Marshall County Democrat. (Plymouth, Ind.) 1855-1859, 1857-12-24

Subsequently, the Senator for Georgia
Mr.. Toombs) brought forward a substi-
tute for nv bill, which after having been
modified by him and myself in consultation,
was passed in the Senate. 1t is known in
the country as "the Toombs BILL" 1t au
thorized the people of Kansas Territory to
assemble in convention and form constitu
ton preparatory to their admission into the
Union as State. That bill, it is well known
was defeated in the House Representatives.
1t matters moi, for the purpose of the argu-
ment, what was the reason Of its defeat
Whether the reason was political one;
whether il had reference to the existing
contest for the Presidency; whether it was
to keep open the slavery question; wheth :
er il was conviction that the bill would
not be carried out; whether it was because
there were not people enough in Kansas to
Justly the formation of State-no matter
what the reason was, the House of Repre-
seniasives refused to pass that bill, and thus
denied to the people of Kansas the right to
form a constitution and State government
at this time. So far from the Congress of
the United States having sanctioned or le-
galized the convention which assembled at
Lecompton, it expressly withheld Its as
sent The assent has not been given, Ell
ther in express terms or by implication;
and being withheld, this Kansas constitu
ton has Just such validity and just such
authority as the Territorial Legislature of
Kansas could impart to it without the as
j 30 fha will
of Congress- Now, sir, let me ask what is
the extent of the authority ola Territorial
Legislature as to calling a constitutional
convention without the assent of Congress.
Fortunately this is not new question; ii
does not now arise for the first time. When
the Topeka constitution was presented to
the Senate nearly two years ago, it was re-
ferred to the Committee on Territories, with
variety of measures relating to Kan sas
The committee made full report upon the
whole subject. That report reviewed al
ther irregular cases which had occurred in
our history in the admission of new States
The committee went on the suppositio 1
that whenever Congress had passed an en-
abling act authorizing the people of Ter
ritory to form State constitution, the con-
vention was regular, and possessed all the
authority which Congress had delegated to
it; but whenever Congress had failed or re-
fused to pass an enabling act, the proceed
ing was irregular and void unless vitality
was impaired to it by subsequent act OF
Congress adopting and confirming it. The
friends of the Topeka constitution insisted
that, although their proceeding were irreg
ular, they were not so irregular bu. that
Congress could cure the error by admit
ting Kansasswith that constitution. They
cited a variety of cases, amongst others the
Arkansas case. In my report, sanctioned
by every member of the committee on Ter
ritories, except the Senator from Vermont,
Mr.. Collamer, l reviewed the Arkansas
case as well as the others, and affirmed the
doctrine established by General Jackson s
administration an enunciated in the opinion
of Mr. Attorney General Butler, part OF
which opinion was copied into the report
and published in the country at the time.
Now, sir, in order to ascertain what we
understood on the 18th of March, 1856
little more than year and half ago-to
be the true doctrine on this point, let me
call your attention TO the opinion of Mr..
Butler in the Arkansas case. The Cover
nor of the Territory Of Arkansas sent prin-
ted address to President Jackson, which
he stated that he had been urged to call to-
gether the Territorial Legislature of the
Territory of Arkansas, for the purpose of
allowing them to call convention to form
a constitution, preparatory to their admls-
sion into the Union as State The Gov
ernor stated that. in his opinion. the Legis-
lature had no power to call such conven-
ton without the assent of Congress first
had and obtained; but he asked instructions
on that point The President referred the
case to the Secretary State, and he asked
for the advice of the Attorney General,
whose opinion was given, and adopted as
the plan of action. and communicated to
the Governor of Arkansas for his instruc
ton. 1 will read some extracts from that
opinion:
Consequently. it is not in the power Of
the General Assembly of Arkansas to pass
any law for the purpose of electing mem
bers TO form constitution and State gov
ernment, or to do any other act, directly,
or indirectly, 10 create Sucn new govern
ment. Every such law, even though it
were approved by the Governor Of the Ter
ritcry, would be null and void. If passed
by them. Notwithstanding his veto. by a
vote of two thirds OF each branch, it would
still be equally void.
"If 1 am right in the foregoing opinion,
it will then follow that the course of the
governor,,in refusing to call together the ter
ritorial Legislature for the purpose in ques-
tion, was such as his legal duties required;
and that the views he has expressed in his
public address, and also IN his official COM
munication to yourself, as far as they indi-
cafe an intention not to sanction or concur
in any Legislative or other proceedings to-
wards the formation of State government
until Congress shall have authorized it, are
also correct