“No legal objection” The Committee on Territories Weights in, Part Two

Galusha Grow

Galusha Grow

Galusha Grow’s (R-PA) Committee on Territories reported that the territorial phase of government constituted a necessary evil. The white men of a newly colonized area simply could not afford a state government, nor could the poor state of infrastructure, communications, and the hazards of the frontier support one. Without federal largess, they would live long in anarchy. Thus Congress stepped in and established a government on the nation’s dime, filling the gap until the white colonists existed in sufficient number to pay for it themselves. In exchange, Congress took a supervisory role over the territory. That necessarily impinged on the self-government of the colonists, but since they hadn’t lost any of their natural capacity for self-rule the Congress had a responsibility to end the territorial stage and admit the territory as a state as soon as the circumstances justified it. Neither of these amounted to a Constitutional requirement, and Grow came armed with exceptions, but it did make for a kind of moral obligation to admit Kansas.

Provided, of course, Kansas had written a republican constitution and had the numbers. Grow turned first to the numbers. He cited an estimate that Daniel Woodson, Secretary of Kansas, had forwarded to Franklin Pierce and which Pierce duly transmitted over to Congress. Did twenty-five thousand suffice? If not, Woodson’s number had aged a six months. If the trends from then continued, then Grow expected “forty-five or fifth thousand” white people on the ground. “Each month,” he tactfully added

from excitement and stimulus given toe migration in all parts of the Union to this Territory, adds largely to its numbers.

Eli Thayer

Eli Thayer

Ely Thayer and Jefferson Buford don’t come up by name, but everybody knew exactly who and what Grow meant.

Grow stressed that, while the Congress might have certain conventions on the point, the Constitution laid out no hard number of white people that justified statehood. It, like the rest of the admission process, hung on Congress’ sovereign discretion. This “affords no uniform precedent.” For Tennessee, the Congress accepted a bit more than 32,013 (its population in the 1790 census). Louisiana came in with than 34,311 (1810 census). Indiana passed the finish line with less than 23,890 (1810 again). Mississippi shed its territorial status with less than 42,176 (1820). Missouri had 55,988 whites (1820), Arkansas 25,671 (1830). Florida finished up the list with 27,943 and change (1840 census). Nothing like a pattern emerges here, unless it sets a bar blurred across the low-to-mid tens of thousands. By Woodson’s estimate, Kansas had somewhere around as many people on hand as Indiana, Arkansas, and Florida did when Congress admitted them. Grow slid neatly into taking his projected growth as a given and pointed out that Kansas’ population exceeded that of “many of the States and the time of their admission into the Union.”

All of this makes Kansas petition for statehood, which it claimed to already half-possess by taking it on itself to write a constitution, sound very normal. Grow held that accepted conventions did not make for binding precedent, so the fact that Congress had not given leave for any such thing didn’t matter. His committee grappled with the issue all the same. “In a majority of cases” Congress gave advance permission for constitution writing, but not every one. Tennessee, Arkansas, Michigan, Florida, and Iowa went on without an enabling act. The Constitution didn’t require one and its lack had produced no great evil. Congress retroactively endorsed them through the acts of admission. What it could do for five territories, it could do for a sixth.

Benjamin Franklin Butler of New York

Benjamin Franklin Butler of New York

Furthermore if one wanted a precedent, then Galusha Grow had one that neither ex-Democrats like himself nor present members of the Democracy could lightly set aside. Arkansas had a constitutional convention without the permission of Congress or their legislature. The governor wrote asking if he had a duty to put a stop to that. Andrew Jackson, through Attorney General Benjamin Franklin Butler (the New York lawyer, not the Massachusetts general), wrote back

They undoubtedly possess the ordinary privileges and immunities of citizens of the United States. Among these is the right of the people peacably to assemble and to petition the government for the redress of grievances. In the exercise of this right, the inhabitants of Arkansas may peaceably meet together in primary assembly, or in convention chosen by such assemblies, for the purpose of petitioning Congress to abrogate the Territorial government, and to admit them into the Union as an independent State. The particular form which they may give to their petition cannot be material so long as they confine themselves to the mere right of petitioning, and conduct all their proceedings in a peaceable manner. And as the power of Congress over the whole subject is plenary and unlimited, they may accept any constitution framed, which in their judgment meets the sense of the people to be affected by it.

Twenty years back, Old Hickory’s administration practically looked into the future and blessed the free state movement. Even if the petition came with a constitution attached, as Kansas’ had, Butler said

I perceive no legal objection to their power to do so.

Advertisements