are now suffering the want of just and equitable laws, for the protection of life and property, and the administration of justice.
The committee on enrolled bills in the Council was composed of Mr. Allan and myself. In the House it was composed of Messrs. Taggart, Hail and Abbe.
On the 13th of January, Mr. Taggart, Mr. Hail, and myself waited on the Governor, at his room in the Hamilton House, and presented him all the bills passed previous to that date at Florence, except one which was presented to him by Mr. Abbe on the same day, but at a later hour. I made a memorandum of what transpired at our interview with the Governor, from which the following is an extract, and will be certified to as truth by every member of the committee.
"The Governor was notified by Mr. Allen, immediately after our introduction to him, that we were the enrolling commites of both branches of the Legislature.
"The bills which originated in the Council were in one bundle, and were presented to him by Mr. Allan; and the bills which originated in the House, were in a separate bundle and were presented by Mr. Taggart.
"The Governor took the bills from out of our hands and observed that he should take no action on them. When reminded by me that the Legislature would consider them laws if not returned within three days, and being asked whether in that case he would file them in the Secretary's office, he answered that it was a matter which required consideration."
After mature "consideration" the Governor concluded that the papers were "left at his room after he had refused to receive them, and that he would respectfully return them." But how did he return them? and to whom? Certainly not to the House in which they originated, nor to either House separately; nor to both Houses jointly. They were never returned to the Legislature at all, and were never before that body or either branch of it, after their presentation to the Governor.
The "respectful return" was made as follows:
On the night of the 14th of January, about 9 o'clock, while some half dozen members of the Legislature, and others were sitting around a table in the parlor of the Willett house, some reading, and others writing, Mr. Howard, the Governor's private secretary, stepped into the room and threw down a large package, remarking: "Gentlemen, the Governor has sent your bills back."
Now, with these facts before him, who can believe that the Governor "refused to receive them and respectfully returned them."
As stated before, I wish the facts to go before the people and let them form their own conclusions. Had the Governor recognized the acts of the Legislature, we would now have in force all the laws, except one, mentioned in your paper of the 6th, as being neccessary (sic) for the prosperity of the country; for such acts were among those presented to the Governor. It is believed by many eminent jurists that those acts are laws; but if they are not it is no fault of the legislative branch of the Government.
But if it is necessary to cure all doubt that an extra session be called; is it necessary that the "majority" will stultify themselves by making "promises" and "pledges" to the Governor in advance? Is it expected that they will surrender the rights of the people for the inestimable privilege of returning to Omaha to be insulted and cheated out of their rights? I can hardly think that the Governor would require such promises, but if he should, I for one will never make them. I am ready to pledge myself to the people and obey their behests; but I owe allegiance to no other power.
I am willing to return to the Capitol and labor faithfully, earnestly and peaceably for the enactment of all laws which are calculated to promote the prosperity of Nebraska and the happiness of her people; but I must be free and untrammeled save by the voice of my constituents.
Thus, Mr. Editor, I have answered for myself your question. "Shall we have an extra session?"11
That the territorial attorney, presumably an impartial judicial officer, should have cited the irrelevant Oregon case as relevant and in contravention of the validity of the Florence legislature is not praiseworthy; but perhaps he passed by the relevant Kansas cases unwittingly. In the Kansas-Nebraska act Congress authorized the governor of each territory to designate the place where the general assembly should first convene and directed the Nebraska assembly and the governor to "locate and establish" the permanent seat of government, while in the case of Kansas it provided "that the seat of government of said territory is hereby temporarily located at Fort Leavenworth." The fact that
11 Copied literally from The Nebraska News of February 20, 1858.
this distinction was made in the joint Kansas-Nebraska bill shows that Congress intended to reserve to itself the right to locate the capital. In his message vetoing two bill's passed by the first territorial assembly at the Shawnee Mission, on the ground that the bills were invalid because the assembly removed the seat of government temporarily to that place, Governor Reeder expressed a like opinion.11a
11a House Journal K. T. 1855, page 67; Kansas Historical Collections, volume V, page 211. "It will thus be seen that although Congress give to the Legislature the power to determine the time when the assembly shall thereafter meet, they do not confer power to fix the place . . . congress chose to retain and exercise this power themselves."
Governor Reeder explained his veto of the act to remove the seat of government to the Shawnee Manual Labor School as follows:
"By the organic law, the Governor was vested with the power to fix the place for the meeting of the first Legislative Assembly. By the same law, Congress themselves fixed the temporary Seat of Government, and by act of March 3, 1855, they conferred upon the legislature the right to fix a permanent Seat of Government. The power of the legislature is thus clearly defined. Congress has chosen to confine one branch of this subject to the Governor, to retain another for themselves, and to commit the third to the Legislature." (House Journal K. T., 1855, page 29.)
In the preface of volume 1, page vi, of the supreme court reports of the territory of Kansas, the following account of the adjournment occurs:
"The first legislative assembly convened at Pawnee, on the 22nd day of July, 1855. After organizing, it adjourned to the Shawnee Manual Labor School, where it proceeded to enact a body of laws for the government of the territory." The first session of the court convened at the same place, July 30, 1855. The United States territorial attorney, on the first day of the session, presented a concurrent resolution of the House and Council asking the attorney "to advise the legislative assembly, whether, In his opinion, the act providing for the temporary session of the legislature, at the Shawnee Manual Labor School, is valid, and whether the adjournment of the assembly to this place, in pursuance of such act, was legal . . . I" (page vii.) The court decided that it would respond as judges, but not as a court. "It does not appear what response the two judges made, but as they subsequently Indirectly acknowledged the validity of the laws passed at the Shawnee Manual Labor School, it is reasonable to presume that they
The three judges of the supreme court of the territory concurred in an opinion that the legislature had the power to change the place of holding its meetings during a session. "Nor does it"--the organic act-- "contain a prohibition to legislate elsewhere than at the. seat of government. Upon this point it is entirely silent." So it might have been said of the twin Nebraska act. The judges cited precedents of the English parliament and of our own colonial Congress.12 The fact that the judges belonged to a faction which desired to validate the removal does not vitiate their reasoning or the precedents cited. In an address delivered at Lawrence on the third of September, 1884, Ex-Governor James W. Denver acknowledged the right in question. Speaking of the adjournment of the legislature of 1858, to remove the capital from Lecompton to Minneola, he said: "They had a right to move from place to place to hold their sittings, but they had no right to remove the capital of the territory."13 This dictum was doubtless based upon the opinion of the attorney-general of the United States--Jeremiah S. Black--dated November 20, 1858, which allowed great latitude to the legislative assembly:
The organic act of Congress is to a territory what the constitution is to a state. The acts of a territorial legislature are
gave as their opinion that they were valid." (Ibid., page viii.) Justice Johnson refused to express an opinion. "The passage of this act was forced on the legislature for the reason that at Pawnee there was no place of accommodation and members had to camp out, sleep in their wagons or tents, and cook their own provisions."
The removal bill was entitled, "An act to remove the seat of government, temporarily, to the Shawnee Manual Labor School in the Territory of Kansas." (House Journal K. T. 1855, page 11.) This bill was passed over the governor's veto almost unanimously, and then a concurrent resolution to meet at Shawnee July 22, 1855, was adopted.
12 Kansas Historical Collections, volume V, pages 213-222.
13 Ibid., volume III, page 169.
valid and binding when passed according to the proper forms, if they are within the powers conferred by the act, but anything there forbidden is void and unauthorized. If Congress passes a subsequent law on the same subject limiting or extending the power of the local territorial government, it operates like an amendment to the constitution. In the case of Kansas, Congress did not decide where the permanent seat of government should be, but located it temporarily at Leavenworth. The territorial legislature, then, had power to remove it as they saw proper, either for a short time or for all time. But Congress, when the appropriation of 1855 was made, required, as a condition precedent to the payment of the money, that the seat of government should be permanently located, and left the territory, through its legislature, to do that for itself. Making a permanent location certainly did not mean a designation of a place merely for the purpose of getting the money, and then making another change. The plain word of the law, as well as a decent respect for their own good faith, required that before they would ask for the money they should indicate by an irrepealable law the spot at which the seat of government should be and remain, at least during the whole existence of the territorial government.
The legislature so understood it themselves, and when they decided upon Lecompton they expressly declared that to be the permanent seat of government. In my opinion, the territorial legislature had no right afterwards to repeal that law and take the seat of government away from Lecompton. Such a removal, if carried out, would defeat the manifest intention of Congress, violate the spirit of the act, and be a fraud upon the United States.14
Thomas Johnson, notorious in early Kansas, recited under oath on the fifth of June, 1858, certain statements that Governor Reeder had made to him, among them this:
But he supposed that if he did convene at Pawnee and found that he had not suitable accommodations, that he would adjourn to some other place; and said if that should be the case he would acquiesce and go with us. He said that if the wording of the Kansas bill had been the same as that of Nebraska, there would be some doubt as to our right to adjourn to another place. But the language of the Kansas bill being
14 Ibid., volume VIII, page 342, note.
entirely different, no question could be raised on that subject.15
But Governor Reeder discovered a distinction lacking a material difference. The Nebraska bill provided that "at said first session, or as soon thereafter as they shall deem expedient, the Governor and Legislative Assembly shall proceed to locate and establish the seat of government for said Territory at such place as they may deem eligible; which place, however, shall thereafter be subject to be changed by the said Governor and Legislative Assembly.
The governor and the legislative assembly interpreted this provision to mean that they should proceed to carry it out by the passage of a bill in the ordinary form, including the signature of the governor, thus:
To locate the Seat of
15 Report of The Special Committee On the Troubles in Kansas, thirty-fourth Congress, first session, page 1186.
16 Laws of Nebraska 1-3 Ter. sessions, Page 202, first session.
17 United States Statutes at Large, volume X, page 635.
lature proceeded to comply with this condition by bill in the usual form, precisely as the Nebraska legislature had done, wisely construing the authority granted to the legislature to include the usual approval of the governor.18 The general assembly which convened at LeCompton, the capital, January 2, 1860, soon after organizing passed a joint resolution to adjourn to Lawrence and there continue the session. On the fifth Governor Medary vetoed the resolution, but the House promptly overrode the veto by a vote of 22 to 7, and on the sixth
18 A concurrent resolution that the two houses should meet in Joint session on the eighth of August, to select the place for the permanent seat of government, was introduced in the House of Representatives on the third of August, 1855, and was passed immediately under suspension of the rules. It was passed in the Council on the same day. (House Journal K. T. 1855, page 162; Council Journal, page 109.)
Immediately before proceeding to ballot for locating the capital, the houses in joint session passed the following resolution: "Resolved, That we bind ouselves (sic) to support, in our separate sessions, that point for the permanent seat of government which may be selected by this joint session." (House Journal 1855, page 186.) At the outset there were nine contestants; but on the third and last ballot they were reduced to three,--Lecompton, St. Bernard, and Tecumseh. A bill entitled "an act to locate the seat of government" was introduced in the Council August 13 and passed August 15. It was passed in the House the same day, immediately after its reception. (Council Journal, pages 137, 155; House Journal, page 229.) The bill was duly signed by the acting governor, Daniel Woodson. (Council Journal, page 197.)
The first section of the act is as follows:
Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas, as follows:
The permanent seat of government of the territory of Kansas is hereby located at the town of Lecompton, on the south bank of the Kansas river, opposite the mouth of the Grasshopper creek."
(Statutes Kansas Territory, 1855, page 703.)
Section 1 of the act temporarily changing the seat of government from Pawnee was as follows:
"Until the seat of government is located by law, the sessions of the legislative assembly shall be held at the Shawnee Manual Labor School, in the territory of Kansas." (Ibid.) This act has the same enacting clause as that quoted above.
the Council did likewise by a vote of 9 to 4. The assembly convened at Lawrence the next day and continued in session there until final adjournment on the eighteenth.19 On the same day the governor issued a call to convene the assembly at Lecompton on the nineteenth, but it immediately voted to adjourn on the twentieth and meet at Lawrence the twenty-first, where it continued in session until February 27.20
The laws passed at these adjourned sessions were accepted as valid. In his first veto message the governor contended that
Lecompton, where the law requires you to meet, is the Capital of the Territory, and as it is the custom and the law of the Nation, and all the States and Territories, for the Legislative Assemblies to hold their sessions at their Capitals, there should be some extraordinary reasons for the Territory of Kansas to be made an exception to the general rule . . . They generally consist of war, of pestilence and of famine.21
The Florence legislature had shown that there was no law binding the assembly of Nebraska territory to hold sessions only at the capital; and the Kansas assembly in question gave a strong extraordinary reason for adjourning to Lawrence.:
... WHEREAS, There is at said Capital such a deficiency of suitable rooms, hotel accomodations and other conveniences, as seriously to interfere with the progress of Legislative business, and
. . . WHEREAS, a sufficient guaranty has been offered, in
19 House Journal K. T., pages 88-90; Council, ibid., page 46; House, ibid., page 162.
20 Council Journal K. T., special session January 19 to February 27, 1860, pages 3, 7; House Journal, page 13; Council Journal, page 666. The governor vetoed this second resolution to adjourn to Lawrence, but the veto was again overridden. Council Journal, page 30; House Journal, page 40.
21 Council Journal, page 39.
writing, that no expense whatever shall accrue to the territory by a removal to the City of Lawrence . . .22
Citizens of Lawrence guaranteed in writing that suitable halls and offices for the legislature would be provided without cost to the territory and payment of the expense of the removal of members, furniture and other property. The Nebraska Advertiser23 ineffectively cited the Kansas precedents of 1855 and 1858. Indeed, throughout the first fifty years of the political life of these two comonwealths popular opinion commonly prevailed in Kansas while it was commonly disregarded and subjugated in Nebraska. The insurgent tendency and persistence in Kansas was doubtless an incident or corollary of the passionate issue of human slavery which was wanting in Nebraska. In the temerarious task of overcoming the adversities of the putative trans-Missouri desert people were inclined unduly to lean on leadership however tyrannical and oppressive. While the legislative bodies of Kansas boldly and successfully flouted the opposition of alien executives, the like bodies of Nebraska submitted to their domination. Furthermore, Governor Richardson was the most important and conspicuous political figure among the frontier territorial governors of that period, and he was uncommonly influential among the relatively timorous people of Nebraska, which was treated as an experiment station rather than a stable, soul-inspiring land of promise. The trusted governor's intention to call an early session of the legislature promised a speedier and surer way to the needed laws than the course of litigation which would have been necessary to establish the Florence enactments; and sober reflection
22 Ibid., page 27.
23 February 11, 1858.
must have convinced many of the capital removalists that their project was a very difficult and hazardous method of getting even with hated Omaha.
And yet the enchanting prospect from the crown of "Capitol Hill" thrills even a prejudiced Lincoln pilgrim to Neapolis with a pang of regret that her Florence authors had not the Kansas courage of conviction to have become also the finishers of their bold enterprise. The perfect harmonies of the scene recall the old argument of creative design. Furthermore, the site was not merely intrinsically perfect, it was in all respects eminently eligible. A contemporaneous description of the site of Neapolis is fortunately preserved, in a prospectus of the new capital by a correspondent of the Pacific City (Iowa) Enterprise, writing under the date of May 25, 1858, and whose communication was published in the issue of June 10, 1858.
Although the Territory has been opened to immigrants but four years, a Railroad is already seriously talked of, to run up the Platte Valley, starting from Plattsmouth, on the Missouri river, and terminating at a point known as Cedar Bluffs. A Company has been organized to push forward this grand enterprise, and the surveys will be made during the summer. The route contemplated is unexceptionable--almost a natural grade.
Another great inducement to settlers, is the fact that at the last session of the Territorial Legislature, a bill passed for the relocation of the Capital, and in that bill the boundaries were so fixed that the seat of Government must be located not less than fifty miles west of the Missouri, and not more than six miles from the Platte river, north or south. The bottoms on the north side of the Platte are but seven to ten miles wide and very low; therefore, it is not reasonable to suppose that the Capital can be located on that side. On the south side, about sixty miles from the Missouri river, the high plains reach to the Platte, with an almost imperceptible slope, the most elevated land being not more than sixty feet. In the above named vicinity, within half-a-mile of the river, is a beautiful elevation, that appears more like an artificial mound than the work of nature. This elevation rises gently from all sides to the
View from Capitol Hill Looking West. Platte River in the
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