The national era. [volume] (Washington [D.C.]) 1847-1860, 1858-03-25
WASHINGTON, D. G.
The Lsconpton Constitution founded neither II
Law nor the viii Of the People.
SPEECH or HON. HENRY 1. DAWES,
OF MASSACHUSETTS.


Delivered in the House Of Representatives Mar g. 1853
The House being in Committee of the Whole
Gu The state of the Union
Mr.. DAWES said:
Mr.. Chairman, the increase of population
has been 30 rapid in the Territories of the
United Ststes, that in three out OF the seven
low organized, Constitutions have already been
framed with q view to their admission into the
Union on an equal footing with the other
ases of the Confederacy. The President, in
the discharge of the obligation which the Con.
stitution imposes upon him, TO recommend for
our consideration such measures as he may
judge necessary and expedent, has not found
1t in the line of that duty to urge upon MS any
epecial reasons why more than one OF these
should be admitted-snd that the Territory of
Kansas, under and subject to the Lecompton
CONSTITUTION. He has seen fit to accompany
this recommendation with an elaborate argu
mept, which, if it has failed 10 convince the
American people of the soundness and justice
of the positions assumed, or of the allegations
made, has nevertheless left them in no doubt
as TO what has been the origin and what are
to be the consequences of that policy which
makes Kansas and the Lecompton Constitution
the peculiar objects of q solicitude not shared
BY any other Territory, or any other Constitu-
ton framed within its limits.
| desire to notice at this time, as briefly as
may be. two points only, to the consideration
of which the late special message of the Presi
dent challenges our attention. The one is q
question of law; the other question of fact:
L. Does the Lecompton Constitution come
here clothed with the authority of Law?
2 Does it come here as the choice of the
A.. - hy
| propose, at this time, to argue the first Of
these questions as one of pure law and, there
fore, fer the sake of the argument and for the
present, to yield all questions of fact, and tc
say that, if we admit the entire absence of fraud
in the creation of the Territorial Legislature OF
Kansas, still the Lecompton Constitution
comes here without the slightest authority OF
law, and has no higher sanction or Just claim
than merely the expressed wish of those who
framed and sent it here. A reference to III
message will show that the President has made
his whole argument to rest and turn upon whsi
he calls the legality of the Lscompton Conven-
ton and Its work, the Lecompton Constitution.
He puts aside all other agency than that of the
law, and in this matter knows no people out
side OF this legal channel. BE declares that
great portion of the people of Kansas have, for
a long time, been in open rebellion against the
Government under which they live; that nothing
but military force has kept it down, and pre-
vented its ASSUME g and discharging the func-
tons of government. This rebellion, he says
has taken on the form of the Topeka Constitu
ton, and has assumed a revolutionary type
Over against these the President sets another
party, which he calls the lsw-abiding and law
loving people of Kansas, and who have been
according to him, carrying on the unequal con
test of maintaining the law against rebellion
aud revolution, by the aid of Federal bsyonets.
And, in reference to this condition of things in
the Territory, he asks these questions
"Such being the unfortunate condition Of af.
fairs in the Territory, what was the right, a.
well as the duty, of the law-abiding people
Were they silently and patiently to submit to
the Topeka usurpation, or adopt the necessary
measures to establish Constitution unde
the authority of the organic law of Congress 2"
And he answers approvingly, that the Terri
torisl Legislature passed q law creating Con
vention clothed with power to frame Consti
tuition and that the Convention thus created
did, by virtue of the authority vested in it by
that act, frame the Lecomptcn Constitution
And he concludes in these words:
"From this review it Is manifest that the
Lecompton Convention, according to every
principle of constitutional law, was legally
constituted, and was invested with power to
frame CONSTITUTION.
And that the Constitution and State Govern
ment. the work of that Convention, has been
framed " in strict accordance with the organic
act"
This proposition is the foundation of the
Presidents whole argument; and all the othei
considerations urged by him are built upon this
If, therefore, this proposition be not true, ther
the whole foundation of the message fails and
it falls baseless to the ground. The inquiry,
therefore, becomes a pertinent one, whence
comes this legality? and from what source
does this Constitution derive the authority OF
law?
The Lecompton Convention was the creature
of the Territorial Legislature. 1t derived all
its authority and power from that Legislature
No one ever claimed for it that it derived an,
power from the people outside of the forms OF
Territorial law; for to do that, would be to &c
to the same source from which the Topeka Con
vention derived its authority. And if it be
reasonable" for the one to drink at that foun
tain, it cannot be legal" for the other to par
take of the same poisonous draft. II, then, the
Lecompton Convention derived all its power
and authority from the Territorial Legislature,
the question next arises, had the Legislature
itself the power to clothe this Convention with
authority to form q Constitution and State
Government Now, the Territorial Legislature
derives all Its power from the organic act. II
can derive power from no other source; else it.
too, will find itself going for authority to thai
reasonable source, the people, where the mer
of Topeka were debsuched. In the organic act
will be found both the creation and the measure
of all legislative power in the Territory And
: that act has defined and set limits to the power
of the Legislature, which it creates, in express
terms, beyond which it cannot 90, in these
Words-section twenty-fourth of the act:
"The Legislative power Of the Territory shall
extend to all rigbtful subjects of legislation
consistent with the Constitution of the United
States and the provisions Of this act"
/ observed, some time since, that the gentle
man from Mississippi, Mr.. LAMAR, in an other
wise able argument which he addressed TO us
upon this point, when quoting this section
omitted the clause limiting the power Of thu
Legislature by the provisions of the organic
act, IS well as by the Constitution-an omission
in my opinion, fatal to his whole argument
This is his language in the Globe:
- In section twenty four, it is further enacted
that the Legislative power of the Territory shall
extend to all rightful subjects of legislation
consistent with the Constitutior."*
But, sir, this section not only limits the power
of the Legislature by the Constitution, but it i'm
poses the further limit that all legislation haa also
be consistent with the provisions of the act tina
created the Legislature. The one is just as clear
just as express, as the other. Every Legislative.
act which conflicts with the organic law, is here
made void for want of power in the Legislature
lust as much, and for the same reason, that il
would be void if it conhicted with the Constitu
ton. The organic act is here made part OIL
the Consti ution of the Territory, and is supreme
over its Legislature. And this must have beer
so in the nature of things, in the absence o.
any provision in the organic law upon the sub