The power of Congress to admit Kansas at once is explicit. It is found in a single clause of the Constitution, which, taken by itself, without any qualification applicable to the present case, and without doubtful words, requires no commentary. Here it is.
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.”
New States MAY be admitted. Out of that little word may comes the power, broadly and fully, without any limitation founded on population or preliminary forms, provided the State is not within the jurisdiction of another State, nor formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States. Kansas is not within the legal jurisdiction of another State, although the laws of Missouri are tyrannically extended over her; nor is Kansas formed by the junction of two or more States; and therefore Kansas may be admitted by Congress into the Union, without regard to population or preliminary forms. You cannot deny the power, without obliterating this clause. The Senator from New York was right in rejecting all appeal to precedents as entirely irrelevant; for the power invoked is clear and express in the Constitution, which is above all precedent. But since precedent is enlisted, let us look at precedent.
It is objected that the population of Kansas is not sufficient for a State; and this objection is sustained by under-reckoning the numbers there, and exaggerating the numbers required by precedent. In the absence of any recent census, it is impossible to do more than approximate to the actual population; but, from careful inquiry of the best sources, I am led to place it now at 50,000, though I observe that a prudent authority, the “Boston Daily Advertiser,” puts it as high as 60,000; and while I speak, this remarkable population, fed by fresh emigration, is outstripping even these calculations. Nor can there be doubt, that, before the assent of Congress can be perfected in the ordinary course of legislation, this population will swell to the large number of 93,420, required in the bill of the Senator from Illinois. But, in making this number the condition of the admission of Kansas, you set up an extraordinary standard. There is nothing out of which it can be derived, from the beginning to the end of the precedents. Going back to the days of the Continental Congress, you find that in 1784 it was declared that 20,000 free inhabitants in a Territory might “establish a permanent Constitution and Government for themselves”;[99] and though this number was afterwards, in the Ordinance of 1787 for the Northwestern Territory, raised to 60,000, yet the power was left in Congress, and subsequently exercised in more than one instance, to constitute a State with a smaller number. Out of all the new States, only Maine, Wisconsin, and Texas contained, at the time of admission into the Union, so large a population as is required in Kansas,—while no less than fifteen new States have been admitted with a smaller population, as will appear by the following list, which is the result of research, showing the number of “free inhabitants” in these States at the date of the proceedings which ended in their admission.
| Vermont | 85,399 |
| Kentucky | 61,247 |
| Tennessee | 66,650 |
| Ohio | 45,028 |
| Louisiana | 41,896 |
| Indiana | 63,897 |
| Mississippi | 25,938 |
| Illinois | 40,156 |
| Alabama | 48,871 |
| Missouri | 56,364 |
| Arkansas | 42,635 |
| Michigan | 87,273 |
| Florida | 32,500 |
| Iowa | 78,819 |
| California | 92,597 |
But this is not all. At the adoption of the National Constitution there were three of the old Thirteen whose respective populations did not reach the amount now required of Kansas: these were Delaware, with only 50,209 free inhabitants; Rhode Island, with only 68,158 free inhabitants; and Georgia, with only 53,284 free inhabitants. And even while I speak, there are at least three States, with Senators on this floor, which, according to the last census, do not contain the population now required of Kansas: I refer to California, with only 92,597 free inhabitants; Delaware, with only 89,242 free inhabitants; and Florida, with only 48,135 free inhabitants. So much for precedents of population.
In sustaining this objection, it is not uncommon to abandon the strict rule of numerical precedent, and to allege that the population required in a new State has always been, in point of fact, above the existing ratio of representation for a member of the House of Representatives. But this is not true; for no less than three States, Mississippi, Arkansas, and Florida, being all Slave States, were admitted with a free population below this ratio. So much, again, for precedents. But even if this coincidence were complete, it would be impossible to press it into binding precedent. The rule seems reasonable, and in ordinary cases would not be questioned; but it cannot be drawn or implied from the Constitution. Besides, this ratio is in itself a sliding scale. At first it was 30,000, increased in 1793 to 33,000, and thus continued till 1813, when it was put at 35,000. In 1823 it was 40,000; in 1833 it was 47,700; in 1843 it was 70,680; and now it is 93,420. If any ratio is to be made the foundation of binding rule, it should be that which prevailed at the adoption of the Constitution,—or at least that which prevailed when Kansas, as part of Louisiana, was acquired from France, under solemn stipulation that it should “be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution.” But this whole objection is met by the memorial of the people of Florida, which, if good for that State, is also good for Kansas. Here is a passage.
“But the people of Florida respectfully insist that their right to be admitted into the Federal Union as a State is not dependent upon the fact of their having a population equal to such ratio. Their right to admission, it is conceived, is guarantied by the express pledge in the sixth article of the treaty [with Spain] before quoted; and if any rule as to the number of population is to govern, it should be that in existence at the time of the cession, which was thirty-five thousand.[100] They submit, however, that any ratio of representation, dependent on legislative action, based solely on convenience and expediency, shifting and vacillating as the opinion of a majority of Congress may make it, now greater than at a previous apportionment, but which a future Congress may prescribe to be less, cannot be one of the constitutional ‘PRINCIPLES’ referred to in the treaty, consistency with which, by its terms, is required. It is, in truth, but a mere regulation, not founded on principle. No specific number of population is required by any recognized principle as necessary in the establishment of a free Government.… It is in no wise ‘inconsistent with the principles of the Federal Constitution’ that the population of a State should be less than the ratio of Congressional representation. The very case is provided for in the Constitution. With such deficient population, she would be entitled to one Representative. If any event should cause a decrease of the population of one of the States even to a number below the minimum ratio of representation prescribed by the Constitution, she would still remain a member of the Confederacy, and be entitled to such Representative. It is respectfully urged, that a rule or principle which would not justify the expulsion of a State with a deficient population, on the ground of inconsistency with the Constitution, should not exclude or prohibit admission.”[101]