A Compilation of the Messages and Papers of the Presidents. Volume 5, part 3: Franklin Pierce

by Unknown

This interference, in so far as concerns its primary causes and its immediate commencement, was one of the incidents of that pernicious agitation on the subject of the condition of the colored persons held to service in some of the States which has so long disturbed the repose of our country and excited individuals, otherwise patriotic and law abiding, to toil with misdirected zeal in the attempt to propagate their social theories by the perversion and abuse of the powers of Congress.

The persons and the parties whom the tenor of the act to organize the Territories of Nebraska and Kansas thwarted in the endeavor to impose, through the agency of Congress, their particular views of social organization on the people of the future new States now perceiving that the policy of leaving the inhabitants of each State to judge for themselves in this respect was ineradicably rooted in the convictions of the people of the Union, then had recourse, in the pursuit of their general object, to the extraordinary measure of propagandist colonization of the Territory of Kansas to prevent the free and natural action of its inhabitants in its internal organization, and thus to anticipate or to force the determination of that question in this inchoate State.

With such views associations were organized in some of the States, and their purposes were proclaimed through the press in language extremely irritating and offensive to those of whom the colonists were to become the neighbors. Those designs and acts had the necessary consequence to awaken emotions of intense indignation in States near to the Territory of Kansas, and especially in the adjoining State of Missouri, whose domestic peace was thus the most directly endangered; but they are far from justifying the illegal and reprehensible countermovements which ensued.

Under these inauspicious circumstances the primary elections for members of the legislative assembly were held in most, if not all, of the precincts at the time and the places and by the persons designated and appointed by the governor according to law.

Angry accusations that illegal votes had been polled abounded on all sides, and imputations were made both of fraud and violence. But the governor, in the exercise of the power and the discharge of the duty conferred and imposed by law on him alone, officially received and considered the returns, declared a large majority of the members of the council and the house of representatives "duly elected," withheld certificates from others because of alleged illegality of votes, appointed a new election to supply the places of the persons not certified, and thus at length, in all the forms of statute, and with his own official authentication, complete legality was given to the first legislative assembly of the Territory.

Those decisions of the returning officers and of the governor are final, except that by the parliamentary usage of the country applied to the organic law it may be conceded that each house of the assembly must have been competent to determine in the last resort the qualifications and the election of its members. The subject was by its nature one appertaining exclusively to the jurisdiction of the local authorities of the Territory. Whatever irregularities may have occurred in the elections, it seems too late now to raise that question. At all events, it is a question as to which, neither now nor at any previous time, has the least possible legal authority been possessed by the President of the United States. For all present purposes the legislative body thus constituted and elected was the legitimate legislative assembly of the Territory.

Accordingly the governor by proclamation convened the assembly thus elected to meet at a place called Pawnee City; the two houses met and were duly organized in the ordinary parliamentary form; each sent to and received from the governor the official communications usual on such occasions; an elaborate message opening the session was communicated by the governor, and the general business of legislation was entered upon by the legislative assembly.

But after a few days the assembly resolved to adjourn to another place in the Territory. A law was accordingly passed, against the consent of the governor, but in due form otherwise, to remove the seat of government temporarily to the "Shawnee Manual Labor School" (or mission), and thither the assembly proceeded. After this, receiving a bill for the establishment of a ferry at the town of Kickapoo, the governor refused to sign it, and by special message assigned for reason of refusal not anything objectionable in the bill itself nor any pretense of the illegality or incompetency of the assembly as such, but only the fact that the assembly had by its act transferred the seat of government temporarily from Pawnee City to the Shawnee Mission. For the same reason he continued to refuse to sign other bills until in the course of a few days he by official message communicated to the assembly the fact that he had received notification of the termination of his functions as governor, and that the duties of the office were legally devolved on the secretary of the Territory; thus to the last recognizing the body as a duly elected and constituted legislative assembly.

It will be perceived that if any constitutional defect attached to the legislative acts of the assembly it is not pretended to consist in irregularity of election or want of qualification of the members, but only in the change of its place of session. However trivial this objection may seem to be, it requires to be considered, because upon it is founded all that superstructure of acts, plainly against law, which now threaten the peace, not only of the Territory of Kansas, but of the Union.

Such an objection to the proceedings of the legislative assembly was of exceptionable origin, for the reason that by the express terms of the organic law the seat of government of the Territory was "located temporarily at Fort Leavenworth;" and yet the governor himself remained there less than two months, and of his own discretion transferred the seat of government to the Shawnee Mission, where it in fact was at the time the assembly were called to meet at Pawnee City. If the governor had any such right to change temporarily the seat of government, still more had the legislative assembly. The objections are of exceptionable origin for the further reason that the place indicated by the governor, without having any exclusive claim of preference in itself, was a proposed town site only, which he and others were attempting to locate unlawfully upon land within a military reservation, and for participation in which illegal act the commandant of the post, a superior officer in the Army, has been dismissed by sentence of court-martial. Nor is it easy to see why the legislative assembly might not with propriety pass the Territorial act transferring its sittings to the Shawnee Mission. If it could not, that must be on account of some prohibitory or incompatible provision of act of Congress; but no such provision exists. The organic act, as already quoted, says "the seat of government is hereby located temporarily at Fort Leavenworth;" and it then provides that certain of the public buildings there "may be occupied and used under the direction of the governor and legislative assembly." These expressions might possibly be construed to imply that when, in a previous section of the act, it was enacted that "the first legislative assembly shall meet at such place and on such day as the governor shall appoint," the word "place" means place at Fort Leavenworth, not place anywhere in the Territory. If so, the governor would have been the first to err in this matter, not only in himself having removed the seat of government to the Shawnee Mission, but in again removing it to Pawnee City. If there was any departure from the letter of the law, therefore, it was his in both instances. But however this may be, it is most unreasonable to suppose that by the terms of the organic act Congress intended to do impliedly what it has not done expressly—that is, to forbid to the legislative assembly the power to choose any place it might see fit as the temporary seat of its deliberations. That is proved by the significant language of one of the subsequent acts of Congress on the subject—that of March 3, 1855—which, in making appropriation for public buildings of the Territory, enacts that the same shall not be expended "until the legislature of said Territory shall have fixed by law the permanent seat of government." Congress in these expressions does not profess to be granting the power to fix the permanent seat of government, but recognizes the power as one already granted. But how? Undoubtedly by the comprehensive provision of the organic act itself, which declares that "the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act." If in view of this act the legislative assembly had the large power to fix the permanent seat of government at any place in its discretion, of course by the same enactment it had the less and the included power to fix it temporarily.