Edgefield advertiser. [volume] (Edgefield, S.C.) 1836-current, 1858-05-19

have been supposed to confer this power. The
words Of the said act bearing on this point are
as follows The territorial legislature shall have
power over Gall rightful subjects of legislation
consistent with the constitution and said act
and the people are left perfectly free to form
and regulate their domestic institutions in their
own way, subject, however, to the constitution
of the United States" These provisions do not
in my opinion, operate as an enabling act and
do not therefore authorize the people of Kansas
to set up State government in subrersion o
the territorial government. These provisions are
to be construed in subordination to the scope
and purpose Of the Kansas and Nebraska bill
That bill was bill for territorial government
and all the powers conferred by it are conferred
subject to this idea-that is to say, the Kansas
and Nebraska bill confers certain powers Of
self-goyernment, but they are all to be taken
subject to the continuance of the territorial gov
ernment, and with that view. No power is
conferred under that act to dispace the terrific
rial government, and set up new government
Further, if the territorial authorities of Kansas
could substitute State government, what was
the necessity Of the enabling act, which was
recommended by President Pierce in 1856, and
reported from the Committee on Territories tj
the Senate? and why the enabling act known
as the Toombs bill, which passed the Senate:
and was sustained in the House by the Denu'-
cratic party? 1t would seem, from these facts.
that the Executive, the Senate and nearly one
half of the House of Representatives, consid-
cred an enabling act necessary; or, in other
words, that the territorial legislature did not
have power to set up State government abso-
lutely. If the kansas-Ncbraska bill is not ail
enabling act, it is very evident the territorial
legislature could not, e.r l,ropria vigors, move
conclusively In the matter. The correct'doc-
trine upon this point was announced by Mr..
Butler, Attorney General of the United States,
In the Arkansas case, when the territorial lasis'
latar6 originated proceedings for State orGini''
2atIen..thst the inhabitants Of 4 Tpfritor5 bad
no right TO do any not deslsuSd Or calculated TO
aubvort or anpersode tho existing territorial Al
government, without tho previous consent OF
Congress, though they mil sht peaceably Assem-.
bic and sign petition, and accompany it with
written constitution, as part Of their petition,
for authority to form State government, pro-
vided such measures were in subordination to
the territorial government, and in entire subser-
vcncy to the power of Congress to adopt or
disregard their application. According to these
principles, then, the proceedings which have
taken place in Kansas in reference to State Or
ganization, lave not, and cannot of themselves,
constitute Kansas perfect State. She is now
only State potential, not State imperative, a
State that may be, not State that must be.
What Kansas has done amounts to nothing more,
in effect than q petition for admission. 1t IL
true Congress can waive objection to the irreg-
ularity of the proceedings, and consent to tue
admission of Kansas. The proceedings may be
sufficiently binding upon the people of Kansas,
but they are not of complete validity unless as
sented to by us. Kansas is not, therefore, a
State outside of the Union. She is only . ter
ritory asking admission under proceedings for
State organization, binding upon her, but not
upon us.
From the origin of the government to the
present day, the power of Congress to govern
the Territories by some form Of territorial gov
ernment has been universally conceded. 1t is
not necessary, for our present purposes, to in
quire as to the source of this power in the con-
stitution, its existence being matter Of general
consent. This doctrine necessarily repudates
what is called squatter sovereignty, and implies
that no government ignoring the government
established by Congress over the Territories can
rightfully be instituted there without the con-
sent of Congress. Upon this point we have the
authority of Mr.. Calhoun, who said, in the case
of Michigan:
"AIy opinion was, and still is, that the move
ment of the people of Michigan, in forming for
themselves State constitution, without waiting
for tue assent of Congress- was revolutionary,
as it threw off the authority Of the United
States over the Territory, and that We were
left at liberty to treat the proceedings as revo-
utionary; and to remand her to her territorial
condition. or to waive the irregularity, and to
recognise what was done as rightlully done, as
our authority alone was concerned"
There is no mode by which State govern
ment can be rightfully instituted in Territory,
except by the precedent assent Of Congress- or
subsequent waiver Of objection.
As to the power of Congress to admit new
States, the constitution says Congress "may
admit'' new States. This implies discretion,
not an arbitrary, buta a sound discretion. There
are five distinct grounds, as conceive, upon
which Congress may decline to admit new
States:
|. That the constitution is anti-republican, or
at war with the federal constitution.
2. That the boundaries are not satisfactory.
to the public lands is disregarded
4. That the population is not sufficient.
5. That the people of the Territory are unfit
for sclf-govcrnment.
In reference to the first gro lund Of rejection,
suppose State should insert clause in her
constitution establishing titles of mobility. or
prohibiting the rendition of fugitive slaves !;
surely Congress might decline to admit her.
Again: suppose Il State should extend her boun-
daries over all the Territories, or an undue por-
ton of them: could not Congress reject her ap-
plicaion? Or suppose u State contiscates all
the public lands within her boundaries: shall
she he admitted7 Surely not; because the
public lands belong to the States for their com.
mon benefit and Congress, rs the trustee for
the States of these lands, could not without
gross derelicton OF duty, abandon them to the
exhorbltant demand of an unscrupulous State.
Suppose five hundred men apply for admission
as State: shall they be admitted? Certainly
not. Then population is one of the just grounds
for rejection. Suppose the people Of Utah ap-
ply for admission: is Congress obliged to receive
thom2 think not; and say this not from
their peculiar faith, but from their government
being spiritual despotism, which think units
them for the proper administration Of the re-
publican form Of government.
So much on the principles of constitutional
law applicable to the admission Of new States.
l propose now to make practical application of
these principles to the case of Kansas.
l. Kansas is not State out of the Union,
but Territory, applying for admission as a
State, which may be so admitted by the waiver
on the part of Congress Of all irregularities, or
which may be treated as Territory by Congress.
2. The population Of Kansas being grossly