From his attack on the majority of the Committee on Territories’ argument for Kansas statehood under the free state constitution written at Topeka, on the grounds of population, and casting aspersions on the free state movement as an illegal, insurrectionist force, Felix Zollicoffer proceeded to the issue of the petition’s provenance. Like Stephen Douglas, he doubted that even if the free state movement had a shred of formal legitimacy its members had signed the document that James Lane presented to the Congress. “Several passages,” he wrote “have been suppressed, as it appears, here in Washington.”
Lane admitted to doing editing work on the memorial, claiming that he had authorization from Governor Charles Robinson. But Zollicoffer had what he considered the full version and quoted an offending passage:
By the provisions of the organic act a government was established over the Territory, and officers were appointed by the President to administer said government. This form of government is unknown to the constitution, is extra-constitutional, and is only the creature of necessity awaiting the action of the people, and cannot remain in force contrary to the will of the people loving under it. It may be regarded as a benevolent provision on the part of Congress thus to provide a government of their own; but when it becomes oppressive, or when the people become sufficiently strong to establish a government of their own, in accordance with the constitution of the United States, it is their right to do so, and thereby throw off that extended over them.
I don’t know where he got this version from, but it does match fairly well with free state rhetoric within Kansas and all my sources agree that Lane removed some passages and added others to adjust the memorial’s test for the situation in Congress. Zollicoffer may have even read of Lane’s original turnover, which sounds like a very sloppy affair.
Either way, Zollicoffer would have none of that. He declared that the memorialists at that moment occupied their land “by permission of Congress” in “one of the Territories of the United States“. They then called themselves, without any authorization and in defiance of the actually authorized government, a legislature. He deemed this a “startling assumption.” He has a point. After establishing a wildcat government in opposition to the one that Congress set up, the free state men then had the temerity to go before the same Congress for relief whilst simultaneously declaring that Congress had no power to refuse them.
The Topeka legislature chose to suspend all its acts until admission as a state, but it had still done all that. Its existence alone constituted a rejection of Congressional authority. Nor could they, in asking for statehood and showing up constitution in hand, claim that they deemed themselves something less than a state already. All of this had precedent, as Galusha Grow noted for the majority, but it still took remarkable cheek. If he lived in our times, Zollicoffer may have found cause here to comment on their ample endowment of gall, or some similar word.