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SPECIAL HISTORICAL PAPERS |
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By ALBERT WATKINS. Many rivers less formidable of passage
than the Platte have immemorially marked the territorial
boundaries of nations. At the very outset of Nebraska's
political career the Platte river barrier served to separate
the settlers into two hostile factions, and this sectional
feud appreciably impeded the otherwise difficult progress of
the commonwealth during nearly the earlier half of its
existence--until railroads and coöperating
municipalities on either side of the troublesome stream
could afford to abate the irritating inconvenience of
physical division with numerous bridges. |
postponed by 20 to 5. Four of the five members who voted against postponement were from Otoe county; the other was from Nemaha.1 The slump in the radical memorial method of getting even with the North Platte was probably owing to the concentration of South Platte effort upon a bill for the removal of the capital from Omaha to a paper town called Chester, situated, it seems, at several points in the Salt Creek valley in the neighborhood of the later site of Lincoln. The bill was introduced in the House of Representatives by Decker, of Otoe county, and it was indefinitely postponed by the close vote of 13 to 11. Three South Platte members refused to stand with their section for removal.2 1 House Journal Second General Assembly, pages 121, 156. 2 Ibid., page 143. There were projected towns in this vicinity called Chester. One of them was situated on Salt Creek about five miles south of the junction of Oak Creek with the Salt. According to J. G. Wells' Handbook of Nebraska, published in 1857, another projected Chester was situated on Salt Creek nearly north of the subsequent site of Waverly. A map of Nebraska prepared by the same Wells in the same year places Chester on Beal's Slough about four miles east of its mouth and about three miles east of the subsequent site of the state penitentiary. Another map, published in Cincinnati, in 1857, and compiled by Robert L. Ream "from the field notes in the Surveyor General's office," places this elusive town on Salt Creek about five or six miles south of the mouth of Oak. This is the location assigned to it in Cox's History of Seward county (p. 8). John S. Gregory spoke of Chester as "a town on paper" situated about eight miles south of Lincoln. (Hayes and Cox, History of the City of Lincoln, p. 79.) Dr. Wesley Queen, who had been a resident of Lancaster county ever since 1860, informed me that the projected town of Chester was situated on the hill just south of the state penitentiary, east of Salt Creek. This statement is probably correct. There might have been a Chester projected for the situation near Waverly when an attempt was made by the second territorial assembly, in 1856, to remove the capital from Omaha to a place on Salt Creek named Chester in the removal bill. This was a favorite neighborhood for the relocation of the capital. The next territorial assembly passed a bill to remove it to a blue print place called Douglas City, to be situated on Salt Creek near the mouth of Camp Creek. |
That the South Platte desire to reclaim the capital to its side of the impassable river should persist is clearly explicable. It is also explicable that this desire should be inflamed by resentment, inasmuch as its object had been snatched away from superior South Platte numbers by inferior North Platte numbers through superior artifice. Consciousness of superior power fanned the removal flame for twelve years to final accomplishment. In the third territorial assembly, which convened on the fifth of January, 1857, a removal bill passed the Council 9 to 4, and the House 23 to 12. Puett, of Dakota county, was the only member of the Council who voted with the three members from Douglas county against the bill, and William A. Finney, of Nemaha, was the only member of the House from the South Platte who opposed it. But though Robert W. Furnas, also of Nemaha county, voted for the removal bill, after Governor Izard vetoed it he flirted with the North Platte and voted on that side for two dilatory motions meant to obstruct the passage of the measure over the veto. It required nine votes in the Council and twenty-four in the House to override the veto, but the removalists could command but eight and twenty-three; and the bill was indefinitely postponed in the Council on motion of a friendly member. Thus the triumph of the South Platte was narrowly averted by the defection of Finney and fear of the defection of Furnas. The proposed capital, to be called Douglas, did not get beyond the blue print stage. It appears that two towns very appropriately named for the then most popular statesman and political hero were projected on paper for the purpose of contesting the right to become the capital of the territory, if the bill should be enacted. One of them was situated on Salt Creek, near the mouth of Camp Creek; the other about two miles to the southeast, |
and three miles southwest of the site now occupied by Greenwood. Governor Izard's tenure of office was now uncertain, and he was about to start to Washington, presumably for the purpose of ascertaining his political status, when he was intercepted by Dr. George L. Miller and persuaded to stay to be in readiness to veto the removal bills.3 The fourth general assembly convened on the eighth of December, 1857. On the sixth of January Abbe, of Otoe county, introduced House file 130, "An act to relocate the seat of government." One of the excuses for thus again starting the removal trouble was that the city of Omaha was acting in bad faith by neglecting or refusing to deed to the territory the capitol grounds--called "Capitol Square." The day following, the deed was delivered to the acting governor; but the accession was coupled with a demand that the removal bill be withdrawn. On the same, day the trouble culminated in both parliamentary and physical warfare in the House. It would be neither worth while nor practicable to undertake to fix or balance the blame for this disgraceful riot. While it was a characteristic or typical frontier fracas, it was predestined by the sectional circumstances already described, just as the war of the revolution and the civil war were unavoidable. The inevitability of the conflict is illustrated by the fact that the removal spirit, which for the three tender years of territorial existence had been "mewling and puking in the" South Platte "nurse's 3 Additional information on this topic may be found in the History of Nebraska, volume I, pages 299- 302; volume III, pages 20-21. Dr. Miller related the Izard incident to the present writer. The governor had his valise in hand ready to start, but the ardent emissary of Omaha persuaded him to "wait for the next boat." |
arms," was further cherished through a decade, until its power was triumphantly asserted in 1867 by the creation of a new capital called Lincoln. On Friday morning, January 8, Mills S. Reeves, of Otoe county, moved that the Council adjourn to meet at Florence at 11 o'clock A. M. on Saturday, but the president, George L. Miller of Omaha, refused to entertain the motion on the ground that under the organic act such adjournment would be valid only by concurrent action of the two houses and the sanction of the governor. This was virtually begging the question. The organic act provided that "the governor and legislative assembly" should locate and establish the seat of government at such place as they might deem eligible, "which place, however, shall thereafter be subject to be changed by said governor and legislative assembly." Governor Richardson construed this provision as meaning that, "Omaha City must, then, continue to be the only legal place of holding the sessions of the legislature, unless some other place is fixed upon by the joint action of the 'governor and legislative assembly.'"4 But the Florence body entered a plea in avoidance which, if not conclusive, is plausible; and if it cannot be positively established, neither can it be overcome. The legislature once having met and organized at the seat of government, we know of no law, either organic or special, prohibiting them, either directly or by inference, from temporarily adjourning to some other place, should their safety demand it. The secretary of the territory gratuitously sought the opinion of the territorial attorney upon the question 4 Council Journal, fourth session, page 147. |
of the validity of the procedure of the legislature. The request and the opinion follow.5
5 These two letters are copied literally, including spelling, capitalization and punctuation, from The Nebraska News of January 23, 1858. |
motion and without any concurrent action between those bodie's, or between those bodies jointly and the Executive, adjourned to meet at Florence, and the question you present is as to the validity of any acts that may be passed by those two bodies so assembled? This is a question of law, like any other legal proposition, and must be considered in the light of both principal [principle] and precedent. An examination of the books reveals a very great dearth of precedents directly in point. And I presume for this reason, the annals of legislation in the United States record no instance where a legislative body ever before entertained the strange and anamolous idea that they could convene and pass acts having the force and efficacy of law at any other place than that which at the time was, colorably at least, the seat of Government. A case more nearly in point than any other which has fallen under my observation, arose in Oregon, by the 15th section of the act of Congress organizing that territory, passed August 14th, 1848, it was enacted "that the Legislative Assembly of the Territory of Oregon shall hold its first session at such time and place in said Territory as the Governor [thereof] shall appoint and direct; and at said first session, or as soon thereafter as they shall deem expedient, the Legislative Assembly shall proceed to locate and establish the Seat of Government for said Territory, at such time and place as they may deem eligible," &c. The act also declares that "to avoid improper influences, which may result from intermixing in one and the same act, such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title," and provided that any act passed in violation of this provision shall be "utterly void." Under this authority, the Governor convened the first session at Oregon City. At this session the Legislature passed an act establishing the Seat of Government at Salem, and in the same act embraced several other objects. By their organic act the concurrence of the Governor was not necessary to the validity of an act to locate the seat of Government. At the time appointed for holding the next session, 18 out of the 22 members of the House and 8 out of the 9 members of the the Council assembled at Salem, and the balance met at Oregon City, adjourning from day to day for two weeks when they adjourned sine die. The question of the validity of acts passed by members assembled at Salem, and which is the same question you present to me, came before the Supreme Court of that Territory for adjudication. The opinion of the United States District Attorney for the Territory was also taken. The whole matter was subsequently laid before the President of the United States, who required the opinion of the Attorney Gen- |
eral. The opinions of the Supreme Court; the District Attorney and the Attorney General of the U. S., all concurred in regarding the assemblage at Salem as illegal and all their acts as void. Congress adopting and acting upon same view of the question, after-wards passed an act expressly locating the Seat of Government at Salem, but refusing to ratify any acts passed at that place.5a I presume it is not contended that by the action of the two bodies as stated in your note the "Seat of Government" was changed from Omaha to Florence.--Something more than the independent and separate action of these two bodies was necessary to effect the change. The Supreme Court of Oregon in the decision above referred to, speaking of this question says: "The power of locating and establishing the Seat of Government, as well as of removing it when established, remains in the legislative assembly. And how may they do this? In the same manner that a legislative body may do any lawful act; that is, by the passage of a law. Did the legislative assembly at that session pass any law upon this subject?" The Seat of Government being at Omaha, the only question is, can the legislature meet at any other place and pass acts that will be binding as law? Upon this point Chief Justice Nelson in the above mentioned opinion says: "Now, the Seat of Government is the place where the legislative body may lawfully assembly and enact its laws." And Justice Strong, his associate, remarks: "The first proposition to be determined is, what does the term 'Seat of Government' mean? A concise but sufficiently comprehensive, definition of the term is, that it is the place where the law making power can legally assembly for the purpose of enacting jaws. If the Legislature can assemble at any place within the Territory and there make legal and binding statutes, and that for this purpose one place is as good as another, then there is no seat of Government, for there would be nothing settled about the place and the very term implies stability, or something settled. It must then mean some place, either permanent or temporary, where, and where alone, the members of the Legislative Assembly can meet and act in a legislative capacity." This opinion expresses my views in language more clear than I could express. It would, indeed, be difficult to comprehend the signification or necessity of a Seat of Government if it is not the place whence the laws which are to govern the community are to emanate. It is there that the records of Government are kept, and it is there that the citizen may meet 5a Erroneous; see footnote 8. |
his representative and advise him of his wants or avail himself of his sacred right of petition. That right guaranteed by the constitution of the United States would be of little moment to one who brings his petition to the Seat of Government, and failing to find his representatives there is compelled to pursue a fugitive legislature to Florence, and thence to any other place where the interest, prejudice, or caprice of the members might prompt them to seclude themselves. In view of the premises therefore, I do not hesitate to say that in my opinion all acts passed by the majority of the legislature at Florence are void, having no more binding force than a code of resolutions passed by any other like number of men of equal wisdom and intelligence, voluntarily assembled at some place of their own choosing. Nor would those acts be valid had the whole legislature met at Florence and acted with the majority and had they been approved and concurred in by the Executive of the Territory. I have the honor to be sir,  Very
Respectfully,Your
obedient servant,E.
ESTABROOK.To HON. J. STERLING MORTON, Member House of Representatives, Nebraska. Lawyerlike, the attorney-general assumed that he must cite precedents to sustain his predestined contention, and it was their extreme scarcity, doubtless, that prompted him so recklessly to adapt the Oregon case to his predetermined purpose. Rightly stated the case would not have been at all relevant; and, whether through misapprehension or other fault, it is wrongly stated, both by omission and commission. The Nebraska question was whether the legislature might legally proceed with its business, temporarily, at another safe and convenient place in the territory when it could not safely proceed with its business at the capital, except on compulsion. In the Oregon case it was admitted that the legislature had regularly transferred the capital from Oregon City to Salem, and for its next session the legislature--or most of it, constituting a clear quorum--ac- |
cordingly assembled at Salem. The case is summed up by Oregon historians as follows: The issue was squarely joined with the meeting of the legislature the first of December, 1851. The Democratic members, greatly in the majority, gathered at Salem in accordance with the provisions of the location bill. The Whig minority held the latter to be void and four members of the house and one of the council met at Oregon City. Party alignment was definitely made on the issue. The supreme court became involved in the political controversy. The act of Congress organizing the Territory required the court to hold annual sessions at the capital. The time for the session arrived and the two Whig judges, Wm. Strong and Thos. Nelson, constituting a quorum, met at Oregon City; the Democratic judge, O. C. Pratt, who had been appointed by President Polk, at Salem. This fact greatly emphasized the partisan nature of the contest. Bush and the Democratic leaders had played their game cleverly. They had made an issue between the elected representatives of the people on one hand and the disliked, appointed officials on the other. Always quick to resent outside interference in their affairs, the majority of the people rallied to the support of the legislature at Salem which had organized and proceeded with business. The controversy became violent and was by no means allayed at the adjournment of the legislature or even by the act of the next session of Congress which confirmed the location bill and legalized the Salem session of the legislature.6 . . . This opinion was concurred in by Messrs. Justice Nelson and Strong, while Mr. Justice Pratt dissented, claiming that the act did not contain more than one subject. The people generally believed that Pratt was right, and when the time arrived for the next session of the legislature it found a large majority of both houses and one Justice of the Supreme Court sitting at Salem, with the rest of the supreme bench, the Governor and his appointees sitting at Oregon City. The situation was a difficult one, and it was not relieved until on May 4, 1852, Congress settled the matter by confirming the "location" act and went on to declare that all proceedings had under it were done in conformity to law.7 In order to sustain his position with regard to the location act, Gaines appealed for an opinion to the attorney-general of 6 W. C. Woodward, Political Parties in Oregon. Quarterly Oregon Historical Society, March, 1911, page 44. 7 W. C. Winslow, Contests Over the Capital of Oregon, Ibid., June, 1908, page 174. |
the United States, who returned for an answer that the legislature had a right to locate the seat of government without the consent of the governor, but that the governor's concurrence was necessary to make legal the expenditure of the appropriations, which reply left untouched the point raised by Gaines, that the act was invalid because it embraced more than one object. With regard to this matter the attorney-general was silent . . . His enemies ceased to deny the unconstitutionality of the law, admitting that it might prove void by reason of nonconformity to the organic act, but they contended that until this was shown to be true in a competent court, it was the law of the land; and to treat it as a nullity before it had been disapproved by congress, to which all the acts of the legislature must be submitted, was to establish a dangerous precedent, a principle striking at the foundation of all law and the public security . . . The majority of the people were on the side of the legislature, and ready to denounce the imported judges who had set themselves up in opposition to their representatives . . . The president [Millard Fillmore] in order to put an end to the quarrel recommended congress to fix the seat of government of Oregon either temporarily or permanently, and to approve or disapprove the laws passed at Salem, in conformity to their decision in favor of or against that place for the seat of government . . . Accordingly congress confirmed the location and other laws passed at Salem, by a joint resolution, and the president signed it on the 4th of May.8 The statement in Bancroft's history, quoted above, that the opinion of the attorney-general "left untouched the point raised by Gaines, that the act was invalid because it embraced more than one object" is erroneous, for the opinion rested upon that very point.9 8 Bancroft, History of Oregon, volume 11, pages 160, 162, 171. United States Statutes at Large, volume X, page 146. " . . . whereas doubts have arisen as to the validity of said act ... the same is hereby ratified, approved, and confirmed." Sec. 2. And be it further resolved, That the late session of the Legislative Assembly of said Territory, held at Salem, in conformity with the provisions of the act above referred to, be, and the same Is hereby declared to have been held in conformity to the provisions of law. 9 For this opinion see Executive Documents, first session thirty-second Congress, volume IX, document 94, pages 5-6. The attorney-general was John J. Crittenden, who was afterward distinguished by |
The Florence legislature, speaking through its joint committee of the two Houses, technically differentiated its case from the Oregon case: " . . . the legislative. assembly now in session at Florence has never assumed that the seat of government of our territory had been removed from that place, but have only claimed the right of the legislature convened at the seat of government to adjourn for good causes to some other place, and there proceed to discharge its particular function. "10 Whether or not this is a sound distinction rests upon the decision of reason. The contention of Governor Richardson and of certain of the disputants in the Oregon case that sessions of the legislature must be confined to the capital, because to permit any exception would unsettle or undermine the principle that the capital of a state is the proper place to do the business of the state and that capitals are instituted for that purpose, is plausible but not conclusive of the whole question. The powers of legislatures are more nearly sovereign than the powers of departments of governments, and as public intelligence, and being instrumental in holding Kentucky in the Union and his pertinacious attempt to prevent the Civil War. The same document contains also the act which located the capital at Salem. Governor John P. Gaines's statements of the case to the legislature and to the president of the United States, the majority opinions of Justices Nelson and Strong, and the dissenting opinion of Justice Pratt. A copy of the memorial of the legislature to Congress, containing a statement of grievances against the appointive executive officers and judges, and praying for the passage of an act authorizing the electors of the territory to choose them, is published in House Miscellaneous Documents, first session thirty-second Congress, document 9. The adverse opinion of the attorney for the territory, Amory Holbrook, and a note from Daniel Webster, secretary of state, to Governor Haines, which says that the president fully concurred in the opinion of the attorney-general, is printed in document 96, Executive Documents, first session thirty-second Congress, volume IX. 10 History of Nebraska, volume 1, page 331. |
public opinion consequently, grow more self-confident and assertive, the powers of legislative bodies are relatively increased. The political power of the single popular house of the English parliament is now recognized as absolute, and in our own country the courts are becoming less inclined to interfere with legislative enactments. By a bald and audacious fraud the criminal laws of the territory had been repealed at the next preceding session, and other laws supplied by the Florence legislature were greatly needed. It is at least an open question whether in these extraordinary conditions it would have been wiser to concede the validity of the temporary adjournment to Florence and thus avoid the alternative delay and expense of calling an extraordinary session. Though the governor refused to sign the bills passed at Florence, he failed to return them according to law, and it seems that, aside from other questions of validity, they became technically valid without his signature. Mills S. Reeves, of Nebraska City, who was recognized as an able and influential member of the Council, gave the following account of the governor's disposition of the bills. EDITOR NEWS: In your paper of the 13th, is an article with the above caption, which needs a passing notice, for the purpose of "vindicating the truth of history." In the article alluded to I find the following language: "But the Governor says he distinctly refused to recognize them, (the bills passed at Florence I presume) and upon the back of each document wrote as follows: 'This paper was left in my room on yesterday, Jan. 13th, 1858, after I had refused to receive it. I neither veto nor approve it; but respectfully return it. Jan. 14, '58. W. A. RICHARDSON.'" Now as I was a member of the enrolling committee of the Council, I wish to state the facts in relation to the presentation of those Florence bills to the Governor, and let the people judge how they were "received," and who is at fault that we |
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