States under the name of Louisiana, which lies south of the Mississippi terri-
tory, and of an east and west line, to commence on the Mississippi river at the
thirty-third degree of north latitude, and to extend west to the western boundary
of the said cession, was constituted a territory of the United States, by the name
of Orleans ; and by the third section of this act the legislative powers were vested
in the governor and 13 men, chosen bj' the president, styled the legislative coun-
cil ; and in this section these words are found : "The governor, by and with the
advice and consent of said legislative council, or a majority of them, shall have
power to modifj% alter or repeal the laws which may be in force at the commence-
ment of this act."
It is not necessarj-, nor is it our purpose, to inquire how far they may have
modified, altered or repealed the laws which were then in force. We find, by
the seventh section of this same law, a specification of the acts of congress
which were declared to be in force for the " redress of civil wrongs and the pun-
ishment of crime." And also, in the eleventh section, these words : " The laws
in force in the said territory at the commencement of this act, and not inconsist-
ent with the provisions thereof, shall continue in force until altered, modified or
repealed by the legislature."
There can be no doubt thus far that all the law which these territories yet
had was that which they derived through the channels of congress, mediately
or immediately — mediately by the acts of congress extended over them, specifi-
cally named and set forth : or immediately by the legislature thereof, whose
powers were also specific.
By the same act the residue of the province of Louisiana was erected into a
Gorcrnoi- Iiecdrr's Administrotinn. 209
territory by the name of the ' ' district of Louisiana, ' ' of which the territory of
Kansas is a part ; and section 12 declares : " The executive power now vested in
the governor of the Indiana Territory shall extend to and be exercised in the said
district of Louisiana ; " and in section 13 it is declared : " The laws in force in
the said district of Louisiana at the commencement of this act, not inconsistent
of any of the provisions thereof, shall continue in force until altered, modified or
repealed by the governor and judges of the Indiana Territory as aforesaid."
To your committee it seems as clear as a sunbeam, that congress is always
very careful to designate the particular laws by which the territories erected
should be governed, and that no law should be in force or have effect, in any
of these territories thus erected, except those expressly named and set forth.
Or, in other words^ no laws were deemed to have force and effect, within
these territories except those clearly specified, as we find that the laws in-
tended by congress to be in force in the territories thus erected are particu-
larly described. For instance, when the territory of Indiana was organized,
we find the act by which it was created, expressly declared that the laws pro-
vided by the ordinance of July, 1787, should extend over and be in force in
said territory, and none other, except the acts of congress specifically men-
tioned; and after the treaty with France ceding to the United States all the
territory by the name of Louisiana, we find several acts passed in relation
thereto, pursuing the same course; for it is also therein expressly declared,,
in section 7, what acts of congress shall be in force and extend over both
divisions of the same, together with a specific declaration that "the laws in
force in the said territory at the commencement of this act, not inconsistent
with the provisions thereof, shall continue in force until altered, modi-
Thus we see, that from the organization of the great Northwestern Ter-
ritory down to the time that the remaining portion of this vast and almost
boundless territory was organized under the name of the territory of Mis-
souri, congress, in every act organizing territorial governments, clearly and
emphatically declared what particular laws should be in force therein —
whether acts of congress or acts that the various legislatures of the same
from dme to time had passed. But in the organic act establishing the
territories of Nebraska an^ Kansas we look in vain for any of these specifi-
cations; we look in vain for any words declaring the laws of any particular
territory in force here; we look in vain for any clause by which a legal mind
can conclude that congress designed that any laws, save and except the laws
of the United States, not locally inapplicable, shotild be in force in the terri-
tory of Kansas (unless it be the territorial laws of the territory of Missouri),
either expressed or implied. But, upon the contrary, we see everything (by
comparing the organic act establishing the territories of Nebraska and Kansas,
with the other acts establishing territorial government) which warrants in-
evitable conclusion that congress intended that all the laws of the territory
of Indiana, the laws of the territories of Orleans and Louisiana, should not
have force and effect in this territory, as no provision in our organic act
makes any other specification other than that extending the laws of the
United States over this territory not locally inapplicable.
Having thus rid ourselves of the territorial laws of the territory of Indiana,
the laws of the district of Louisiana, and the laws of the territory of Louisiana,
we will proceed to inquire how far the laws of the territory of Missouri may be
regarded as in force here.
It must be clear beyond a doubt ( if the position hereinbefore taken be a cor-
210 Kansas State Historical Society.
rect one), that not even a single law made by virtue and in pursuance of the act
of congress approved June 4, 1812, entitled "An act providing for the govern-
ment of the territory of Missouri," can be in force in this territory; for we find
the same ( or nearly the same ) provisions therein in regard to the extending of
law over this territory that we have found in regard to the other territories
Although section 1 declares, "that the territory heretofore called Louisiana
shall hereafter be called Missouri, and that the temporary government of the
territory of Missouri shall be organized and administered in the manner here-
inafter prescribed"; and although in the third section it is also declared that
"the general assembly shall have power to make laws in all cases, both civil
and criminal, for the good government of the people of the said territory;"
and although it is further declared in section 16, "that the laws and regula-
tions in force in the territory of Louisiana at the commencement of this act,
and not inconsistent with the provisions thereof, shall continue in force," &c.,
still we cannot believe that congress, in its wisdom, designed that those laws
should have any force or effect over this territory after the 30th day of May,
1851. And the reason to us is obvious; for had this been the design of the far-
seeing statesman who is the father of the bill by which the territorial gov-
ernments of Nebraska and Kansas were organized, and other statesmen
equally wise and far-seeing, who discussed it in the halls of congress, the
organic act, and the question would then have been at rest in the minds of
organic act, and the question would have then been at rest in the minds of
those who doubt. But inasmuch as that clause, so necessary, and continu-
ously followed up in all other acts of a similar nature, has been omitted, we
think the omission was deliberately intended, and that the design of the
fathers of this glorious bill was to render inoperative all laws which had
hitherto been in force, not only in Indiana, Orleans, and Louisiana, but also
in the territory of Missouri.
Even should this position be untenable, we find from an examination of the
territorial laws of Missouri so many repealing clauses that it would be wholly
unsafe and uncertain to rely upon them for any effectual remedy for the "redress
of civil wrongs or the punishment of crime."
We therefore, after mature deliberation and the examination time and our
duties would allow, recommend the passage of an act extending the "Revised
Statutes " of the state of Missouri, as revised in 1844 and 1845, over this territory,
so far as they are not locally inapplicable, and so far as they do not conflict with
the laws already passed by this legislative assemby, or so far as they may not
conflict with laws which may yet be passed by this body. And we would further
recommend ( to remove all doubt ) the passage of an act to repeal all laws what-
soever which may have been considered to have been in force in this territory on
the 1st day of July, 1855.
All of which is most respectfully svibmitted.
WILLIAM G. MATHIAS, Chairman.
F. J. MARSHALL.
[House Journal 1855, p. 10.]
Governor Feeders Administration. 211
To the House of Representatives of the Territory of Kansas :
I return to your house, in which they originated, the bill entitled "iVn act to
prevent the sale of intoxicating liquors, and games of chance, within one mile of
the Shawnee manual labor school, in the territorj^ of Kansas," and the bill
entitled "An act to establish a ferry at the town of Atchison, in Kansas Territory,"
without my approval. I see nothing in the bills themselves to prevent my sanc-
tion of them, and my reasons for disapproval have been doubtless anticipated by
you, as necessarily resulting from the opinions expressed in my message of the
The question is of the powers of the legislature, and whether the legislature
is now in session at a place which can be recognized as a seat of government,
where the business of legislation can be legally or legitimately carried on.
The creation of the seat of government in any case by competent authority,
carries with it a necessary and unavoidable implication, from the meaning
and force of the term, that the laws which are to be passed for the govern-
ment of the state or territory shall be there enacted, and therefore makes it
the clear duty of the legislature to perform their functions at that place. It
can have no other object or purpose, and we cannot for a moment suppose
that the authority which creates a seat of government contemplated that all
the acts and powers of government might be performed and exercised as well
at any other place. It clearly means that the enactment of laws, which is
the highest and most important function of governmental power, should be
exercised at that place and no other.
This proposition is so plain that it will probably not be controverted, and
ifs correctness seems to be admitted by the legislative assembly in the fact
of the passage by them of an act constituting this the seat of government be-
fore they would remove here from the place at which they were convened.
Were that act va,lid, and within the powers of the territorial legislature, the
question could not arise. To its validity, however, I cannot give my assent,
and I propose now to state my reasons for that opinion.
The whole territorial government is brought into existence by the act of
congress of May 31, 1854, and to it we must look for the limit and extent of
the legislative, judicial and executive powers. The twenty-second section
provides "that the legislative power and authority of said territory shall be
vested in the governor and legislative assembly," and then proceeds to declare
how the assembly shall be constituted and the first assembly elected, and at
the close we find the following language:
"The persons thus elected shall meet at such place and on such day as the
governor shall appoint; but thereafter the time, place and manner of holding
and conducting all elections by the people, and apportioning the representa-
tion in the several counties or districts to the council and house of representa-
tives, according to the numbej- of qualified voters, shall be prescribed by law,
as well as the day of the commencement of the regular sessions of the legis-
It will thus be seen, that although congress gives to the legislature the
power to determine the time when the assembly shall thereafter meet, they
do not confer power to fix the place. We will see on further examination
the reason for this, and that congress chose to retain and exercise this power
212 Kansas State Historical Society.
By the twenty-fourth section it is provided, "that the legislative power
of said territory shall extend to all rightful subjects of legislation consistent
with the constitution of the United States and the provision of this act."
By the thirty-first section it is provided, "that the seat of government
of said territory is hereby located temporarily at Fort Leavenworth," and fur-
ther provision is made for the occupation of buildings not needed for military
By the appropriation bill passed August 5, 1854, section 6, congress en-
acted, "that in the event that the secretary of war shall deem it inconsistent
with the interests of the military service to furnish a sufficient portion of
the military buildings at Fort Leavenworth for the use of the territorial
t^overnment of Kansas, tiie sum of $2-5,000 shall be, and in that couLingeucy is
hereby, appropriated for the erection of public buildings for the use of the
legislature of the territory of Kansas, to be expended under the direction
of the governor of said territory."
It is worthy of note here, although not precisely a legal argument upon the
construction of these acts, chat within a few days before the passage of the
last-recited act congress refused to make this appropriation, coupled with a
clause repealing the section which fixed the temporary seat of government
at Fort Leavenworth. It is enough, however, to know that they did not
repeal it. The appropriation was made, leaving that section in full force.
On the 3d day of March, 1855, congress made a further appropriation of 825,000
for public buildings, with the proviso " that said money or any part thereof, or
any portion of the money heretofore appropriated for this purpose, shall not be
expended until the legislature of said territory shall have fixed by law the per-
manent seat of government."
This last enactment conclusively establishes two points : First, that the
legislature had the power to fix the permanent seat of government, as contradis-
tinguished from a temporary one : and, second, that no part of the appropriation
is to be expended at the temporary seat of government, which congress persisted
on keeping at Fort Leavenworth.
Thus stood the legislation of congress when the legislative assembly was con-
vened. The executive was vested with power to designate the place where they
should first meet. Congress had themselves fixed a temporary seat of first place
of meeting, or in case a second legislature should convene before the permanent
seat of government was fixed, and the legislature was authorized to fix a perma-
nent seat of government, where the appropriations were to be expended.
The latter power they may at any time exercise, but the two former they
clearly cannot, unless they have power to repeal and override an act of congress.
The only authority under which the legislative assembly are now sitting at
the Shawnee manual labor school is an act of their own passed on the 6th inst.,
at the place where they were convened by the executive, entitled "An act to re-
move the seat of government temporarily to the Shawnee manual labor school, in
the territory of Kansas."
At the place where they were first convened, lSie legislature could, undoubt-
edly, have fixed the "permanent" seat of government, where the appropriation
could have been expended, and adjourned at once to such place; or, if they chose
to delay acting upon the measure, they could in the meantime have adjourned
the temporary seat of government which congress had established; but it is im-
possible for me to perceive how they can establish a temporary seat of govern-
ment at a different place from that at which congress has said it shall be,
without such a direct conflict as to render the legislative act utterly void.
Goroiwr Feeder's Administration. 213
We find in the organic act many instances of legislation which were intended
only to be provisional, and intended to last only until the subjects to which they
relate should pass into the hands of the legislature — such as the qualification of
electors; times, places and regulations of elections; times and places of courts;
defining of districts; appointments of officers, etc. — but in each of these cases the
power to change the provisions of the organic act is expressly given, whilst in
regard to the temporary seat of government it is not given.
Indeed, in view of the fact that congress has not included this in the provi-
sional legislation: that in speaking of the day and place for all meetings of the
legislature after the first, they give power to the legislature to fix the day but
not the place; that the only power given to the legislature in reference to the
seat of government is the power to fix the permanent place where the appropria-
tion shall be expended, and the restriction of legislation to matters consistent
with the organic act, all concur to prove that the act of the territorial legisla-
ture creating a temporary seat of government is unauthorized and void.
Did the legislature possess general powers, and not trammeled, as they are,
by the restriction of consistency with the organic act, their power to change the
seat of government at pleasure could not be doubted. As it is, if they can con-
travene the thirty-first section, I see no reason why they may not equally as well
pass laws in conflict with any other provision which the bill contains.
It seems to be plain that the legislature is now in session, so far as the place is
concerned, in contravention of the act of congress, and where they have no right
to sit, and can make no valid legislation. Entertaining these views, I can give
no sanction to any bill that may be passed ; and if my reasons are not satis-
factory to the legislative assembly, it follows that we must act independently of
The necessary embarrassment consequent upon this difference of opinion be-
tween the legislative assembly and the executive will be of so grave a character,
and so desirable to avoid, if possible, that I have most earnestly scrutinized the
grounds of my opinion, and sought for all the arguments against it with diligent
care and a willingness to be convinced ; but I am constrained to say that reflec-
tion and examination only seem to rivet upon my mind more and more strongly
the conviction of its correctness.
If I am right in these opinions, and our territory shall derive no fruits from
the meeting of the present legislative assembly, I shall at least have the satisfac-
tion of recollecting that I called the attention of the assembly to the point before
they removed, and that the responsibility, therefore, rests not on the executive.
Shawnee Methodist Mission, July 21, 1855. A. H. REEDER.
[House Journal, July 21, 1855, p. 67.]
OPINION OF THE SUPREME COURT.
LEGALITY OF THE SHAWNEE MISSION SESSION.
To the Honorable the Council and House of Representatives of the Territory
Your communication, through the medium of the attorney of the United
States for the territory, was handed to the supreme court, at its session on
the 30th ult., and being taken into consideration, it was determined by a ma-
jority of the court to reply to so much thereof as presents the question of
your authority to enact the bill "providing for the temporary session of this
assembly at the Shawnee manual labor school"; and the further one,
214 Kansas Slate Historical Society.
"v/hether the adjournment of this assembly to this place, in pursuance of
such act, was legal?" In other words, the vital inquiry, whether you are a
constitutional legislative assembly.
As to so much of your communication as is embraced in the succeeding
clause, to wit., "whether it is competent for this assembly, if its present ses-
sion be legal, to confer on the probate courts jurisdiction, civil and crimi-
nal, concurrent with the district courts," they determined that, as it presents
a question touching the legality of a specific act of legislation, they would
leave the solution of that, should it arise, to the ordinary course of judicial
In making the distinction, they have been controlled by the peculiar
characteristics of the first inquiry. Looking as it so does to the constitu-
tional existence of the legislative assembly, upon which rest interests of the
most vital character, and of universal application to the well-being of our
people, it has seemed to a majority of the members of the court that they
should fail in the accomplishment of a leading purpose in their creation if,
suffering themselves to be restrained by too nice considerations of technical
delicacy, they should refrain from a direct response to your interrogatory.
In reaching this determination, they have been influenced in no small
degree by their high appreciation of the constituent elements of your hon-
orable bodies. Satisfied thoroughly that, in the great requisites of intelli-
gence and public virtue, the legislative assembly of Kansas will compare
favorably with similar bodies in the states of the union; and fully persuaded
that, in propounding the inquiries, you have been influenced by an earnest
desire to shape your legislation in strict conformity to the obligations of con-
trolling law, the consideration of the preliminary question, whether a response
should be made by us, was approached with a natural anxiety to find it con-
sistent with a sense of official duty to do so. It is but justice to ourselves
to add, that this motive was powerfully offset by an habitual reluctance to
interpose, even upon solicitude, in any matter wherein it was known that
coordinate branches of the territorial government entertained confiicting
opinions. Inimediately upon entering upon the inquiry, the immense mag-
nitude of the interests involved ai-rested our thoughts, and forbade, in the
most emphatic tones, a resort to the ordinary justification for silence, that the
case presented was "coram non judice."
It may be true that this is technically the fact; but we could not conceive
ourselves justified in reposing upon this defense, when, meantime, that great-
est of all evils, anarchy, might exist rampant upon our soil, fed and encour-
aged by the reckless and unprincipled, who might even invoke our very silence
as an argument in maintenance of their destructive sentiments; and besides
this, perhaps, draw hence inferences fatal to our independence, and, conse-
quently, subversive to that confidence which we are most solicitous to main-
You will do us the justice to be assured that this apprehension has not its
origin in a selfishness which regards our own reputation merely for its own
sake, but in a deep anxiety for the public interests, which we feel to be largely
dependent upon the estimate as well of the independence as of the upright-
ness and ability of those to whom are assigned the interpretation and adminis-
tration of the laws.
We have felt the less hesitation in examining and responding to your
questions, because there is much reason to doubt whether, under any circum-
stances, the diflficulties involved in them might be presented to us judicially
Governor Feeder's Administration. 215
for solution. These reasons for doubt are supposed to be found in the views
of the supreme court of the United States, as expressed in the 5th Howard's
Reports, 343. in the case of Scott et al. vs. Jones, in which the constitutional
existence of the territorial legislature of Michigan was proposed to be brought
Without attempting an elaborate examination of the points of that case, it
is sufficient for our present purpose to say, that the whole tenor of the argu-
ment of that high tribunal is to demonstrate that the subject-matter of legis-
lative bodies, and not the competency of their organization, forms the true
and only topic of judicial revision. Should such an exigency arise as an un-
warrantable attempt at legislation by any body wanting the necessary ele-
ments, say they, "if not situated within the territory of the union," it "would
be a foreign affair, and not within the cognizance of the departments of this