KANSAS COLLECTION BOOKS

William G. Cutler's History of the State of Kansas


TERRITORIAL HISTORY, Part 15

[TOC] [part 16] [part 14] [Cutler's History]

THE ELECTION OF MAY 22, 1855.

The supplementary election called by Gov. Reeder before his departure proved quite as much a one-sided affair as that of March, except in the single precinct of Leavenworth, which, being adjacent to Missouri, was overrun by citizens of that State, who did the voting and ran the election as before.

The Pro-slavery plan was that of non-intervention - to ignore the contested election cases, and the consequent election, trusting to the members declared elected to seat those less fortunate on the convening of the Legislature. The abstract of the returns, with names of persons elected, are shown in the table following:

===================================================
District No. 1 - Lawrence Precinct.  
Free State Candidates: Phillip P. Fowler  - House
                       John Hutchinson    - House                 
                       Erastus D. Ladd    - House
Pro-Slavery Candidates: None.
Free-state Votes Polled: 288.
Scattering: 18.
Total Votes Polled: 306.
----------------------------------------------------
District No. 2 - Douglas Precinct.
Free State Candidates: John A. Wakefield - Council
                       August Wattles    - House
                       William Jessee    - House
Pro-Slavery Candidates: None.
Free-state Votes Polled: 127.
Scattering: 0.
Total Votes Polled: 127.
----------------------------------------------------
District No. 3 - Stinson's (Tecumseh) Precinct.
Free State Candidates: Cyrus K. Holliday  - House
                       Jesse D. Wood      - Council
Pro-Slavery Candidates: None.
Free-state Votes Polled: 148.
Scattering: 1.
Total Votes Polled: 149.
----------------------------------------------------
District No. 7 - "110" Precinct.
Free State Candidates: Jesse D. Wood - Council
Pro-Slavery Candidates: None.
Free-state Votes Polled: 66.
Scattering: 13.
Total Votes Polled: 79.
----------------------------------------------------
District No. 8 - Council Grove Precinct.
Free State Candidates: C. H. Washington - Council
Pro-Slavery Candidates: None.
Free-state Votes Polled: 33.
Scattering: 0.
Total Votes Polled: 33.
----------------------------------------------------
District 16 - Leavenworth Precinct.
Free State Candidates: None.
Pro-Slavery Candidates: W. G. Mathias   - House
                        A. Payne        - House
                        H. D. McMeekin  - House
Free-state Votes Polled: 140
Pro-slavery Votes Polled: 560.
Scattering: 15.
Total Votes Polled: 715.
----------------------------------------------------

The May election resulted in the selection, to fill the vacancies, of six Free-state members of the House and two of the Council, viz.: House - Philip P. Fowler, John Hutchinson, Erastus D. Ladd, Augustus Wattles, William Jessee and Cyrus K. Holliday. Council - John A. Wakefield and Jesse D. Wood.

These, with Councilman M. F. Conway, and Representatives A. J. Baker and S. D. Houston, constituted the Free-soil members elected to the first Territorial Legislature, which assembled, in accordance with Gov. Reeder's appointments, at Pawnee, July 2, 1855.

FIRST TERRITORIAL LEGISLATURE.

The members of the Legislature holding certificates of election from the Governor were as below stated - Pro-slavery members in Roman, Free-state in Italics:

HOUSE.

First District. - A. S. Johnson.

Second District. - Philip P. Fowler, John Hutchinson, Erastus D. Ladd.

Thirds District. - Augustus Wattles, William Jessee.

Fourth District. - Cyrus K. Holliday.

Fifth District. - A. J. Baker.

Sixth District - Joseph C. Anderson, S. A. Williams.

Seventh District - W. A. Heiskell, Allen Wilkinson, Henry Younger, Samuel Scott.

Eighth District. - S. D. Houston.

Ninth District. - F. J. Marshall.

Tenth District. - William H. Tebbs.

Eleventh District. - John H. Stringfellow, R. L. Kirk.

Twelfth District. - Joel P. Blair, Thomas W. Watterson.

Thirteenth District. - H. B. C. Harris, J. Weddell.

Fourteenth District. - William G. Mathias, H. B. McMeeken, Archibald Payne.

COUNCIL.

First District. - Thomas Johnson, Edward Chapman.

Second District. - John A. Wakefield.

Third District. - Jesse D. Wood.

Fourth District. - A. M. Coffey, David Lykins.

Fifth District. - William Barbee.

Sixth District. - M. F. Conway.

Seventh District - John W. Forman.

Eighth District. - William P. Richardson.

Ninth District. - D. A. N. Grover.

Tenth District. - Lucien J. Eastin, Richard R. Rees.

The Legislature assembled at Pawnee Monday, July 2, 1855. The provisions for their convenience, according to the testimony of Gov. Reeder, were ample, after they had reached the spot, which was quite remote from the residences of a majority of the Legislators, some of whom were citizens of Missouri, and most of whom lived near the eastern border of the Territory.

The Pawnee Association had built a "capitol" of stone, two stories in height and 40x80 feet in size. "well provided with seats and writing tables." Maj. Klotz had established a boarding house capable of accommodating forty boarders. Mr. Teeples had room for twenty boarders, and Mr. Knapp for as many more. Mr. Lowe, at Fort Riley, two miles distant, could accommodate fifteen more, and had arranged to run a "bus" to and from Pawnee for the convenience of his boarders. These arrangements were entirely ignored by the members of the Legislature. They came in with tents and all the paraphernalia of travelers in an unsettled and inhospitable country. The preparations made by the Pawnee Town Association for the Legislature were totally ignored, except that it occupied the building provided for the first convening of the Legislature, until it could effect a removal to Shawnee. Many of the delegates came in with similar camp equipage to that of their Missouri constituents who had come in to elect them a few weeks before. They had no idea of remaining in the enemy's country long, more than had the amateur settlers who elected them. It was too far from their base of supplies, and the early adjournment to the Shawnee Mission on the Missouri border was a foregone conclusion.

The two Houses met in the building provided at Pawnee, Monday, July 2, 1855.

The House of Representatives was called to order, and the roll of members called by Hon. Daniel Woodson, Secretary of the Territory. The following members, holding certificates of election, answered to their names: Johnson, Hutchinson, Ladd, Wattles, Jessee, Baker, Anderson, Williams, Heiskell, Wilkinson, Younger, Scott, Houston, Marshall, Tebbs, Stringfellow, Kirk, Blair, Watterson, Harris, Weddell, Mathias, Payne, McMeeken; absent, Fowler and Holliday. The temporary organization of the House was effected by the election and appointment of the following officers, pro tem.: Chairman, Joseph T. Anderson; Chief Clerk, J. M. Lyle; Assistant Clerk, John Martin; Sergeant-at-Arms, T. J. B. Cramer; Doorkeeper, Benjamin P. Campbell.

Members holding certificates of election were sworn by Hon. Sanders W. Johnson, Associate Justice of the United States Supreme Court.

The House being thus temporarily organized, the deliberations were opened by prayer by Rev. Mr. Stateler.

Permanent officers were then chosen as follows: Speaker of the House, John H. Stringfellow; Chief Clerk, James M. Lyle; Assistant Clerk, John Martin; Sergeant-at-Arms, T. J. B. Cramer; Doorkeeper, Benjamin P. Campbell; Speaker pro tem, Joseph C. Anderson.

The first business of the organized body was the appointment of a committee of five to inquire into the credentials of sitting members. The committee appointed consisted of the following: Messrs. Heiskell, Houston, Mathias, Watterson and Johnson. The committee was instructed to report by 8 o'clock on Tuesday (to-morrow) morning.

The Council showed, on the calling of the roll by Secretary Woodson, the following-named gentlemen as present, holding certificates of election from the Governor, to wit:

Thomas Johnson, Edward Chapman, John A. Wakefield, Jesse D. Wood, A. M. Coffey, David Lykins, William Barbee, John W. Forman, William P. Richardson, D. A. N. Grover, L. J. Eastin, R. R. Rees; absent, M. F. Conway.

The proceedings were opened by prayer by Rev. Thomas Johnson.

Officers pro tem were chosen as follows: President, R. R. Rees; Chief Clerk, John A. Halderman; Assistant Clerk, Charles H. Grover; Sergeant-at-Arms, Carey B. Whitehead; Doorkeeper, William J. Godfroy.

Messrs. Coffey, Johnson and Richardson were appointed a Committee on Credentials.

The committee reported forthwith favorably on all except members from the Second, Third and Sixth Council Districts, on which they asked further time for consideration, which was granted.

The permanent organization was then completed by the choice of the following officers:

President, Rev. Thomas Johnson; President pro tem., R. R. Rees; Chief Clerk, John A. Halderman; Assistant Clerk, Charles H. Grover; Sergeant-at-Arms, C. B. Whitehead; Doorkeeper, W. J. Godfroy.

The organization of both branches being thus completed, and His Excency the Governor informed that they awaited his message, the two Houses adjourned.

During the following four days, the Legislature received the message of the Governor and referred it to the appropriate committees, purged itself of all obnoxious Free-soil members, and voted to remove the seat of Government, temporarily, to the Shawnee Manual Labor School, over the veto of the Governor.

The message was received July 3. Its discussion of the slavery question was as follows:

Claiming as we do the same capacity for self-government as our fellow-citizens of the State, with a far greater, if not an exclusive interest in the institutions and laws which are to exist among us; compelled alone to bear their burdens, and entitled alone to claim their benefits; wisdom, justice and fairness would dictate that those laws and institutions inside of the Constitutions of the United States, should be holded by ourselves, stimulated by the absorbing interest we must feel in them, rather than by the representatives and citizens of other States, who are no more competent to the task that we - who have no stake with us in the results, and who would most indignantly repel any offer of reciprocity from us in assisting to manage their affairs. The provisions of our Territorial organic act secures us this right, and is founded in the true doctrines of Republicanism. It may be exercised in various degrees and in various ways, and whenever it is called into action it cannot be legitimately attended with that excitement, which is incident to the agitation of the slavery question in the direction of an attack upon constitutional rights. An agitation of that kind, such as we have seen industriously prosecuted in the past history of our country by the destructive spirit of abolitionism, can never be productive of aught but evil, and is calculated in an eminent degree to obscure the glories of the past, to evoke the foulest spirit of discord among the citizens of our common country, and also to mar our brilliant future, if not endanger the existence of our cherished Union. A want of fidelity to the solemn compacts of the constitution, and an attack upon the rights of the States which are guaranteed by it, can have no justification or excuse. This view of the case is not, however, to be confounded with the discussion and settlement of the slavery question in our Territory, with its bearings upon the formation of our institutions. That has been referred to us as an open question by the legitimate action of the nation, and here it is not only the privilege, but the duty of every man to speak his opinions freely, and enforce them peaceably and fairly. Advocate and opponent stand on the same ground, and must mutually concede to each other the identical measure of right which they claim for themselves. Freedom of opinion and freedom of discussion without license, are of the very essence of republicanism at all times, and are to be peculiarly respected here. The permanent character and high authority of a State constitution, and the fact of its submission to a direct vote of the people of the Territory indicate that event as a signal occasion for the decision of that peculiar question. In the meantime, however, a Territorial Legislature may undoubtedly act upon the question to a limited and partial extent, and may temporarily prohibit, tolerate or regulate slavery in the Territory, and in an absolute or modified form, with all the force and effect of any other legislative act, binding until repealed by the same power that enact it.

The message further pointed out the objects for which the Legislature was convened, defined its duties and recommended legislation. The boundaries of counties were to be defined; the terms of court in the different districts decided upon; County and Probate Courts established; the levying of taxes considered; schools established, and a Territorial militia organized. The selection of a permanent seat of Government was also one of the duties devolving upon the Legislature. The Passing of an efficient law regulating the sale of intoxicating liquors, and prohibiting its sale to Indians, was recommended.

The message was referred to committees, and 1,000 copies ordered to be printed.

THE UNSEATING OF THE FREE-SOIL MEMBERS.

It is well known, before the assembling of the Legislature, that no member elected at the May election would be allowed to hold his seat. With the members elect and their constituents, their expulsion was deemed inevitable. Whether they should take their seats, thus recognizing the legislative body by becoming a part of it, or whether they should absent themselves entirely, was a question earnestly discussed. The course finally adopted, to take their seats and go through the form of a contest, was not decided upon until after long and earnest discussion. Jesse D. Wood, from the beginning, advocated a square contest that should put the iniquity fully on record, and, as appears, succeeded in bringing the whole Free-state delegation to a like view. So, as has been seen, at the opening of the session, all the Free-state members were in their seats, with the exception of Cyrus K. Holliday, elected to the House form the Tecumseh District, who was unavoidably absent in Pennsylvania, attendant on a sick wife; and M. F. Conway, of the Council, who resigned before taking his seat. The first business in order, as preconcerted, was the purging of both branches of the objectionable members. No legislation was attempted until it was done. The Committee on Credentials appointed by the House did their work thoroughly and give their reason to the House, their constituents and the country, in an elaborate report, as follows:

TO THE HONORABLE THE SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE TERRITORY OF KANSAS:

The undersigned, a majority of the committee appointed by this House, as a special committee on credentials, whose duty it was to inquire into and examine the evidence of membership of gentlemen who claim their seats as members of this House of Representatives of the Territory of Kansas, most respectfully beg leave to make the following report:

Having heard and examined all the evidence touching the matter of inquiry before them, and taking the organic law of Congress passed on the 20th day of May, in the year 1854, organizing the Territorial governments of the Territories of Nebraska and Kansas as their guiding star, the only bright and shining light to the port of a true and correct conclusion in the premises, believe and declare, in the first place, that the Governor of Kansas had not the exclusive right or power to prescribe the manner and form by which the first election for members of the first Territorial Legislative Assembly of the said Territory of Kansas should be conducted and passed upon, but that a fair construction of the 22d section of the said organic act leads them - nay, drives a majority of your said committee to the conclusion, that no particular form of the oath which the judges of said election took was necessary, and that no particular form of the return of said election by the said judges was necessary in order to legalize the said election, but that such oaths and such returns as are usual for judges of election in the several States to take, perform and return, is all the organic act requires. And a majority of your committee believe, and are of the opinion, from the original papers filed in the office of the Secretary of the Territory, and other papers and evidence which was before them, that the oaths and returns and all other acts taken, done and performed by the judges appointed by His Excellency, A. H. Reeder, Governor of the Territory of Kansas, to hold and conduct the election for members of the first Territorial Legislative Assembly were in the usual form, at all events as effectual and as legal and binding as if the said oaths and returns had been in the form prescribed by the Governor in his proclamation, verbatim et literalism Indeed, any other construction might lead to usurpation of power, never-ending confusion and wrong. And besides, it is not to be expected, nor is it required by any rule of law or courts of justice in the United States or Great Britain, that oaths or affidavits taken and made promiscuously throughout the country shall be uniform; but that any oath or affidavit taken or made by any officer or any branch of the Government, clearly showing the intention of the party taking or making the same to the point at issue, or mater-of-fact to be established or procured, is all that the law requires.

In the second place, the undersigned, a majority of your said committee, are of the opinion and declare that the said organic act, establishing the Territorial governments of the Territories of Nebraska and Kansas, does not give to the Governor of the Territory of Kansas power generally to set aside elections, nor does it confer upon him the right or power to set aside the election held on Friday, the 30th of March last, in any one or all of the election precincts, unless (in the language of the bill itself), that in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the Legislative Assembly. In these events, and these events alone, has he power to order a new election, * * * * * (Next paragraphs assert that neither of the above contingencies occurred.)

Upon what ground then were these elections set aside, and certificates refused? A majority of your committee, and they apprehend a majority of the members of this House are at a loss to know.

It is pretended, however, that these elections were set aside and certificates refused upon the ground of a non-compliance on the part of some of the judges of the election, with the manner and form prescribed in the proclamation of the Governor of the Territory. This, as it has already been shown, was not a legitimate reason for thus setting aside these elections; but, nevertheless, new elections were ordered to be held on the 22d of May last. Can it be that Congress in its wisdom, having great experience and the history of the past before them, designed to delegate to one man the power to create a vacancy in the popular branch of this Legislature, for his own purposes, on any pretense whatever? Certainly not. But a majority of your committee emphatically deny that any vacancy in this branch had occurred at the time of the issuing of the Governor's proclamation, ordering a new election in the several districts of this Territory where new elections were held and conducted, under and by virtue of that proclamation, or at the time such elections were held and conducted, or at any time subsequent, until the organization of both branches of the first Territorial Legislative Assembly of the Territory of Kansas, and certainly none since; for every seat has been occupied from that moment until the present, whether rightfully or not, is for this House to decide.

Now, sir, if this be a correct view of the subject, by what authority have the elections in the said several Representative Districts been set aside? By what authority have certain gentlemen been refused certificates of election? And by what authority has a new election been ordered and held on the 22d day of May last? Verily none; at least none that a majority of your committee can see; and the election held in the several districts of the Territory on the 22d day of May last, is therefore, in the opinion of a majority of your committee wholly and entirely illegal, unwarrantable and not authorized by the organic act establishing the Territorial governments of the Territories of Nebraska and Kansas, and they have therefore disregarded the said election.

Upon the subject of certificates this committee would only remark that a certificate of election in the hands of a party claiming a seat in this or any other House of a similar character, is only prima facie evidence of his right to sit until the House shall have passed upon the fact, and nothing more; and that a certified copy of the return of the Judges of an election, or the original return filed in the office of the Secretary of State, is also prima facie evidence of his right to sit until otherwise ordered by the House of which he claims to be a member; and that it is competent and legal, and in accordance with the best, parliamentary law and regulation, for this House, or any similar body constituted as this is, to oust, or in other words to turn out, and refuse to any person the privilege to sit as a member, notwithstanding he may have a certificate of election with the broad seal of a State of Territory, as the case may be. The precedents on this branch of our report are so numerous, and so well and generally understood, that to say more would be but taxing sounds and words wholly unnecessary now.

In regard of those gentlemen who are now sitting members of this House, and whose seats are not contested in this place, these are passed without further comment.

But with regard to those whose seats are contested, the majority of your committee, having already declared that the election held on the 22d of May was void ab initio, cannot entertain either the certificate of the Governor of this Territory, or a certified copy of the return of the Judges of the said election, nor even the original return filed in the office of the Secretary of the Territory, and must, therefore, be governed entirely by the return of the Judges who held and conducted the election held on the 30th of March last, in pursuance to and compliance with the just proclamation of the Governor of this Territory, ordering an election for members of the Territorial Legislative Assembly of the territory of Kansas.

[The gentlemen holding seats, not contested, are here enumerated.]

And it appears that Messrs. John Hutchinson, Philip P. Fowler and Erastus D. Ladd, from the Second Representative District; Messrs. Augustus Wattles and William Jessee, from the Third Representative District; and Mr. Cyrus K. Holliday, from the Fourth Representative District, have received certificates of their election from the Governor, declaring them duly elected as members of this House, on the 22d of May last. But inasmuch as a majority of your committee have declared that this election was void from beginning to end, and that the Governor was not authorized or empowered to order that election by the organic act establishing this territorial Government, they are not entitled to their seats as members of this House.

[Here follow the names of the candidates receiving a majority of votes in the Second, Third and Fourth Representative Districts on the 30th of March, all of whom the committee report entitled to their seats: These gentlemen were Messrs. James Whitlock, A. B. Wade and John M. Banks, in the Second; G. W. Ward and O. H. Brown, in the Third, and D. L. Croysdale, in the Fourth District.]

In regard to the Fifth Representative District, the committee report:

In the Fifth Representative District, it appears that A. J. Baker received a certificate of election from the Governor of this Territory, declaring that the said A. J. Baker was duly elected a member of this House, said certificate bearing date the 6th day of April, 1855.

It appears from all the facts in this case of Mr. A. J. Baker, that in his (the Fifth) Representative District, there are two precincts. A. J. Baker received 25 votes, and M. W. McGee, the contestant in this case, received 12 votes at one precinct, and at the other precinct A. J. Baker received 1 vote, and M. W. McGee received 210 votes. The returns of the judges of election, from both these precincts, are equally effective and equally legal in our judgment, and we therefore declare that A. J. Baker, from the Fifth Representative District, is not entitled to his seat in this House; but that M. W. McGee, from the Fifth Representative District, having received a majority of all the votes polled, in that Representative District, on the 30th day of March, 1855, is entitled to his seat as a member of this House. The foregoing, your committee know is very imperfect; but the shortness of the time allowed to investigate the subject referred to them, did not admit of a more thorough and comprehensive report thereon.

All of which is most respectfully submitted.

WILLIAM B. MATHIAS, Chairman.
A. S. JOHNSON.
WILLIAM A. HEISKELL.
THOMAS W. WATTERSON.

S. D. Houston, the only Free-state member of the committee, submitted a minority report, in which he said:

I cannot agree that this body has the right to go behind the decision of the Governor, who, by virtue of his office, is the organizing Federal arm of the General Government to evolve and manage a new government for this Territory, for the obvious reason that Congress makes him the sole judge of qualifications of membership.

It makes him the channel to, and the organized manes of, the existence of this body.

To assume the contrary proposition, is to assert that this legislative body exists before it can have a legal existence.

Mr. John Hutchinson spoke for nearly two hours against the report, and at the end was complacently informed by Speaker Stringfellow that, "although the House had no objections to indulging the members in free speech, it might, perhaps, shorten their remarks in some degree to know that their speeches would not change a single vote."

The majority report was accepted, whereby Messrs. Hutchinson, Fowler, Ladd, Wattles, Jessee, Holliday and Baker ceased to be members of the House.

The following protest was made by four of the retiring members:

We, the undersigned members of the House of Representatives of Kansas Territory, believing the organic act gives this House no power to oust any member from this House, who has a certificate of election from the Governor, that this House cannot go behind an election called by the Governor, and consider any claims based on a prior election, we would, therefore, protest against such a proceeding, and ask this protest to be spread upon the journal of this House.

JOHN HUTCHINSON.
WILLIAM JESSEE.
AUGUSTUS WATTLES.
E. D. LADD.

In the Council, the committee made a report equally elaborate on the case of Jesse D. Wood and John A. Wakefield, depriving them of their seats and assigning these to Andrew McDonald and Hiram J. Strickler, who has been elected according to the returns of the March election. The ousted members retired, leaving their protest spread upon the journal. It was the Fourth of July, 1855, and Judge Wakefield, as he rose to leave, gave vent to his indignation in the following prophetic speech: "Gentlemen, this is a memorable day, and may become more so. Your acts will be the means of lighting the watch-fires of war in our land."

Thus the two Houses were purified of all members having the taint of Abolitionism in their garments, except S. D. Houston, who resigned July 23. M. F. Conway never took his seat in the Council. He sent in a lengthy letter of resignation July 3, while the contested cases of Wood, Wakefield and himself were pending.

[TOC] [part 16] [part 14] [Cutler's History]