The Kansas herald of freedom., 1855-09-01
legal.
Jurists Differ,

For the purpose ofputting upon record
the facts, we copy below she opinions of
Judges ELMoRE and LEcoMpTE, touching
the legality of the Quasi-Lesislature OF
Kansas. 1t will be remembered that
Judge JOHNSTON dissented from the opin-
ion OF the other Judges. How far the
members of the Supreme Court of Kansas
were influenced in their opinion by pref
udicc the reader will decide. The two
former judges were from the South
Judge JOHNSTON from Ohio.
Gov. REEDER has reviewed that decis-
ion, which We also append. Its, in our
opinion, complete refutation of the po-
sitions assumed by Judges Elmore aud
Lecompte, and will be read with interest
as a sound legal document. If any per-
SONS were disposed, previous to this, to
doubt his duty to this body of men, that
doubt must now be removed.
To tie Honorable tie Counsel and
House Of Representatives. Of the Terrific
ry Of RansQs:-Your communication
throu Ih the medium of the Attorney OF
the United States for the Territory, was
handed to the Supreme Court at its ses-
sion on the 3Jth ult, and being taken
into consideration, ii was determined by
Il majority of the Court TO reply to SO
much thereof as presents the question Of
your authority to enact the bill, ''prUvl
ding for the temporary session of this
Assembly at the Shawnee Manual Labor
School" and the further one, whether
the adjournment OF this Assembly TO
this place in pursuance of such act was
legal o. in other words, the vital inquiry
whether you are constitutional LegiS-
lative Assembly.
As to SO much of your communication
as is embraced in the succeeding clause,
to wit: whether it is competent for this
Assembly, ifits present session be legal,
to confer on the Probate Courts jurisdic-
ton civil and criminal, concurrent with
the District Courts" they determined
that, as it presents question touching
the legality ola specific act of legislation,
they would leave the solution of that,
should it arise, 10 the ordinary course of
judicial investigation.
In making the distinction, they have
been controlled By the peculiar charac-
terlsties ofthe first inquiry. Looking as
1t does to the constitutional existence of
the Legislative Assembly, upon which
rests interests ofthe most vital character
and of universal application to the we'll
being of our people, it has seemed to
majority of the members of the Court
that they should fail in the accomplish
ment ola leading purpose in their crea-
ton if, suffering themselves to be re-
strained by too nice considerations of
technical delicacy. they should refrain
from direct response to your interroga-
tory.
In reaching this determination, they
hare been influenced in no small degree
by their high appreciation of the constit-
uent elements of your honorable bodies.
Satisfied thoroughly that in the great
requisites of intelligence and public
virtue, the Legislative Assembly of Kan
sas will compare favorably with similar
bodies in tue States of the Union: and
fully persuaded that in propounding the
inquiries you have been Influenced by
an earnest desire to shape your legisla-
ton in strict conformity TO the obiiga-
tons of controlling law, the eonsidera-
ton of the preliminary question. wheth-
er response should be made by Us,
was approached with a natural anxiety
10 find il consistent with sense of
etiiclal duty To do so. 1t IS but Justice
TO ourselves to add that this motive was
powerfully offset BY an habitual reluc-
tanee to inserpose, even upon solicitation,
IN any matter wherein II was known
tnat coordinate branches of the Terri
torial Government entertained confic-
ting opinions. Immediately upon en-
oering upon'th inquiry. the immense
magnitude of the interests involved ar
rested our thoughts. and forbade In the
most emphatic tones, 4 resort 10 the
ordinary justification for silence. thai the
case presented was "eoram aoa JUDGE 2.
IL may be true that this Is technically
the iaet; bat We could not conceive