Georgia Historic Newspapers

    eels hi (Constitutionalist
BY JAMES GARDNER.
[COMMUNICATED.]
Mr. lAitor: Non-intervention by the govern
ment, and the sovereignty of the people of the Ter
ritories over the question of slavery, to adjust it
for themselves, is the principle embodied in the
.Kansas-Nebraska bill. It was manifest years ago,
to reflecting minds, that the strife between the
North and South would ultimately end in disunion
if not healed by the recognition of this principle,
its establishment as a settled policy. InlSso,
the same great principle was first successfWly as
serted, by the Utah end New Mexico bills; it has
been applied to the extensive Territories of Nebras-
Aa and Kansas —sweeping away the Missouri re
striction. The distinct guarantee in each of these
measures is contained that the Territory shall be
admitted into the Union with or without slavery,
as its Constitution may determine at the time of
its admission; and in the acts of 1654, after de
claring “inoperative and void” the .Missouri re
striction, the principle is lucidly expressed 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 regu
late their domestic institutions in their own way,
subject only to the Constitution of the United
States.” The principle is firmly established by
legislation, ratified by the people and vindicated
from misconstruction by tbe Supreme Court of the
United States. This decision of the calm tribunal
of the Judiciary, is the most crushing blow that
tbe enemies of our rights ever had, and in many
respects the most valuable victory that the truth
of our cause has ever achieved. I must forbear tr
enlarge upon it, as I have another purpose in
view; but the construction placed upon the power
of the territorial legislature, touching the exclu
sion of slavery, while the territorial status con
tinued, denying ihat power, and at the same time
ftilly recognizing the power to protect slave pro
perty, is necessary to be embodied in every clear
statement of tbe principles of our territorial bills.
This decision, while it healed all divisions of opin
ion between the northern and southern Democrats
upon the question, has overruled the demurrer
which the opposite party, m tbe S rath, made to
the bill—charging them with confering the power
of exclusion. They called it the northern construc
tion, and while they espoused it themselves, as the
true construction of the Kansas bill, they de
nounced it as squatter sovereignty and “worse
than the Wilmot Proviso.” The firm and unani
mous adhesion of the northern Democracy to this
judgment of the Court, is an evidence not to be
mistaken of their fidelity to the constitutional
rights and equality of the southern States, and to
the true principles of non-intervention in these
bills. Can as much be said of that party, in Geor
gia, who, since this decision of the Supreme Court,
vindicating the southern construction, and taking
out of their mouths the objection of squatter sov
ereignty to the bill, are yet found making war up
on those bills? When they had this objection to
the bill, they pretended to be friendly to it, and
declared, in Macon, that opposition to its slavery
But"sirlcithe n"grcat"o*
moved, they have thrown off all friendly preten
sions, and declared open “hostility,” in the recent
resolutions at MiUedgeviUj. The better these hi ■
become, the more hostile they are to them. While
they could sec the raw head and bloody bones of
squatter sovereignty in them, they loved them, be
at use they could abuse them and find food for
clamor and strife ; but when that is taken away,
they become desperate.
The principles of this policy then are well set
tled well understood, snstamed by the people,
sustained by the judiciary, the executive and Con
eress Hut in the practical administration of these
principles in Kaunas Territory, and in Ui««ctol
exercise of their sovereignty over the slavery ques
tion by the people of U.at Territory, difficulties
have arisen ; and we arc now upon the verge of re
viewed agitation, which, in all probability, will in
volve the country in a contest oyer questions u
great delicacy and difficult solution. Hie threat
practical question, and one which is apparently
cringing with it a storm which may move the pub
lic mind profoundly before it is quelled, is bow
shall the popular will of the Territory be moulded
into form? In other words, what is the proper
course, aud tbe legitimate steps to he taken in form-,
iog and adopting that fundamental law which is to
shape the domestic institutions of the Territory .
It is well kuown that Congress failed to pass a pre
liminary act, as has been the practice in most
cases, authorizing, or catling on the Territory to
frame and adopt a State Constitution. 1 appre
hend that it cannot be maintained that such an act,
on the part of Congress, was indispensable or es
sential to authorize the people ot the Territory to
take ibis step. I shall comeud, in the course of
this argument, that ample powers resided in the
legislative assembly for that purpose. At any rate,
it is sufficient for ihe present to Say, that upon the
failure of Congress to pass such an act, it devolved
upon the territorial legislature. ADd that body enact
ed a law appointing a time for the election ol dele
gates to a constitutional convention, and a day tor
that convention to assemble ; and prescribing such
regulations and qualifications of the elective fran
chise as, in their judgment, were necessary and
calculated to give effect to sovereignty of ihe pop
ular will, and protect it from fraud, abuse or impo
sition. Jo tins action of the legislature, all par
ties in and out of the Territory, have acquiesced,
except the Topeka factior of rebels in the Territory,
and their equally rebellious adherents outside ot
the Territory. The administration has also lully
recognized the legality of these proceedings, and
the power of the convention which has been thus
datv called and elected, and is to assemble m
September to frame a Constitution for tbe new
State is not denied. Two questions, however,
here’arise: First, shall the Constitution, when
framed and organized by that convention, be con
sidered as adopted by the sovereign will of the
people, or shall it be necessardy referred back to
a popular vote for ratification or rejection ? And
secondly, if referred to a direct popular vote, what
aha! 1 be" the conditions and qualifications accompa
ny in»• that reference? Shall it be voted upon by
the registered voters who were qualified under the
law to elect the convention, or upon terms similar
to those prescribed by the legislature, but provid
ing a new registry of names, and periods oi resi
dence so as to embrace subsequent immigration,
as weil as the rebels who refused to obey the terms
of the election for delegates? Or shall it be sub
mitted to the actual resident population, who may
be in the Territory “next fall”—without qualtflca
tion at ail—or with new terms of qualification pre
scribed by the convention, at their discretion, and
without reference or analogy to the provisions of
the law of the legislature calling the convention
These are grave questions—grave prelim l narv
questions —worthy to be discussed dispassionately,
in advance of a still graver question, which may
hereafter follow them in the course of events, ana
which I trust ihe South, at least, will not need to
discuss; and that is, if the convention frames a
Constitution, and disobeying the dictation of the
Governor, presents it to Congress as the Constitu
tion of Kansas, shall she be admitted with it, or
rejected on account of it?
The organic law of Kansas does not prescribe the
mode of proceeding in the adoption of a State Con
stitution. It reserves ho powers to Congress to
prescube the mode, or to declare the qualification
of the elective franchise in a vote of ratification, or
for members to a convention. No exception or re
servation of power touching this proceeding, is
found limiting the broad grant of jurisdiction giv
en to the legislative au hority of the Territory,
over “all rightful subjects of legislation. ihe
nualiScation of voters tor members of the legisla
ture and for all eleclive officers within the Terri
tory’ is specifically within the powers of the legis
lature Congress, in tbe organic act, having pre
scribed the qualification of electors of the first
legislative Assembly, expressly transfers the pow
. er to that body in future. That power it has exer
cised ever since. In the act originating this Con
vention, and by virtue of the authority whereof,
l it will proceed to perform the important task im
i posed upon it. This function of qualifying the ex
ercise of the elective franchise, was signally exert
[ ed. If there were no express grants of specific
5 power, and no general grants in the organic act,
1 which would embrace the exercise ot this function
, in that instance, it might be plausibly contended
that it is Incident to the organized goverrment of
[ the Territory, in the absence ot any reservation by
Congress in the act creating aud endowing that
5 government. That it was rightfully exercised in
• the premises, no one denies; and all must admit
. the manifest propriety of its rigid exercise in
, throwing such safeguards and conditions around
' the voter as were essential to protect and insure
? the free and fair operation of the will of a majority
, of the people. The work to be performed by that
f Convention was justly esteemed a delicate and
. responsible business. It was no less than to “form
and regulate” the fundamental law of a free peo
ple ; a Constitution for a people about to emerge
‘ from Territorial dependency, into the full sorer
f eignty of a Stale co-equal with the oldest in the
. Union. It was needtul, therefore, that the mem
bers of that body should be the true representa
: tives of that people; and should embody the senti
ments and will of a clear and legally ascertained
majority, that whatever it might do'should reflect
the popular mind: in other wordsjtliat what was
done by them, should be done by the people
through them. Another cogent reason —as all men
know—for the extreme cauuon and rigidness of
tbe terms of this election of the Convention, was
the fact that this very question of slavery was to
be decided by them; that question was to
be the leading one in the election, and when
th**| people had congested it at }the ballot-box,
guarded against all fraud und abuse, and de
cided it by the choice of their delegates, those
delegates were to frame the Constitution and em
boiv in it the verdict of the public mind. Is not
this the true theory of the proceeding? And was
it not manifestly the idea of the legislature, in
prescribing with so much caution and under so
many w holesome restraints, the mode and manner
of the election of this body, that it should be pre
pared a id empoweted to act authoritatively in the
work t f framing a Constitution and settling for
ever the vexed question? It will be conceded that
a popular movement, outside of the legislative
assembly, and without the forms and authority of
law, to Irameandadopt a Constitution, would have |
been the work of anarchy or rebellion, and contra- i
ry to tbe genius of organized republican govern- ,
vnent. Such was the case in the formation of the <
Constitution of California; for winch, wrong as it |
was, there was more excuse than could be tor u ,
similar movement in Kausas, because in the for- |
"roer they were without organized civil government <
at home and had tailed to get relief from Con- \
greas. If then, the legislative assembly, either j
in the view of original authority in tbe premises, (
or by virtue of a resulting power from the failure j
of Congress to pass an “ authorizing act,” was the j
proper authority to move in the matter, must not (
its plan be obeyed? Indeed, it is more consonant «
t<> the principle of popular sovereignty in the Terri- i
tory that their legislature should move in j
matter than Congress. The former body must j
regarded as acting in their legislation, under fw i
delegated i.uthority of ihe people themselves who t
elect them ; in other words, the acts of the legis
lature is the reflected will of the people of the
Territory, which can, in no sense, be true of the
acts of Congress. Is not this the theory of A rep- <
resentative legislature ? And is it, not. therefore. I
doubly demonstrated that the Convention, elected <
laa.Ti'ir.jiiiawiitiiiiwiiiqiifiiiw
united‘VVltTj-: i.a people's will and the peo
ple's power to pertdrrn ilie task legally assigned
itieui? Are they not fully prepared to frame a
Constitution lor that people? And may they not
frame and adopt it under the powers vested in
them by ihe aet, absolutely and without the con
dition of a subsequent rat.filiation, it such was the
intention and design of the legislature? As there
are no conditions or limitations upon their powers,
requiring them to submit tbe Constitution they
frame to the contingency of a vote of ratification,
are they bound to atiacb such conditions to the re
sult of their labors? Or, in another view, us they
are merely empowered by the legislative act tinder
which they are called to make ft Constitution for the
Territory, can they go beyond die plan and pur
view ol that act, and assume tbepowerof prescrib
ing a different mode from that legally ordained by
Ihe legislature? If it be objected that the Conven
tion in this view, imghtabuse theirpowerand frame
a Constitution objectionable to a majority of their
constituents, I reply that tbe same objection might
be made to tbe power of every representative body
—to Congress—to tbe legislatures ot the States,
and to every lorm of representative power. These
abuses, though possible, are not to he presumed ;
and such presumption would overthrow the integ
rity of republican institutions, and the theory ol
popular government. Now, it must he granted,
that it was within the power of the Legislative
Assembly of Kansas to limit the powers of the
Convention, and to have prescribed that such Con
stitution as they might ft ame, should be referred
back to the people for a direct vote of ratification
or rejection. This, if it had been done, would have
been us obligatory as the conditions of residence
and registry attached to the exercise of the right
of voting lor the delegate. But it was not done.
Aud from the absence of such requirement, or any
reference in the law to a ratification, the following, |
inlerenee is irresistible—either that, the legisla
ture intended ihat the Convention should frame a
Constitulion for the people, without further test
or ratification, or that it should be left to the dis
cretion of the Convention, whether it should be
submitted or not. The former 1 have assumed to
be their inteqtion ; and I think it much the most
natural conclusion from the premises. For it must
strike every reflecting mind, that if further pro
■ ceedings were contemplated by the Legislature,
than merely that the Convention socautiously elect
ed and constituted, should frame the Constitution
of the Territory and present it to Congress for
admission, something would have been said in the
act in relation to it. The time and manner of such
: ratification, and particularly t lie qualification of
voters on the question, would either have been ex
pressly prescribed, (which is far more reasonable
to conclude if a ratification was contemplated,) or
else expressly referred to the Convention to pre
■ scribe. For surely a legislature which had been
: so vigilant and cautious in prescribing the time
I and mode, and the period of previous residence,
I and the condition of registry, and had thrown so
: many safeguards around the election of the dele
gates who should frame a Constitution, would not
’ have deemed these precautions and restraints the
: less needful, when the vote should be taken upon
• the question of ratification or rejection. Would
• they guard tbe election of the delegates from abuse
■ and fraud, and throw open the doors when the
, people voted upon the Constitution itself? Would
i they frame it with so much caution, and then let
- it be destroyed at the will of rebels and outlaws?
: We caDnot impute to them such folly. We there
- fore reasonably conclude that the Legislature in
- tended that the Convention so solemnly chosen bv
1 the people, should embody the will of a majority
f of their constituents in tbe frame-work of the Con
> gtitution they were empowered to make, and that
. 3uc h i t should be regarded, and as such presented
to Congress. Again, upon the hypothesis that the
1 legislative assembly intended the Convention to
1 submit the instrument, when framed, to a popular
o vote the least they could have done, would have
a been to have referred that power to the Con
e vention, and thus given them the apparent
- sanction of law for the proceeding, and for
r the solemn power of prescribing the conditions
and qualifications of the popular vet®- the
e assembly had done this much, would it have been
- sufficient for the purpose ? Could the Legislature
> have thus delegated to that convention the legis
u lative faculty of prescribing those conditions and
r qualifications, aud especially of accompanying
:- those regulations with such penal sanctions as
s would be absolutely necessary to vindicate those
- w'holesome restraints from violation? It will readt
', ly be perceived that rules regulating the election
e would, without legislative authority, and without
- legal penalties, be nugatory aDd powerless in a
- land of Topeka rebellions, and where treason
- stalks abroad unmasked and unpunished. In this
- view of the case, it is not only improbable that the
t assembly intended the convention to refer tbe in-
AUGUSTA, PAN., WEDNESDAY, AUGUST 19, 1857.
slniment to a popular Tote—but it is absolute!?
impossible that that convention could make such
a reierence in an effective legal manner, and with
such restraints and penalties as all must admit
would be idispensable to the preservation from
abuse, fraud and violence, of the legallv ascertained
will of a majority of the people. What would the
boasted principle of popular sovereignty be worth
—what the rule of the majority worth—if that
will and rule could be trodden underfoot by rebels
. and outlaws, whose crimes and violations of the
rules of the election there is no law to punish ?
Am I mistaken in assuming that the power of the
convention is thus limited, and inadequate to the
exercise of legislative functions? Inadequate to
prescribe valid ond obligatory legal regulations
for the vote upon the Constitution ? Where would
the convention derive the power to pass these
lavra—regulating the exercise of the highest fran
chise of freemen, and enforcing their regulations
by the necessary penalties ? Would they derive
it from the legislature which provided by law for
the election and assemblage of the convention ?
No such power is vested in them by the act. Not
a word about the submission of the instrument to
a direct popular test. All the powers given by
the act are exhausted when that convention meets
and accomplishes the work expressly assigned
(hem of framing and adopting a Constitution for
the new State of Kansas. If it be contended that
these other powers, w hich I affirm are legislative
in their nature, could have been delegated bv the
legislature to the convention, which is denied
upon principle, then it may be answered that
if it could have been done, it was not done, and
notattempted. Hut surely no man will contend that
the legislature of the Territory could have em
powered the convention to make a rule or regula
tion touching the right to vote on the Constitution,
and prescribed a penalty for violation, which any
judicial authority on earlli would enforce against
a citizen. The insuperable objection would be
that it is not a law. Neither is it any reply to this
argument to say that the same reasoning wouW
deny to the convention the authority to frame
a valid Constitution for the people, for that
Constitution when framed, although it be the 1
Constituting which the people, through their 1
delegates in convention have adopted, is yet not 1
valid m a legal sense until the act of Congress 1
gives it vitality by udmiling the Territory 1
which presents it, into the full enjoyment of 1
the sovereignty of un equal State; then it becomes 1
the fundamental law of that people as a State. 1
Docs the Convention derive the powers in question '
from the people as their constituency? This can- <
not be maintained, for the people elected in obe- I
diencc to the law of the legislature, and by that
election gaTe them only the power to do what the 1
law had prescribed. Though the people are the 1
original source of power, in an organized govern- *
ment powers are vested in the legislature, anil <
cannot reside in two distinct bodies at the same 1
time. This, if nut an imperium inimjserio, would *
present the unomnly of two supreme powers—the
one exercising its functions under organic luws '
and limitations, and the other without them. It <
is need to pursue such a iallacy as this. It is <
enough to say that the people, when they elected f
delegates to frame a Constitution for them, did not •
vest them, nor to attempt to vest them, with any J
power to legislate upon their exercise of the elec- 1
live franchise, to prescribe rules or regulations in 1
regard to a vote of ratification or rejection, or pen- *
alties for Ibe violation of the same. They were sim- *
ply empowered by that election in obedience to 1
law, to prepare for them the form of a Constitution *
which, upon iheir admission inlo the Union, un t
der the Constitution of the United States, would I
be vitalized into their fundamental law. Hut <
one oilier aource for these bowers assumed,
MMHMwiNnai
The vague idea which seems to prevail or
the unlimited power of discretion of this
Convention,.if it hns any definite foundation at all,
must he based upon the words of the bill; and, in
deed, I think, I have observed some plausible ar
guments in support of the proposition in dispute;
drawn from the words “in their own way.” It Av
ia// the true intent and meaning of this act, not to
legislate slavery iulo any Territory or State, jior to
exclude it therefrom, hut to leave the jkoulc thereof
perfectly free to form and regulate their domestic in
stitutions in their men tray, sulycct only to the Om
stitutwn of the United .States." From these words,
it is argued that the convention is not confined to
the plan of the legislature, hut has unlimited dis
cretion to submit the Constitution or not to the
popular vote, and whatever regulations they sec
proper. Hut it is clear from the contest that the
words, “in their own way,” mean with or without
slavery. No point is here made as to the mode of
framing oi adapting the Constitution. If these
words arc synonomous with mode or manner, and
are to he understood as empowering the people or
their Convention to set about the woik of framing
and adopting a Constitution in any way, or upon
any plan, then there is an end of all law ; and it
may be said that the rebels involved iD the Tope
ka movement, have at least brought themselves
w ithin the perview of that construction, for they
have certainly gone "their own way.” These words
do not support that idea. Indeed, it may well
be observed, that if the hill was intended to give
all possible freedom to the people of the Territory
as to the character of their institutions, and the
mode and mauner of proceeding, it certainly never
was intended as an abandonment of all the forms
of law, and all the principles of organized govern
ment. It did not intend to turn them over to Cali
fornia mob law in the adoption of their Constitu
tion. It is well remembered that one objection to
’the California proceeding was, that there was no
law to authorize and regulate the plan, to qualify
voters or to punish abuses—nothing Lut the mob
to protect tile sacred will of a majority of the peo
ple in its highest franchise, the choice of its own
institutions. I ask, what more protection would
the people of Kansas have in the ratification vote,
if the Constitution is submitted by the Convention
without any legislative regulations What au
thorities would enlorce the rules prescribed, and
who would protect an election resolved upon and
appointed bv the Convention ? The answer is, the
mob. Now ! admit that if the legislature, when
11 provh ed for the Constitutional Convention, had
gone a step further and provided for a vote of rati
fication or rejection bv the people at a subsequent
day, and had prescribed the qualification of voters
in Ibis election, as well as in the election of dele
gates ; and in short had made it in every essential
respect as legal and well guarded against fraud
and abuse, then u submission of the instrument to
that test, would he legitimate and proper, and wor
thy of the favor of the Governor and President.
This course might have been adopted; and the on
ly objection that 1 have to it, is that it was not the
course the legislature di-l aslojit. My belief is
that they never desired hut one election open the
exciting’issue, and that was for members of the
Convention, and as that plan was sufficient, and as
well sanctioned by precedent as the other the Con
vention should carry it out firmly and in good
faith. Ido not believe that the honest people of
Kansas in the legislature or out of it, ever thought
of a renewal of the strife by a ratification vote, till
Hubert J. Walker inaugurated the idea. The leg
islature could have done it, but as they did not do
it, and did not authorize the Convention to do it,
that Convention cannot properly do it. The insu
perable objection is, that they have no power to go
beyond the act of the legislature—no power to
ad'd to or take from the plan of that act—no power
to make the submission in due form of law—no
power under heaven to say who shall vote and who
not, and less power to enforce it if they were to
will be remembered that those who advocate
the submission, claim for the convention plenary
power over the qualification of the right of voting
on the question. They do not even confine the
discretion which they claim for the convention to
the qualifications already prescribed by the
Legislature in the other election, nor to any other
legal qualification of that important right. In
deed, tile Walker policy clearly indicates for the
convention qualifications which would embrace all
the resident inhabitants who may be in the Terri
tory “next fall”—the time when it is supposed the
ratification vote would bo taken —thus utterly dis
regarding all the laws ot the Legislature, and all
analogy to those laws. Even in the cases alluded
to by the advocates of ratification, I know ot no
instance in which a convention has undertaken to
ex/ rcise such powers.
The case of Virginia, in the aaoption ot tier
State Constitution by populcr vote has been cited
But did the convention, when it refered the Con
stitution to a popular test, undertake to regulate
the right of voting? ' Or was the submission
made and the vote taken upon legal qualifications
already established by law?
The case of the convention which framed the
Constitution of the United States has been cited
by the editor of the Washington Union. But did
that contention assume the regulation of the right
°* * n the States on the question, or did
each State control that matter under its own laws?
If that convention had assumed to designate who
should h# allowed to vote in the respective States,
it ib manifest that such designation would have
been powerless unless enforced by the laws of the
States. This case of the Federal Constitution was
an unfofcjMnate illustration for the editor, for the
States adopted it through their conventions, and
the only jtonular vote they took was just the one
already bjsa in Kansas—the election of delegates
to their conventions. And if it conld have been
possible fo£ any one of the States to have had no
such legajjgfuafifications of the vote already estab
lished by the convention deemed proper, will
any man ny that the convention could have made
such qualfSkjLtion and rendered it effective without
the actio* «Nhe Legislature of that State ? And
so I conU*t« in Kansas, the Convention, if they
make the Kwance at all, would go beyond all pre
cedent if tJLidv undertook to obey the suggestions
of Gov. Walker, by prescribing new qualifications
and such as have no authority in existing laws.
Indeed, it ttfcatConvention makes this reference —
which T denflLthai they arc bound, or even have
the power ttjMo—all they could do by authority of
the be to refer the question of
adoption to Impose voters who are qualified by the
registry lawg! And that would fall far short of the
reqmrementsffef the advocates of submission; for
the great pasft with them is confessedly a9 to the
class and qs|&fic&ti<m of the voters. They would
not be to have it referred back to those ■
qualified bylS# existing law. This is the most
serious pomfoi this whole contest. And it is upon
this groundjrSyprotest most strenuously against
the policy l>r It involves the ex
ercise of a pc* ft pver the elective franchise which
a coi mention jtaes not and eanuot possess, and
ought not 9a the case before us, 1 main
tain that thfttMpV€j£sf‘declaring what class of in
habitants shaHyotf on the question of ratification,
or any quests *0 Voting the rights and interests
of that people to the legislative authority
of Kansas Since the organization of the
Territorial t’vy~annMitnot even Congress possess
es the
posse v« such powers in and over the
Territory, as neceiaary tor its proper govern
ment and cot^Rrand jiot inconsistent with the
Constitutionally 1 {jrani it was competent for
Congress to an act providing for an
election of d yy. fc| ft constitutional conven
tion, present the qualifications of voters, and
also to have p- vid&dfor § submission of the Con
stitution to a iHodttot® of the people—preserib
mi.-I, for that vote as were
deemed prop AHNflnLinight even have been
done, and pet JfjjHjreryjttpperly in the organic
act itself. B vf'Wpffirm that this power no longer
resides in Coireside in two de
positaries at /meAnd when Congress,
m pursuance the government in
relation to Tei* .organized a territorial sys
tem of goven* its powers !
thither, the Territory by di- •
rect legishui klj. Calhoun m aintained might
be done constpfthen Ip* power to declare j
the legal qualim£j»kjff| the^election franchise ,
passed from t Ira % Jjecame vqated in the ,
Tcrntqriftl M Abe polL> Con- 1
oi djf
tect Tbx •* ( * rto
enact. be J
bling act *k * the UnUTu t wnTcn TT
is usual X jMf calling on a Territory
to prepare itself for admission, and apply, argue
anything against this position. For those acts
cannot invade the province of the Territorial leg
islature. Those are not legally necessary, and
in this instance it has not been done, lint
what says the Kansas bill upon the point now un
der consideration? “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.”
Is it not a “ rightful subject of legislation,” to de
clare who shall vote, and upon what conditions in
so important a matter as the ratification or rejec
tion of a Constitution ? These words clearly em
brace the point. Again: In the fourth section of
the bill, are the following words—after providing
for the first election—itgoeson to say, “ but, there
after, the time, place and manner of holding and
conducting all elections by the people, shall be pre
scribed by law :” that is by an act of the legisla
ture. Again : in section fifth, after declaring who
shall vote in the first election, it proceeds, “ but
the qualifications of votors, and ot holding office,
at all subsequent elections, shall be such as shall
be prescribed by the legislative assembly.” These
provisions in the bill afford abundant proof that
all power upon these subjects is vested m the leg
islative assembly. Now, if the same power exists
in both the legislature of Kansas and Congress,
which body is entitled to assume the exercise of it
in opposition or defiance of the other? It cannot
consistently reside in both, at the same time. If I
am wrong upon this, as a general principle, it is
at least, observable that, in this instance, Congress
has failed to pass any law ; and all parties, the
government included, recognize the validity ol‘
the action of the territorial legislatures. If then,
the legislature had the power, and the sole power,
as l contend, to move by efficient legislation in the
works of organizing a .State Constitution—the plan
of that authoritative movement should be earned
out by the convention in good faith. That plan,
as already observed, does not contemplate a sub
mission—no such idea is incorporated in the act
of the legislature. But, apart from the legal view
of the question, is the plan of a reference back to
the people defensible, even upon grounds of expe
diency? Is there any propriety or reasonable ne
cessity for it, growing out of the peculiar condi
tion of affairs in Kansas, apart from questions of
principle? Let us look hastily upon this aspect of
the controversy. It is principally upon such
grounds that the advocates of Walker’s policy place
the question. Does the fact, that the Topeka re
bels refused to vote in the election of delegates,
create any necessity for the reierence ? I ask this !
question, without referedee to their number; let j
it be granted that they might have prevailed in
the election. Are they not bound by the action
of the law-abiding citizens, who qualified them
selves under the law, and exercised their right?
Mr. Walker himself, in his inaugural address, ar
gues this point to them, and shows by irresistible
reasoning, that they who refuse to vote, are bound
by the action of the voling citizens. He makes
this point with much force, though I think he
knocked down his own argument, when he told
them afterwards, in his Topeka speech, that wheth
er they voted or not, they should have another
chance to vote on the ratification question, and a
chance to destroy the work of the convention; and
gave himself as security for it, by promising to
join them, if the convention should hold them
“ bound” by the votes of the law-abiding citizens.
His argument upon the point referred to, 19 good,
however, and 1 commend it to the reader who may
stand to it, even if its author deserts it. If these
men are outlaws —refusing obedience to the con
stituted authorities of the country, and forfeiting
the rights which are offered them by those laws,
rather than acknowledge their authority, they de
serve no deviation in their favor from established |
principles. They deserve no extraordinary sym- :
pathy from the government, against which they
array themselves in open rebellion. Nay, I should
say that it furnishes a sound reason to the contra
ry. If they prefer the Topeka plan of making a
State by rebellion and treason, let them abide the
consequences, and let it not be claimed for them
that they shall be allowed to come in and over
throw the work of law-abiding citizens. Let them
not be allowed to render nugatory the proceedings
of the!"proper authorities wnose action they will
not recognise and obey. If they are bound by
the action of the honest, law-abiding People of tbe
Terr Very—as Mr. Walker argued—let them be
held bound. For it is plain to perceive that if
they are allowed to vote ou the ratification ques
tion, and thereby overthrow and destroy the Jon
stitution framed in obedience to tbe will and the
votes of the law-abiding citizens —they render nu
gatory the entire proceedings of the legislative
assembly, and rebellion and treason triumphs
over law and order. Will any man, North or
South, except Robert J. Walker,” have the face to
say these men have a claim for a reference of the
Constitution to a direct vote ? Secondly—is that
reference proper in view of the immigration sub
sequent to the election of delegates, or the period
fixed in the law qualifying tbe voter in that elec
tion? Must the Constitution be submitted for
their benefit ? If so, then between the ratification
votes and the admission of the Territory into the
Union, another flood of immigration will pour in,
and upon the same principle, they must have a
chance. They will all be equally impregnated
with popular sovereignty, and thus the Constitu
tion—upon this principle—will be an ambulatory
instrument, and Kansas must undergo an indeh
nite series of experiments in electing conventions,
framing Constitutions and rejecting them. This
principle would quiet sectional agitation “with a
vengeance.” Indeed, the true conclusion from
this ground is just the reverse. Let the process
of forming a Constitution, if legally begun, go on
to its legitimate conclusion, m its own proper
time. Let it not be turned to the right or the left
by the forced efforts which have been made to
control the destiny of that Territory—let no en
couragement be given to fanaticism, let not a poli
cy be pursued which, while it professes pefice and
pacification, will only add fuel to the ftatnes of
war. This will be the result whenever it is tried.
The Constitution, after its adoption, and after it is
made valid by the admission of the Territory, will
contain provisions for its own amendment. Let
subsequent immigration, if they do not approve it
as they find it, look to these pr visions. If this
position had been taken and firmly adhered to by
Mr. Walker, he might have accomplished the ob
ject which he professed to have at heart—quieting
ihe troubles in Kansas. He will not quiet them
by re-opening the issue which was made in the
election of delegates, and whi»h those delegates
were fully empowered to quiet aod settle forever.
He may get up a breeze in which hi 9 official
robes will flap ungracefully—a storm on which
he will ride as uneasily as did his immediate
predecessor. There are some curious reasons
for this submission plan urged by the editor of
the Washington # Union. One is, because the)
movement was “no t done in pursuance of an
enabling and authorizing act of Congress, but on
the mere motion of the territorial legislature it
self.” That this is not is easily de
monstrable; but he admits himself that the “irregu
larity is not fatal, and in other cases has been over
looked.” I will simply ask if it be an irregulari
ty, and whether fatal or not, how a submission of
the Constitution could obviate it, how would that
supply the place of “an authorizing and enabling
act*’? He uses very strong language in pressing
this argument; he says, “nay it has been begun
and carried on in the very teeth of a refusal by
Congress to pass such an act.” This puts it in a
very strong light, but it is easily pressed into the
service of hi 9 ratification policy, and can be “over
looked,” as it has been in otbqr cases, if the suk
mission is made of the instrument to the required :
test. Suppose Congress should continue to refuse
from the identical causes which defeated Mr. J
Toombs’ bill,and the Territory had a legislative as- <
sembly vested with power upon all rightful sub- <
jects of legislation, and had the proper number of *
inhabitants to become a State ; and had the right i
under the Constitution to be made a State, how t
long must tbe Territory stand still and wait for s
“the authorizing and enabling adC” belore she t
framed her Constitution and applied for adirns- y
sion ? Unti
c UV J-*”' r V**
jf a Territory is
I admission, let it not be done by in
direction, hereupon pretexts invented for the pur
pose, but let it be openlv and directly done, and if
there is wrong in it to the South, she will know ber
remedy. Again, “We repeat,” says the editor,
“that the Constitution must come from the people 1
of Kansas. Other power to make such an instru- I
ment, there is none under Heaven.” True enough. 1
But when the people’s delegates in convention
frame and adopt it, will it not come from the peo- *
pie? It is the practice of representative Repub- v
lies for the people to speak their will upon all ques- 1
tions through the medium of elective assemblies. J
Republics make their laws in this way. They enun- 1
ciate the pounlar voice upon the gravest o.uestions (
in this way.* Will he say the Cuustitution of the (
United States was not properly adopted by the J
people of each State, because the States adorned it
through the action of their conventions? lie pro- I
ceeds, “ But the Georgia convention, without de- (
nying this great principle, seems to think that the •
Constitution of Kansas ought not to be submitted
to a direct vote ot the people in their primary ca- .
nacity. We admit that this is not in all cases a
sine trua non. It is a fair presumption (if there be
no circumstance to repel it) that a convention of
delegates chosen by the people will act in accord
ance with ihe will of their constituents. When,
therefore, there is no serious dispute upon the
Constitution, either in the convention or arnoug
the people, the power of # the delegates alone
may put it in operation. But such is not
the case in Kansas. The most violent strug
gle this country ever saw, upon the most im
portant issue which the Constitution is to deter
mine, has been going on there for several years,
between parties so evenly ballanced that both
. claim the majority, and so hostile to one another,
that numerous lives have been lost in the contest,”
Ac. How he ascertains the opinions of the Geor
gia convention upon this question, 1 am at a loss
to know. Their resolutions intimate no opinion of
the question. But the argument here advanced
that the “circumstance” oi a dispute among the
people upon the important question to be settled in
the Constitution, “repels” the idea that the Con
vention will act in accordance with the will of their
constituents, is a novel conception to me. Was not
that dispute made in the election of delegates?
Did not that violent struggle enter into that elec
tion? And were not the delegates chosen upou
the very issue? Really the argument points the
other way. The very circumstance that there was
a dispute and struggle upon the important issue
which the Constitution is to determine, and that
point the controling question in the election of
delegates, is the highest evidence that those dele
gates will act in accordance with the will of their
‘ constituents. If this question had not been agi
tated bv the people, and were sprung upon the
convention after their election, there might be some
reason for invoking their action to ratify or reject
the decision of the convention. But euough for
the arguments of that paper. And enough upon
expediency and necessity. I will conclude this
branch of the argument by asserting that if there
ever was, or is to be a case in which expediency,
necessity and propriety of the strongest imagina
ble nature combine to support tbe adoption of a
State Constitution without the form of a subsquent
ratification, more clearly and forcibly than in all
others, that instance is the very case of the Terri
tory of Kansas. The peace of the people of that
Territory themselves, and the peace and safety of
the entire Union demands that the agitation should
not be re-opened upon this dangerous issue, which
was so nearly settled, and would in September
have been buried forever, if that convention were
allowed to do what it was empowered by law—by the
votes of their constituents—and expected by the
entire country to do; and that is, make and adopt
a Constitution for the new State of Kansas, to be
“ratified” by ber prompt admission into the confed
eracy. This, in my humble opinion, is the true con
clusion, and the true course of that Convention —
ture upon principle—true upon grounds of expedien
cy, and as well sustained by precedent as any other.
That branch of the argument which leads into the
history of precedents,! shall not now undertake to
unfola. Georgians may find one illustration near
at hand ; in the history of a State whose footsteps
none need be ashamed to follow. In this position, if
she will take it, Kansas will be sustained, in my
opinion, by sound men of all partits and sections.
If Walker deserts her, aud givw her enemies, let
him go. She will have power to defend her cause,
stronger than his feeble arm; stronger than he with
Black Republicanism at his back. I shall ootyct be
lieve that those noble rnet at the North who fought
her battles on the passage of the organic act, and
in the late election, and who achieved her sover
eignty, will turn against her in the trial of its ex-
VOL. 36-NO. 34
1
cise. Nor do I believe that James Buchanan wilt
be against her. W alker had no authority for Bat
tering Topeka rebels with a promise. There is
not a w-ord in the written instructions to author
ize such an inference. For a word in the editorials
even sf the Utuon, to authorize such an inference.
It is true, the organ argues the proprietv of the
submission of the Constitution to a direct vote"
and the instructions proceed upon the idea that
such submission will be made; but without direct
ing, and without a word to authorize the dicta
tions, the threats, or the foul promises of Walker
It is one thing to believe, that the submission
should be made ; and another thing to oppose the
sovereign will of that people, if through their con
vention they decide otherwise. There is no evi
dence to prove that Mr. Buchanan will oppose her
admission into the Union upon that ground, or
that he will deny the sovereignty of their free-will
over the question, whatever he'may think of the
expediency or propriety of their mode of adopt ii n
This is quite a distinct issue—graver in its impor
tance and its consequences, than the other. And
as to what course Mr. Buchanan would take in
such an event—Robert J. Walker was not author
ized to speak—it was no part of his business to
know, and no part of his mission to conjecture.
His “convictions,” or his stump-speech con
jectures will have as little influence on Mr.
Buchanan’s course in that event, as I trust
his dictation and threats will have upon the
convention itself.
There are two points of vast difference in tie po
sition and purposes of Walker as shown by him
self, and those of Mr. Buchanan as indicated by
the Washington Union. Walker proposes that all
shall vole on the question of ratification, who may
be actual residents "next fall,” the time when it is
supposed the question will be voted upon if at all.
The organ argues the propriety of needful periods
of residence and proper qualifications for the vote.
Walker avows his purpose to be, to join the Tope
ka rebels if his view is not sustained and his will
obeyed by the convention. The Union savs, “will
Mr. Buchanan, in any event, ta-etlie Abolition
side of the question V" “Will lie lend bis brow to
the shame with which 3uch an act will blacken it
forever?” Here is a difference wide as that be
tween the characters of the men. Walker cannot
dictate James Buchanan’s course in the event al
| Hided to; he cannot shape the course of the north
ern Democracy; both the President and they will
have better counsellors than he, and an integrity
to true principles less pliant than he has manifest- 1
ed. I shall not lose my confidence in him or
them, because the Governor of a Territory moves
erratically and unfaithfully iu the little orbit of
bis distant office. The rebellious influences which /
move him from the line of duty, und impel him |
off at a tangent, will not reach the great centre of
the administration. The great power of the prin
ciple of non-intervention will be unimpaired at
that central point, and will be preserved as the
gravitating principle which holds together the
beautifully revolving system of the Union. With
out it, all men know that that system will be
driven into wildest confusion. And he who
touches with ruthless hand—“let him be anathe
ma marinaiha.” Much as 1 condemn the ollicious
ness of Walker—and the resolutions of Georgia or
Mississippi are not stronger than the sentiments
of my heart—l shall not lay condemnation at the
door of the President, particularly, when the in
structions have been manifestly transgressed, and
wheD 1 know tbefreemen of Kansas are not bound
to obey the impudent dictator. If, however,
subsequent events and time sball develop Jhat
these trusts are not well founded, and nun-tnter
ventiop shall be grossly violated in inure
Union requires—the .South will know sfr
and her duty, ard if she bo true to berstif, she
will stand prepared to join her, either in the union
or out or it. Here will be the issue upou which I
am willing that “the fidelity of the administration
to the principles which carried it into office" shall
be tried. And here, in my opinion, is the only
point at which it is necessary to contemplate the
idea of opposition. It Kansas herself sliull choose
tbe other policy, whatever we think of its legality,
expediency or justice, we must yield to her will.
The South may war for her, but not against her.
She may submit her Constitution or not—whether
right or wrong—according as her otvn judgment
and sovereign will may determine. And upon the
line plan or the other, she may adopt a pro-slavery
or anti-slavery Constitution, and the South will
open not her mouth. But if she will be true to
her independence and rights, and the w ill of her
people shall decide through her convention, to
couform herself to the likeness of her southern,
sisters in her “domestic institutions,” and she of
fers herself to the Union thus—the day she is re
jected upon that ground or upon mere pretext,
will be the darkest day the world has beheld since
“the veil of the temple was rent in twain.”
It. G. 11
Department News.
Lt.Ucr from Minnesota Territory. —The Commis
sioner of Patents received several day 9 since an
interesting letter from Mr. O. 11. Kelley, of North
wood, Wright county, Minnesota Territory, dated
July 16. Mr. Kellev writes that the prospects of
the*farmers on the Mississippi, above the Fa Is of
St. Anthony, were certainly rather discouraging
this season, owing to the havoc made by the
grasshoppers. He hoped to be able to harvest
about one-half of the ground he had planted, as
everything left bv the grasshoppers looked prom
ising, and the weather was hot, and showers were
frequent. Several davs previous to the date of
‘ his letter, about ten o’clock in the morning, the
grasshoppers rose simultaneously for a distance of
over thirty miles on the river banks, and went in
to the air." Which way they Dew, or where they
now were, he knew not; he only knew that they
had started all at once by teDS of thousands, and
were gone, he hoped never to return.
1 Navy Department. —Capt. Johu Pope has been
■ ordered to the command of the Navy \ ard at
i Portsmouth, N. H., m place of Commodore New
i ton, deceased.
i Captain William W\ McKean has been appoint
ed Governor of the Naval Asylum, at Philadel
phia, to relieve Com. Storer, the appointment to
f take effect on the 2nth inst. — Washington, Union*
The Augsburg AUgenieine Zeitung has advices
! from Alexandria to the sth July. The Viceroy, it
was reported, was about setting out for the oasis of
Jupiter-Ammon, (Shiva,) in the Lybian Desert, he
intends to annex this fertile tract to his dominions,
though its inhabitants refuse to recognise his au
thority.
The advance detachment of a carayau of four
thousand camels, bringing cassia, tamarinds, gums,
ivory, gold-dust, Ac., from Darfour, lately arrived
at Cairo. This is the first caravan that has reached
Egypt from Darfour in thirty years; its arrival is
an event of great importance, as it opens the trade
formerly existing between the two countries.
A company from Nice has entered intoa contract
with the Egyptian government to light Alexandria
with gas, and has already commenced the con
struction of the works. _ . „ .
The Nile Steam Navigation Company has al
ready three steamers running, and is expecting
nine others from Holland and England.
The arrival of M. Lesseps in Egypt was anxious
ly looked for. Great interest is felt for the suc
cess of his scheme for a canal across the Isthmiu
of Suez. -
The Chickassabay (Miss.) Advertiser says ‘hat
James T. Balance, formerly of that place, and the
publisher of the first paper ever issued there,.has
recently inherited a fortune of ninety thousand
dollars. . ..
St. Louis, Aug. 11- The following is the result,
as far as heard from, ot the election in Nebraska
for delegate to Congress: lerguson,fourteen hun
dred and seventy; Thayer thirteen hundred and
nine- Chapman, eleven hundred and fourteen.
Rankin, one thousand and ninety. There is one
county to hear from.
Boston, Aug. 12.— The steamer Europa sailed
hence to day at noon for Liverpool, with eight
hundred thousand dollars in specie.
Columbus, Aug. 12.—The Republican Conven
tion has re-nominated Salmon P Chase, for Gov
ernor.