WASHINGTON, _January 24, 1856_.
_To the Senate and House of Representatives_:
Circumstances have occurred to disturb the course of governmental
organization in the Territory of Kansas and produce there a condition of
things which renders it incumbent on me to call your attention to the
subject and urgently to recommend the adoption by you of such measures
of legislation as the grave exigencies of the case appear to require.
A brief exposition of the circumstances referred to and of their causes
will be necessary to the full understanding of the recommendations which
it is proposed to submit.
The act to organize the Territories of Nebraska and Kansas was a
manifestation of the legislative opinion of Congress on two great
points of constitutional construction: One, that the designation of
the boundaries of a new Territory and provision for its political
organization and administration as a Territory are measures which of
right fall within the powers of the General Government; and the other,
that the inhabitants of any such Territory, considered as an inchoate
State, are entitled, in the exercise of self-government, to determine
for themselves what shall be their own domestic institutions, subject
only to the Constitution and the laws duly enacted by Congress under
it and to the power of the existing States to decide, according to
the provisions and principles of the Constitution, at what time the
Territory shall be received as a State into the Union. Such are the
great political rights which are solemnly declared and affirmed by
that act.
Based upon this theory, the act of Congress defined for each Territory
the outlines of republican government, distributing public authority
among lawfully created agents--executive, judicial, and legislative--to
be appointed either by the General Government or by the Territory.
The legislative functions were intrusted to a council and a house of
representatives, duly elected, and empowered to enact all the local laws
which they might deem essential to their prosperity, happiness, and good
government. Acting in the same spirit, Congress also defined the persons
who were in the first instance to be considered as the people of each
Territory, enacting that every free white male inhabitant of the same
above the age of 21 years, being an actual resident thereof and
possessing the qualifications hereafter described, should be entitled
to vote at the first election and be eligible to any office within the
Territory, but that the qualification of voters and holding office at
all subsequent elections should be such as might be prescribed by the
legislative assembly; provided, however, that the right of suffrage and
of holding office should be exercised only by citizens of the United
States and those who should have declared on oath their intention to
become such and have taken an oath to support the Constitution of the
United States and the provisions of the act; and provided further, that
no officer, soldier, seaman, or marine or other person in the Army or
Navy of the United States or attached to troops in their service should
be allowed to vote or hold office in either Territory by reason of being
on service therein.
Such of the public officers of the Territories as by the provisions
of the act were to be appointed by the General Government, including
the governors, were appointed and commissioned in due season, the law
having been enacted on the 30th of May, 1854, and the commission of
the governor of the Territory of Nebraska being dated on the 2d day of
August, 1854, and of the Territory of Kansas on the 29th day of June,
1854. Among the duties imposed by the act on the governors was that of
directing and superintending the political organization of the
respective Territories.
The governor of Kansas was required to cause a census or enumeration
of the inhabitants and qualified voters of the several counties and
districts of the Territory to be taken by such persons and in such mode
as he might designate and appoint; to appoint and direct the time and
places of holding the first elections, and the manner of conducting
them, both as to the persons to superintend such elections and the
returns thereof; to declare the number of the members of the council
and the house of representatives for each county or district; to
declare what persons might appear to be duly elected, and to appoint
the time and place of the first meeting of the legislative assembly.
In substance, the same duties were devolved on the governor of Nebraska.
While by this act the principle of constitution for each of the
Territories was one and the same and the details of organic legislation
regarding both were as nearly as could be identical, and while the
Territory of Nebraska was tranquilly and successfully organized in the
due course of law, and its first legislative assembly met on the 16th
of January, 1855, the organization of Kansas was long delayed, and has
been attended with serious difficulties and embarrassments, partly the
consequence of local maladministration and partly of the unjustifiable
interference of the inhabitants of some of the States, foreign by
residence, interests, and rights to the Territory.
The governor of the Territory of Kansas, commissioned as before stated,
on the 29th of June, 1854, did not reach the designated seat of his
government until the 7th of the ensuing October, and even then failed
to make the first step in its legal organization, that of ordering the
census or enumeration of its inhabitants, until so late a day that the
election of the members of the legislative assembly did not take place
until the 30th of March, 1855, nor its meeting until the 2d of July,
1855. So that for a year after the Territory was constituted by the act
of Congress and the officers to be appointed by the Federal Executive
had been commissioned it was without a complete government, without any
legislative authority, without local law, and, of course, without the
ordinary guaranties of peace and public order.
In other respects the governor, instead of exercising constant vigilance
and putting forth all his energies to prevent or counteract the
tendencies to illegality which are prone to exist in all imperfectly
organized and newly associated communities, allowed his attention to be
diverted from official obligations by other objects, and himself set
an example of the violation of law in the performance of acts which
rendered it my duty in the sequel to remove him from the office of chief
executive magistrate of the Territory.
Before the requisite preparation was accomplished for election of a
Territorial legislature, an election of Delegate to Congress had been
held in the Territory on the 29th day of November, 1854, and the
Delegate took his seat in the House of Representatives without
challenge. If arrangements had been perfected by the governor so that
the election for members of the legislative assembly might be held in
the several precincts at the same time as for Delegate to Congress, any
question appertaining to the qualification of the persons voting as
people of the Territory would have passed necessarily and at once under
the supervision of Congress, as the judge of the validity of the return
of the Delegate, and would have been determined before conflicting
passions had become inflamed by time, and before opportunity could have
been afforded for systematic interference of the people of individual
States.
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.
Nevertheless, the allegation that the acts of the legislative assembly
were illegal by reason of this removal of its place of session was
brought forward to justify the first great movement in disregard of
law within the Territory. One of the acts of the legislative assembly
provided for the election of a Delegate to the present Congress, and a
Delegate was elected under that law. But subsequently to this a portion
of the people of the Territory proceeded without authority of law to
elect another Delegate.
Following upon this movement was another and more important one of the
same general character. Persons confessedly not constituting the body
politic or all the inhabitants, but merely a party of the inhabitants,
and without law, have undertaken to summon a convention for the purpose
of transforming the Territory into a State, and have framed a
constitution, adopted it, and under it elected a governor and other
officers and a Representative to Congress. In extenuation of these
illegal acts it is alleged that the States of California, Michigan, and
others were self-organized, and as such were admitted into the Union
without a previous enabling act of Congress. It is true that while
in a majority of cases a previous act of Congress has been passed to
authorize the Territory to present itself as a State, and that this is
deemed the most regular course, yet such an act has not been held to be
indispensable, and in some cases the Territory has proceeded without it,
and has nevertheless been admitted into the Union as a State. It lies
with Congress to authorize beforehand or to confirm afterwards, in
its discretion. But in no instance has a State been admitted upon the
application of persons acting against authorities duly constituted by
act of Congress. In every case it is the people of the Territory, not
a party among them, who have the power to form a constitution and ask
for admission as a State. No principle of public law, no practice or
precedent under the Constitution of the United States, no rule of
reason, right, or common sense, confers any such power as that now
claimed by a mere party in the Territory. In fact what has been done
is of revolutionary character. It is avowedly so in motive and in aim
as respects the local law of the Territory. It will become treasonable
insurrection if it reach the length of organized resistance by force to
the fundamental or any other Federal law and to the authority of the
General Government. In such an event the path of duty for the Executive
is plain. The Constitution requiring him to take care that the laws of
the United States be faithfully executed, if they be opposed in the
Territory of Kansas he may, and should, place at the disposal of the
marshal any public force of the United States which happens to be within
the jurisdiction, to be used as a portion of the _posse comitatus_; and
if that do not suffice to maintain order, then he may call forth the
militia of one or more States for that object, or employ for the same
object any part of the land or naval force of the United States. So,
also, if the obstruction be to the laws of the Territory, and it be
duly presented to him as a case of insurrection, he may employ for its
suppression the militia of any State or the land or naval force of the
United States. And if the Territory be invaded by the citizens of other
States, whether for the purpose of deciding elections or for any other,
and the local authorities find themselves unable to repel or withstand
it, they will be entitled to, and upon the fact being fully ascertained
they shall most certainly receive, the aid of the General Government.
But it is not the duty of the President of the United States to
volunteer interposition by force to preserve the purity of elections
either in a State or Territory. To do so would be subversive of public
freedom. And whether a law be wise or unwise, just or unjust, is not a
question for him to judge. If it be constitutional--that is, if it be
the law of the land--it is his duty to cause it to be executed, or to
sustain the authorities of any State or Territory in executing it in
opposition to all insurrectionary movements.
Our system affords no justification of revolutionary acts, for the
constitutional means of relieving the people of unjust administration
and laws, by a change of public agents and by repeal, are ample, and
more prompt and effective than illegal violence. These means must be
scrupulously guarded, this great prerogative of popular sovereignty
sacredly respected.
It is the undoubted right of the peaceable and orderly people of the
Territory of Kansas to elect their own legislative body, make their
own laws, and regulate their own social institutions, without foreign
or domestic molestation. Interference on the one hand to procure the
abolition or prohibition of slave labor in the Territory has produced
mischievous interference on the other for its maintenance or
introduction. One wrong begets another. Statements entirely unfounded,
or grossly exaggerated, concerning events within the Territory are
sedulously diffused through remote States to feed the flame of sectional
animosity there, and the agitators there exert themselves indefatigably
in return to encourage and stimulate strife within the Territory.
The inflammatory agitation, of which the present is but a part, has for
twenty years produced nothing save unmitigated evil, North and South.
But for it the character of the domestic institutions of the future new
State would have been a matter of too little interest to the inhabitants
of the contiguous States, personally or collectively, to produce among
them any political emotion. Climate, soil, production, hopes of rapid
advancement and the pursuit of happiness on the part of the settlers
themselves, with good wishes, but with no interference from without,
would have quietly determined the question which is at this time of such
disturbing character.
But we are constrained to turn our attention to the circumstances of
embarrassment as they now exist. It is the duty of the people of Kansas
to discountenance every act or purpose of resistance to its laws. Above
all, the emergency appeals to the citizens of the States, and especially
of those contiguous to the Territory, neither by intervention of
nonresidents in elections nor by unauthorized military force to attempt
to encroach upon or usurp the authority of the inhabitants of the
Territory.
No citizen of our country should permit himself to forget that he is a
part of its Government and entitled to be heard in the determination
of its policy and its measures, and that therefore the highest
considerations of personal honor and patriotism require him to maintain
by whatever of power or influence he may possess the integrity of the
laws of the Republic.
Entertaining these views, it will be my imperative duty to exert the
whole power of the Federal Executive to support public order in the
Territory; to vindicate its laws, whether Federal or local, against all
attempts of organized resistance, and so to protect its people in the
establishment of their own institutions, undisturbed by encroachment
from without, and in the full enjoyment of the rights of self-government
assured to them by the Constitution and the organic act of Congress.
Although serious and threatening disturbances in the Territory of
Kansas, announced to me by the governor in December last, were speedily
quieted without the effusion of blood and in a satisfactory manner,
there is, I regret to say, reason to apprehend that disorders will
continue to occur there, with increasing tendency to violence, until
some decisive measure be taken to dispose of the question itself which
constitutes the inducement or occasion of internal agitation and of
external interference.
This, it seems to me, can best be accomplished by providing that when
the inhabitants of Kansas may desire it and shall be of sufficient
number to constitute a State, a convention of delegates, duly elected by
the qualified voters, shall assemble to frame a constitution, and thus
to prepare through regular and lawful means for its admission into the
Union as a State.