Some of these votes, it is but just to him I should say,
I think he gave perforce of his instructions; but others of them, I
think it is equally fair to suppose, were outside of the limits of any
instructions which could have been given before the fact.
In 1854, advancing in this same general line of thought, the Congress,
in enacting territorial bills, left out a provision which had before
been usually contained in them, requiring the Legislature of the
Territory to submit its laws to the Congress of the United States. It
has been sometimes assumed that this was the recognition of the power of
the Territorial Legislature to exercise plenary legislation, as might
that of a State. It will be remembered that, when our present form of
government was instituted, there were those who believed the Federal
Government should have the power of revision over the laws of a State.
It was long and ably contended for in the Convention which formed the
Constitution; and one of the compromises which was made was an appellate
power--to lodge power in the Supreme Court to decide all questions of
constitutional law.
But did this omission of the obligation to send here the laws of the
Territories work this grant of power to the Territorial Legislature?
Certainly not; it could not; and that it did not is evinced by the fact
that, at a subsequent period, the organic act was revised because the
legislation of the Territory of Kansas was offensive to the Congress of
the United States.
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