The legislature of Kansas met in Pawnee, town of many imagined delights, and immediately took on itself the task of deciding just who belonged among its members. The proslavery majority unseated all the free soil members save one, who could claim his seat in right of an election during the Missourian invasion of March rather than the relatively fair special elections of May. In the vacated offices, the legislature placed the men who won the March elections. These included such a moderate voice as John Stringfellow. With a man like him in office, how could free soilers complain about harsh treatment? He only wanted to run them out of the territory and maybe, just maybe, kill Andrew Reeder if the governor refused to leave.
The purge of the legislature continued the dispute that the proslavery party had with Reeder over his calling for special elections to begin with. He had no power to do any such thing, to their minds, and so many proslavery men had boycotted the May elections. Legalities suddenly took on great significance when they injured the free soil side, compared to their relative triviality in the matter of something like proslavery Missourians making themselves Kansans for a day to control elections.
Though the decision obviously had far more to do with partisanship than principle, did the proslavery men have a legal leg to stand on? Our sympathies certainly lay elsewhere, but it only seems fair to ask the question. Previously, I could only go from the text of the Kansas-Nebraska Act and the Constitution to conjecture their case. But as I have the reports of the committees on credentials before me now, I have the benefit of their own words to share.
After laying out the basic problem that several seats had two claimants due to the two different elections, the committees proceeded to the question of what authority the governor had over elections. They discovered, unsurprisingly, that he had little at all. As the territorial executive, they adduced a general principle that Reeder’s powers extended only so far as clear grant of authority existed:
From the fact that his duties are clearly defined and pointed out, it would follow as a sequence that his authority should be just as clear and explicit. This may be truly said of all merely administrative or executive officers.
The explicit and clear authority ran as follows:
it will be seen that it devolved upon him [the governor] to declare the places at which, and the time when, the first election for members of the legislative assembly should be held, and that said election should be conducted in such manner, both as to persons who shall superintend such elections and the returns thereof, as the governor shall elect. This is nothing more than an authority to appoint judges of the election, and to direct the manner in which the returns shall be made. It cannot mean an authority to direct in what way the judges shall discharge their respective duties, for it should be presumed that they know the law, and are duly impressed with the duties they have to perform. We hold that a judge of an election, just as any other judge, has a discretionary power in all things where the law is silent, and when that discretion is once exercised, the result thereof becomes final, unless his action is subject to revision by another and higher tribunal.
Reeder could appoint the judges; he had no right power to question their decisions. He had no right power to proscribe a restrictive oath binding them to accept only the votes of Kansas residents. He certainly had no power to receive their returns and then decide that the election did not count and would be done over. No law of Congress or the territory placed any such restraints upon the judges, so they could do as they liked. The governor served strictly as their agent, a clerk who took the returns and wrote out certificates of election.
The committee went on to opine on the dangers of allowing the executive to decide who could and could not sit in the legislature. This looked dangerously royal to them, and they noted that even Bad Old England did not tolerate such an arrangement. Parliament made itself the judge of its membership, just as the US Congress did. Otherwise, the executive could simply expel anybody who did not vote as he liked. Reeder didn’t do that, of course. The proslavery majority did. They, after all, represented the people.
This may sound a bit alien, but fits comfortably in the nineteenth century mainstream. The Whigs made it virtually a test of party orthodoxy to trust the legislature over the presidency, which corrupt King Andrew Jackson had proven inherently suspect. Even Democratic presidents had much greater deference toward Congress than one might see now. The executive of the day had a much more prime ministerial character. The American electorate also generated much more parliamentary returns, regularly electing a working majority from the party of the man who won the presidency.