The national era. [volume] (Washington [D.C.]) 1847-1860, 1858-03-04


officially stated The words in framing their
Constitution would have been inserted At
any rate, some particular portion of that act
would have been found, in which the authority
was specifically given to the people of Kansas to
frame q Constitution under it. and under that
Constitution to ask admission into the Union ;
but nothing of that kind is found. Il possible.
can anybody believe, that the Congress of the
United States, in framing law to organize q
Territory, and intending by that law to confer on
the people of the Territory the power to frame
Constitution, and under that Constitution to come
into the Union, would have left it to be inferred
from language which, in fact, conveys no such
idea? The idea is preposterous. Again, we all
know that nothing of the kind was ever sug-
gested in any debate that took place on that
occasion. Nobody supposed that under that
organic act there was authority conferred to
frame State Constitution, preparatory to ad-
mission into the Union. There is nothing in the
terms of the provision which have read, moth
ing in the terms of the act anywhere, which
could lead to the conclusion that any such au-
thority was either given or intended to be given
in any manner whatever
| should like to ask any man, and the President
of the United States particularly, who contends
that this is enabling act of what benefit in that
clause are the words "subject only to the Consti-
tuition of the United States" if the clause was in
tended to say and only to say to the people of the
Territory of Kansas, "you are at liberty, when
you frame Constitution, preparatory for admis-
sion into the Union, if you choose, to frame your
domestic institutions in your own way?" OF what
benefit let me ask is it, to add at the end of the
sentence, provided you do not in any manner
contravene the provisions of the Constitution of
the United States 2" Must not the State Consti-
tuition, when framed, come before us? Must it
NOT no 70 for nd
is a provision in it contrary to the CONSTITUTION
of the United States, have we not power to reject
it? The very fact that the words subject only
to the Constitution of the United States " are
left in the act, goes to prove most conclusively,
beyond all dispute, that the object was not TO
confer the people of Kansas that authority
when they were forming their Constitution, but
to confer on them that authority 10 be exercised
while they were a Territory, and with reference
to their Territorial institutions alone. The people
of Territory may very well be thus limited
while they remain Territory. While they are
acting under their organic law, framing institu-
tions to regulate themselves at that time, con-
timing themselves to that, it may be very good
sense to say, that while you are thus Terri
tory you shall frame no institutions that are
contrary TO the Constitution of the United States;
but if it was comforting on them the authority to
form Constitution, of what use is it to say
are not the words thrown away, as perfectly in
subject to the Constitution of the
United States?" that is, you may make Con-
stitution, but it must be such a Constitution as
does not contravene the Constitution of the
United States. That very clause shows that it
was not intended as an enabling act
1t was not considered to be an enabling act.
| should like to ask the honorable Senator from
Georgia. if he considered it an enabling act, why
be so soon afterwards introduced bill into this
body, which was passed by the Senate, to enable
the people of Kansas to form State Constitu-
tion2 Was that construction put on it at the
celebrated meeting at the house of the Senator
from Illinois, when that enabling act was agreed
upon to be reported TO Congress- and to be carried
through Congress, if possible2 Was it supposed
that the organic act itself contained an enabling
act, rendering that unnecessary, and that under
Il the people of the Territory of Kansas might
20 forward and form State Constitution, pre-
paratory to being admitted into the Union? 1t
was not the construction placed on it by the
Democratic party, by the friends of the bill and
The honorable Senator from Georgia thinks the
friends of the bill are those who alone are COM
petent to understand and construe it, and that
nobody else can understand it properly. Ipoint
his attention, therefore, to his own construction
and / ask him if he considered that clause of
the organic act on which have been comment
ing, and on which the President commented and
into which he interpolated the words of which
have spoken, as an enabling act, authorizing the
people of Kansas to frame State Constitution?
Mr.. TOOMBS will answer the question with
pleasure. l did not then, do not now, and never
have so considered it, Nor do | consider an ena-
bling act necessary. / think it oftentimes a con-
venient mode. | act with or without it, accord
ing to the circumstances of the case.
Mr.. FESSENDEN. ! am very happy to get
that admission from the Senator from Georgia
II is made with his customary frankness and
clearness. Having admitted it, ! propose to ask
him another question. If it was not an enabling
act, where does he get the legality of all these
of the Legislature of KansasP If
they had no authority conferred on them by Con-
gress to call Convention for the purpose of
framing Constitution, preparatory to the admis-
'ion of that Territory into the Union as State
where does the legality OF their action come
from
Mr.. TOOMBS. The Territorial Legislature
Mr.. FESSENDEN. What authority had they?
They had no such authority conferred on them
They might call a convention to petition; they
could not make it binding Unless Congress
confers the authority on particular Legislature
TO do that very act, what authority has that
Legislature more than anOther2 What can they
do but petition2 What can they do but recon-
mend? The authority is not given them; they
must derive it from somebody. True, they have
power to legislate; but this is not a proper sub
ect of legislation, unless the authority is confer
red on them to make it binding My answer to
The whole of the Presidents argument on that
point, and to the argument of the Senator from
Georgia on that point is, that if this is not an
enabling act, (Which the Senator from Georgia
admits 1t is nOt,) then there is no more legality
in the act of the Legislature of Kansas in calling
A Convention, than there is in the act of the
people of Kansas calling the Topeka Convention
They can do it in the one form or the other, pro-
vided they do it peaceably; and yet on that the
whole argument is predicated The President
or the person who drew this message, whoever
be may have been, saw the difficulty 1t was
part OF his object to show and to convince the
country that here was legality on one side and
llegality on the other; and therefore he inter-
polates the words of which ] have spoken into
this provision of the organic law, and SAYS, after
that Interpolation, that the organic law is itself
an enabling act. If correct in that he is cor
rect in his conclusion. The Senator from Geor-
gia says he is not correct. agree with the Sem
ator from Georgia, and therefore, as think, the
does not follow. There is no legal
ty in it; that is to say, there is no binding
legality.
What right had the Legislature to act concIu-
'ively on that subject-to say, awe appoint
place OF meeting at such time the people of
Kansas may come and vote at such time; and
we prescribe test oath to those who may choose
o vote on the question of calling a Convention y
Who gave them authority to make that test oath,
and apply it to the people of Kansas2 Where
did they get it2 1t is precisely as much rebel
ion as was the formation of the Topeka Consti-
tuition, against the constituted Government,
although done by the Legislature. This Legis-
ature-having no such authority conferred on
hem, not having the right to cali Convention
given them by the original organic law-under-
take to say that at such day, and such an hour