in the resolutions passed by the mass meetings which called that body, of securing their rights under a government foisted upon them by their pro-slavery enemies, they notified the world that they proposed to seek them at the point of the bayonet, and organized themselves into military companies, accordingly. Although, therefore, the friends of Kansas in Congress, in their eager endeavors to secure for its inhabitants their civil and political rights, by admitting them into the Union, under the Topeka Constitution, made use of arguments which seemed to vindicate the legality of the body which framed it, still candor compels me to admit, that the enemies of equal rights not only had the best of the argument, but alone used the language of truth and soberness. The case was, perhaps, the not uncommon one of the law and substantial justice appearing upon opposite sides in a controversy. However that may be, it is certain that President Pierce was right, when, in his message of January 24, 1856, relating to the proceedings of the Topeka Convention, he said of them: "No principle of public law, no practice or precedent under the Constitution of the United States, no rule of reason, right, or common sense, confers any such power as that now claimed by a mere party in the Territory. In fact, what has been done is of a revolutionary character. It is avowedly so in motive and in aim, as respects the local law of the Territory. It will become treasonable insurrection if it reach the length of organized resistance by force to the fundamental or any other federal law, and to the authority of the general government."

§ 213. In the mean time, the first Territorial legislature of Kansas had passed an Act to take the sense of the people on the question of calling a Convention to form a State Constitution, the vote to be taken at the election in October, 1856. At that election, accordingly, a vote was taken at which a majority of the votes cast the free-State men not voting was in favor of calling such a Convention. In pursuance of this vote, the Territorial legislature, on the 19th of February, 1857, passed another Act providing for the election, on the 15th of June following, of delegates to a Convention, to meet on the first Monday of September, for the purpose of framing a Constitution preparatory to admission into the Union. The election of delegates.

was held on the day appointed, the Free-State men still withholding their votes, the entire vote for delegates being about 2200. The delegates elected assembled at Lecompton on the 5th of September, adjourned over to October, and then reassembling, framed the instrument known as the Lecompton Constitution.

§ 214. Although there is no doubt that this Convention was called by the Territorial legislature, with the consent of the execu tive of the United States, still, Congress not having authorized it, it was unquestionably irregular and illegal. To use the language employed by President Buchanan at a later day, to characterize the action of the Topeka Convention, that of the Lecompton Convention was "a usurpation of the same character as it would be for a portion of the people of any State to undertake to establish a separate government within its limits, for the purpose of redressing any grievance, real or imaginary, of which they might complain, against the legitimate State government." To which he added, that "such a principle, if carried into execution, would destroy all lawful authority, and produce universal anarchy." The view thus entertained by President Buchanan, of the Topeka Convention, however, was not that taken by him of its successor, the Convention held at Lecompton, on the call of the Territorial legislature. In the same paragraph of his message, from which the above passage is extracted, the President vindicated the regularity of the latter Convention, on the ground that it had virtually been called in pursuance of an enabling Act. The foundation for this assertion he found in the provisions of the Kansas-Nebraska Act, as it has been called, which formed the organic law of the territory of Kansas. Section 14 of that Act declared it to be the true intent and meaning thereof, "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 regulate their domestic institutions in their own way, subject only to the Constitution of the United States."

Respecting this clause of the Act, President Buchanan said: "That this law recognized the right of the people of the Territory, without an enabling Act, to form a State Constitution, is too clear for argument. For Congress to leave the people of the Territory perfectly free,' in framing their Constitution, 'to

form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States,' and then to say, that they shall not be permitted to proceed and frame the Constitution in their own way, without express authority from Congress, appears to be almost a contradiction in terms." § 215. For a refutation of this position of President Buchanan, if that can need refutation which upon its face is absurd, — I shall avail myself of a speech of the Hon. Henry Winter Davis, of Maryland, made when the Lecompton Constitution was under discussion in Congress. Having considered the question whether Congress may not, in certain cases, with propriety, ignore irregularities and admit Territories into the Union whose Constitutions have been framed without the previous authorization of Congress, he proceeds as follows:

"But the argument is irrelevant; for the question is not whether Congress may, in its discretion, recognize Constitutions formed by the people without authority of law; but whether a Territorial legislature has, in point of law, authority to legalize the election of a Convention, to give the Convention itself a legal existence, to vest it with legal power to bind not merely the people, but the Congress? No one denies the power of Congress to admit Tennessee and Florida, yet nobody ever asserted any legal validity in their proceedings before admission.

"The language of the organic Acts, and the proceedings of Congress thereupon, are decisive. The Territories divide themselves into two great classes. In Ohio, Illinois, Indiana, Missouri, Mississippi, Alabama, Arkansas, Tennessee, and Michigan, the legislature had 'power to make laws, in all cases, for the good government of the people of the said Territory, not repugnant to, or inconsistent with, the Constitution and laws of the United States.' In Wisconsin, Minnesota, Oregon, Florida, and Iowa, the power of the legislatures was declared to extend -in the identical words of the Kansas-Nebraska Act all rightful subjects of legislation, not inconsistent with the Constitution and laws of the United States.'

- 'to

"Congress has construed both forms of expression by passing enabling Acts for both classes. Not only for Ohio, Louisiana, Missouri, Mississippi, Alabama, Illinois, and Indiana, but also for Wisconsin, Minnesota, and Oregon,1 did Congress pass Acts

1 This is a mistake. We have already seen, (§ 188, ante,) that Oregon called the Convention which framed her first Constitution, without an enabling Act.

specially authorizing them to call a Convention and form a State government; and, in every instance, excepting Wisconsin, those bills provided all the details of the Convention, the number of delegates, its time of assembling, the modes under which the delegates should be elected. It is plain, Congress thought the power of Congress 'to make laws in all cases,' necessarily extended to all rightful subjects of legislation. It is plain, Congress thought neither form of expression authorized the temporary Territorial government to create a Convention to form a Constitution, which would begin to operate only after the Territorial legislature itself had ceased. Its power to govern was confined to the Territory, a temporary contrivance for temporary purposes; involved in all the local interests and conflicts of Territorial politics, and not safely to be intrusted with the providing for a Constitution. In a word, they were authorized to make laws to govern the Territory; but a law for a Constitutional Convention was no law for governing a Territory at all.

"The case is stronger under the Kansas Act, for it reserves to Congress the power to make two or more States or Territories out of that Territory; and, if Congress have the right to make two States, it is absurd to suppose it gave the Territorial legislature power to make one State of it."1

§ 216. The application of the Territorial legislature, through its Convention for admission into the Union under the Lecompton Constitution, although seconded by President Buchanan, and in general by the administration party in Congress, was substantially unsuccessful. After a long contest, the friends of the measure were forced to consent to a conditional admission, the bill, known as the English bill, which was finally passed, providing for admission of the State into the Union, on condition that the people of Kansas should first vote to accept certain propositions, beneficial to their interests, and the Lecompton Constitution; but further providing, that should the propositions, and, with these, the Lecompton Constitution, be rejected, the people of the Territory should be at liberty to form for themselves a Constitution and State government by the name of Kansas, and might elect delegates for that purpose whenever, and not before, it should be ascertained by a census duly and legally taken, that the population of said Territory equalled or exceeded 1 See Appendix to Vol. XXXVII. Cong. Globe, p. 262.

the ratio of representation for a member of the House of Representatives of the Congress of the United States. The Act then prescribed the mode in which the delegates, who might thus be elected, should proceed to form a Constitution, and provided for submission of the same to the people of Kansas, and for the admission of the State thus formed into the Union under it.

In pursuance of this Act, the people of Kansas went into an election on the 3d of August, 1858, the result of which was, that the propositions of Congress, and, consequently, the Constitution submitted, were rejected by over ten thousand majority.

By this vote, the condition in which the Territory of Kansas. was left was this: An enabling Act, passed by Congress, authorized her people to form a Constitution and State government "whenever, and not before," it should be "ascertained by a census duly and legally taken," that her population equaled or exceeded the ratio of representation fixed by Congress for electing members of the national House of Representatives that is. when its population should number 93,340.

In the mean time, a Convention, called by the Territorial Legislature, had met on the 23d of March, 1858, at Leavenworth, and had framed a Constitution prohibiting slavery. It was ratified by the people, but, on presentation to Congress, was refused consideration, on the ground that the Territory had not the requisite population.

Such, however, was the rapidity with which the Territory was peopled, that on the first Tuesday of June, 1859, a fourth Convention, called in like manner by the Territorial Legislature, met at Wyandotte, by which a Constitution was framed, the population at the time of the call of the Convention exceeding the number limited by the Act above named. Under this Constitution the Territory was afterwards admitted into the Union, January 29, 1861.

§ 217. 3. The third variety of Conventions, called since March 4, 1789, consists of such as have been assembled for the revision of existing Constitutions of States, members of the Union.

These may be subdivided into several classes, as follows:(a). Such as have been convened, for legitimate constitutional purposes, regularly, that is—

I. By the legislatures of the respective States, acting either –