Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1857-12-24

this Kansas CONSTITUTION udS JuSt SuSH .1,nAN.!
and Just such authority as the Territorial legis-
laturs of Kansas could impart to it without the
assent, and in opposition to the known Will oil
Congress
Now, sir, let the ask what is the extent of the
authority of a Territorial legislature as to call
ing I constitutional convention without the as
sent of Congress: Fortunately this is not a
new question; it does not now arise for the hrSt
time. When the Topeka constitution was pre-
.sented to the Senate nearly two years ago, 1t
was referred to the Committee on Territories
with q variety of measures relating to Kansas
The onmitte made a full report upon the whole
subject That report reviewed all the irregular
cases which had occurred in our history In the
admission of new States. The Committee acted
on the superstition that whenever Congress had
passed an enabling act authorizing the people of
a Territory 10 form a State constitution, the
convention was regular, and possessed all
the authority which Congress had delegated
20 i; but whenever Congress had failed or
refused to pass an enabling act, the proceed
ing was irregular and void, unless vitality
was impaired TO it by a subsequent act of
Congress adopting and confirming il. The
friends of the Topeka constitution insisted
that although their proceedings were irregular,
they were not so irregular but that Congress
could cure the error by admitting Kansas with
that constitution. They cited aTariety of cases.,
amongst others the Arkansas case. In my re-
port, SauCuOneu OE every member Oh lue SOM-
inittee on Territories, except the Senator from
Vermont, (Mr. Douamer,) I reviewed the Ar.
Kansas case as well as the others, and affirmed
the doctrine established by General jackson S
administration and Enumerated in the opinion of
Mr.. Attorney General Butler, a part of which
opinion was copied into the report and publish
ed to the country at the time.
Now. sir, in order to ascertain what We IN
derstood on the 18th of March, 1S56-Iittle
more than 4 year and q half ago-to be the true
doctrine.on this point, let me call your attention
to the opinion Mr.. Butler in the Arkansas case.
The Governor of the Territory Of Arkansas sent
n printed address to President jackson, in which
he stated that be had been urged to call togeth-
er the Legislature of the Territory of Arkan-
sas, for the purpose Of allowing them to call a
convention to form a constitution, preparatory
to their admission into the Union as a State
The Governor stated that, in his opinion, the
Legislature had no power 20 call such a cODyen-
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 of State, and he asked for the advice
of the Attorney General, whose opinion vas Civ
en-, and adopted, as the plan of action, and com
municated to the Governor of Arkansas for his
instruction. | will read some extracts from that
opinion
consequently, it is not in the power of the
General Assembly of Arkansas to pass any Law
IT tue purpose Oh StcclllS neIlOeTS 10 10TH i
constitution and State government, or to do any
other act, directly or indirectly, to create such
new government Every such law, even though
it were approved by the Government of the
Territory, 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.
Ut / am right in the foregoing opinion, i will
then follow that the course of the Governor, in
declining to call together the Territorial LegiSla-
ture for the purpose in question. was such as his
legal duties required; and that the views he mas
expressed in his public address, and also in his
official communication to yourself, so far as they
indicate an intention not to sanction or concur
in any legislative or other proceedings towards
the formation of a State government until Con-
gress shall have authorized it, are also correct :
This is what ] have understood to he the set
tied doctrine as to the authority of n Territorial
Legislature 10 call a convention without the con-
sent of Congress first had and obtained. The
reasoning is very clear and %palpable. A Terri
toriil Legislature possesses whatever power its
organic act gives it, and no more. The organic
act of Kansas provided that the legislative pow
er should be vested in the Territorial Legislature,
the same as the organic act of Kansas, provides
that the legislative power and authority shall be
vested in the Legislature. But what is the ex.
tent of that legislative power? Is it to legislate
for that Territory under the organic act, and in
obedience to 1t? 1t does not include any power
to subyeTt the organic act under which it was
brought into existence. 1t has the power to
protect it, the power to execute it, the power to
carry it into effect; but it has no power to sub
vert, none to destroy; and hence that power can
only be obtained by applying to Congress, the
same authority which created the territory it.
self But while the Attorney General decided,
with the appreciation of the administration of
General jackson, that the Territorial Legisla-
ture had no power to call a convention, and that
its action was void if it did, he went further:
"No law has yet been passed by Congress
which either expressly or implicitly gives to the
people of Arkansas the authority to form a
State government"
Nor has there been any in regard to Kansas.
The two cases ares like thus far. They are alike
in all particulars so far as the question involv-
ing the legality and the validity of the Lecomp.
ton convention is concerned. The opinion goes
on to say:
"For the reasons above stated, 1 am, therefore,
of opinion that the inhabitants of that Territory
have not at present, and that they cannot ac-
quire otherwise than by an act of Congress, the
right to form such a government"
General Jackson's administration took the
ground that the people of Arkansas, by the au-
thority of the Territorial Legislature, had not
the power TO hold a convention to form a consti-
tuition, and could not acquire 1t from any source.
whatever. except from Congress. While, there
fore, the legislative act of Arkansas was held to
he void, so far as i assumed authority to author
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