The daily union. [volume] (Washington [D.C.]) 1845-1857, 1850-05-10

the notice Of The Senate very important opinion given
BY the Attorney General, Benjamin Butler while sct
ing ID that capacity under the administration OF Mr. Van
Buren, L was an opinion submitted upon state OF
kansas The material questions involved possessed
before the country in regard to California The opinion
is OF some length and without troubling the Senate 10
read here ask OF the Reporter TO append i IN full 70
the report oil my remarks, for is really deserving tpe
consideration both OF the Senate and the country in the
present state Of our relations with the country on the
Pacific L will be found quite interesting IN its bearing
The territorial governor OF Arkansas had been called
upon by the inhabitants to the legislature 10! the
purpose OF adopting the necessary steps 10 organize
Stale government and he apprehended IRON Inc state OF
public feeling, attempt TO subver the territorial govern
ment He appealed to the President Tor instructions, and
his communication was submitted to- the Attorney Cen
eral for opinion. In the communication the governor
states is recited In the opinion, that ne is opinion
that under the constitution and laws OF the United States
measures can lawfully be taken BY the citizens OF AT,
kansas TO form constitution and State government unl
Congress shall first have granted them authority so to DO,
and that be will therefore feel himself bound % consider
and treat all such proceedings as unlawful and he asks
| the instructions OF the President
! The opinion covers many very distinct points applica
bic to the case Of California but as the whole VIII Dc
printed, will cOnne myself to the reading oil the con-
GLIDING paragraph. Mr.. Butler says:
is however, very obvious that all measures com
menced and prosecuted with design subve the terrific
pacs new government Without the assent Of Congress.
will be unlawful The laws establishing the territorial
sDnss and 10 The mean iims viii Be Tho as he
enor and q I'll The territorial officers AZ WE'LL Az "
THE PRESIDENT 10 take care thar they be faithfully ex
| ecued
Now sir il is very true that special territorial act
had not been passed by Congress- But it very well
understood and i proclaimed by this admnistra-
ing government de acto and it is admitted upon oil sides
that the municipal laws and regulations in force in the
acquired Territory remained obligatory and valid until
atered--by whom? Not by the Executive, but BY Con-
gress There was then, government and code OF mu,
ncipal laws existing by the assent OF Congress, and
therefore by its authority and equally obligatory in
organizing government Here, then, was an official
opinion OF Attorney General, plainly the legal ad-
wiser OF the Executive, upon the records Ct hs depart
men marking the line OF duty to the Presidents and
to which might well have resoed il doubtful Of the
course proposed for him to pursue. trust VIII APP
in the Ry 70 the inquiries now ,h made that ne a..
Executive and that measures have been taken to re-
cover the now derelict authority Of the government in
California, until Congress shall have exercised its con.
stitutonal prerogative in respect to lis government
[The following is the opinion which the honorable
gentleman desired to have appended TO his remarks:l
ATTORNEY GENsRAL's OFFICE Sept q, 1885.
Sir have the honof 70 acknowledge the receipt Of
your communication Of the 3is u!tno. arsmung copy
address recently issued by him TO the people Of
the constitutional and legal questions presented in
Il appears from the papers that applications been
made 10 the governor Arkansas by various meetings Of
the inhabitants oil that Territory, the territorial
ACT authorizing the election Of deleg convention
form State constitutions that he has declined to COM
sions that the territorial legislature, their regular
meeting to be held in October next will pass such an act
in him by law people, either with without
such alaw will proceed to elect delegates TO convention
without ihe authority Congress that he is opinion
that under the constitution OF the United States meas
be lawfully taken by the citizens Of Arkansas to
form constitution and State government until Congress
shall have grand them authority dol and that he will
therefore bound consider and all such
edngs unlawful In order meet the emergency
thus appehended he solicis instructions for his future
guidance and IL Is in reference to this request that my
opinion is required.
The various questions arising in this be clas.ed
to the power the territorial legislature TO pass laws
horzng constitution and State government; or, second
the right and authority OF the citizens Of the territory 10
take measures for that purpose and TO the extent TO winch
may properly be carried consistently with the constitution
OF the United States and the laws now in force.
Upon these points there us a. !, appear, 70 ms h no
erected by Congress the law for that purpose having
caIes that Congress shall have power dispose OF and
all needn rules and regulations respecting the terrific
X o. os, property q the United Inc power. ~
legislative and jndicasrc derived from the law and can
only be exercised in the and within the limits pre-
The legislative power is vested In general assembly
Of es1 o. shea elected by The
people The act PIosidng for the government Of Missouri
approved June Y, lblZ, and winch adopted laws
relating to Arkansas defining powers The Legislative
declares hat the general assembly shall have
power laws in all both civil and criminal
for the good government Of the people Of said Territory not
cpugnant inconsistent with the constitution and laws
United States" This part of the law is TO be taken In
with the other provisions contained In III and
when considered, will be that the whole law was
designed accomplish the single purpose OF organizing
emp orary territorial government which was intended 20
remain subject all mes the control OF Congress- under
the authority conferred upon by the constitution Of the
United States In the exercise OF this authority Congress
may pleasure repeal modify the law passed by the ter
ofin legislature and at any time abrogae ana re-
model the legislature ITSELF and all the other departments Oh
tho territorial government ,
To suppose that legislative powers granted 10 the
general assembly ncudedthe authority abogate TO alter,
or modify tue territorial established by the act
Of Congress- and of which the assembly is constituent
part, would be maIesy absurd The act OF Congress- so
far consistent with the constitution OF the United
States and with the treaty by which the territory was
ceded the United Satcs the supreme law Of The erri.
tory paramount the oil the territorial legsa'
ure aud only be revoked altered by the authority
from which II epanaed The general assembly and the
people Of the Territory much bound by s provisions,
aud incapable Of abrogatng them, the legislatures
and people the American States bound by, and n-
capable of the constitution OF the United States
II Is also maxim OF universal law, that when particular
thing prohibited by law, all attempts, and contri-
vances to effect such thing also prohibited Conse.
quenty IL s In the Of the general assembly OF
Arkansas pass any for the purpose Of electng
beIs n form and State gov
ernment do any other act directly indirectly, 70
create such government. Every such law, even
though approved by the government OF the territory
would be null and void u passed by them nowithsiand
ing his by vote Of wo,hrds Of each branch, would
still DO equally void
II am right in the foregoing opinion, will then follow
that the course oil the governor declining call together
the territorial Legislature for the purpose in question wa
such his legal duties required; and that the views he
has expressed In his public address, and also In his ocia