The free state convention at Topeka decided Kansans in favor of writing a constitution and submitting it to Congress, whether the territorial government liked it or not. They created their own executive to administer the process and wrote a proclamation to call Kansans to the polls and justify the radical step toward outright insurrection. They listed their many grievances and wrapped themselves in the flag by echoing the language of the Declaration of Independence. All of this clearly broke the law, and not just the draconian slave code that the territorial legislature had established. A federal law, the Kansas-Nebraska Act, had ordained Kansas’ territorial government. Yet now they would ask Congress, author of that law, for relief.
That required some explaining. One could agree with the free state movement on every grievance and still doubt the wisdom of openly repudiating Congress’ government for the territory while simultaneously asking that the same body embrace them. Even had no one in Kansas wondered at it, someone in Washington would. But the free state men anticipated as much and had an answer:
a territorial form of government is unknown to the Constitution, and is the mere creature of necessity, awaiting the action of the people […] the debasing character of slavery which now involves us impels to action, and leaves us, as the only legal and peaceful alternative, the immediate establishment of a State government
James Lane’s committee had their facts in order. One will search in vain for territorial government provisions in the Constitution. Back in the early Republic, some doubted that places on the western side of the Appalachians even deserved state government. No set procedure existed for organizing territory into states, though the Constitution did contemplate the addition of new states to the Union. Tennessee, organized under the Southwest Ordinance, had operated as a territory established by Congress, but then proclaimed itself a state and sent men to Congress to see things through. If Congress could tolerate such an act in the 1790s, then it could do so again in the 1850s. Perhaps the Kansans did not color within all the lines, but they understood themselves as in dire straits and could claim that they had no constitutional mandate forcing them to hew to the established process.
But say that they did have an obligation to do so. The Executive Committee of Kansas had an answer for that as well:
the organic act fails in pointing out the course to be adopted in an emergency like ours
They had the Kansas-Nebraska Act and it said nothing about what to do when residents of another state stole your elections and then legislated all the rights of free white men away. Stephen Douglas never foresaw that. Nor did the F Street Mess demand he do so. Reasonable people would have expected some kind of fight in Kansas, and Atchison, Stringfellow, and company expected the fight they offered, but nowhere in the act did one find provision to break in case of invasion by Missouri. That might not persuade most of Congress, but would provide some cover for moderates who felt caught between defending the authority of the body and republican principles.