The Kansas herald of freedom., 1857-08-01
The New Position Reviewed.

has been promulgated by the public press
that the State government of Kansas
should be exceedingly careful how it be-
comes mixed up with the Territorial gov
erment, ''for," they say, "if the people of
Kansas become connected with it in any
way, or indorse its acts, the State organ
ization will, by such act, assume itsresPon-
sibilities,' One speaker, conscious that
his own opinion was worthless in ques-
ton Of this character, represented that a
illegal gentleman of acknowledged abil-
ity" had written him, cautioning him on
this subject. While We have no contro-
yersy with the person who urged this
idea at Topeka, we must be allowed to
differ with his legal adviser, and show the
policy, yea, the supreme righteousness of
such position.
The Territorial government of Kansas,
as now organized, is the government de
.faeto, though we all deny its being such
de jure. While it exercises the rights of
sovereignty, and possesses and wields the
powers of government, this condition of
things viii remain, however hostile the
people may be to it. In law it matters
not whether the government is believed
to be legal by single subject, as its legal
ity as government de tacto is dependent
upon its exercising the Legislative, execu-
tive and Judicial powers. 1t is to govern
ments what possession is to property
While the occupant of personal property
has legalPossession oft, he may maintain
an action of trespass against all the world,
save its legal owner, for its forcible re-
moval, and need only give evidence of
possession of such property, as proof of
title, to maintain his action.
This government de facto of nation,
while capable of sustaining it as such, is
capable of binding all future govern
ments of the same country, and that with
out regard to the antagonistical character
of such governments. The claim of the
United States against theFrench for spoil
ations has been valid claim from the
time it originated, about fifty years ago,
and still continues legal one by the law
of nations; and this, without regard to
the numerous revolutions and changes
which have occurred in the government
of that country from that period to this.
The demand was as good against France
as monarchy or republic, as it was
against the empire under which it origin
ated. 1t may be urged that this was an
obligation founded in a tort, and the law
of nations would be different in such a
case from what it would in case of contract.
True, it is different; but the obligation is
stronger when it is founded on a contract
than it is in the other case.
The American government, in its inter-
course with nations-and what is true of
us is true of all civilized nations-does
not consider its treaties broken with a
nation when revolution takes place in
its government. The government de facto
assumes the obligations and responsible
ties OF its predecessor, as does an heir TO
an estate to the debts of the dccedent, and
it has not the ability to absolve itself
from such debts by rcpudiation or other
wise.
If this principle is correctly stated-and
we believe it is-then the legal debts
which the Territorial government shall
contract, are debts of the people, which
may be enforced upon us during any
stage of our governmental existence,
whether as Territory or State, by the
Supreme Court of the United States.
While this is the la,c, and law which
no legal gentleman of ability will con-
trovert, it may be well to enquire whether
the Territory of Kansas has the ability to
contract illegal debts" such as the Su-
pfeme court VIII enforce.
A Territorial organization is not an in
dependent one, but is mere local gov
ernment, similar to a municipal organiza-
tion in State. All its powers, legisla-
tive and judicial, are derived from Con-
gress, and, its acts are limited to the spc-
cifc authority imposed upon it by its
organic act or subsequent laws of Con-
gress. A county or city cannot contract
illegal debtsp which viii bind the inhab-
itants ..of. such county, or municipal
authority, without express laws, emanat-
ing directly from the Legislature of the
State, to contract such debts. A Terrific
rial government cannot involve the peo-
pie Of Territory in debts, in the absence
Of express authority from Congress to do
SO. 1t is not among the implied powers
of Territorial government, for Congress
is in the habit of treating the Territories
as minor, incapable, to great extent, of
transacting its own business. 1t merely
delegates to the people the privilege of
doing certain things which it should do
itself; but it has always been accustomed
to paving the expenses of its local agents
and, hence, the power of Territorial
Legislature to tax its subjects is denied |
by many
We shall not take it upon ourselves to
say whether the organic act vests in the /
Territorial Legislature of Kansas the right
to contract debts, prefering to leave this
question with the reader. Ifthe Legisla-
ture has that power, it is folly to talk of
evading the payment of debts contracted
by them on account of their ,.surped au-
.hority, while they remain a government
is faeto. If they have Otthe power to
,ontrsct kqal debts. creditors have not the
Utility to coIiect them. hence tha ,,,s;-