The excuse offered by the President for this perfidious course is the Lecompton Constitution, which he professes to consider a legal instrument, framed by a legal Convention, and approved by a legal election of the people, — and which is therefore not to be set aside except by the same sovereign power by which it was created. It would be a good excuse, if it were not a transparent and monstrous quibble from beginning to end. The Lecompton Constitution has no one element of legality in it; from the Whereas, to the signatures, it is an imposture; — for neither had the Legislature, that called the Convention in which it was made, lawful authority to do so, — nor was that Convention lawfully constituted, — nor was the alleged adoption of it by the people more than a trick.
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.