A Territory is an inchoate and dependent community, which can be erected into a State only in two ways: first, formally, by an enabling act of Congress, giving permission to the inhabitants to set up for themselves; and second, informally, by a spontaneous and general movement of the people, which Congress must afterwards legitimate. In either case, the consent of Congress, first or last, is necessary to the validity of the proceeding. But a Territorial Legislature, which is the mere creature of Congress, having no powers but what are strictly conveyed to it in the Organic Act instituting the Territorial government, cannot originate a movement to supersede itself, and also to abrogate the authority of Congress. The attempt to do so, as declared by General Jackson's cabinet, in the case of Arkansas, would be, not simply null and void, but unlawful, rebellious; and the President would be obliged to suppress it, if called upon, by force of arms. The Organic Act is the supreme law of the Territory, which can be altered or revoked only by the authority from which it emanated; and every measure commenced or prosecuted with a design to annul that law, to subvert the Territorial government, or to put in force in its place a new government, without the consent of Congress, is a flagrant usurpation.
Now the Lecompton Convention was called not merely without the consent of Congress, but against its consent; it was called by and under the arrangements of the Territorial Legislature; it was not the spontaneous act of the people, a large majority of whom condemned the movement and refused to participate in it; and thus, in its inception, it was unlawful. It was neither regularly nor irregularly proper;—the supreme legislature had not acknowledged it; the masses of society had not acknowledged it; and the entire project possessed no other character than that of a factious scheme for perpetuating the power of a few pro-slavery demagogues.
But, if we grant the right of the Territorial Legislature to originate such a movement, the manner in which it was carried into effect would still brand it with the marks of illegality. A census and registry of voters had been provided for in the law authorizing the Convention, as the basis of an apportionment of the delegates, and that provision was not complied with. In nineteen out of the thirty-eight counties no registry was made, and in the others it was imperfectly made. "In some of the counties," according to the evidence of Mr. Stanton, then acting Governor, "the officers were probably deterred and discouraged by the people from their duty of taking the census," (although he adds that he does not know that such was the fact,) "while in others the officers utterly refused to do their duty." "I know," he says, "that the people of some of those counties ardently desired to be represented in the Convention, for they afterwards, under the statements of Governor Walker and myself, that they would probably be admitted, elected delegates and sent them up to the Convention; but they were not admitted to seats." In consequence of this failure or refusal to do their duty, only the geographical half or the numerical fourth of the Territory was represented in the Convention. Nor is it any excuse for the defaulting officers, even if it had been true, that some of the people opposed the execution of their duty. They professed to be acting under law; their functions were plainly prescribed to them; and they were bound to make the census and registry, whatever the disposition of the people. In a land of laws, it is the law, and not any mere prevailing sentiment, which prescribes and limits official duty. There is, however, no evidence that the discharge of their task was rendered impossible by the popular opposition, while there is evidence that they were very willing to neglect it, and very willing to allow any obstacle, no matter how trivial, to obstruct their performance of it. They were, in truth, as everybody knows, the simple tools of the faction which started this Convention movement, and not at all desirous to secure a fair and adequate representation of the inhabitants.
That many of the people should be careless of the registration, and even unfriendly to it, is natural, because they disapproved the plan, and were hostile to the ends of the Convention. They doubted the authority by which it had been summoned; they doubted both the validity and the probable fairness of an election under such authority; and, moreover, they were indifferent as to its proceedings, because they had been assured that they would be called upon to pronounce pro or con upon its results. The Convention, as actually constituted when assembled, consisted of sixty delegates, representing about 1,800 voters, in an electoral body of 12,000 in all,—or one delegate to thirty voters! A convention so composed ought to have been ashamed of the very pretence of acting in the name of the whole people. It would have been ashamed of it, if it had contained men sincerely anxious to reflect the will of the great body of the citizens. It would have been as much ashamed of it, as any honest man would be to pass himself off as the agent of a person whom he had never known, or who openly derided and despised him. But this precious body—each man of whom represented thirty men besides himself, in a voting population of 12,000—was not sensible to such considerations. By a miserable chicane, it had got into a position to do mischief, and it proceeded to do it, with as much alacrity and headlong zeal as rogues are apt to exhibit when the prize is great and the opportunity short. An election for the Legislature, held subsequently to that for the Convention, showing a public opinion decidedly adverse to it, the sole study of its members thenceforth seemed to be, how they could most adroitly and effectively nullify the ascendency of the majority. For this end alone they consulted, and caballed, and calculated, and junketed; and the Lecompton Constitution, with the Schedule annexed, was the worthy fruit of their labors.
It is monstrous in Mr. Buchanan to assume that a body so contrived and so acting expressed in any sense the sovereign will of the people. But, not to dwell upon this point, let us suppose that the Convention had been summoned by a competent authority, that it had been fairly chosen by its small constituency, and that its proceedings had been managed with ordinary decorum,—would the Constitution it framed be valid, in the face of a clear popular condemnation? We hold that it would not, because, in our estimation, and in the estimation of every intelligent American, the very essence of republicanism is "the consent of the governed." It is the highest function of political sovereignty to devise and ordain the organic law of society, the vital form of its being; and the characteristic difference between the despotic or oligarchical and the republican government is, that in the one case the function is exercised by a monarch or a class, and in the other by the body of the citizens. This distinctive feature of our politics, as opposed to all others, regards the will of the people, directly or indirectly expressed, as alone giving validity to law; our National Constitution, and every one of our thirty-one State Constitutions, proceeds upon that principle; every act of legislation in the Congress and the State Assemblies supposes it; and every decision of every Court has that for its basis. Constitutions have been adopted, undoubtedly, without a distinct submission of them to the ratification of the people; but in such cases there has been no serious agitation of the public mind, no important conflict or division of opinion, rendering such ratification necessary,—and, in the absence of dispute, the general assent of the community to the action of its delegates might fairly be presumed. But in no case, in which great and debatable questions were involved, has any Convention dared to close its labors without providing for their reference to the popular sanction; much less has there been any instance in which a Convention has dared to make its own work final, in the face of a known or apprehended repugnance of the constituency. The politicians who should have proposed such a thing would have been overwhelmed with unmeasured indignation and scorn. No sentiment more livingly pervades our national mind, no sentiment is juster in itself, than that they who are to live under the laws ought to decide on the character of the laws,—that they whose persons, property, welfare, happiness, life, are to be controlled by a Constitution of Government, ought to participate in the formation of that government.
Conscious of this truth, and of its profound hold on the popular heart, Mr. Buchanan instructed Governor Walker to see the Kansas Constitution submitted to the people,—to protect them against fraud and violence in voting upon it,—and to proclaim, in the event of any interference with their rights, that the Constitution "would be and ought to be rejected by Congress." Walker was voluble in proclamations to that end. The trainers of the Constitution, aware of its invalidity without the sanction of the people, provided for its submission to "approval" or "disapproval," to "ratification" or "rejection"; and yet, by the paltriest juggle in recorded history, devised, in the same breath, a method of taking the vote, which completely nullified its own terms. No man was allowed to "disapprove" it, no man was allowed to "reject" it,—except in regard to a single section,—and before he could vote for or against that, he was obliged to vote in favor of all the rest. If there had been a hundred thousand voters in the Territory opposed to the Constitution, and but one voter in its favor, the hundred thousand voters could not have voted upon it at all, but the one voter could,—and the vote of that one would have been construed into a popular approval, while the will of all the others would have been practically void. By this pitiful stratagem, it was supposed, the double exigency of Mr. Buchanan's often repeated sentiments, and of the pro-slavery cause, which dreaded a popular vote, was completely satisfied; and the President of the United States, reckless of his position and his fame, lent himself to the shameless and despicable palter. He not only lent himself to it, but he has openly argued its propriety, and is now making the adherence of his friends to such baseness the test of their party fidelity. In the name of Democracy,—of that sacred and sublime principle into which we, as a nation, have been baptized,—which declares the inalienable rights of man,—and which, as it makes the tour of the earth, hand and hand with Christianity, is lifting the many from the dust, where for ages they have been trampled, into political life and dignity,—he converts a paltry swindle into its standard and creed, and prostitutes its glorious mission, as a redeeming influence among men, into a ministry of slavery and outrage.
Mr. Buchanan knows—we believe better than any man in the country—that the Lecompton Constitution is not the act of the people of Kansas. By the election of the 4th of January—an election which was perfectly valid, because it was held under the authority of a Territorial Legislature superior to the Convention—it was solemnly and unequivocally condemned. This of itself was enough to demonstrate that fact. But all the Democratic Governors of the Territory—with the single exception of Shannon, and the recently appointed acting Governor, Denver, who is prudently silent—testify urgently to the same truth. Reeder, Geary, and Walker, together with the late acting Governor, Stanton, asseverate, in the most earnest and emphatic manner, that the majority in Kansas is for making it a Free State,—that the minority which has ruled is a factious minority, and that they have obtained and perpetuated their ascendency by a most unblushing series of crimes and frauds. Yet, in the teeth of this evidence,—of repeated elections,—of his own witnesses turning against him,—the President adheres to the infamous plans of the pro-slavery leaders; and, if not arrested by the rebukes of the North, he will insist on imposing their odious measures upon their long-suffering victims.
Looking at the administration of Mr. Buchanan simply from the point of view of an enlightened statesmanship, we find nothing in it that is not contemptible; but when we regard it as the accredited exponent of the moral sense of a majority of our people, it is saved from contempt, indeed, but saved only because contempt is merged in a deeper feeling of humiliation and apprehension. Unparalleled as the outrages in Kansas have been, we regard them as insignificant in comparison with the deadlier fact that the Chief Magistrate of the Republic should strive to defend them by the small wiles of a village attorney,—that, when the honor of a nation and the principle of self-government are at stake, he should show himself unconscious of a higher judicature or a nobler style of pleading than those which would serve for a case of petty larceny,—and that he should be abetted by more than half the national representatives, while he brings down a case of public conscience to the moral level of those who are content with the maculate safety which they owe to a flaw in an indictment, or with the dingy innocence which is certified to by the disagreement of a jury.
These things are the logical consequences of that profound national demoralization which followed the enactment of the Fugitive Slave Bill and alone made its execution possible,—a demoralization wilfully brought about, for selfish ends, in that sad time which saw our greatest advocates and our acutest politicians spending all their energy of mind and subtlety of argument to persuade the people that there was no higher law than that rule of custom and chicane woven of the split hairs of immemorial sophistry, and whose strongest fibre is at the mercy of an obstinate traverse juror,—no law higher than the decree of party, ratified by a popular majority achieved by the waiters on Presidential providence, through immigrant voters whom the gurgling oratory of the whiskey-barrel is potent to convince, and whose sole notion of jurisprudence is based upon experience of the comparative toughness of Celtic skulls and blackthorn shillalahs. And such arguments were listened to, such advocates commended for patriotism, in a land from whose thirty thousand pulpits God and Christ are preached weekly to hearers who profess belief in the Divine government of the world and the irreversible verdicts of conscience!
The capacity of the English race for self-government is measured by their regard as well for the forms as the essence of law. A race conservative beyond all others of what is established, averse beyond all others to the heroic remedy of forcible revolution, they have yet three times in the space of a century and a half assumed the chances of rebellion and the certain perils of civil war, rather than submit to have Right infringed by Prerogative, and the scales of Justice made a cheat by false weights that kept the shape but lacked the substance of legitimate precedent. We are forced to think that there must be a bend sinister in the escutcheon of the descendants of such men, when we find them setting the form above the substance, and accepting as law that which is deadly to the spirit while it is true to the letter of legality. It is a spectacle portentous of moral lapse and social disorganization, to see a statesman, who has had fifty years' experience of American politics, quibbling in defence of Executive violence against a free community, as if the conscience of the nation were no more august a tribunal than a police justice sitting upon a paltry case of assault. Yet more portentous is it to see a great people consenting that fraud should be made national by the voice of a Congress in which the casting vote may be bought by a tide-waitership, and then invested with the solemnity of law by a Court whose members are selected, not for uprightness of character or breadth of mind, but by the inverse test of their capacity for cringing in subservience to party, and for narrowing a judgment already slender as the line of personal interest, till it becomes so threadlike as to bend at the touch, nay, at the breath, of sectional rapacity. Have we, then, forgotten that the true prosperity of a nation is moral, and not material? that its strength depends, not on the width of its boundaries, nor the bulk of its census, but on its magnanimity, its honor, its fidelity to conscience? There is a Fate which spins and cuts the threads of national as of individual life, and the case of God against the people of these United States is not to be debated before any such petty tribunal as Mr. Buchanan and his advisers seem to suppose. The sceptre which dropped successively from the grasp of Egypt, Assyria, Carthage, Greece, Rome, fell from a hand palsied by the moral degeneracy of the people; and the emasculate usurper or the foreign barbarian snatched and squandered the heritage of civilization which escheated for want of legitimate heirs of the old royal race, whose divine right was the imperial brain, and who found their strength in a national virtue which individualized itself in every citizen. The wind that moans among the columns of the Parthenon, or rustles through the weeds on the palaces of the Caesars, whimpers no truer prophecies than that venal breath which, at a signal from the patron in the White House, bends all one way the obsequious leaves of a partisan press, ominous of popular decadence.