to see. Suppose every opinion those gentlemen ever advanced to be wrong, it still does not prove that the Lecompton constitution embodies the will of the people of Kansas, and ought therefore to be sustained by Congress. The committee, in their argument against the submission of the constitution to the people, say:

"The formation of a constitution requires, it is true, the exercise of sovereign power, and so does the commonest act of legislation If the power to do one can be exercised by an agent or representative, so can the other; and such has been the uniform understanding in this country from the beginning of our history. The Constitution of the United States was not ratified by a popular vote. In all the States it was adopted by conventions chosen by the people, and clothed with full powers to act for them."

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Against this attempt to drag constitutions down to the level of every-day common-place legislation we protest. It is true the original powers of each are in the people. But legislators, in the exercise of their powers, have to submit their action to the scrutiny of the ple's executive, to proceed in subordination to constitutions, and their enactments are within the reach of the courts for annulment if found to be in contravention of the organic law. The delegates in conventions are subject to no restraints by executive power, by judicial tribunals, or by constitutions. They themselves are the architects of all these. There is but one authority to which they must submit their work; that is the authority of the people. If they approve, well; if not, the work is void. As these conventions prepare the highest of laws, their force must be contingent upon the approval of the highest authority that of the people. We deny that the people can delegate sovereign power to agents. If so, they cease to be sovereign when their sovereignty is so delegated, and they might transfer their own rights to liberty and life-a theory in direct hostility to republican or democratic government. The people can concede nothing by implication, and, unless a convention be specifically authorized to frame and set in motion a government, they should report their work to the people for approval. It is true the people, by acquiescence, may express their approbation of the work of their agents, and by consent waive the failure to submit. But the doctrine that a convention elected by the people can frame such government as they please, and put it in operation against the will of nine-tenths of the people, and that the Congress of the United States will sustain such government, and that upon a technicality, is both monstrous and revolting.

It is said by the committee the Constitution of the United States was not ratified by a popular vote; and this seems to be put forward as an argument why the constitution of Kansas should not be so ratified. But the Constitution of the United States was framed by a convention, and the whole work submitted to conventions in the States, and the people, in electing delegates to such conventions, did so with direct reference to their voting for or against the instrument. In fact, the people voted upon its rejection or adoption through their conventions. Will the friends of the admission of Kansas under this Lecompton instrument concede the same privilege to the people of Kansas, to wit: the election of a new convention to pass upon that

constitution? If they will, the whole difficulty can be settled in an hour; if not, let them cease to quote the adoption of the Constitution of the United States as a precedent.

A parallel is attempted to be drawn between the admission of California and that of Kansas. The committee say:

"How any person could maintain the legality of the proceedings in the California case, and deny them in Kansas, or hold that an enabling act by Congress was necessary in the Kansas case, when it was not Decessary in California, is incomprehensible to this committee. They dismiss the point without further remark."

We have already shown that, in the admission of new States, whatever Congress legalizes becomes legal. No adherence to forms renders it obligatory on Congress to admit-no departure from them requires Congress to reject. Each case must stand upon its own merits, although we think the better course is to follow the usages and precedents set by the early fathers. But look at the California case. Their constitution was adopted by over eleven thousand majority upon a popular vote. Not one voice came from California objecting to her admission. The Kansas constitution was rejected by almost as great a majority, and the masses of her people are praying and protesting against her admission under it. To those of us who profess to have some regard for the popular will the difference in these cases is quite comprehensible. We dismiss the point without further remark."

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But the majority say that the five counties of Leavenworth, Atchison, Douglas, Doniphan, and Jefferson, had a majority of the whole vote of the Territory, and thirty-six out of the sixty delegates to the convention. The committee go on to say:

"Now, if it be true that the opponents of the constitution are so largely in the majority in those counties, and are so violent in their opposition, as they are represented to be, why did they not elect men to the convention who would have formed a constitution more to their liking? These counties alone, by the registry, had within four votes. of two-thirds of the convention, and could have made just such a constitution as would have been most agreeable to their people. If they refused to act at the proper time why do they complain now? If others, conforming to the law, went into the convention and formed. a constitution to suit themselves, was it not their fair, just, and legal right to do it? Those complaints come too late, even if they come from orderly, law-abiding citizens. As well might the thousands who abstained from the polls, or threw away their votes, at the last Presidential election, now come forward and claim that the present administration is illegal, and should be set aside, because the inaugurated Chief Magistrate did not receive a majority of all the legal voters of the United States, as for these people now to complain of the result of their own laches or illegal acts, or to seek to remedy it by any such irregular proceeding as the vote taken on the 4th of January against the constitution after it had been legally adopted?

Whether a majority of the people of these counties were, at the time of the election of delegates, opposed to a constitution or not, it is impossible to ascertain, and what the public sentiment might have been had

the convention done its work like an honest assembly is equally impossible to know. But it is not strange that the people of Leavenworth and Douglas and Shawnee should be violently opposed to the work of delegates, a large portion of whom had falsified pledges and attempted to cheat the people out of their dearest and inalienable rights. It is quite useless for the President or the majority of the committee to set up a standard of action for the people of Kansas which their own convention have rejected. In the 14th section of the schedule it is provided that before a change can be made in the constitution, "two-thirds of the members of each House concurring, they shall recommend a vote of the people for a convention, and if it shall appear that a MAJORITY OF ALL CITIZENS of the State have voted for a convention, then the legislature shall provide by law for an election." The convention of Kansas, which the committee say was the people of Kansas, did not think it the proper mode of changing or making organic law to have it done by the few who might go and vote. The people of Kansas think there should be expressed affirmatively a wish for a change by a majority of all the citizens of the Territory, and this to be preceded by a like wish from two-thirds of both branches of the legislature. Now, by what reason the President and the committee undertake to say that the few hundred who go to the polls shall rule in a matter of fundamental law the many thousands who do not go to the polls when the convention, whose action they laud so highly, and which they say spoke for the people of Kansas, adopted a different and opposite rule, can only be explained from the fact that a bad cause requires ingenious defences; and there is no more analogy between the position of those who might have voted at the Presidential election and did not vote, and those who complain of wrongs perpetrated under the oppressive laws of Kansas, and in and by this convention, (all of which were beyond the reach of the people,) than there is between the President with his breakfast before him refusing to eat and Tantalus, perishing with hunger, unable to reach the fruits hanging upon the boughs around him, but which withdraw from his reach at every attempt to pluck them.

The majority of the committee hold that there is no mode of ascertaining whether the Lecompton constitution is acceptable and satisfactory to a majority of the legal voters of Kansas:

"Without polling every legal voter in the Territory, and if they had gone there and taken the vote themselves for and against the constitution, perhaps the majority might have varied from one side to the other by death, emigration, or change of opinion, before their report could have been made. That course of investigation is wholly impracticable. The only proper mode of pursuing the legitimate inquiry before Congress, in the judgment of the committee, is to ascertain whether the constitution embodied the legally and fairly-expressed will of those who by their acts acknowledge themselves to be bona fide citizens and constituent elements of the society or political community to be organized in a State within its jurisdiction. Those who by their acts show themselves not to be bona fide citizens but mala fide residents, and even self-acknowledged outlaws by their open hostility to all civil authority, should not be considered or taken in the count. The convention that formed the constitution was as fairly constituted

as could be with the view of allowing every bona fide citizen in Kansas entitled to vote to have a free opportunity to be heard in its formation. This Mr. Stanton said; this Governor Walker said; this Judge Douglas said; this, also, abundantly appears from the facts and evidence now submitted. The only correct test of the will of a majority of the bona fide voters of Kansas upon the subject of their constitution is that of the ballot-box, and such an expression of their will as has been there given at the proper time and place, in conformity to law. By this test a majority of them is certainly in favor of it. The majority of those going to the polls when the election of delegates, with full and plenary power took place, was largely in favor of those who made the constitution; and when the direct question on the slavery clause was submitted on the 21st December the like majority was overwhelmingly in favor of it. On the 4th of January, in the election of State officers under the constitution, it is well known that both parties. joined in a vigorous contest for the organization of the State under it. Upwards of 12,000 voters participated in that election. That vote shows most clearly that the constitution is not only acceptable, but has been accepted by at least four-fifths of the voters of the territory, though it may not be entirely satisfactory to all of them."

Without analyzing at length this elaboration of subtilties, it is sufficient to say that the committee were not asked for their opinion whether emigration or death would have varied public opinion in Kansas before a report of the fact could be made; but they were directed to inquire whether, at the time of the adoption of the resolution under which they act, the constitution framed at Lecompton was "acceptable and satisfactory to a majority of the legal voters of Kansas." This they have not done. But, in order to arrive at their conclusions, they say:

"Those who by their acts show themselves not to be bona fide citizens but mala fide residents, and even self-acknowledged outlaws by their open hostility to all civil authority, should not be considered or taken into the count. * * * The only correct test of the will of the majority of the bona fide voters of Kansas upon the subject of their constitution is that of the ballot-box, and such an expression of their will as has been there given at the proper time and place, in conformity to law. By this test a majority of them is certainly in favor

of it.

Here it seems the committee first decided that all who did not vote at the election in October, 1856, for or against a convention, and all who did not vote at the June election, 1857, (whether registered or not,) for delegates to the convention, and all who did not vote "for the constitution" in December, 1857, are "mala fide" residents" or "selfacknowledged outlaws." After this assumption, as gratuitous and untenable in itself as it is uncharitable and unjust to the people of Kansas, we are prepared for any thing that may follow. But, admitting the "test," it is still untrue that a majority of the people of Kansas are in favor of the Lecompton constitution. The committee, in their report, state that 6,795 votes were cast "for the constitution" at the December election. There is no evidence of this vote but the general statement of Calhoun, a statement in itself entitled to no con

sideration. It could have been proved before the committee, had the majority allowed it,' that of this 6,795 votes nearly one-half were fraudulent and illegal. And it has been fully established by testimony taken by a commission acting under a law of the Territory that, in four precincts alone out of about one hundred and twenty in the Territory, near 3,000 illegal votes were cast on the 21st of December "for the constitution." This cuts down at a single slice the pro-constitution vote to nearly one fourth of the vote claimed by the committee in the entire Territory. If one-fourth of the votes constitute a majority, the undersigned have been greatly in error in their understanding of the term.

But the committee go further, and say that, at the 4th of January election for State officers, "upwards of twelve thousand voters participated;" and they add, "that vote shows most clearly that the constitution is not only acceptable, but has been accepted by at least fourfifths of the voters of the Territory." If the committee were aware of the circumstances under which that vote was cast, it is surprising that they should claim the votes cast for the Smith ticket as favoring the constitution. If they were not aware of these circumstances, we will briefly state them. The whole vote alleged to have been cast at that election for the pro-slavery ticket was 6,545; of this number there have been found to have been cast in five precincts 2,458 illegal or fraudulent votes, leaving only 4,187 as the largest number rightfully to be claimed as having been cast for that ticket. Indeed, it is believed that investigation would reject from this number a very large portion as spurious and unlawful. On the other hand, there were cast for the free State ticket 6,875 votes, being a majority over the pro-slavery ticket of 2,688 votes. These votes for the free State ticket were cast, under protest, against the constitution. It is a notorious fact, which cannot be denied or evaded, standing out boldly before the public view-a fact that will be recorded unhesitatingly by every historian in after time—that those votes were cast by citizens of Kansas protesting that they should not be considered as a recognition of the constitution; and at the moment they were cast they placed also in the ballot-box another ticket, on which was written their sentiments "against the Lecompton constitution," and 10,226 voters of the Territory so declared their sentiments on that day at the polls. The whole free State ticket were understood to be publicly pledged against putting the Lecompton constitution into operation, and were voted for solely to defeat the operation of that instrument. These free State officers, thus elected under the constitution, if you please, have all joined in a petition to Congress to reject it. The people went to the polls and plead to the jurisdiction of your tribunal, and you, with star chamber justice and magnanimity, claim that plea as an acknowledgment of the very thing they denied. The people of Kansas have been unfortunate. If they decline to vote, you call them rebels and self acknowledged outlaws; if they vote, you overwhelm them with frauds, and say that voting is an acknowledgment that their protests against your outrages are untrue You place them between the blades of your quibbling logic, and whether one falls or the other rises, their rights are cut off with the same cruel certainty. Not a vote has ever been taken in the Ter