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.

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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 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.

 

A Minority of One, Part One

Felix Kirk Zollicoffer (KN-TN)

Felix Kirk Zollicoffer (KN-TN)

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

 

Galusha Grow’s majority on the Committee of Territories, affirmed that the Congress should admit the free state government to the Union at once. The territorial government Congress had establish lost all legitimacy through “fraud and violence” and its “odious oppression in the form of legislative enactments”. The time had come for Congress to act in the name of peace, liberty, and “the remove the causes of civil war.”

Not everyone on the committee agreed, so the minority produced his own report. Felix Kirk Zollicoffer (Whig turned Know-Nothing, TN), who might just outdo Galusha Grow in the competition for most remarkable name, did not think Congress should leave Kansas a territory. No American should dwell forever in a territory. Congress should instead authorize a state constitutional convention. However, he denied that Kansas had languished as a territory for so long as to

depress that independence of sentiment which a government like ours should ever cultivate in its citizens; and that it would be ill-judged in continuing to impose upon the United States the burdens of a Territorial organization, after the people of the Territory were fully able to defray for themselves all the expenses of a State government.

Yes, Kansas deserves statehood. But why rush? It had only two years’ territorial status under its belt. The typical state muddled through “from twelve to thirteen, and in some instances much more”. Zollicoffer, like Grow, had examples: Mississippi remained a territory nineteen years, Florida twenty-six, and Michigan thirty-two. That sounded wrong to me and I suspected that Zollicoffer engaged in some prevarication to claim some obscure legislation as the start of the territorial history rather than the normal organic act. He did not. Mississippi (1798-1817), Florida (1822-1845), and Michigan (1805-1837) all match his math. Sorry for misjudging you, Felix.

Furthermore, even if Kansas had done thirty-two years as a territory, Zolicoffer believed it lacked sufficient people to justify statehood. He put its October, 1855 population at twenty-five thousand, just as Grow did, but held that it required 93,420 whites to qualify. To admit it so soon would do an injustice to the the present states, diluting their power with representatives of so few. He declared that

It would be a radical departure from the established usage of the government; there being no instance in which a State has ever been admitted with a population so inconsiderable, and no instance, with one solitary exception, more than equal to the ratio of representation in Congress.

The Constitution may not, as Zollicoffer agrees, require such numbers. But the established norm came about for good reasons and the nation should not lightly set it aside. The average population of the eighteen states admitted, at the time of their admission, stood a bit over 104,000. The majority had just cherry-picked the low population territories to make its argument. He supplied a table to prove it.

Here Zollicoffer does do something sophistical. Grow’s majority did not present their low-population states as average. Rather they acknowledged that they had the low end of the curve. They maintained that Kansas could secure admission at its then-current population on the grounds that other states had done so with less. He has a perfectly good point on the numbers, but chose to misconstrue the majority’s position on the question to strengthen his own.

“Two to five years in the penitentiary” The Committee on Territories Weights In, Part Five

Galusha Grow

Galusha Grow

Parts 1, 2, 3, 4; Report with the Kansas petition here.

The Committee on the Territories, chaired by Galusha Grow, reported to the House that the Congress had caused all Kansas woes by opening the territory to slavery. Now the Kansans had gone to work to fix that, establishing a free state government in defiance of the proslavery territorial regime, and petition for admission under a free state constitution. However irregular, their situation had precedent in the cases of Arkansas and Michigan. Congress had the sovereign power to admit states whenever, however it liked. The expediency and morality of admitting a free Kansas mattered, not the details. Would the Congress do Kansas a favor to make it a state?

Grow’s committee thought it would, as Kansans had suffered the domination of their polls by violent Missourian invaders. He had this information not from abolitionist newspapers or antislavery rumor mills, but straight from no less a solid proslavery man than Franklin Pierce. The report cited minutes of the Kansas governor’s office, as forwarded to the House by the president. They had highlights:

In the third representative district, two of the judges of election

were driven from the room by a company of armed men from the State of Missouri, who threatened their lives, and commenced to destroy the house and beat in the door

In the tenth representative district, Missourians

surrounded the window and obstructed the citizens of the Territory from depositing their votes

In the first election district, “Six or seven hundred armed men” camped by the polls and obstructed them most of the day. Petitioners told Andrew Reeder that someone set up a polling place at an unauthorized location and “non-residents surrounded the polls with firearms and voted indiscriminately.”

All of this in a territory where the local inhabitants, bona fide settlers, had promised to them the right to decide for or against slavery for themselves? The census of February, 1855, counted 2,905 legal voters. Not quite a month after, 6,351 men voted in the legislative elections, 5,664 for the proslavery ticket. New territories could grow fast, but you’d have to grease up all Missouri, fold it into a funnel, and pour it on Kansas to pile on so much growth so fast. As a result, only one free-state man won election. The petitions he got inspired Andrew Reeder to set aside a few more elections and hold mostly clean ones, but the legislature expelled those men and seated the originals. Then it enacted a stringent set of laws effectively outlawing antislavery activity.

As a remedy for these evils and a redress of such wrongs, it is proposed by their apologizes to authorize the people, at some future time, to form another constitution, to be again submitted to Congress, with a new application for admission as a State.

Why should their present application be rejected, and they be forced to pass through the mockery of another election, under the authority of this Territorial legislature and subject to another invasion of non-residents? Immediate action is necessary in order to put an end to the strife in the Territory, which, the President informs us, threatens the peace not only of Kansas, but of the Union.

Why indeed? No reasonable person could deny that giving Kansas a do-over would invite Missourian filibusters to have another go. And they had a government supported by a majority of Kansans, constitution in hand, right there. What could one expect? Either the Missourians would have their way again and it would solve nothing, or James Lane would go home and come back with a similar petition in a year.

In that year, more militants would surely come to Kansas. Delay would only give more chance for armed clashes and let tension boil higher. Only settling the slavery question, Grow’s report affirmed, would give Kansas any peace. Admission at once would do the job. Forcing Kansas to endure “two to five years in the penitentiary” would only punish them. They had suffered enough.

“They were driven by violence” The Committee on Territories Weights In, Part Four

Galusha Grow

Galusha Grow

Parts 1, 2, 3

The Committee on the Territories laid out relevant precedent for admitting Kansas’ free state government to the Union. Arkansas had a wildcat state convention and Congress admitted it. Congress likewise, eventually smiled on Michigan despite only a minority, party convention accepting the terms of Michigan’s admission. Kansas had just the same. Galusha Grow’s committee held neither of these prior admissions in error, since Congress had complete discretion as to when, how, and if it would use its power to make states. Might rarely makes for the best of right, though. The power to do something didn’t make every exercise of that power a good idea. Thus Grow’s majority report turned to the question of expediency.

The case for that began with a history of Kansas from 1854. The Kansas-Nebraska Act had, “[f]or the first time in the history of the government” removed a restriction upon slavery. The old policy, Grow averred, barred slavery “from all territory where it had not an actual existence, and to regulate and even restrict it where it had.” Grow’s history comes straight from antislavery orthodoxy. From the founders on, the nation accepted that slavery existed in some places and could not easily uproot it but stood firm against its spread. Congress had even asserted the power to interfere with slavery in states, by preventing the import of slaves from abroad.

Grow left out that most of the slave states no longer needed to import people by 1808 and so conceded little. We can pick apart the details further, particularly how Grow declares this a sort of formal policy rather than a series of practical concessions to slavery by a national government largely in the thrall of slaveholders. But Grow believed it and offered what, to millions of Northerners, seemed a plausible account of the nation’s past. He had the larger point of emphasizing, against late antebellum Southern orthodoxy, the Congress absolutely had the power to make decisions on slavery for territories. Only by adopting this new doctrine, popular sovereignty, had Kansas’ troubles come about:

instead of leaving this Territory, as it had been for more than a third of a century, consecrated to freedom by all the solemnities that can surround any legislative act; instead of adhering to the policy established by the fathers of the republic, and continued by the uniform action of the government for more than half a century, of settling in Congress the question of the future existence of slavery in a Territory at the time of organizing its temporary government, all restrictions were thrown off, and the existence of slavery was left as a bone of contention for the settlers of the Territory during its Territorial existence, and to be thrown back again into Congress whenever the State should apply for admission. The act itself virtually invited slavery to take possession by removing all barriers to its introduction.

Grow did not deny his partisanship, stressing that opening the territory to slavery brought about all the strife to date. Restriction it would, by implication, have led to an orderly territorial progress for Kansas. He defended antislavery emigrants: they accepted the logic of popular sovereignty and removed to Kansas to exercise it, the same right that every white American enjoyed. For their trouble

they were driven by violence from the polls, and their ballot-boxes seized by organized bands of armed men from the State of Missouri.

Holy Toledo in Ohio: The Committee on Territories Weights In, Part Three

Galusha Grow

Galusha Grow

 

Galusha Grow’s Committee on the Territories reported that Kansas’ irregular state government had precedent in the recent past. All of twenty years back, the people of Arkansas got together a state convention, wrote a constitution, and sent it on to Washington. At the time, no less an authority than Andrew Jackson’s attorney general signed off. They had the right to do so and the territorial legislature could not forbid them. Nor did granting statehood under such a constitution present any objections. Grow affirmed that even without precedent, Congress had the power to admit states at will, but the precise legal circumstances that the Congress grappled with now it had faced before. If Arkansas could do it, why not Kansas?

One could argue that Arkansas had some kind of unique situation. One might say that slave states get special rights. But Grow finished with Arkansas only to move on to Michigan, where I write this post. Some years back, Michigan celebrated its sesquicentennial. The territory felt fit for statehood well before it gained admission to the Union, but had disagreements with its neighbors. Michigan’s southern boundary ought to have run from the bottom of Lake Michigan to the bottom of Lake Erie. The legislators in Washington thought they shared a latitude. They don’t quite and Ohio and Indiana got statehood in advance of Michigan. When Ohio surveyed its northern border, it surveyed at an angle to include within itself the outlet of the Maumee river. Understanding the river and its port as an economic asset, and one which had been governed as a part of Michigan for some time prior, the territory commissioned its own survey that put the land right back with the Mitten. Between the two lines, you had the Toledo Strip.

This takes us up to 1833. Because Michigan doesn’t accept the Strip belonging to Ohio, the Ohio delegation blocks the territory’s application for statehood. Except for the boundary issue, Michigan followed the conventions: asking Congress for an Enabling Act before writing a constitution and all that. The Ohioans had some support in this from Indiana and Illinois, which had also revised their borders northward.

In 1835 the people of Michigan, after repeated failures to obtain an act of Congress authorizing a state convention, called one themselves without any such authority, elected delegates, formed and adopted a constitution, and under it elected State officers, United States senators, and a representative to Congress.

The governors of Michigan and Ohio also called out their militias, formed them up on either side of the Maumee, and took a few shots at one another. The sole injury came when an Ohioan named Two Stickney (yes, really) stabbed a Michigan sheriff. The Toledo War didn’t make for much of a war, but it did cost Michigan’s governor his job.

Congress finally agreed to take Michigan on as a state, provided that it accept the Ohio border. In exchange, the territory could have the lion’s share of the Upper Peninsula. The people of Michigan refused to trade an area with clear economic potential for an empty wilderness. This takes us into 1836. By this point the national coffers have a pleasantly full look to them, to the point that the Congress plans to pass the money out to the states. Michigan, meanwhile, has spent hundreds of thousands on militia expenses. It could use the cash but lowly territories would get nothing. Thus

Their action [rejecting the territory swap] was not satisfactory to a portion or a “party” of the people, and they, without any legislative act whatsoever, called another convention, and accepted the terms proposed by Congress though the people of large sections of the State refused to take any part in this convention, regarding it as illegal and revolutionary.

The proceedings from both conventions reached Washington, where Andrew Jackson forwarded them to Congress with the argument that the second convention, though not authorized by law, represented the will of “the people themselves”. Here we have an illegal convention that represents a minority, a party interest, making decisions for a territory without any formal authority to do so. What did Congerss do? It admitted Michigan on January 27, 1837. And so my grandfather’s favorite exclamation to use in front of children was born: “Holy Toledo in Ohio!”

Arkansas had an unauthorized convention and got into the Union. Michigan had that and dueling conventions. It received statehood. Why couldn’t Kansas?

 

“No legal objection” The Committee on Territories Weights in, Part Two

Galusha Grow

Galusha Grow

Galusha Grow’s (R-PA) Committee on Territories reported that the territorial phase of government constituted a necessary evil. The white men of a newly colonized area simply could not afford a state government, nor could the poor state of infrastructure, communications, and the hazards of the frontier support one. Without federal largess, they would live long in anarchy. Thus Congress stepped in and established a government on the nation’s dime, filling the gap until the white colonists existed in sufficient number to pay for it themselves. In exchange, Congress took a supervisory role over the territory. That necessarily impinged on the self-government of the colonists, but since they hadn’t lost any of their natural capacity for self-rule the Congress had a responsibility to end the territorial stage and admit the territory as a state as soon as the circumstances justified it. Neither of these amounted to a Constitutional requirement, and Grow came armed with exceptions, but it did make for a kind of moral obligation to admit Kansas.

Provided, of course, Kansas had written a republican constitution and had the numbers. Grow turned first to the numbers. He cited an estimate that Daniel Woodson, Secretary of Kansas, had forwarded to Franklin Pierce and which Pierce duly transmitted over to Congress. Did twenty-five thousand suffice? If not, Woodson’s number had aged a six months. If the trends from then continued, then Grow expected “forty-five or fifth thousand” white people on the ground. “Each month,” he tactfully added

from excitement and stimulus given toe migration in all parts of the Union to this Territory, adds largely to its numbers.

Eli Thayer

Eli Thayer

Ely Thayer and Jefferson Buford don’t come up by name, but everybody knew exactly who and what Grow meant.

Grow stressed that, while the Congress might have certain conventions on the point, the Constitution laid out no hard number of white people that justified statehood. It, like the rest of the admission process, hung on Congress’ sovereign discretion. This “affords no uniform precedent.” For Tennessee, the Congress accepted a bit more than 32,013 (its population in the 1790 census). Louisiana came in with than 34,311 (1810 census). Indiana passed the finish line with less than 23,890 (1810 again). Mississippi shed its territorial status with less than 42,176 (1820). Missouri had 55,988 whites (1820), Arkansas 25,671 (1830). Florida finished up the list with 27,943 and change (1840 census). Nothing like a pattern emerges here, unless it sets a bar blurred across the low-to-mid tens of thousands. By Woodson’s estimate, Kansas had somewhere around as many people on hand as Indiana, Arkansas, and Florida did when Congress admitted them. Grow slid neatly into taking his projected growth as a given and pointed out that Kansas’ population exceeded that of “many of the States and the time of their admission into the Union.”

All of this makes Kansas petition for statehood, which it claimed to already half-possess by taking it on itself to write a constitution, sound very normal. Grow held that accepted conventions did not make for binding precedent, so the fact that Congress had not given leave for any such thing didn’t matter. His committee grappled with the issue all the same. “In a majority of cases” Congress gave advance permission for constitution writing, but not every one. Tennessee, Arkansas, Michigan, Florida, and Iowa went on without an enabling act. The Constitution didn’t require one and its lack had produced no great evil. Congress retroactively endorsed them through the acts of admission. What it could do for five territories, it could do for a sixth.

Benjamin Franklin Butler of New York

Benjamin Franklin Butler of New York

Furthermore if one wanted a precedent, then Galusha Grow had one that neither ex-Democrats like himself nor present members of the Democracy could lightly set aside. Arkansas had a constitutional convention without the permission of Congress or their legislature. The governor wrote asking if he had a duty to put a stop to that. Andrew Jackson, through Attorney General Benjamin Franklin Butler (the New York lawyer, not the Massachusetts general), wrote back

They undoubtedly possess the ordinary privileges and immunities of citizens of the United States. Among these is the right of the people peacably to assemble and to petition the government for the redress of grievances. In the exercise of this right, the inhabitants of Arkansas may peaceably meet together in primary assembly, or in convention chosen by such assemblies, for the purpose of petitioning Congress to abrogate the Territorial government, and to admit them into the Union as an independent State. The particular form which they may give to their petition cannot be material so long as they confine themselves to the mere right of petitioning, and conduct all their proceedings in a peaceable manner. And as the power of Congress over the whole subject is plenary and unlimited, they may accept any constitution framed, which in their judgment meets the sense of the people to be affected by it.

Twenty years back, Old Hickory’s administration practically looked into the future and blessed the free state movement. Even if the petition came with a constitution attached, as Kansas’ had, Butler said

I perceive no legal objection to their power to do so.