Three Choices for Kansas

Stephen Douglas

Stephen Douglas

Felix Zollicoffer had one solution for Kansas’ troubles: giving the territorial legislature advance permission to write a state constitution when they found that the territory’s population had grown large enough. Galusha Grow and the rest of the House’s Committee on Territories had another: admit the free state government to statehood at once. Before both of them, Franklin Pierce had directed the Congress’ attention to settling of matters in his annual message. Grow’s and Zollicoffer’s reports to the House come in that context as well as that of Kansas’ petition. The House’s long contention over who would occupy the Speaker’s chair delayed action on Kansas as much as it did the president’s message, but the Congress had a whole second chamber just across the way with its own Committee on Territories and Stephen Douglas as the chair. He fixed Kansas until it broke last time, so why not take another crack?

Douglas might have gotten right on that at the first of the year, but illness kept him away from the capital. The Senate naturally referred Pierce’s message to his committee, so once he did arrive he got right into things. On March 12, the Little Giant came out swinging. I couldn’t find the report online anywhere, but my sources agree on the essential points: The Emigrant Aid Companies took all the blame for Kansas’ troubles, which provoked Missouri to action. Douglas ignored what James Rawley calls the “bastard birth” of the territorial government and affirmed its legitimacy. The Topeka movement amounted to a revolution. Congress ought to appropriate additional money to enforce order in the territorial and give permission at once for Kansas to write a constitution, under the extant territorial government, when it reached the proper population. Douglas and Zollicoffer had two parties between them, the Little Giant a lifelong Democrat and Zollicoffer a Whig turned Know-Nothing, but they agreed on Kansas.

Jacob Collamer (R-VT)

Jacob Collamer (R-VT)

Vermont’s Jacob Collamer dissented, arguing that the free state movement acted only because driven to strike out on their own. What else could they do with no recourse to the polls or the law of the territory? They might have done worse still, but opted for a “peaceful, constitutional” remedy. If Congress really wanted to fix things, they should repeal the whole Kansas-Nebraska act. But if the Senate would not listen to good sense,

then declare all the action by this spurious foreign legislative assembly utterly inoperative and void, and direct a reorganization, providing proper safeguard for legal voting and against foreign force.

Collamer took a conservative course. He defended the free state movement, but did not endorse its application for statehood. That would sidestep all the difficulties with its irregular nature and the extant legal government of Kansas.

Thus the Congress had three solutions before it: Douglas and Zollicoffer, who hewed to the same line as the administration, proposed largely leaving Kansas in the hands of its present government. It would become a slave state in due course. Grow and the majority of the House committee advised immediate statehood under the Topeka constitution, which would ensure a free and lily white Kansas. Somewhere on the center and leaning antislavery, Collamer advised a do-over, rolling the clock back to either before the first Assembly elections in March of the previous year or all the way to May of 1854 when the Kansas-Nebraska Act became law.

The Zollicoffer Solution

Felix Kirk Zollicoffer (KN-TN)

Felix Kirk Zollicoffer (KN-TN)

Parts 1, 2, 3, 4, 5, 6

Majority Report: parts 1, 2, 3, 4, 5; Reports with the Kansas petition here.

If you asked Tennessee’s most remarkably named representative, Felix Zollicoffer, the majority of the Committee on Territories had gone off the deep end. They wanted to make an illegal rebel government that represented the sore losers in a series of elections in a territory that hardly warranted statehood into coequals with the legitimate governments of all the other states in the Union. Never had the Congress done anything half so radical, yet Galusha Grow’s majority wanted it done and done quickly to remedy some imagined slights. He knew that the free state movement did this all as a scam because they picked no less a man to represent them in Congress than Andrew Reeder. The very same Andrew Reeder certified the elections that his supporters now declared the work of fraud. Kansas did not deserve statehood.

But Zollicoffer believed in America and self-government for native-born white Protestant men. He would not ask true Americans to live forever in a kind of colonial status, their every enactment subject to a veto in Washington and the high officers of their government serving at the pleasure of the president. Kansas did not deserve statehood right now but it surely would at some point in the future. Zollicoffer reported a bill for the House’s consideration in lieu of the majority’s statehood-at-once plan. His bill provided

That whenever it shall appear, by a census to be taken under the direction of the governor, by the authority of the legislature, that there shall be ninety-three thousand four hundred and twenty inhabitants (that being the number required by the present ratio of representation for a member of Congress) […] the legislature of said Territory shall be, and is hereby, authorized to provide by law for the election of delegates by the people of said Territory, to assemble in convention and form a constitution and State government, preparatory to their admission into the Union

Galusha Grow

Galusha Grow

It might sound like Zollicoffer just kicked the can down the road, which he did, but he did more than that. He would have the House legislate an automatic approval for Kansas to write a state constitution as soon as the census odometer rolled over and the territorial legislature agreed. But for all his protests, Zollicoffer knew that election time meant violent shenanigans in Kansas. Though he probably intended more to steal the thunder of antislavery protests than to set down a requirement with real force behind it, his law also insisted that the men who voted on delegates to the state convention must

have been actual residents […] for a period of six months, and in the district for the period of three months next preceding the day of election

That looks fair on the surface, but tilts strongly proslavery in practice. Everybody knew just how well restricting the vote in Kansas to actual residents went. On top of that Zollicoffer would leave it up to the territorial legislature, comprised exclusively of proslavery men, to decide when to seek statehood. They would thus do so on their terms and could extend their rule indefinitely by either delaying a census or declining to act upon one completed. In that time, they and their Missourian friends could do as they liked with the free state party.

The Infamous Andrew Reeder Again: A Minority of One, Part Six

Felix Kirk Zollicoffer (KN-TN)

Felix Kirk Zollicoffer (KN-TN)

Parts 1, 2, 3, 4, 5

Majority Report: parts 1, 2, 3, 4, 5; Reports with the Kansas petition here.

The free state party found themselves in a bind when the bogus legislature passed its slave code. They badly needed some kind of national spokesman to represent them, but Kansas did not come pre-stocked with nineteenth century celebrities. They settled on Andrew Reeder, to the point of endorsing his land deals and inflammatory resolutions. Probably no one else could both do the job and had credible experience on the ground in Kansas, but by adopting Reeder they also adopted his record as governor. Felix Zollicoffer would not let them forget it.

All the way back at Kansas first election, antislavery settlers cried foul at Missourian interference in making John Wilkins Whitfield delegate to Congress. Protests or no, Andrew Reeder certified Whitfield’s election. In March of 1855, where the free state men again protested that Missourians had taken their polls by threat and violence. Reeder had gotten out ahead of the danger

proscribing the time, place, and mode of election, had required an oath by the judges of election to permit no person to vote who was not a qualified voter and an actual resident of the Territory, and to make a true and faithful return of the votes to the governor; and notwithstanding it also expressly provided that if there should occur any fraudulent voting, or voting by non-residents, the persons so charging should make a sworn statement of the facts to the governor, and that the irregularities should be corrected.

According to Zollicoffer, nobody even tried to make such a statement or present evidence for the proposition. He doesn’t have that quite right, as he subsequently notes. Some did protest and Reeder ordered special elections. I suspect he aimed to conflate the delegate election, where Reeder let the verdict stand, and the legislative elections. But, Zollicoffer affirmed, if you did the math you would see that Reeder’s special elections didn’t matter as the Assembly could have just gone on with those few seats vacant.

Furthermore:

The records show that there was no pretence set up of illegal voting in the election of eleven councilmen out of thirteen, and of seventeen representatives out of twenty-six. At the special elections, ordered by the governor, to fill vacancies where illegal voting was alleged, the same persons were again chosen by the people, except in the case of one councilman and one representative.

Andrew Horatio Reeder

Andrew Horatio Reeder

In reading this, we must keep in mind that Zollicoffer did not have the Howard Report on hand. He may genuinely not have known that the proslavery majority actually purged themselves of those who won the special elections and replaced them with the men who won back in March thanks to illegal voting. He might also have had the relevant records and just not cared. He leaves out the whole matter of legislators unseated and replaced, instead focusing on Reeder’s dispute with the legislature over whether they should meet at Pawnee or the Shawnee Mission. Only after Franklin Pierce fired him and he joined up with the free state party did Reeder decide that illegal voting had deprived the legislature of legitimacy.

We know it didn’t quite work like that, but the fact that Reeder had recognized the legislature as legitimate and had personally certified so many fraudulent elections could not simply pass unmarked. Kansas would-be government chose him as one of their spokesmen and his shifting positions made him look like a venal office-seeker who hitched his wagon to whoever could get him revenge and a cushy desk job. Considering that Reeder had meant to depart Kansas for good until the free state movement sought him out, and dictated terms for his joining up, Zollicoffer probably had Kansas first governor dead to rights.

 

“A series of grave errors” : A Minority of One, Part Five

Felix Kirk Zollicoffer (KN-TN)

Felix Kirk Zollicoffer (KN-TN)

Parts 1, 2, 3, 4

Majority Report: parts 1, 2, 3, 4, 5; Reports with the Kansas petition here.

 

Felix Zollicoffer had about enough of all this talk in the majority report about the precedent for admitting Kansas’ wildcat, free state government. None of them held a bit of water for him, whatever his fellows on the Committee on Territories thought. On the contrary, he found controlling precedents the other way. The majority, he affirmed, did not simply find themselves on unexplored constitutional ground. They found themselves on explored ground decided against them.

Zollicoffer began at home. Before the Constitution, some people got together the State of Franklin, roughly coterminous with modern Tennessee. They had no lawful permission to do that and the land belonged to North Carolina. They pleaded

Indian hostilities were raging throughout its settlements, ‘making it absolutely necessary, in the apprehension of the settlers, to establish some sort of local government for themselves

Kansans could claim that they had Missourian marauders at the door all the liked. White Tennesseans had actual Indians coming after them. If the United States would protect white men from anything, it would protect them from Indians. They could even bring hostility on themselves and expect protection from the federal government. If anybody had a legitimate claim to statehood on those grounds, the people of Franklin did. They got none, so why should Kansas get better treatment when beset only by proslavery whites? Why shouldn’t they enjoy the same fate as Franklin did, “swept from existence”?

What about a government at odds with another government in the same jurisdiction, claim oppression? Zollicoffer didn’t have to go back to the eighteenth century for that one. Up into the 1840s, Rhode Island still operated off its antique colonial charter, leaving a great many Rhode Islanders entirely disenfranchised despite their white skin and male sex. Thus

the Dorr insurrection, as it was familiarly called, sought to set up, without the sanction of law, a State government in defiance of the existing State government of Rhode Island. But that movement was also promptly put down, and was from the beginning firmly discountenanced by the general government.

Kansans could claim their reasons, just as the Dorrites could, but everybody has reasons. Zollicoffer told the House that even if the complaints sounded plausible, they didn’t have the other side to hear and should take nothing on faith. Those free state Kansans had “committed a series of grave errors” which went all the way back to the start of the controversy when

active and noisy movements were set on foot to throw into Kansas a mass of voters from distant States for the avowed purpose of controlling its elections, and making it a free State. For this purpose, Emigrant Aid Societies were organized in the New England States; millions of money were subscribed; and with a vociferous agitation against slavery, large numbers of persons were procured to enter the Territory.

Zollicoffer had the facts on his side again, but as he did before in looking at precedents for statehood by population, he dodged the actual issue. Popular sovereignty meant that the people of Kansas got to vote slavery in or out. Those people constituted the actual settlers there, people who had come from afar to stay. While some who came on emigrant aid company subsidy did go home on finding Kansas not to their liking or voted after only a few days in the territory, it appears most went with the full intention of staying. The Border Ruffians could claim no such distinction. Some of them surely meant to come to Kansas and others did come and remain, but the vast majority clearly came over to vote with no intention of staking claims. Since they lived next door, that had that luxury. People from New England hardly came to Kansas for a day trip in the 1850s.

“The disorderly, insurrectionary, and war-menacing spirit” : A Minority of One, Part Four

Felix Kirk Zollicoffer (KN-TN)

Felix Kirk Zollicoffer (KN-TN)

Parts 1, 2, 3

Majority Report: parts 1, 2, 3, 4, 5; Reports with the Kansas petition here.

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.

 

 

A “Startling Assumption” : A Minority of One, Part Three

Felix Kirk Zollicoffer (KN-TN)

Felix Kirk Zollicoffer (KN-TN)

Parts 1, 2

Majority Report: parts 1, 2, 3, 4, 5; Reports with the Kansas petition here.

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.

Zollicoffer’s emphasis.

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.

Utter Defiance and Resistance: A Minority of One, Part Two

Felix Kirk Zollicoffer (KN-TN)

Felix Kirk Zollicoffer (KN-TN)

Majority Report: parts 1, 2, 3, 4, 5; Reports with the Kansas petition here.

Felix Zollicoffer’s minority report on the free state government’s petition for Kansas statehood agreed with the majority that polities should not languish forever in territorial status. However, he disagreed strongly that Kansas had done so. If Michigan could wait thirty-two years, then surely Kansas could not have come to the brink of ruin in two. For that matter, Kansas had nowhere near so many people as to make the matter urgent by numbers alone. Quite the opposite, the territorial population hung on the very low end or past admissions and making it a state now would do an injustice to the others by asking to accept a relative handful of people warranting one Representative and two Senators. On the last point, Zollicoffer echoes the traditional criticisms of the Electoral College and the Senate.

But Tennessee’s most strikingly named son started with the small stuff. The Committee on Territories reported out a bill for Kansas’ statehood under the Topeka Constitution. Said bill declared that “the people of Kansas have presented a constitution, and asked admission”. That all sounds right enough, until you open a newspaper. There, Zollicoffer found the curious

fact that this “constitution,” and this pretended “State of Kansas,” have been set up in open resistance to the lawfully-constituted authority of the country-set up on the public domain of the United States in utter defiance of and resistance to the laws of the United States; set up not by “the people of Kansas,” but by a dissatisfied portion of the people, arrayed in excited antagonism to another portion; with a questionable list of grievances, and with a temper too impatient, or too prone to disorder, to await the redress of grievances which the due processes of law and order are sure to accord

To top it off, they claimed that the territorial government had failed and so deprived the people of “any legal government whatsoever”. Zollicoffer would have none of that. The United States gave Kansas a territorial government in the Kansas-Nebraska Act. If a law of Congress did not make that government legal, then legality had no meaning. Who elected those senators and representatives of Kansas? Not the people of Kansas, who had legal elections to represent them. Rather some band of rebel scum grinding axes over the dubious cause of freedom took matters into their own hands. With the exception of Zollicoffer’s view of the free state movement’s grievances, he has the facts on his side. That proslavery men within Kansas had gone over thanks to the same grievances didn’t enter into it. They hadn’t all switched sides.

As much as we naturally want to dismiss Zollicoffer as a proslavery partisan, he has at least a weak point. The process of writing and ratifying a constitution cannot for a second escape politics. They all come with embedded ideologies and policy objectives. But in treating constitutions as more than ordinary law, we mean for them to acquire a more fixed state that also renders them uniquely binding upon the people. Traditionally, Americans believe you should have some kind of supermajority to do that. In theory, that means you come up with a document that all parties can at least tolerate.

One could argue that the free state movement did that; its elections at least had higher turnout than the territory’s legal elections did. That it could manage such a feat while having at best tenuous legality and at worst fomenting insurrection speaks volumes as to how Missourian invasions and the laws they wrought transformed Kansas into a prison house for white liberties. That they managed this with a white population of which Missourians formed a large part says still more. But the history of the free state movement and its legal status do raise serious questions about its formal legitimacy.