Indulging the inner legal geek

So right after yesterday’s post ran about the odd Oregonian origins of Alaskan law, in pinged an email from one of The Legal Genealogist‘s cousins.

“There are two uses of ‘organic’ that made me pause,” wrote Cottrell cousin Bill Wheat. “First the ‘1884 Organic Act’, then the second ‘Organic Act’ of August 24, 1902. What made these acts ‘Organic’?”

Oooooh… fun question.

And I have every intention of indulging my inner legal geek here.

By definition, organic law is the “fundamental law, or constitution, of a state or nation, written or unwritten; that law or system of laws or principles which defines and establishes the organization of its government.”¹

That’s all very well and good — but the definition does seem to get a little circular.

Clearly, just by applying the definition, the Constitution of the United States itself would be part of the organic law. And, again by definition, a constitution is the “organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.”²

And fundamental law by definition is the “law which determines the constitution of government in a state, and prescribes and regulates the manner of its exercise; the organic law of a state; the constitution.”³

You see what I mean by circular here?

So… we need to get closer to the folks who were actually using the word.

And how can we do that — how could we know what Congress meant when it used the word “organic” in reference to a law?

There are two bits of evidence we can look to. First, we have evidence of what it meant by the phrase “organic law” when it revised the statutes in 1874 — codifying them into a whole and arranging them by topic. The Revised Statutes that resulted were published in a volume that included setting out what Congress called “The Organic Laws:” the Declaration of Independence; the Articles of Confederation; the North-West Ordinance; and the Constitution.⁴

Yep, the North-West Ordinance too. Because the term ordinance was sometimes used in the same way, to mean an organic law:

The name has also been given to certain enactments, more general in their character than ordinary statutes, and serving as organic laws, yet not exactly to be called “constitutions.” Such was the “Ordinance for the government of the North-West Territory,” enacted by congress in 1787.⁵

And that sends us down the road to what Congress meant in the Alaska acts and in many other similar enactments. It points us to evidence of what Congress meant by the phrase “organic act.” And there it clearly meant a statute that gave governmental powers to a geographic area like a territory.

Congress first appears to have used the word “organic” to refer to a territorial law in 1839, when it adopted “An act to alter and amend the organic law of the Territories of Wisconsin and Iowa.” The word organic doesn’t appear in the law, but only in the title of the law,⁶ and it doesn’t appear at all in the original act creating the Wisconsin or Iowa Territory.⁷

It first used the term in the language of a statute when it referred to “the organic law promulgated by General Stephen W. Kearny for the Government of (the) Territory of New Mexico” in 1854.⁸

President Franklin Pierce referenced it in a “Proclamation Respecting Disturbances in Kansas Territory” in 1856, calling on “the citizens, both of adjoining and of distant States, to abstain from unauthorized intermeddling in the local concerns of the Territory, admonishing them that its organic law is to be executed with impartial justice…”⁹

In 1866, Congress used it again in the title of “An Act amendatory of the organic Act of Washington Territory,”¹⁰ and the following year in the body of “An Act for the Admission of the State of Nebraska into the Union” (making it part of the organic law of the State that “there shall be no denial of … any … right, … by reason of race or color…”).¹¹

That Congress generally meant the laws establishing the government of the territories when it used the term organic act is supported by the language of the U.S. Supreme Court when it referred to

that system of organized government long existing within the United States, by which certain regions of the country have been erected into civil governments. These governments have an executive, a legislative, and a judicial system. They have the powers which all these departments of government have exercised, which are conferred upon them by act of congress; and their legislative acts are subject to the disapproval of the congress of the United States. They are not in any sense independent governments. They have no senators in congress, and no representatives in the lower house of that body except what are called “delegates,” with limited functions. Yet they exercise nearly all the powers of government under what are generally called “organic acts,” passed by congress, conferring such powers on them. It is this class of governments, long known by the name of “territories,”…¹²

The Court also said that an “‘organized’ Territory is one in which a civil government has been established by an Organic Act of Congress,”¹³ and that “the general territorial system, (was) as expressed in the various organic acts…”¹⁴

So organic law in general is the law that sets up governments, and — as we use the term here in the United States — organic acts are the specific statutes that create governments in American territories — and begin building the country geographically — and organically.

It doesn’t get much geekier than that.

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