USA > Indiana > Early Indiana trials: and sketches. Reminiscences > Part 55
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* · The question now presented is, Was Mr. Robbins chosen by the
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Legislature of the State of Rhode Island ?' He could not but con- sider it a plain proposition, and not requiring argument to support it, that when the Constitutional organization of a body of men, claim- ing to be the Legislature of a State, is the question in issue, the acts of that body, whose Constitutional powers are disputed, are not to be advanced as evidence of the Constitutional power of the body to per- form them. When the Constitutionality of a legislative act is in ques- tion, he could not believe that the act itself is to be relied upon as evidence of its own validity. Equally clear was it to his mind, that when such a question was to be determined, the consequences of pro- nouncing the act invalid were not considerations which should legiti- mately control the decision. The act is either Constitutional or uncon- stitutional. If Constitutional, the dispute is settled. If unconstitu- tional, no consequences to follow from the pronunciation of the fact, can make it valid. So with the body elaiming to be the Legislature of the State. If it is the Legislature of the State, according to the pro- visions of its constitution, the controversy is at an end ; if it is not the Legislature of the State, no act of theirs iu their assumed charac- ter, and no consequences to follow from the invalidity of those acts, can give them the powers which they had not when the acts were per- formed, or make them what they were not, the Legislature of the State. But if consequences can be legitimately considered il the argument, the undersigned feels compelled to say, that to his mind the decision that the State of Rhode Island has no fundamental law or constitution of government but the will of its Legislature, will be a consequence to its people much more serious than any which can be apprehended from pronouncing void the acts of the body of men assuming to be the Legislature of the State from May, 1832, to May, 1833.' It will be seen, by an examination of the reports of the com- mittee, that no party hesitated to entertain the question involving the validity of the Legislature, but they differed in their construction of the charter of Charles II. ›
" In the case of the Delegate from Indiana, above referred to, the committee in their report say : 'After deliberate examination of the laws relative to Indiana Territory, they consider it to be their duty to investigate the authority under which the election of a Delegate to represent that Territory was held, previous to the examination of the irregularities suggested ; because, if the election was held without authority of law, it was void, without regard to irregularities.' The committee proceed to say, that the law under which the election was held was void, because the Legislature which directed the election
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was not a valid Legislature. This same question, which involved the principle now before the House, was then entertained, and that is enough for our purpose.
" When the gentlemen upon the other side of the House argue that we can not go behind the Legislature of Kansas in our inquiry, or behind any law of the Legislature, they do not advance a single step in the argument. They evade the question before the House, and confound distinctions. No one claims the right to disregard a Legislature or any of its acts-I mean a valid Legislature, for there can be no other, in fact. The true question is, Was that body in Kansas the Legislature? The gentlemen, in their argument, beg the question, and reason gravely from the conclusion to the premises. They confound the question of fact, with the legal consequences of the faet. If that body was the legal Legislature, we can not press our inquiries beyond it. If it was not the legal Legislature, it presents no barrier to our inquiries, and none of its acts are laws. Nothing but the will of the people of Kansas, legally expressed, could create a Legislative body for that Territory. The charge is, that the will of the people had not been expressed, but that a body of men had been chosen by fraud, violence, and corruption ; and that this body, in furtherance of the fraud, organized in the form of a Legislature, and usurped its authority. When we are told that we must take this body as the legal Legislature, and the laws as we find them, we reply that we will look into the elements which compose this supposed Legislature.
" What I have said of fraud applies also to violence. A person acting under duress is at liberty to disavow the act, when restored to his liberty ; much more is he at liberty to repel the force by which he is restrained ; and no lapse of time or circumstance, while the usurpation or force continues, can interpose to prevent him from asserting his rights. So, if the supposed Legislature of Kansas was imposed upon the people by external violence, they are not only free from allegiance to the laws of such a Legislature, but they are bound to resist them, and set them aside. Suhmission to such laws would be treason to the State. While unreserved submission to the law is the duty of an American citizen, he has no right to tolerate a tyrant or usurper upon American soil. Such are the principles of American jurisprudence and American politics.
" Although we have precedents for the inquiry which the report of the committee contemplates, I confess that I would not hesitate one moment to enter upon the investigation of this charge, even if we could find no precedent for it. The case furnishes its own authority.
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The principles involved are fundamental. The wrong charged is startling. If true, all civil rights in the Territory are prostrated. There is no free government left. If the same wrong should be perpetrated in every State, Republicanism would be at an end. The right to investigate such charges must pertain to this House. The duty to redress such wrong, is coequal with the power of the Govern- ment. We have no right to shut our eyes to an evil which threatens our existence.
" When I was interrupted by the gentleman from Missouri, I was examining the facts that are alleged by the contestants as the ground- work for the investigation. They are grave charges. They involve fraud and corruption, violence and crime. They are, in substance, that an invasion has been set on foot, in one of the States of the / Union, against a defenseless Territory, which resulted in a triumphant usurpation ; that the rights and will of the people have been disre- garded ; and that a foreign power is now dominant in that Territory. The answer given by the gentlemen upon the other side of the House is, that even if these things are so, we can not go behind the forms of the Legislature and the law, to inquire into the substance.
" The gentleman from Maryland (Mr. Davis), spoke learnedly and eloquently upon the right of the House to pursne this inquiry. He admitted that, under some circumstances, we might inquire into the validity of a Legislature and of a law ; but he thought this was a political question, and that its decision rested with the Executive. He argued, that because the Executive, in the execution of the law, must determine this question, it was therefore proper that his decision should control this House and the country. In that, I conceive, the learned gentleman departed from his usual accuracy. The Exec- utive must execute the laws, and he is often called upon to judge of and construe them. But his judgment does not bind the courts, or the Legislature. Indeed, it often happens that his proceedings are reversed by the judgment of a court, rendered against the validity of a law.
"The fault in the gentleman's argument is, that he did not take the proper distinction. He spoke of the question as being political, and not judicial. If there is any such distinction strictly, it is not in the subject matter, but in the action upon the subject matter. The action of the Executive is political, and not judicial; nor is it legislative. The action of the Executive begins and terminates in the Executive department. So the action of this Honse begins and terminates with its own proceedings. The House is sovereign in its own sphere of action. Its decision can not be passed upon in review elsewhere. The
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House has not only plenary jurisdiction in judging of the elections, returns, and qualifications, of its members, but it also has plenary power to execute its decisions. It calls upon no other department for advice or assistance. It pronounces its decrees, arms its officers, and by them executes its will.
" We are reminded that the Governor of the Territory is the judge of the returns of the election of members of the Legislature, and upon those returns he issues his certificate. In reply we say, that the allegations are, in substance, that the returns were fraudulently made out by those who violently took possession of the polls ; that the Gov- ernor was imposed upon by these fraudulent returns ; and that certifi- cates were obtained from him by fraud. We have seen that the remis- sion of a fine obtained from the Executive by fraud, was set aside by a court ; and any other act of the Executive procured by fraud would be as readily set aside. Such certificates would be a nullity, and would be so declared by the court. But a certificate of election makes only a prima facie case. It entitles a member to his seat when there is no contest, but it is never set up as a bar to an inquiry in a con- tested case.
" The honorable gentleman from Maryland [Mr. Davis] warned us, in eloquent language, of the danger of usurping the prerogatives of the Executive, and deciding questions touching the Territory, which do not come within the jurisdiction of the House, and says that con- fusion and anarchy must be the result. Aye, sir ! confusion and anarchy ! What terms have the gentlemen to apply to the proceed- ings which took place in that unfortunate Territory, when the out- rages complained of were committed ? when the rights of the citizens were trodden under foot? when fraud and violence were successful ? when the forms of law were shamelessly resorted to, to secure the fruits of invasion and conquest ? when Tyranny, with iron heel, trampled Freedom in the dust ? How long shall we delay our action, and stifle inquiry, lest we might produce confusion and anarchy ?
" Let us examine the argument. It is, that this stupendous fraud is elothed in the forms of law, and rights have vested under it. That it is a question for the Executive, and beyond the limits of our power. This is urged in derogation of the universal law, that fraud taints every thing it touches. Sir, no lapse of time eures it; no rights grow out of it to the guilty parties; no form sanctifies or shields it; no villanies ever ripen into virtuous decds. I would follow it, and make war upon it, wherever it may be found. When- ever it is alleged that there is a State or Territorial Government, that there is a decree of court or other act of the judiciary, or a pre-
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1 tended law, grounded in fraud, and the question comes fairly before this House, when it is involved in the right of a member to his seat, I would, in the investigation, follow it through all its forms, and seek out all its hiding-places. I would tear away all such foundations, and whatever structure rested upon it might topple to the ground. Nothing that is valuable can suffer from such an investigation, while it is legitimately pursued.
" It is not for me to impute or question motives. I do neither. But I am free to remark, that it appears like shrinking from an inves- tigation. I do not stand here to dictate to others, or to advise the course they should pursue ; but if the citizens of the State of Indiana were implicated in a charge of repeated acts of violence and fraud toward the citizens of a defenseless Territory, I would instantly demand the most thorough investigation. And how much more would I insist upon an inquiry, if it was charged that the people of Indiana had usurped the government of a defenseless Territory. The duty of this House wonld not be the less imperative to proceed with the inquiry, if I should stand in my place and resist every attempt toward an investigation.
" I am satisfied that a full exposure of all the facts, by the means proposed by the committee, will restore harmony and prosperity to that part of our country."
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JOHN C. FREMONT
JOHN C. FREMONT.
I BECAME partially acquainted with Col. John C. Fremont, at Wash- ington city, before his first exploring expedition to the Rocky Moun- tains. In person, Col. Fremont is about the medium hight, spare of flesh, but strong in bone and muscle ; hair black and parted in the center, falling carelessly in folds over his large head, to the shoulders ; eyes and eye-brows black, complexion dark and swarthy, large square forehead, mouth wide, good features, countenance stern, marking him as a man of talent, courage, firmness and untiring perseverance. I thought at the time I first saw him, and Lieut. Wilkes of the Naval Exploring Expedition, that I had seen no two men to whom I would so soon intrust the command of a perilous expedition, by sea or by land, as to these young officers in the army and navy. The subse- quent perilous explorations of Col. Fremont, have placed him among the very first of inland adventurous explorers, in modern or ancient times.
It is not my purpose even to epitomize the reports and sketches that have reached us officially and otherwise, of the different explorations, perils and sufferings of Col. Fremont, these have long since been laid before the people by the press. I will, however, attach to this sketch, a few interesting extracts from his first report, premising that his trials and suffering had scareely a beginning until his second exploring visit to the Pacific, when he was met by the mountain snows, want of provisions, severe mid-winter storms, death of companions, himself reduced by starvation to a skeleton. For these perils I must refer the reader to his own statements, which are too lengthy to find a place here.
Col. Fremont and his explorations filled a large space in the eye of the reading public for years. He settled in the Territory of Cali- fornia while quite a young man, and was returned by that young State, after she was admitted into the Union, as one of her first Sena- tors to Congress, where he remained but a short time. While in California he purchased the quartz gold-bearing Mariposa tract, about which so much has been published. The prominent position of Col. Fremont in the publie mind, his known talents, firmness and devotion to the Free-Soil party, standing in opposition to the repeal of the Missouri Compromise line, and opposed to the extension of slavery, regardless of his Democratic antecedents, induced the Free-Soil Con- vention that met at Philadelphia, in 1856, to nominate him as their candidate for President. This nomination was made by delegates from the Free State, the Slave States refusing to take any part in the
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Convention. It fell upon the public mind as entirely sectional. Mr. Buchanan was nominated by the Democratic Convention at Cincinnati, the same year. At first the Southern delegates in convention pre- ferred Stephen A. Douglass, but ultimately came into the support of Mr. Buchanan, and he was nominated as the conservative candidate, holding in his hands the keys of the Union ; a man eminently quali- fied with age and long experience. The candidates were placed before the nation, the election was obviously to turn upon sectional grounds and principles, upon both sides. It was whether slavery should be extended without limitation, over all the Territories, at the will of the people of such Territories; this was the sectional view of the South ; or whether Congress should circumscribe slavery, to the coun- try south of 36° 40' of latitude, the Missouri Compromise line. The North said Congressional limitation ; the South said no Congressional restriction ; each was favorable to its sectional institutions. The par- tisan cry was raised that each party was looking to a dissolution of the Union. I had frequently heard that sound before, to answer polit- ical ends, but I have never discovered any want of attachment to the Union, in either of the great parties that divide the people of the United States ; and I am far from believing, that any considerable portion of the people could be led to the perpetration of the suicidal act of dissolving or seceding from our Union.
In this case it would be an unwarrantable assumption to presume that the patriotie States of New England, New York, Michigan, Ohio, and others, that supported Col. Fremont, were actuated by hostility to the Union, because there may have been a few in those States who have no special regard for it, and maintain higher law doctrines than the Constitution of the United States. In like manner, who can say that the Southern States, that gave Mr. Buchanan their united sup- port, were governed by hostility to the Union, because the State of South Carolina holds a few of the Barnwell Rhett school of seceders from the Union.
I am happy to say, that after many years connection with the prom- inent men of the nation, and closely noticing the political movements, and the results of our general elections, I consider the American people sound to the core, on the question of the perpetuity of our glorious Union. The result of the election of Mr. Buchanan, was quietly acquiesced in. Mr. Buchanan as President, is administering the Government, at peace with all the world, while Col. Fremont occu- pies the high position of an American citizen, still in the summer of his life, honored and respected by all who know him.
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JOHN C. FREMONT.
" WASHINGTON, March 1st, 1843. " To COL. J. J. ABERT,
CHIEF OF THE CORPS OF TOPOGRAPHICAL ENGINEERS :
" SIR : Agreeably to your orders to explore and report upon the country between the frontiers of Missouri and the South Pass in the Rocky Mountains, and on the line of the Kansas and Great Platte rivers, I set out from Washington city on the 2d day of May, 1842, arrived at St. Louis, by way of New York, the 22d of May, where the necessary preparations were completed, and the expedition commenced. I proceeded in a steamboat to Chouteau's Landing, about 400 miles by water from St. Louis, and near the mouth of the Kansas river ; whenee we proceeded twelve miles to Mr. Cyprian Chouteau's trading house, where we completed our final arrangements for the expedition.
" We reached the ford of the Kansas, late in the afternoon of the 14th, where the river was two hundred and thirty yards wide, and commenced immediately preparations for crossing. I had expected to find the river fordable, but it had been swollen by the late rains, and was sweeping by with an angry current, yellow and turbid as the Missouri. Up to this point, the road we had traveled was a remark- ably fine one, well beaten and level, the usual road of a prairie eoun- try. By our route the ford was one hundred miles from the mouth of the Kansas river. Several mounted men led the way into the stream to swim across. The animals were driven in after them, and in a few minutes all reached the opposite bank in safety, with the exception of the oxen, which swam some distance down the river, and returning to the right bank, were not got over until the next morning. In the meantime, the carts had been unloaded and dismantled, and an India- rubber boat, which I had brought with me for the survey of the Platte river, placed in the water. The boat was twenty feet long and five feet broad, and on it was placed the body and wheels of a eart, with the load belonging to it, and three men with paddles.
BUFFALOES.
" The air was keen the next morning at sunrise, the thermom- eter standing at 44°, and it was sufficiently cold to make our over- coats very comfortable. A few miles brought us into the midst of tbe buffaloes, swarming in immense numbers over the plains, where they had left scarcely a blade of grass standing. Mr. Preuss, who was sketching at a little distance in the rear, had at first noted them as large groves of timber. At the sight of such a mass of life, the traveler feels a strange emotion of grandeur. We had heard from a
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distance a dull and confused murmuring ; and when we came in view of their dark masses, there was not one among us who did not feel his heart beat quicker. It was the early part of the day, when the herds are feeding, and every where they were in motion. Here and there a huge old bull was rolling in the grass, and clouds of dust rose in the air from various parts of the bands, each the scene of some obstinate fight. Indians and buffaloes make the poetry and life of the prairie, and our camp was full of their exhilaration. In place of the quiet monotony of the march, relieved only by the cracking of the whip, and an 'avance donc ! enfant de garce !' shouts and songs resounded from every part of the line, and our evening camp was always the commencement of a feast, which terminated only with our departure on the following morning.
" July 1 .- Along our road to-day, the prairie bottom was more ele- vated and dry, and the hills, which border the right side of the river, higher, and more broken and picturesque in the outline. The country too was better timbered. As we were riding quietly along the bank, a grand herd of buffaloes, some seven or eight hundred in number, came crowding up from the river, where they had been to drink, and commenced crossing the plain slowly, eating as they went. The wind was favorable, the coolness of the morning invited to exercise, the ground was apparently good, and the distance across the prairie, two or three miles, gave us a fine opportunity to charge them before they could get among the river hills. It was too fine a prospect for a chase to be lost ; and, halting for a few moments, the hunters were brought up and saddled, and Kit Carson, Maxwell, and I, started together. They were now somewhat less than half a mile distant, and we rode easily along until within about three hundred yards, when a sudden agitation, a wavering in the band, and a galloping to and fro of some which were scattered along the skirts, gave us the intimation that we were discovered. We started together at a hand-gallop, riding steadily abreast of each other; and here the interest of the chase became so engrossingly intense, that we were sensible to nothing else. We were now closing upon them rapidly, and the front of the mass were already in motion for the hills, and in a few seconds the movement had com- municated itself to the whole herd. A crowd of bulls, as usual, brought up the rear, and every now and then some of them faced about, and then dashed on after the band a short distance, and turned and looked again, as if more than half inclined to stand and fight. In a few moments, however, during which we had been quickening our pace, the rout was universal, and we were going over the ground like a hurricane. When at about thirty yards we gave the usual shout, the
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hunters' pas de charge, and broke into the herd. We entered at the side, the mass giving way in every direction. In their heedless course many of the bulls, less active and less fleet than the cows, paying no attention to the ground, and occupied solely with the hunters, were precipitated to the earth with great force, rolling over and over with the violence of the shock, and hardly distinguishable in the dust. We separated on entering, each singling out his game. My horse was a trained hunter, famous in the West under the name of Proveau, and with his eyes flashing, and the foam flying from his mouth, sprang on after the eow, like a tiger. In a few moments he brought me along side of her, and rising in the stirrups, I fired at the distance of a yard, the ball entering at the termination of the long hair, and passing near the heart. She fell headlong at the report of the gun ; and ehecking my horse, I looked around for my companions. At a little distance Kit was on the ground, engaged in tying his horse to the horns of a cow he was preparing to eut up. Among the seattered bands, at some distance below, I caught a glimpse of Maxwell ; and while I was look- ing, a light wreath of white smoke curled away from his gun, which I was too far from to hear the report. Nearer, and between me and the hills, toward which they were directing their course, was the body of the herd, and giving my horse the rein, we dashed after them. A thick cloud of dust hung upon their rear, which filled my mouth and eyes, and nearly smothered me. In the midst of this I could see nothing, and the buffaloes were not distinguishable until within thirty feet. They crowded together, more densely still, as I came upon them, and rushed along in such a compact body, that I could not obtain an entrance-the horse almost leaping upon them. In a few moments the mass divided to the right and left, their horns elattering with a noise heard above every thing else, and my horse darted into the opening. Five or six bulls charged on ns as we dashed along the line, but were left far behind, and singling out a cow, I gave her my fire, but struck too high. She gave a tremendous leap, and scoured on swifter than before. I reined up my horse, and the band swept on like a torrent, and left the place quiet and elear.
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