The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1857-12-26
the assent and in opposition to the known

ly this is no, a new question; it does moi
now arise for the first time. When the To
pcka Constitution was presented to the Sen
ate, nearly two years ago, it was referred tC
the Committee on Territories, with varie-
ty of measures relating to Kansas. The
committee made a full report upon the
whole subject. That report reviewed al the
/ irregular cases which had occurred in our
! history in the admission of the new States.
! The committee went on the surposition that
whenever Congress bad passed an enabling
act authorizing the people OF Territory to
/ form State constitution, the Convention
was regular, and possessed all the authority
! which Congress had delegated to it; bat
whenever Congress had failed or refused to
| pass an enabling act, the proceeding was ir-
regular and void, unless vitality was impair
/ ted to it by subsequent act of Congress
adopting and confirming it. The friends of
the Topeka Constitution insisted that al
though their proceedings were irregular,
they were not so irregular but that Cong yress
could cure the error by admitting Kansas
with that constitution. They cited yarie-
ty OF cases, amo est others the Arkansas
case. In my report, sanctioned by every
member Of the Committee on Territories, ex-
cept the Senator from Vermont, OR. Col
I.AMEa,) reviewed the Arkansas case as
well as the Others. and affirmed the doct.ine
established by General Jackson's admins
tration and enunciated in the opinion OF Mr..
Attorney General Butler, a paIt Of which
opinion was copied into the report and pub
l.shed to the country at the time. .. .....
Now, Sir, in order to ascertain what we
understood on the 10Th Of March, 1856
little more thana year aad half ago-to
be the true doctrine on this point, Jet me
cal your attention to the oriniou Of Ar. But
Ter in the Arkansas case. The G0:crnor of
the Territory Of Arkansas sent q printed ad-
dress t. President jackson, in which he
stated that he had been urged To cali togeth-
er the Legislature OF the Territory OF Ar
kansas, tor the purpose OF allowing them TO
call 4 Convention 70 form a constitution pre-
plgatory to their aim *; On into the Union
as a State. Ine Governor staoed, that, III
his opinion, the Legislature had no pJwer
to cl', sgch COn"entlon without the ass ut
OF Congress first had and obtained: but lie
asked instructions on that point The Pres
ident referre the case to the Secretary OF
State, a1d he asked for the advice OF the
Attorney General, whose opinion was gwen
and adopted aS the plan Of action, aud COM
nnnicated 10 the Governor Of Arkansas for
his instruction. | viii read some extracts
from that opinion: .-. ...
"Coasequ queut,y, it Is not in the power Of
, the General Assembly Of Arhansas to pass
any law for the purpose Of e'ectlnC members
10 form 4 constitution and State govern
mcnt, or 20 90 aay other act, directly or in
directly, TO create such Rew goTcrnment.- =
Every such law, even though it were ap-
proved by the Governor OF the Territory,
would BE- nui and void If passed by
them, Notwithstanding his veto, by vote of
tgyo-thiris Of each branch, j. won ID still be
equally void.
If | am right in the foregoing opinion, il
viii then follow that the course of the Co
vernon in declining to cali together the Ter
ri,orisl Legislature for the purpose in ques-
ton was such As his legal duties required;
and tha; the views he has expressed in his
plblic address. and also in his official com
manication 10 yourself, so far as they Indt-
cate an intention not to sanction or concur IN
any legislative or other proceedings towards
the formation OF 4 State government until
Congress shall have authorized II, are also
correct
That is what have understood to be the
settled doctrine as to the authority OF i Ter
rit rial Legislature 10 cali a Convention
without the consent Of Congress first ad
and obtained. The reasoning is very clear
and palpable \ Territorial Legislature
possesses whatever power its organic act
gives it, and no more. The organic act OF
Kansas provided that the legislative power
should be vested in the Territorial Lesis,a
ture, the same as the organic act OF Kansas
provides that the Legislative power and au-
thority shall be vested IN the legislature
Bat what is the extent Of that lesis'at We
power: 1t is to legislate for that Territory
under the organic act, aud IN Obedience To
it. 1t does not include any power to sub
vert the organic act under which II was
brought into existence. 1t has the power TO
protect it, the power to execute 1t, the pow
er to carry it into effect, but it has no power
to subvert, none to destroy and hence that
power can oaly be obtaiue. 10y applying to
Congress, the same authority which created
thcTcrritory itself. But while the Attorney
General decided, with the appreciation Of
the administration of Gen. Jackson, that the
Territorial Legislature had no power to call
Convention, and that It's action was void If
it did, he went further:
mo law has yet been passed by Congress
which either expressly or impliedly gives to
the people Of Arkansas the authority 10 form
State government"
Nor has there been any in regard to Kan
They are alike in all particulars SO far as
this 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 tney
cannot acquire otherwise than 10y an act OF
| Congress, the right to form such govern
ment." = Sd.
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 .irr
kansas was held to be void, SO far as itaaS
! sumcd authority to authorize the calling ,oi
| a Convention to form a constitution, yet they
did not hold in those days that the people
could not assemble and frame. the constitu-
ton in the form OF pehtion- VIII read
| the rest of the opinion, IN order that the Be-
nate may understand precisely what was tae
doctrine on this subject at that day, and
what the Committee on Territories under
stood to be the doctrine on this subject In
! March, 1856, when we put forth the Kansas
report as embodying what we Nebraska men
4 understood to be our doctrine at that ltime.
Here it is. This was copied into that re-
port: reA asaa ot .at :,
n '.But am not prepared to say that al
] proceedings on this subject, on the part Of
tn citizens of Arkansas, will be Illegal
They undoubtedly possess the ordinary priI
vilises and immunities of citizens of the
/ United States Among these is the right te
assemble and to petition the Government fol
the redress Of grievances. In the exercise
Of this right the inhabitants of Arkansas
may peaceably meet together in primary as
semblies, or in conventions chosen by sucl
I assemblies, for. the purpose Of petitionin: