imed would be sufficient to protect the rigliisof very citizen. When the greatest city on the .merican continent can be convulsed with the cry f a starving people for bread, lilting up their arched li()S .in despair to the dull skies for life nd nourishment, how far are we off frohi that arisian liberty which takes blood when it cannot nd a bone .? Sir, in t!ii.s respect, the people en ct in mass, and in such cases they always act om their worst instincts and passions. Tiie law ) the barrier which keeps both back; and the 'resident has occupied, in this res|)ect, a position 'hich lias tested the Spartan heroism of hischar- eter. If for one single day he had faltered in le stern discharge of his duty; if he he.d for a ingle day countenanced the violence and outrage ml anarchy of those who set every duty of the nod ciiizen at defiance, to attain their reckless nds, we should at this hour Iimvc been at the lercy of a [uomiscuous mob, headed by a lawless, rofligate militia general in buckram, with all the ;merity of Bob Acres, without any of his con- enieiit virtues. Hut to drop this dit^ression, and to resume the rgument. In all those cases where constitutions ave not been submitted, the organic act,author- iing the election of delegates and defining their powers, did not require it. The same feeling, however, which has been displayed in favor of popular submission, has found vent in another direction, and a few years ago came very near transforming State Legislatures in to mere tribunes to propose laws, .instead of bodies to make and enforce them. The theory that it was necessary to give validity to State laws by subniitiinn I grows witli pnwi r, as the blaze of a vertical Min is ilio most i fierce. CIk'i i-li, thureibre, a national .-trcnirtli. Fortify your ! political insilluliiins. Konienilier tliat ainiii;s and navies i are ot'tlic sauu- use in llic world as Uic police i]i l.ondmi or j Paris, and ^oldll'rs are not made like poller's vessels, iu a ; mimite. (.^uliivate union, or jour empire will hi;, lilic a! colossus of gold lallcii on tlic ion into the Union nniter the Lecomplon constitution has bi^eonii" a fixed fact; that the result is uhiiost as certain as if we were now 1 - within the Union. If Kansas does cotne into the Union iu Ibis manlier, and Is made a slave State, as a consei)uenct, the Slotlis, and the doi;s in the manger who woulil not vote, nor let their friend.-; vole, shall bear the eeu.-ure.' " Had the Free .'^tate- pirty consulted ilieirbe-t interests instead of standing on etiquette, as they did in June last, they woiilii have ' pitched in' and elected ecerii de esiiue to the eon-tituii(Uial convention. Then, if they had u anted ihe Top; ka constiuiiimi as their fuiidameiiial law, they cminations were made in tile various legislative and senatorial districts all over the Territory. In proof of this, we copy the third resolution of the convention, in the following words : '' ' Kew^reif, That the candidates nominati'd hythiseoB- vention, on accepting such noniination, will h- considered as pledged, should the constitution be adopted by (Congress, to adopt and execute immediate measures for enabling the people, through a new constitutional eonveiition, to obtain such a coiistiluiion as the majority shall approve.'" No. -2. Goeemor Chittenden. '•Congress, it is presumed, will not protend lo unlimited power, or to any other than what has been deleiiated to them from ihe Uiiileii States ; nor will tlii\v pretend Ilia; tlieir Arti- cles olt'onledeiation will warrant them in inliri'eriiiff with or controllinL' the internal police ot the United Siae-s. Whence did Ihey obtain any righi:ul pr.'rogtuivc over the internal police ot' this State, iVoin which they have never received any delegated power.' The same arsument against the right of Great Britain to tax the .\mericaii Colonies ai pleas- ure without represeiitalioii, will apjily against the right of Congress to control tlie civil aulhorit) of this Stale ; tor if they may in one instance do it, they may in another, till they suppress the whole." The General ^Ssaemhly of P''ermont, through the Spertker, to Consress. " By the resolutions of August, 1781, Congress have ac- knowleilged the riiiht and independence of the Siate of Vermont, on a preliminary eonditioii ; and all and every act of Congress wiiich iiiterteres with the internal government of V'ermont, or lends to prevent a general exercise ol her laws, are unjnstiliable in Iheir iialiire, and repugnant to every idea ot' t'rcNdom. We conceive thai the several States ill the Union do not owe lo Congn^ss their existence ; hut that each Slate wa.s formed by the association and civil com- pact of its inliahitants. Through this medium Ihey derive their separate rights to jurisdie ion, and Coimressthe ilitTer- eiit powers they are vested with ; and have, of course, neither the power nor the right to mnkc nr unmnke States irithin or n ithjiU the Union, or to control their internal police, without a power delegated to them for the purpose. We are still ready to conifily with every reasonahle requi- sition of Congre.-s ; hut vvlii'n tln-y require us to nbroL'alc our laws, r(;veisi> the solemn decisions of our eniirts of jus- tice, and overthrow our civil trovernment in favor oi' insur- gents and disturbers of the public peace, we tiiink ourselves justified to God and the world, when we say we caunol comply with hucli reijuisitions." 18 No. 3. Tlip law of Vir=:i/.ia of ilie 18th of December, resnribcs the qualification nfvotcM-s, and the eloc- nn of intnnbt'is to a convention to erect an inde- •luieiit Stale, out of the district of Kentucky. It ve.s the said convention " full power and au- luriiy to frame and establish a fundamental con- ituiion of ijnvcrnmeMl," for said State, ujion •rtain conditions, specified in said act. It pro- ded that a convention should beheld at Danville 1 the 26'h day of July, 179U, with power to loose officers, &c., and to determine whether it he the will of the people" to create an inde- ■ndent State. Five members assemljled were ifHcieiit to adjourn from day to day, and had iwer to issue writs of election to sup|ily vacan- es from any cause. Two third') of the whole iniher of members to be elected were required determine on the expedien'cy of creating an in- jpendent State. In the event of determining' ion a si^paration, the convention were author- ed to fix u[ioii a day posterior to the 1st day of oveinbir, 1791, on which the authority of Vir- nia and its laws should forever ceasi^ and de- rminr; but that authority was made dependent >on the contingency that; the Government of the nited States should, prior to the said date, assent the erection of said Stale, and should agree that e proposed State shall, iminediately after the day be fixed posterior to the 1st day of November, '91, said: •• rl;^ slidiild oppii.-ii' tliis resnluuon. hiil not nii ilie ground fixprilit^iicy. Ml' ()|i|)i)lature,as I'lilly coni- teni to li'j;JslHt<' as the I,cpi,~l:ilnre o(' d'liirylunil, or any UT L'";isliuiire in the Uiiii.n. 'i'hey are lully cmnprteiit the iieikiiij: oC a'l laws to ri'guhite the internal (vmceriis the Bovrriiiiient. Now thesis resohilions go to inteneie ilh Ihe^e internal concerns, and to regulate theio by law. !ieu the gentleaiau Ironi Kentucky undertakes to decide I the terms on whieh the tneirrbersof the eonvention shall bir chosen, t ask him, whiMe is the power.' Are not the powers ol' the Territorial Legishituro as full as those ol' the Le<;is- latuie of Maryland.' And have wi- n"t as good a rifiht to interfere wjtii the State concerns of jVIirylMiid a> to inter- fere will) the concerns of this 'J'erriiory .' W' have the de- terniiiiatmn of the Lejiisiature of the 'i'erritory (hat it is not desirous of fonniii!; a eonslitiiiion at ihis time. If, then, we go abreast of the deteriiiinauon of one liegi^lamre, why not of another.' If we go abreast of thai ol' tlie North- western Territory, wliy not go abreast of ihat of Maryland.' If, loo, you iiKiy leijjslate for the p -ople before they are admitted into the Union, you mnv also legislate for them ailerwards. If you do not like ilie constimtion they now foini, you may pass a law for aiiotlier convenlioii. " I5y a pirity of reason you may force down a constitu- tion on (^ininecticut and siiy that yon will give lliein one. Acting on such a principle there can be no ^lopping place ; you may go lo any length. If you interfere with the hu- thorily vested in others, you may go to any length, and that the consolidation of Ihe Stali-s, which some gentlemen af- fected, will he acconiiilished. I am, therefore, on constitu- tional grounds opposed lo those resolutimis. Let ns turn to the third resolution, which is calculated, in expres- words, for calling a convi'iitlon, by law of tlie United States, and taking tlie population of the last census as ilie basis of rep- resentation. How are the opinions of the peo|)le upon the calling of a convention to be oblaineil.' How Is their con- sent to elect delegates lobe obtained .' I answer, in no other way than by an act of the Territorial Legi>lalure, or by going around to every man in the Territory and oiitaining lii> opin- ion. You must obtain theconseiitof the Tinritorial Legis- liuure belbre you take the step of calling a convention." The proceedings of Congress gave rise to a pui:)iic meeting of the citizens of Da5'^ton, Ohio, on the 2Gth of September, 1802 The following, among other resolutions, was adopted unani- mously: " We consider the late law of Congress for th? admi.ssion of this Territory into the Union, as far as it relates to the calling of a convention, and regulaiing the eleclion of its members, as an act of legislative u.-iiipation of power prop- erly the province of the Territorial Legislature, hearing a striking similarity to the course of Great Britain imposing laws on the Provinces. We view it as iiMconstitnlioinil, as a bad prci-edent, and unjust and partial as to the rejiresent- ation in the ditlercnt counties. We wish (Uir Legislature to be called ininiediately to pas.s a law to take the enumer- ation lo call a convention, and to regulate the election of members, and also the time and place for the meeting." No. 5. In regard to the suhnisdon of Ohio Constitution of 1802. Friday, Novemhvr \-2, 180?. " Leave was given to lay be- fore the conveiJliiMi a resolution for submitting the consti- tution or frame of government, now preparing, to the people of the eastern division of the T(.'rritoiy, nortlivvest of the Ohio, for thciraceeptanee ordisapprobalion ; which resolu- tion was received and read the first time : Whereupon, " OrilcrerJ, That the .said resolution be committed to a committee of the n-h'jle conveiitioa to morrow." — Med. N. C. lUI. S.itarda^i, Kjremherii, 180^. " The convention, accord- ing to the order ol'the day, resolved itselt into a committee of th(^ wholeconvention on tin- resolution of siibmitiingthe coiisiiiuiion orframe of government, now pri'paring, to the people of the eastern divisionof the Territi'ry. northwest of the Oliio, for their acceptance or disapprobation, Mr. Byrd in the chair; and, after some time spent therein, Mr. Pres- ident resumed the chair, and Mr. P.yrd reported that the cominiitee had. according to order, had the said resolution iinrler consideration, and directed him to report to the con- vention their disagreement to the same. '• On the (piesiion that the convention do agree with the conimltiee of the whole, it was resolved in the atiiriiiative — yeas 27, nays 7: '■ Yeas— Abbott, Abrains, Baldwin, Oair. Brown, Byrd, (Caldwell, (Jarpeiiter, Darlington, Donalson, Diinlavy.Gatch, (J'i!ortli, Griibb, Humplirey, Huntington, Kirker, Kitcliel, Massie, Miiligan, .^lorrow, Paul, >Sargent, Smith, Wilson, Woods, and Worthington. •• N.ws — Culler, Gilnian, Mclntire, Putnam. P.eilly, TJp- degr.iff, and Weils." — Journal, published in iicd. N. CoH- stitution. 14 No. 6. |! Tlip casp of Rice against Foster (4 Harrington', Reports, 47fl) arose under an act of the Legi.sla- 1 ture of Delaware, oflhe 19th of February, 1H47, : authorizin*^ the people to decide by ballot whether || license lo retail intoxicating liquors shall be ! permitted among them. The constitutionality of ji the act Wiis contested, and the case carrii d to the || highest court of a|ipeal for decision. The court' decided ilie law in question to be unronslilutional; [[ that as the legislative power in the State wasji vested in a Grneial Assembly, consisting of ail Senate and a House of Representatives, the peo- ! pie have divested themselves of air legislative ji power and vested it in this body, and that they i can resume it only in the forms of the constiti;- ' li«n or by revolution. That the General Assem- ' biy cannot delegate iliis power even to liie people J at large, nor can they make it depend upon the votes of the people at the polls. Booth, the chief justice, in delivering the opinion of ilie court, said: '' V\'e liiwe been taiisht by the loasons of history that equal anil indeed jrenter d.irip;ers re>uUi'd from a pure demoeraoy tli;in from an absolute inoaarcliy. Each l.-ads in des|Mili.-m. Wherever llie powernl tiiakin;; laws, wliieli is the ^uprenle (iiiwer ill a State, Inis been exercistui directly by the people under any sj stem of poliiy, and not by representiition, civil libirty has been overllirowii. To iiuard aJ!aill^l tlie.-e dan gers, our repiiblieiin (.'overiiinniil was i.i: liluled liy tin- eon- sent of ihe people. 'I'lie rli.iiaeti^risli • wiiieh di,-liii;;uislu.-« ittrom the mi>ealled republicsof anel it and uiodern limes is, that none of the powers of sovereipMiy are exi;rei>ed, but all of tliein by separate coordinate branches of aovern- inent,inwhom those powers an- vested by the constitiilion. 'J'liese coiirilinate branehes are intended to operate as bal- aiiees.clieeks. and restraints, not only upon each oilier, bat upon the people tlii'Uiselves, to gu'.rd them acainst their own ra>line.s, prepipiianry, and ini-guided zeal, and to pro- tect the minority against tlic injustice, of tlie majority." 1 • 9£Z 980 910 "III SS3d9N0D dO AdUdail