The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-09-03

re Legality OF the Leslsi"snre-Asnsas
hacking Out-The Way mr. Butter was
vSv,s.d In Leave, &C., &c.

The Legality OF be
Backing Outline way "'' "''1 W."
Invited 70 Leave, &c., &c.
yno ALLOWING is The opinion OF Hon. Samuel d IA-
-. rtiog rnstice concurred in by Hon. Rush Emore
49,, ,nstice Of the supreme Court Of the Territory
1,.s mon the right Of the Legislative Assembly to
temporarily the seat of government, and upon the
uatv Of their acts legislation at such place. Given
!. reply to resolution of the Legislative Assembly
~ ne Honorable me c<snea and House Of Representatives.
of T.rriery Of kdnsds -
Your communication through ths medium of the At
torney of the United States for the Territory handed
70 the Supreme Court at its session the 3Oth ult and
being taken into consideration, it determned by
majority OF the court to reply to much thereof as pre-
sents the question of your authority to ensct the BILL
providing for the temporary session Of this Assembly at
ne shawnee Manual iaeo. school, and the Irne. one t
place in pursuance Of such act logalY' in other
Words the vital inquiry whether you constitutional
Il TO so much of your communication is embraced
in the succeeding clause, to wit " whether it is compe
tent for this Assembly il its present session be legal to
confer on the Probate Courts Jurisdiction civil and crmi
nal concurrent with the District Courts they deter
mined that as it presents question touching the legality
Of specific act of legislation, they would leave the solu
ton Of that should 1t arise - the ordinary course of
judicial investigation
In making the distinction they have been controlled by
Che peculiar characteristics Of the first inquiry Look
ing ~ it to the constitutional existence OF the egs
tive Assembly upon which rests interests OF the most
vital character of universal application to the well
being our people, it has seemed to majority Of the
members Of the court that they should fail in the
nr themselves to be restrained by too nice consiera
tions Of technical icy they should refrain from di
rect response TO your interrogatory.
In reaching this determination, they have been nu-
enced in small degree BY their high appreciation Of
The constituent elements Of your honorable bodies S
rence and public virtue the Legislative Assembly Of
Kansas will compare favorably with similar bodies in the
States Of the Union and fully that in propoud
ing the inquiries you have been influenced by earnest
desire shape your legislation in strict conformity to
the obligations of controlling law, the consideration OF
the I'M ma v
10 find it consistent with sense OF official duty to do 3d.
It but justice to ourselves to add that this motive was
powerfully Offset by habitua reluctance to intepose,
even upon solicitation, in any matter wherein 1t was
known that ordinate branches of the Territorial gov
mnnn nnor tho inoriry the Immense magnitude
Of the interests nyovedd arrested our thoughts, and
forbade in the most emphatic tones resort to the
binary justification for silence that the case presented
It may be true that this technically the fact; but
could conceive ourselves justified in reposng upor
Mia defence when meantime that greatest of all evils
anarchy, might exist rampant upon our soil, fed ant
encouraged by the reckless and unprnciped who nigh
invoke very silence IN argument IN mante
Of their destructive scntiMents and besides this
perhaps draw hence Inference fatal to independence
and consequently subyersive OF that confidence which W.
most solicitous to maintain.
You will do the justice to be assured that this appre
hsnsion has not its origin in clfshness which regards
reputation merely for its sake but in deep
anxiety for the public interests which we feel to be largely
dependent the estimate well of the independence
the uprghness and ability of those to whom are
signed the Interpretation and administration Of the laws
We have felt the less hesitation in examining and re-
spending your questions because there is much
to doubt whether under any circumstances the difficult
ties involved in them might be presented to us udciay
for solution These for doubt supposed to be
found in the views Of the Supreme Court OF the United
States expressed in 9th Towards Reports 333 in
The Of Scott ct al Jones' in which the constitu
tonal existence Of the Territorial Legislature OF Michigan
was proposed to be brought into review.
Without attempting an elaborate examination Of the
points Of that case it. T. sufficient for our present pose
tribunal is to demonstrate that the subject matter o
legislative bodies and not the competency Of their organi
zaton forms the true and only topic OF judicial revision
should such exigency arise unwarrantable ut
tempt at legsls by any body wanting the necessary
4 the nnion L would be foreign affair, and no
within the cognizance of the departments Of this
men unless interfering with its rights as TO call 10
the political exercise Of the executive legislative
thority over our foreign relations Again such
duct by bodies situated within limits unless by state
either by the power of the Union to put down Insured
ton by the ordinary penal laws of the States or Terri
tories within which these bodies unlawfuy organized ar
situated and acting" language manifesty referring
the assumption Of legislative power by
and rebeflious organizations .
Again they speak in terms which admit OF no question
q their understanding of the relations of these depart
nents OF government when they say the Judicial tTi
o. Inc ha hs Snic y
After remarkng in addition as to tci- recognition
eace, therefore, State and that their statutes must
be treated the statutes Of any Other State within tht
meaning Of the act Of 1885, known the judiciary act
they add 80 And if SO, must inquire only inio thu
validity Of their subject matter and not to the
any than the old States suppose the question
an was an inquiry intended TO be placed under
sderaton and decision" by the act above mentioned.
We could not but regard attempt to cvade the force
these views by the suggestion that they expressed
particularly with reference to State organizations
therefore not applicable to the position Of Territora
vAo{s mrs NOR epuh nUa n
ent unless, indeed, contrary to our full conviction
difference in principle between the several organi
cations, applicable to the point in controversy could
II would not only partake of the appearance Of ,
Quibble but what is Of force, would alsify tn
facts Of the case since the very question presented
upon the legislation Of Territory and would inevitably
have drawn from the august body which pronounced tn
decision such distinction IT. in their judgment such dis
tnction existed.
Having referred TO this decision maintenance of tn
propriety Of responding In this Unofficial to you
Inquiries will add before dismissng it that it Is nj
Ass forcbe to sustain the proposition that
selves the judges, without appeal or revision OF what
be embarrassed In the manner and form Of you
organization, and that neither an objection to you
place Of session Of any other matter not embraced
within the subject matter Of the operative provisions
your legislation be called in question elsewhere.
We will but tdd to these reasons-satisactory to our
sslves and we trust to you.hat we arc aed 70 find
course We have adopted, by preccde shch 70 fai
aswe know, objection has arisen. precedent too
which goes much farther than have determined 10 go
resolution Of the Legislature Of Minnesota Territory
propoundng questions TO the Judges Of the Supreme
Court of that Territory fully replied y h. the judges
See proceeding of the first session o. ,nnesota lie
gislature.
Having determined to reply to the extent indie ,ted
the nature Of that reply next TO be considered
Upon this have had difficulty. We have no
been able TO discover any substantial objection TO tn
eonsttuonality Of the of the legislative Assem-
bly,. We could see in the change of the place Of you
session out Of caprice much that would be objee
onabe to good taste and 70 that spirit Of Difference Il
regularity and order which the people have right a
well a. an Unborn disposition to expect in those
holding honorable positions but forbid.
den by the highest considerations Of respect
and Justice to suppose oapicc 10 have govern
ed your honorable body. IL feel otherwise would
be derelicion from the courtesy due TO a depart
ment Of government well un,ecmly departure
from the analogy TO the well established principle
law, upon the recognition Of which courts forbear &c
behind the record when the Judgment Of competent tri
bunsl comes Incidentally under Their notice.
II Is not for TO inquire what considerations did GO
vern you but to assume-the least that any respectful
body ask-that you had for ycrr action "a
yourselves most satisfactory and amps.
The questions presented for consideration are,
whether the act Of the Legislative Assembly declaring
me shawnee Manual labor school the temporary seat 81
sSsernmen vsAiar And, Whether ycar legislation at