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doubt in the mind of any man who has his ordinary allowance of common sense and the disposition to use it fairly and honestly. Although purely a question of law, yet it is so plain to the comprehension of any man who examines it, that it requires a considerable effort of legal ingenuity to so far mystify as to raise the shadow of a doubt.

An objection is made to proceeding in the cause before the court, on the ground that we are not met at the proper place, or in other words, at the seat of government. The simple question, then, presented to us at this time for our decision in this cause is where is the seat of government for the Territory of Oregon? Is it at Oregon city?

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 assemble for the purpose of enacting laws. 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. And where is that place in Oregon?

The first inquiry which would suggest itself to a legal mind, or indeed to the mind of any man making investigation, on such a query being propounded to him, would be, where have the legislature heretofore met? The court is bound to take the official notice of the public acts of the legis lature, and we find that the legislative body of the provisional government met at the Falls of the Willamette, at what is now Oregon city; and this they were required to do by an act passed June 27, 1844.

So far, then, as the provisional government is concerned, there can be no doubt where the "seat of government" was. It was fixed by law. This act had all the force of law which an act of the provisional government could have, until the passage of the organic act by Congress, August 14, 1848. By the fourteenth section of that act, validity is given to all the laws of the provisional goverment then in force in Oregon Territory, excepting such as might be incompatible with the constitution of the United States, and the principles and provisions of the organic act. The law of the provisional government fixing the seat of government, unless changed by some provision in the organic act, still continued in force after the Territory became organized under the law of Congress. The only provisions in the organic act affecting this question are, that by the fifteenth section the governor is authorized to name the place where the Legislative Assembly should hold its first session; thus conferring an authority upon the governor to make a temporary seat of government, which should be a legal. place for the transaction of legislative business during that session. The governor, in the exercise of this power, saw fit to name the place where the seat of government had legally existed, and did legally exist until some new place was named by him. After the first session of the Legislative Assembly terminated, the power of the governor over that matter was at an end. It rested with the Legislative Assembly themselves. They adjourned at their first session without attempting to pass any act on this subject. What then was the condition of the Territory after such an adjournment? Had it no seat of government? Was there no place where

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the law-making power could legally assemble? If there was not, then the government was disorganized. The governor had no power to make a seat of government, and the law-making power could not act without first assembling at some lawful place. It would therefore have required an act of Congress to have again set the wheels of the territorial government in motion. But such a state of things could not and did not follow. Oregon city, or the Falls of the Willamette, had once been established the lawful seat of government, and had never been legally changed; and by wellestablished principles of law it continues the lawful seat of government until it is lawfully changed. To hold any other doctrine would be to hold that the last Legislative Assembly did not meet at any proper place, and consequently, that they did not meet at all, and that all laws passed by them at their last session are but the idle resolutions and doings of a set of men met together without legal authority, trying their hands at law-making by way of pastime; and we are thrown back upon Congress for a new start. Such is not my opinion of the law. I must hold Oregon city to be the legal seat of government up to the meeting of the Legislative Assembly, or all is anarchy and confusion. examine whether by any law which was passed at that session the seat of We now progress a step further, and government was removed to any other place.

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? We find upon looking at the statute book what purports to be "An act to provide for the selection of places for location and erection of the public buildings of the Territory of Oregon," which provides, &c. (See General Laws, O. T., page 222.) In order to know whether this is à law and therefore of binding force, or not law and therefore of no force, it is necessary to examine the power of the Legislative Assembly; for unless it be the act of a body having the power to make it, it cannot have the force and effect of a law, though it might be written on every page of the statute book.

Our legislative assemblies are not, like the parliament of Great Britain, supreme. We have no supreme power, save that which is vested in the people. In each of the States, the people have seen fit to adopt a constitution or fundamental law by which they establish three different departments of government,-the legislative, executive, and judicial,-and assign to them their respective powers, fixing limits over which none are to pass, and usually limiting the power which may be exercised by the body of the people as a mass, to a revision of that fundamental law under certain scribed forms. The officers being the agents of the people, are authorized to exercise those powers only which are conferred upon them in the conprestitution. If the legislature, the executive, or the judiciary, act within their power, their acts are the acts of the people who have authorized them, and therefore valid. If they step beyond their powers their acts are void, because the people have not so authorized them to act, and have not so agreed to be bound. The constitution, then, is the touch-stone by which every act must be tried. Still further, and over and above all, is the constitution of the United States. Within the limits of its provisions, it is the expressed will of the people of all the States, and so far as it extends, it and all laws enacted in accordance with its provisions are the supreme

law of the land, because it is the will of the entire people, expressed in a manner agreed upon and prescribed by the entire people; and when we speak of the acts of Congress, we merely use a short form to speak of the acts of the entire people, comprising all the citizens of the United States whether residing in States or Territories. The subject of territorial government has been the subject of much discussion; and it has become the settled doctrine, that until they possess a sufficient population to assume a State government, they are under the protection and government of the people of all the States, through their regularly constituted agents in Congress assembled. Acting upon these principles from 1787 down to the present time, Congress has directed the government of the several Territories generally to the satisfaction of all the people, and about half of the present States of the Union have gone into the Union from Territories. I allude to this peculiar position of our territorial government for the purpose of showing that it is not a new thing, and that it is not an arbitrary and tyrannical species of government as some seem to suppose, where we are subjects instead of citizens. We are here by our own consent, with a full knowledge of the usual mode in which Territories are governed, and therefore while we remain to enjoy the protection of Congress, or of the whole people of the Union, and the benefits of a territorial form of government, we owe as willing an obedience to the organic act and the laws prescribed by Congress, as we could possibly owe to the constitution of any State in which we might choose to take our residence.

The people of Oregon, hitherto under the provisional government, and since the organization of the Territory under the law of Congress, have shown a disposition to abide by the laws of their country under circumstances the most trying, which I trust will continue to be manifested to the end of time.

The act of Congress organizing the Territory of Oregon is our constitution. It is the fundamental law by which the different departments of governinent are created, and by which their powers are defined and limited, and must so remain until we become a State, or the power that made it shall change its provisions. The Legislative Assembly is made such by that act, and their duties are prescribed by its provisions, and with those provisions we compare its acts to determine their validity.

Let us apply this test to the act in question, and if it stands the test it is good, and will come out the brighter for having been tried. If it fails, it is not the law and never has been.

The organic law, Sec. 6, provides "that every law shall embrace but one object, and that shall be expressed in the title ;" and in the same sentence it gives the reasons for its enactment, which is in the words of the law, "to avoid improper influences which may result from intermixing things having no proper relation to each other." It would seem that Congress had experienced the evils resulting from intermixing things having no proper relation to each other in one act, and were also aware of the deception which had frequently been practiced in legislation by enacting provisions in the body of a law altogether different from the professions contained in the title, and that they were determined that in this new Territory every offspring of legislative enactment should not only stand upon its own merits, but should also come into the world with a responsible name, and thus a great door to log-rolling and fraud be effectually closed.

In looking for an act locating or changing the seat of government we

should naturally look, knowing this provision of the law of Congress, for some title expressive of this object. We look and find none. The "seat of government" is not even mentioned in the title of any act passed by the Legislative Assembly. We look still further, and under the modest and unassuming title of "An act to provide for the selection of places for location and erection of the public buildings of the territory of Oregon,' (Gen. Laws, page 222,) we find an act containing ten sections; the first section professes to locate and establish the seat of government, and instruct future Legislative Assemblies where to meet.

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The second section locates the penitentiary at a different place, in a different county from the seat of government.

The third section locates and establishes a university at a different place, in a different county from either the seat of government or penitentiary, and appropriates the funds granted by Congress for the endowment of a university, to the erection of buildings, &c.

The remaining sections contain miscellaneous provisions, referring to the first three sections.

It is evident that the location of the seat of government and instruction to Legislative Assemblies are not public buildings, and it cannot for a moment be contended, that the penitentiary or university have any necessary relations to each other, or to the seat of government, especially where those buildings are to be erected in different places, and neither of them at the seat of government; and it would be a difficult matter to convince any man of natural abilities that the proper way to express in the title the subject matter of a law to change the seat of government, was to use the language adopted in the title to this act.

We have yet to learn of the first one who considers the act as in accordance with the organic law. Any one upon reading the law would infer that there was a studied design running through the whole of that act to see how many provisions of the organic law could be violated in so limited a space, and that the title is a labored effort to express as little as possible of what is contained in the body of the bill.

Every one of those objects is of sufficient importance to be the subject of a separate act, and the conclusion is almost irresistible that there must have been some improper influences at work to have intermixed them in one and the same act. Under the organic law the people have the right to demand separate action upon every object that is brought before the Legislative Assembly, that each act may stand upon its own merits; and they have a right to demand that the object of every act shall be expressed in its title, that they may know by the titles of the different acts as they appear in the published reports of the proceedings what laws are under consideration on the part of those they have sent to legislate for their interests. The court would be unworthy its position should it deny them this invaluable right.

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Congress, as if to avoid the necessity of any reasoning in regard to the effect of an act contrary to the organic act or territorial constitution, has in so many words declared that it shall be utterly null and void," (sec. 6, organic act.) Can stronger language be used? Can an act utterly null and void have any force and effect? Is it not dead, still born, incapable even of resurrection? The matter is too plain for argument. It is no law. No man, be he officer or citizen, is bound to pay it the least respect. It is

dead without mourners and can lie unburied without offence. Every one is bound to disregard it.

Notwithstanding the law is conceded to be void, it is argued that every act of the Legislative Assembly upon a subject matter within its jurisdiction is presumptively valid, and that courts and individuuls are bound so to treat it until declared by a legal tribunal; that a sort of judicial coroner's inquest must sit over the dead law to give its solemn decision that the thing is absolutely defunct.

If the mere statement of the proposition shows its absurdity, a thorough examination will show it still more clearly. If the Legislative Assembly should charter a bank it is conceded that the act is binding upon no one, because the subject matter of chartering a bank is not within their jurisdiction. But it is said that if they should establish the seat of government by an act which is passed in a manner contrary to the provisions of the organic act, such a law would be binding until it is pronounced void by a court, because the subject matter of locating the seat of government is a matter within their jurisdiction.

The term jurisdiction as applied in this sense to a legislative body having no judicial power, is entirely misapplied. It can possibly have no such legal application. Neither of the acts are good or bad because they are within or beyond the jurisdiction of the Legislative Assembly, but both are void and in precisely the same sense, and to the same extent worthless and entirely to be disregarded, and for the same reason in each case, namely: the want of power in the Legislative Assembly to pass them. The Legislative Assembly cannot charter a bank because they are prohibited from doing so in the organic act; and they cannot pass a law fixing the seat of government and providing for other objects in the same bill, with a title that does not express the object of the act, because such legislation is also prohibited in the organic act. The same sentence is passed alike on both. They are utterly NULl and void.

It is further claimed that when the Legislative Assembly have passed an act similar to the one in question, it is presumptively valid and every one must believe it to be a good law and act under and upon it as a good law, until the courts have pronounced it void, and that the judges of the courts must walk according to all its provisions and assemble at the place pointed out, before they can sit upon the question and pronounce as to its validity. Such is not the doctrine of the American law, or of any law that prevails in any free country. Every freeman has a right to judge of the law himself-if he judges it to be good, to obey it-if bad to disregard it; responsible for his conduct to the judgment of that tribunal who, by the people's appointment in their constitution, are authorized to declare in the name of the people what is law with judicial authority. Judges, when not acting in an official capacity, have the same right of obeying a valid law and disregarding a void law. In regard to a law of this kind, where the very place of meeting for the purpose of holding court is the matter in question, and they cannot meet without virtually deciding the question, the act of each judge in proceeding to the seat of justice is in a measure an official act which he is under an oath to perform according to a law that is binding, and not according to a void act; and the action of a majority of the court upon that point may with great propriety, from the very necessity of the case, be considered a judicial determination by the court of the ques

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