Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1857-12-24

having sanctioned or egalized the convention
which assembled at Lecompton, it expressly with
held its assent. The assent has not been given,
either in express terms or by implications
and being withheld, lils Kansas constitution
has just such validity and just such authority
as the Territorial legislature Of Kansas could
impart to be without the assent, and in oppos-
ton to the known will of Congress.
Now, sir, lei me ask what is the extent
of the authority Of Territorial legislature
as to calling constitutional convention with
out the assent of Congress Fortunately this
is not new question A.; it does not now Mise
for the first time. When the Topeka constitu
ton was presented to the Senate nearly two
years ago. it was referred to the Committee
on Territories, with u variety of measures
relating to.Kansas The committee made lull
report upon the whole subject. That report
reviewed all the irregular cases which had oc
Cured in the admission of new States. The
committee acted on the supposition that when
ever Congress had passed an enabling act au-
thorizing the people of Il Territory to form q
State constitution, the convention was regular,
and possessed all the authority which Congress
had delegated to it but whenever Congress
that proceeding 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 tina t
although their proceedings were irregular,
they were not so irregular but that Congress
co I'D cure the error by admitting Kansas
with that constitution. They cited Il variety
OF cases, amongst others the Arkansas case
In my report, sanctioned by every member of
the Committee on Territories, except the Sen
ator from Vermont, (Mr. CoLLAMER,) We've
the Arkansas case as we'll us the Others, and
affirmed the doctrine established by General
Jackson's administration and enunciated in
the opinion of Mr.. Attorney General Butler. Il
part of which opinion was copied into the
report and published to the country at the
time.
Now, sir, in order TO ascertain what we I'M
dersood on the 18th of March, I856-ltte
more than year and a 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 Governor of the Terrific.
ry of Kansas sent printed address to Presi
dent jackson, in which he stated that he had
been urged to call together the Legislature of
the Territory of Arkansas, for the purpose OF
allowing them to call convention to form "A
constitution preparatory to their admission
into the Union as II State. The Governor sta
ted that, in his opinion, the Legislature had
no power to call such convention 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 Attor-
ney General, whose opinion was given, and
adopted as the plan OF action, and communi
Gated to the Governor of Arkansas for his in
strnction. | will read some extracts from that
pnion
Consequently, it is not in the power o
the General Assembly of Arkansas to pass any
law for the purpose OF electing members to
form constitution and State government OR
to do any other net directly or indirectly, to
create such new government. Every such law,
even though it were approved by, the Govern
ment OF the Territory, would be null and void
If passed by them, notwithstanding his, veto,
by vote of two-thrds of each branch, it
would still be equally void.
" If am right in the foregoing opinion. it
will then follow that the course of the Gov.
ernor. in declining to call together the Terrific
rial Legislature for the purpose in question
was such as his legal duties required and that
the views he has expressed in his public ad-
dress, 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 Congress shall have au-
thorized it, are also correct"
That is what have understood to be the set
tied doctrine as 10 the aulhority--of Terrific.
rial legislature to call convention without
the consent of Congress first had and obtained.
lhc reasoning is very clear and palpable. A
Territorial Legislature possesses whatever pow
er its organic act gives it, and no more. The
organic act of Arkansas provided that the legs.
lative power should be vested in the Territorial,
Legislature, the same DIS the organic act of
Kansas, provides that the legislative power and
authority shall be vested in the Legislature
But what is the extentof that legislative DOW
er -? 1t is 10 legislate for that Territory I'M
der the organic act under which it was
brought into existence. 1t has the pow
the power to protect it, the power to execute
it, the power to carry it into effect but it
has no power to subvert none to destroy and
hence that power can only be obtained BY ap-
plying to Congress, the same authority which
created the territory itself But while the At.
torney General decided, with the appreciation
of the administration of General Jackson,
that the Territorial Legislature had no power
to call Il convention, and that its action was
void if it did he went furthr
" No law has yet been passed by Congress
which either expressly Or inpIiedly gives to
the people of Arkansas the authority to form
State government"
Nor has there been any in regard to Kansas.
The two cases are alike thus far. They are
alike in all particulars so far as the question
involving the legality and the validity of the
Lecompton convention is concerned. The
opinion goes on to say
" For the reasons above stated, | am, there
fore, OF opinion that the inhabitants of that
Territory have not at present. and that they
cannot acquire otherwise than by an act of
Congress, the right to form such govern
ment'
General Jackson's administration took the
ground that the people of Arkansas, BY the
authority Of the Territorial Legislature. had
not the power to hold convention to form a
constitution, and could not acquire it from any
source whatever except from Congress. While,
therefore, the legislative act of Arkansas was
held to be void, 80 far as it assumed au-
thority to authorize the calling of a con-
vention to form constitution, yet they did
not hold, in those days, that the people could
not assemble and frame a consttu ton in the
form Of a petition. will read the rest of
the opinion, in order that the Senate may I'm.
dersand precisely what was the doctrine on
this subject at that day, and what the Com
millee on Territories understood to be the doc
trine on this subject in March, 1856, when we
put forth he Kansas report MS embodying what
we Nebraska men understood to be our doeline
at that time. Here it is. This was copied
into that report
But | am not prepared to say that ali
proceedings on this ubject, on the part of the
citizens of Arkansas, will be illegal. They
undoubtedly posses the ordinary privileges and
immunities Of citizens of the United States
Among these is the right to assemble and to
petition the Government for the redress OF
grievances. In the exercise of this right. the