1858 October 7 Letter to Alfred Cumming


1858 October 7 Letter to Alfred Cumming


Daniel Wells defends the right of the Legislature to determine the location of the seat of government. He affirms that there are no laws preventing joint assemblage. Furthermore, prohibiting the change of location of the seat of government would nullify its primary location as each location was located by a joint resolution. Examples of precedents of joint resolutions are given.




Daniel H Wells


Alfred Cumming


1858 October 7


Great Salt Lake City

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Legal Matters

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Great Salt Lake City U. T.
Oct. 7th 1858.

Having learned that under judicial advisement upon the construction of the Statutory provisions of the Territory, Your Excellency has inclined to the opinion that the removal of the Territorial seat of government was illegal and the Resolution to that effect void, I take the liberty of addressing you my views on the subject. I shall endeavor to do so with proper deference to your own judgment and offer my dissent from the opinions of the judiciary in a respectful manner.

It is admitted without question, I presume, that the Organic Act is not only the Supreme law of the Territory but the foundation of all Territorial acton enactments; extending over it the applicable laws of the United States, and dispensing certain powers to the legislative, ministerial and judicial departments. It will not admit of question that the powers thus delegated are inaleinable; nor that the powers of the three departments are each to a great extent separate and independent; though all should seek to aid and harmonize with each other to the end that the government of the Territory may be efficiently administered.

How far the Territorial legislature has control of the location and removal of the Seat of government is first to be determined and wherein they are limited in that control. By reference to the 12th Section of the Organic Act, we find it provided that at the first session of the Legislative Assembly of the Territory 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;". There cannot possibly be but one construction of meaning as to the power conveyed in the foregoing, namely: that to the Governor and Legislative Assembly is exclusively conveyed the power to locate and establish; and with them alone is vested the discretion as to expediency and eligibility of time and place. Nor can it be questioned that the power to locate and establish, as therein conveyed, is full and complete. Hence we may reasonably infer that had it been the intention of Congress to limit the power conferred to the location and establishment they would have limited the language accordingly. What are the facts? The power conf to locate, though full and unequivocal for that purpose and exclusively delegated is not perpetual but is made repeatable and subject to change by the following equally plain and meaning provision:--"which place however, shall thereafter be subject to be changed by the said Governor and Legislative Assembly." What is the meaning of the language of that statute, and can there be by any fair construction but one meaning given to it? The power to change is equally clear with the power to locate. A doubt of one implies a doubt of the other. It is not to be presumed that any power thus delegated should be exercised in an arbitrary and loose manner and without reason. To prevent this Congress has reserved to itself alone the corrective in the right to veto all Territorial enactments. Having thus found the only place for the exercise of the power of which we speak, and the only place where the power rests to correct the improper exercise of it, I will now ask Your Excellency to examine for a moment wherein the Organic Act by a fair and reasonable construction justifies the Governor and Legislature in their course. In the proper and legitimate exercise of their rights and discretion the Legislative Assembly with the sanction of the Governor on the 4th of October 1851, located the seat of government of the Territory in Pauvan Valley. It is neither our province nor my wish to question the expediency of the time or eligibility of the place of location at that date. And I think I have shown sufficiently clear that the durability or perpetuity of the first act of location could only be made to extend during the wishes of the Governor and Legislative Assembly; they being responsible alone to Congress for the lawful exercise of their discretion. On the 15th December 1856 a Resolution was approved by the Governor removing the Seat of Government from Fillmore to Great Salt Lake City until otherwise provided by law. The reasons for this removal are plainly set forth in the Resolution. They did not at that time consider Fillmore sufficiently eligible for their purpose while Great Salt Lake City afforded suitable accomodations.

I have been informed that it has been urged on your Excellency again that the removal was illegal:-- first, because effected by a Resolution which has not the force of an Act; and secondly, because the Resolution was passed by a joint vote of the two houses. The arguments brought against any action of a legislative body should be very grave and sound ones. They should not be the mere opinions of gentlemen, however experienced in legislation or learned in the Statute books. They should be based upon law or justified by reasonable precedent. Any attempt of the judiciary to set aside a statute save on Constitutional objections is extra judicial and arbitrary. Nor can they lawfully rule upon the Constitutionality of a law, only when it is properly before them in their judicial capacity. Neither can rules or forms be prescribed for the government of a legislative body, apart from itself save by the creative power. Were it otherwise where is the utility or freedom of Legislation? So far from their being either law or precedent to support the position assumed against the course pursued by the Legislature, the precedents and law are against the position and fully sustain the Legislature. By an Act of the Legislative Assembly approved Jany 19. 1804 (Rec.d Stat. p. 264) the validity of Acts and resolutions are made equal and each declared in force from the date of its publication in any public manner.

Moreover has it occurred to your Excellency that the argument against changing the seat of government, if made good, would have equal strength to nullify its primary location. As by a joint resolution it was located so also by a joint resolution was it changed. Hence if the removal for that reason is unlawful the location is unlawful for the same reason, and there is consequently no seat of government at all. That to provide against the combination and tyranny of an oligarchy, our fathers made the admirable and wholesome provision that the legislative power should be vested in two bodies in a measure independent of each other, is true and very proper. That long usage has established for it a favorable reputation and made the system a very generally adopted one is also true. But that there is is the least fraction of law common or statutary to prevent their joint assemblage by mutual consent, or to deteriorate from the virtue and force of acts or resolutions passed unanimously in that capacity, I most respectfully question. Precedents failing against the legality of the course pursued by the Legislature of Utah permit me to call the attention of your Excellency to precedents of no minor importance in justification of their course. By a joint resolution of the two houses of Congress passed and approved Dec. 11. 1815 Indiana became a State and was admitted into the Union. The State of Mississippi was admitted by a joint resolution passed and approved Decr. 10th, 1817. By joint resolutions Illinois was admitted Dec. 5, 1818, Alabama Dec. 14, 1819 and Missouri on the 2d of March 1821. Texas was annexed by a joint resolution March 1st 1845, and admitted by a joint resolution Dec. 29th 1845. These are a few of the very many precedents in the movements of the National Legislature which justify the Legislature of Utah in their course. If they have committed an error the blunders of Congress are equally egregious and six very repectable States of the Union occupy a position at least equally precarious with this Territory. Previous and subsequent to the admission of those states as well as at intermediate dates other States were admitted by Acts of Congress, showing that in the opinion of the Federal Legislature to place resolutions and acts in separate classes is simply to make a distinction without a difference, at least in that character of legislation.

I will not trespass further upon your Excellency with precedents with which the Statute books abound, and which fully confirm my position in the argument. Before closing, however, I wish to call your Excellency's attention to the following facts pertaining to the primary location and subsequent removal of the seat of government. The geographical position of Fillmore makes it the most eligible as a central permanent location. The Legislature had in view not so much the present occupancy of that place as the head quarters of the Territorial government as for a future location when the population of the Territory should become more equally distributed. To this end when they contented them-
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with accomodations already prepared in this City, they have disbursed the funds appropriated for that purpose by the General Government in the erection of such public buildings of a permanent character as would be of service when the population of the Territory would justify their removal back to Fillmore. Thus we see that not only was the intention of the Legislature good in the location of the seat of government but their judgment stands approved by most excellent reasons, however circumstances may have posponed the object at which they aimed. For were the reasons less cogent which prompted a subsequent legislature to exercise their unquestionable right to change. The Votes in both cases within my personal knowledge were unanimous, hence though I had failed to produce precedents to justify a joint resolution, the objections on that ground were simple sophisms and not arguments.

There cannot be a question as to the right of the Legislature in the matter. Not only does Congress delegate to them the right in the unmistakeable language already quoted, but in extending the legislative power of the Territory to all rightful subjects of legislation has stated wherein they may not legislate.-- as "the primary disposal of the soil" &c.

That your Excellency has a legal right to make such suggestions as your good judgment may dictate for the future action of the Legislature no one can question; nor your right to veto any law or resolution they may hereafter pass. But that you can have any retroactive authority upon past acts of legislation I am sure you will not for a moment hold for yourself while your high sense of duty will not permit you to sanction on the part of others an unjustifiable infringement of legislative rights. Surely it is sufficient that in addition to the limits plainly prescribed to the Legislature, and the right of veto given to the Governor, Congress have reserved to themselves the right to nullify all Territorial enactments. That this right is most arbitrary I am not now disposed to argue, but it is relevant to contend that that power should not extend beyond the limits prescribed for it in the plainest language of the statutes.

Ever desirous that the most amicable relations may continue to exist between yourself and the various departments of the Federal and Territorial Governments, together with all the citizens of Utah.

I have the honor to remain Very respectfully Your obt Servt.

Daniel H Wells
Member Leg. Council U. T.

Gov A. Cumming