The problem that free state Kansans had taken the task of government on themselves without any authorization, and against the legal government of the territory, left them wide open to attacks such as Zolicoffer’s. They by their very existence flouted the will of Congress, then asked Congress for relief. They might have had excellent reasons, at least if you care about democracy or dislike slavery, but everyone from Charles Robinson and James Lane on down knew that they occupied a precarious position. After revealing their assertion, from the uncut petition he got his hands on, that the free state movement had a right to demand statehood and overthrow the territorial government, Zollicoffer shared with the House of Representatives some other things the free state men had written.
To find these, he trolled through the resolutions of mass meetings:
we owe no allegiance or obedience to the tyrannical acts of this spurious [regularly-constituted Territorial] legislature; that their laws have no validity or binding force upon the people of Kansas; and that every freeman amongst us is at full liberty, consistent with all his obligations as a citizen and a man, to defy and resist them
we will endure and submit to these laws no longer than the best interests of the Territory require, as the least of two evils, and will resist them to the bloody issue, as soon as we ascertain that peaceable remedies shall fail, and forcible resistance shall furnish any reasonable prospect of success; and that, in the mean time we recommend to our friends throughout the Territory the organization and discipline of volunteer companies and preparation of arms!
Zollicoffer added the bit about the regularity of the territorial legislature. Emphasis is his.
The Kansans didn’t present those resolutions to Congress, but they did write them and vote their approval. They came from Andrew Reeder’s pen and he exacted their approval as part of the price of his taking up with the free state cause at the Big Springs convention, but the assembly still voted for every word. Though not the free state government, a fact Zollicoffer admits, then they did constitute the body who got the ball rolling for one. Nor do they differ substantially from many things free state men had written elsewhere, or even Charles Robinson’s inaugural speech as governor. That he went digging might incline us to think Zollicoffer dishonest or reaching, but he did what anybody might do in similar circumstances.
The resolutions revealed, the Tennessean held,
the disorderly, insurrectionary, and war-menacing spirit with which this “State of Kansas” was set on foot! […] To admit a State thus formed, in open defiance of the lawful authorities of both the Territory and the United States, would be without parallel in the history of our government, utterly repugnant to its approved policy and rights of jurisdiction, and imminently hazardous to its future order, peace, and safety.
And don’t bring Felix Zollicoffer any of those Galusha Grow, majority report precedents. Nine prior states got admission with Congress’ leave, following the normal procedures to the letter. Four more got their admission with the approval of their territorial governments. Zollicoffer included Arkansas in that list, though Grow has the territorial governor asking Andrew Jackson if he ought to suppress a wildcat constitutional convention. (Jackson said no.) Three more states came from other states, with permission. California didn’t have Congress’ permission to do anything, much like Kansas, but had lacked a territorial government and the military government in its place insisted. Close enough. Never before had anything quite like Kansas, with a wildcat government openly opposed to the established territorial government, come and asked for statehood. Nor had any come pledging to resist that government “to the bloody issue” and with paramilitary bands organized for the job.
Zollicoffer had the facts on his side. The Congress really did face a new and, at least largely, unprecedented situation. Grow’s majority report admitted as much, with its emphasis on Congress’ sovereign power to admit or not admit territories on whatever grounds it pleased.