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


[TOC] [part 17] [part 15] [Cutler's History]


Having now an undivided and unanimously Pro-slavery membership, the Legislature proceeded to carry out its pre-arranged programme. Both Houses passed a bill on July 4, entitled "An act to remove the seat of Government temporarily to the Shawnee Manual Labor School, in the Territory of Kansas."

The bill was promptly vetoed by Gov. Reeder, and as promptly passed over his veto, and the Legislature adjourned thereby to the Shawnee Mission, where it was to meet on July 16. The veto message read as follows:


I return to your House, in which it originated, the bill entitled "An act to remove the seat of Government temporarily to the Shawnee Manual Labor School in the Territory of Kansas," with my objections. I cannot give the bill my official sanction for several reasons. It provides "that until the seat of government is located by law, the Governor and Secretary of State (by which is doubtless meant the Secretary of the Territory), shall respectively keep their offices at the Shawnee Manual Labor School."

This permission seems to me peculiarly objectionable. The Legislative and Executive departments, here as elsewhere, are entirely independent of each other in the performance of their respective duties within their separate spheres, and must each be left to the discharge of their own proper functions, independent of the control of the other, in any way that would interfere with the exercise of that discretion, which is properly confided to them. Under our organic law there is even yet another consideration bearing upon this well-known doctrine, which forces itself upon our attention.

The Executive department is an emanation of the power of the Federal Government, represents the authority of that Government, and the incumbent is appointed by it. His duties are defined by Congress, who may at any time restrict or enlarge them, and prescribe the mode in which they shall be performed, and to the Federal Government alone, from which his power is derived, and by which his movements are directed, is he responsible for the manner in which his official functions are performed. This controlling power over the Territorial Executive can neither be taken away from Congress by the Territorial Legislature, nor can it be exercised by the latter, concurrently with the former, because this would involve the possibility of an irreconcilable conflict between the two. The control of the Executive is not parted with by Congress, under the 24th section of the organic law, because as already shown, such control by others would be inconsistent with the spirit of the act. The General Government have legislated in various portions of the act, as to the general duties of the Executive, and in reference to this point particularly, now involved, have gone as far as they then deemed expedient, by providing that the Governor and Secretary shall reside in the Territory. They may at any time go further and provide at what point of the Territory the offices shall remain; but we must await their action in the matter, as that of the only power which can prescribe it; so long as they see proper to leave to the incumbent of the Executive Department the privilege of locating his office anywhere within the Territory, that privilege cannot be taken away by the Territorial Legislature.

When the actual seat of government is fixed by competent authority, it would certainly become the duty of the Executive to locate his office there, and this brings us to the inquiry whether the bill which I now return is within the rightful powers of the Legislature, as conferred by Congress.

It professes to locate the seat of government temporarily, as contradistinguished from a permanent location. This distinction is well founded and well understood, and is recognized as well in the organic law as in the act of Congress of March 3, 1855, and a temporary seat of government is recognized as one upon which none of the public money appropriated by Congress, shall be expended in the erection of public buildings.

By the organic law, the Governor was vested with the power to fix the place for the meeting of the first Legislative Assembly. By the same law, Congress themselves fixed the temporary seat of Government, and by act of March 3, 1855, they conferred upon the Legislature the right to fix a permanent seat of government. The power of the Legislature is thus clearly defined. Congress has chosen to confine one branch of this subject to the Governor, to retain another to themselves, and to commit the third to the Legislature.

The Legislature may undoubtedly, by virtue of the act of Congress, passed March 30, 1855, entirely supersede the temporary seat of government by a permanent location, upon which the public appropriation is to be expended for buildings; but in no other mode can the object be attained. Had Congress abstained from fixing a temporary seat of government, the Legislature might, perhaps, by implication, have had the power to do so; but when they exercise it themselves, and, in the same law, prohibit the Legislature from any legislation inconsistent with the provisions of the act, it would seem that the door is closed for any such legislation as contemplated by the bill which has been submitted tome (sic).

It follows then that the Legislative Assembly has no right to prescribe where the office of the Executive shall be held, except by means of the establishment of a seat of government, and that they are confined to the fixing of a permanent and not a temporary one, and it would seem equally clear that as Congress has provided for the place of their first meeting, for the temporary seat of government, and also for the permanent seat of government, that it was their intention that the Legislature should sit only at one place of the three.

Conclusive as this view of the case appears, I may add that I cannot perceive the expediency of the bill. The effect will be at once to adjourn your present session to the place mentioned, and whilst I am prepared to admit that the Legislative Assembly are satisfied of the existence of sufficient reasons for this step, their reasons are not apparent or convincing to me; and on the other hand, it is the loss of the time (more valuable because limited) which our organic law allots to the Legislative session, and because it will involve a pecuniary loss in view of the arrangements which have been made at this place for our accommodation.

A. H. Reeder, Governor.

The Legislative body, without a head, met at the Shawnee Manual Labor School on the 16th of July, according to adjournment. It had already by its acts, dethroned the Governor, and left him only the symbol of inability and helplessness, with no executive function except to follow them in their travels from place to place. His authority as the Executive head of the Territorial Government had been entirely ignored. He was virtually deposed - not by the President, who had appointed him, but by the lawless and arrogant behest of a body of men responsible only to their Missouri constituents and the Pro-slavery junta which ruled the National Government at Washington, headed by S. A. Douglas and Jefferson Davis, directed to the Kansas Department by Hon. David Atchison, with Franklin Pierce, President of the United States, as a figure-head, who wielded scarcely more influence with the national conspirators, seeking to fasten slavery upon the nation, than did his subordinate, Reeder, with those who held the Territory of Kansas by the throat.

The legislators were by no means easy to mind at the situation. Nothing except a revolution could render the laws they might pass valid or of any moral force, if the Executive ignored them and took the ground of Gov. Reeder, that they were not a legally constituted body, and that therefore all laws they might pass were void.

The dead-lock between the Governor and the Legislature was determined on the presentation of the first act passed after its assembling at Shawnee. It was unimportant in itself, being only to incorporate a Ferry Company at the town of Kickapoo. The Governor returned the bill, however, without his approval. He states at the beginning of his message:

I see nothing in the bill itself to prevent my sanction of it, and my reasons for disapproval have been doubtless anticipated by you as necessarily resulting from the opinions expressed in my message of the 6th instant.

Following, the Governor discussed the powers of the Legislature, quoting from the organic act and other authorities to show that, by the illegal temporary removal of the Legislature to a place other than the appointed by the Governor, who only had the power to designate its place of meeting, it had destroyed its own existence as a law-making body. The veto message closed as follows:

It seems, then, to be plain, that the Legislature now in session, so far as the place is concerned, is in contravention of the act of Congress, and where they have no right to sit, and can make no valid legislation. Entertaining these views, I can give no sanction to any bill that is passed; and if my views are not satisfactory, it follows that we must act independently of each other. * * * * * * * * *

If I am right in these opinions, and our Territory shall derive no fruits from the meeting of the present Legislative Assembly, I shall, at least, have the satisfaction of recollecting that I called the attention of the Assembly to the point before they removed, and that the responsibility, therefore, rests not on the Executive.

A. H. REEDER, Governor.

The Legislature was quite prompt, after the receipt of this veto message, in doing what it could to purge itself of an unpleasant Governor, as it had already of its unpleasant members. It could not vote him out, as it had the obnoxious members, but it had good reason to believe that, having, so far as its powers allowed, proved its loyalty to the slave power, it would have no trouble in removing the slight obstacle remaining in the person of Gov. Reeder, by appeal to the central power at Washington. Accordingly, July 27, six days after the veto of the Kickapoo Ferry bill, the following memorial was adopted in join sessions of the two Houses:


The undersigned, your memorialists, members of the Council and House of Representatives of the Territory of Kansas, respectively represent that a crisis has at length arrived in the affairs of this territory which makes it imperative that you should interpose, so that our Government (the wheels of which have been dragging so heavily heretofore, and which have at last come to a stand) may be relieved of the clog which has been attached to it, and be enabled to move once more in its regular course. A brief history of our Territory written and unwritten, since its organization, will enable you to see the causes which have conduced to this end; and the remedy being in your own hands, we trust and believe you will not hesitate immediately to apply it.

On the 30th of May, 1854, more than one year since, the bill opening the Territory for settlement, west of Missouri and Iowa, was passed. The public, excited by the glowing descriptions of those who had been in the Territory, and by the debates in Congress regarding the future political destiny of this newly-opened country, immediately rushed in by thousands from every quarter of our widespread Union. No Territory, ever organized by this Government, has been peopled with half the rapidity of this, save California, owing to the unnatural stimulus above alluded to. A people thus numerous - thus diversified from birth, education, previous associations, and present intention and object required, it seems to us, for their government, the most prompt action on the part of those called on to preside over them. From the month of May until October, there were no officers here; the Governor appointed to organize the Territory under the provisions of the bill, arriving in the latter month. So soon as it was ascertained, by rumor, that he had arrived (for he never in any way made it public), it was presumed that he would immediately order the census of the Territory to be taken, an election for members of the Legislative Assembly to be held, and call them together at once, so that laws might be enacted for the preservation of the public peace and weal. But what was the course pursued by that official? The citizens of our Territory received him with open arms, and even in Missouri, the State bordering on our line, he was tendered a supper on the day of his arrival, to enable him to meet with the distinguished gentleman of that section of Missouri, together with the private citizens of the vicinity.

Received thus frankly and cordially, both in Kansas and on the border, urged time and again to provide for the election of a Legislature - the people knowing of no laws in force, and the Governor, having no settled opinion upon the subject, appointing Justices of the Peace in various sections of the Territory, some of whom enforced the Pennsylvania, some the Ohio and some the Missouri code, acting, as a matter of course, under his instructions - still, with all these various imperative necessities urging his compliance, he heeded them not, but assumed himself to act as the law-making power, by prescribing the various codes above, and usurping the powers of the judiciary in issuing the writs, and sitting as an examining court upon a charge of "assault with intent to kill," the prisoner being at the time incarcerated within the walls of a prison, and before discharging him demanding his recognizance, which was taken however by a Judge whose district had, as yet, not been assigned him. In the midst of all this confusion, turning coolly from those who had thus warmly welcomed him, associating with those only from one particular section of the Union, persisting in not adopting that course which alone could produce order from this chaos, it is not singular that loud complaining should be heard, and that sinister motives should be attributed to him for his conduct.

The Governor then commences his course of speculation, beginning by arraying himself directly in opposition to the opinions of the General Government, as expressed by the Attorney General in relation to Delaware lands, by purchasing property on those lands, and stating that the opinions of the law officers of the General Government were incorrect, and of no force if correct, thus setting an example of insubordination to those less informed, and which may end in a conflict between the people of this Territory and the General Government, unless the rights of the squatters on those lands are recognized in conducting the sales of them. He then commences a tour of observation through the Territory for the ostensible purpose of preparing for a census, etc., but which from his subsequent conduct, proved to be only one of speculation, for he was known to be a large shareholder in many of the various town companies throughout the Territory. Finally, in the month of February, when the snow was some two feet in depth, he ordered a census to be taken (the herculean task which had so much alarmed him), and it was so taken in about three weeks, under the unfavorable circumstances above stated.

A proclamation was then issued for an election of members to the Legislative Assembly to be held on the 30th of March, 1855, said proclamation containing a section claiming by the Governor the right to decide contested elections, thereby virtually claiming the right to override the will of the people, as expressed through the ballot box, and to fill the Legislature with whomsoever he chose - virtually disfranchising every man in Kansas Territory, and also enacting a Maine Liquor Law, by providing for the destruction of liquor under certain circumstances. After the contest was over, and the result known, he delayed the assembling of the body until the 2d day of July, more than three months afterward, and that, too, when the whole Union was convulsed on account of alleged outrages in Kansas Territory, and yet no law for the punishment or prevention of them. When at last they did meet upon the call of the Governor, at a point where they had previously in an informal manner protested against being called, with an avowal of their intention to adjourn to the point at which they are now assembled, for the reasons that the requisite accommodations could not be had; where there were no facilities for communicating with their families or constituents; where they could not even find the common food to eat, unless at an enormous expense, there being no gardens yet made by the squatters; where the house in which we were expected to assemble, had no roof or floor on the Saturday preceding the Monday of our assembling, and for the completion of which the entire Sabbath, day and night, was desecrated by the continued labor of the mechanics; where at least one-half of the members, employes and almost all others who had assembled there for business or otherwise, had to camp out in wagons and tents during a rainy, hot season, and where cholera broke out as a consequence of the inadequate food and shelter, and where under all these circumstances of annoyance, they finally passed an act adjourning to this point, where ample accommodations are provided, and where the Governor himself had previously made it the seat of government, they were met by his veto, which is herewith transmitted. The bill was reconsidered by the House in which it originated, and passed by the majority prescribed by the organic act, then acted upon by the other House, and also passed by the same prescribed majority - a copy of which proceedings is herewith transmitted. Upon our assembling at this point, in accordance with a concurrent resolution passed as contemplated by the law, transmitted to you, we passed various bills, which were sent to the Governor for his approval. On the 21st of July, he returned the bills with his objections to signing them (all of which we herewith transmit), addressed to the "House or Representatives of Kansas Territory," and "to the Council of the Territory of Kansas," respectively - by which he assumes that we are not the "House of Representatives of Kansas Territory," nor the "Council of the Territory of Kansas," which, to say the least of it, is a glaring inconsistency, yet not more so than the rest of the document, which you will perceive by reading the points made by him. We will briefly state them, without an argument to show their utter fallacy, so shown by himself as we are confident that you will perceive them at a glance. One point is that Fort Leavenworth is the seat of government, made so by the organic act, that a law passed anywhere else than at the seat of government would be illegal.

That he had the right to call the Legislature to meet at a point not the seat of government (that is, Pawnee), and that laws enacted there (though not the seat of government) would be legal, thereby destroying the preceding proposition.

That we could have passed an act at Pawnee, though not the seat of government, and therefore illegal, establishing a permanent seat of government, and by an ILLEGAL ADJOURNMENT - because passed at a point not the seat of government - have met at such permanent seat of government, and there have made legal and binding statutes; or, by the same ILLEGAL process, have adjourned to Fort Leavenworth, the seat of government, and there have made legal and binding statutes.

We would respectfully represent that if the above are the honest opinions of Governor Reeder, you must admit his utter incompetency to discharge the high duties imposed upon him, and he should be removed. I they be not his honest opinions, then he is acting with the sinister design of defeating the whole object for which we are assembled.

If he believes that Fort Leavenworth is the seat of government, and that laws passed anywhere else than at that point would be illegal and void, then to all us to Pawnee to legislate is a willful, deliberate and base attempt to render all our acts, of whatever character, wholly illegal and void, because by his own showing, Pawnee is not the seat of government, and acts passed anywhere else than at the seat of government are of necessity void, and for which he should be removed.

We will not proceed further with this, but will simply aver that, from the action of Congress, Fort Leavenworth is not now the temporary seat of government. The bill provides, in the 31st section, that Fort Leavenworth shall be the temporary seat of government, and that such buildings as may not be needed for the use of the military shall be used by the Governor and Legislative Assembly. A subsequent clause of an appropriation bill provides for the appropriation of $25,000, to be expended upon the contingency, or rather the appropriation made upon the contingency, that the requisite buildings could not be obtained from the military or War Department.

That appropriation having been made and paid over, proved conclusively that the contingency mentioned has arisen, and that the buildings are refused. A subsequent appropriation, made on the 3d of March, 1855, provides that the sum of $25,000 be appropriated, and that, in addition to the amount already appropriated, shall be expended in making suitable buildings at the permanent seat of government. Now, if Fort Leavenworth is the seat of government and the place for the Legislature to meet and transact business, then this absurd consequence follows: That they must meet and transact business at Fort Leavenworth; that they shall not use any of the buildings already erected there; and that they shall not have any of the money to erect other buildings which could be occupied.

Now, as the law never contemplated an absurdity such as this, forcing a Legislative Assembly, even though composed of squatters, to meet out of doors, and forbid their erecting houses, we infer that the 31st section of the bill is virtually repealed; and having no seat of government created by competent authority, the selection of that point for the temporary seat of government legitimately belongs to the Legislative Assembly whenever and wherever convened. An we further submit that, according to the spirit and letter of the law, we have that right, even if Fort Leavenworth be the seat of government. We submit that as all government is for the good of the governed, and as this is one of the legitimate subjects of legislation vested in the people of every State in the Union and as there could have been no intention on the part of the wise and good men who framed this bill, when they fixed the seat of government temporarily, to have done so other than for the comfort and convenience of the sovereigns; that they never intended to fix an arbitrary rule which the people could not alter, if found convenient; that it was more a permission granted by Congress that we might have the use of those buildings or sit at that point than a command that we should not select another point, if more desirable.

We will and do further represent that the position assumed by the Governor is a despotic and tyrannical one, calculated to lead to the worst consequences if he is not forthwith removed.

Already threats in advance have been made that no respect will be shown to any act passed by this Legislative Assembly, whensoever and wheresoever such act or acts may be passed. Several papers in the Territory boldly advocate this position. A man professing to have been elected to this Legislature (M. F. Conway), who afterward tendered his resignation, advocates this doctrine of resistance. The Governor is, and has been, on terms of intimacy with these very persons; and with him as their leader, they may be led to the commission of acts which will inevitably result in widespread strife and bloodshed.

Now, we submit that the course pursued by the Governor is unwarrantable and factious, even if he be right in the opinions advanced, that our acts are illegal and void. The courts are the tribunals to decide this issue, and no man, Governor or private citizen, has a right to set the laws at defiance, even if unconstitutional and void, until so decided by the proper courts.

This principle is so well understood that we are not prepared to imagine that Gov. Reeder is ignorant of it, even taking his own arguments as an index of his intelligence; and there must be a willful and base design to lead the less informed into the commission of treasonable acts, for which he should be removed.

In conclusion, we charge the Governor, A. H. Reeder, with willful neglect of the interests of the Territory; with endeavoring by all the means in his power to subvert the ends and objects intended to be accomplished by the "Kansas and Nebraska Bill;" by neglecting the public interests and making them subservient to private speculation; by aiding and encouraging persons in factious and treasonable opposition to the wishes of the majority of the citizens of the Territory and the laws of the United States in force in said Territory; by encouraging persons to violate the laws of the United States, and set at defiance the commands of the General Government; by inciting persons to resist the laws which may be passed by the present Legislative Assembly of this Territory; and, finally, by a virtual dissolution of all connection with the present Legislative Assembly of this Territory.

For these, and many other reasons, we respectfully pray Your Excellency to remove the said A. H. Reeder from the exercise of the functions now held by him in said Territory; and represent that a continuance of the same will be prejudicial to the best interests of the said Territory. And as in duty bound, we will every pray, etc., etc.

THOS. JOHNSON, President of the Council.
JOHN H. STRINGFELLOW, Speaker of the House.
Members of the Council - William Barbee, A. M. Coffey, D. A. N. Grover, Richard R. Rees, H. J. Strickler, E. Chapman, John W. Forman, A. McDonald.
WILLIAM P. RICHARDSON, Secretary of Council.
J. A. HALDERMAN (Attest)

Members of the House - Joseph C. Anderson, O. H. Brown, A. S. Johnson, M. W. McGee, Samuel Scott, George W. Ward, James Whitlock, H. W. Younger, John M. Banks, D. L. Croysdale, R. L. Kirk, H. D. McMeekin, W. H. Tebbs, Thomas W. Watterson, Samuel A. Williams, F. J. Marshall, Joel P. Blair, H. B. C. Harris, William G. Mathias, A. Payne, A. B. Wade, Jonah Weddell.
A. WILKINSON, Clerk of the House.
JAMES M. KYLE (Attest).

Meantime, the Legislature had, by letter, requested through the United States Attorney, a decision from the United States Court as to "whether the adjournment of the assembly to the place (Shawnee Manual Labor School) was legal." The court rendered a prompt opinion, signed by S. D. LeCompte, Chief Justice, and Rush Elmore, Associate Justice, concurred in by A. J. Isacks, United States District Attorney, that the whole thing was regular, and that "the want of concurrence of the Governor present no objection to the efficacy of the acts of the Legislative Assembly, two thirds of the members of each of its constituent bodies concurring therein."

The judicial branch of the Territorial Government, by this extra-judicial decision gave assurance to the Legislature of a support, lacking which it would have feared to go further. Its authority as a law-making body thus confirmed, so long as its members were undivided, could enact whatever laws it deemed fit, the veto of the Governor notwithstanding. Indeed, a Governor, in the light of this decision, ceased to be an element in the Government, or even a hindrance to legislation.

It was voted to forward this memorial to Washington by a special messenger. J. H. Stringfellow was chosen as the fittest bearer of dispatches. He declined, and Andrew McDonald was selected. Armed with the formidable document, and fortified with a certificate of election from the Legislature, he departed for Washington.

[TOC] [part 17] [part 15] [Cutler's History]