this house, for the purpose of examining credentials in certain contested
election districts, beg leave to present the following protest:
The government of Kansas Territory, in the opinion of your committee, is
an oflicial and progressive one, or, in other words, it is a government whose
successive steps of progression is dependent on official action. Congress
passes a law designating the president and senate of the United States as
the means to a governor, and the governor, when thus appointed, becomes
the organizing authority from which the legislative body emanates.
Congress, through the governor, organizes the territory, and through him
Governor Reeders Adrninistration. 1S9
continues to retain its connection, and hold and exercise such control as it
may from time to time direct.
In the twentieth section of the organic act, it declares that he shall â€” not
that he may, but that he shall â€” commission all officers who shall be ap-
pointed to office under the laws of the territory.
In the twenty-second section of the same act, the organizing steps which
the executive shall take are definitely pointed out. He is there ordered to
take the census, call an election, specifying the time, place and manner of
conducting it. It also requires him to appoint the judges who shall superin-
tend it, and makes him the sole judge of the returns when made out by the
judges. It requires him to declare the person or persons having the highest
number of legal votes to be duly elected, and confines his commissionary
power to members thus elected. And in the twenty-third section the governor
IS further specifically and definitely instructed how to judge of legal voters.
It positively decides that no man but a white man, and that one an actual
resident, shall be entitled to vote.
Taking this view, which so clearly appears to be the obvious meaning of
the organic law, your committee would respectfully beg leave to enter his
protest against the report of the majority, in the following particulars:
First, the governor, in whom the organizing power is vested, has, in
accordance with his instructions, specifically pointed out in the law, declared,
by giving certificates of election to John Hutchinson, Erastus D. Ladd, Philip
P. Fowler, Augustus Wattles, and William Jessee, that they are duly elected
members of this house; and consequently those persons claiming seats, to
whom the executive power has not given certificates of election, are not
entitled to seats in this house.
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 terri-
tory, for the obvious reason that Congress makes him the sole judge of quali-
fications for membership.
It makes him the channel to, and the organized means 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. Whatever latitude may be taken
in state legislation, with reference to contested elections, they can form no
precedent for us, for the plain reason that, while their governments are
formed and complete, ours is in a forming state, and therefore incomplete.
In the second place, from the evidence before the committee, great de-
ficiencies appear, not in the form of conducting the election, but in the manner
of holding them, both as to the qualifications of judges who presided, and the
returns made out by them.
In some cases it does not appear that the judges were legally sworn into
office; and in other instances they actually presumed to change the law, by
striking out the words "legal voters" and "actual residents," and inserting
such words as suited their fancy. It is also further evident, on comparing
the census just taken with the election returns, and making all the allow-
ances which extravagance would suggest, that in some districts a great many
more votes were actually polled than there were resident voters belonging
to said districts.
No doubt taut these illegal proceedings, on the one hand, induced the gov-
ernor to withhold certificates from some who, from the number of votes re-
190 Kansas State Historical Society.
turned in their favor, might at the same time appear to have been properly-
elected: and on the other, to have been the ground on which he presented a
certificate in one instance, and in another ordered a new election in reference
to other districts.
In regard to the right of the governor to order a new election, the organiz-
ing object to be accomplished, the intention of Congress which pervades the
bill, together with the express language of the bill, declaring that when a va-
cancy shall otherwise occur he shall call a new election, make it perfectly-
clear that he possesses the right to order a new election, and compel him to
do so. Hence, the members holding certificates by virtue of that election have
a clear right to their seats in the house.
The idea that a seat is not vacant until it has been previously filled, though
a specious one, is a mere play on words. All over the land the term is used
with reference to all unfilled positions, and no doubt Congress uses it in the
With these facts before me, and my oath to support the organic law to guide
me, I feel compelled to wholly dissent from, and protest to, the majority re-
port of the committee on credentials appointed by this house.
We would respectfully request that this house extend time to the gentlemen
holding the governor's certificate, in order to enable them to procure the nec-
essary evidence to make good their claim, and we would further request that
the protest be entered on the journal of the house, according to a long-estab-
lished custom in legislative action. S. D. HOUSTON, Committee.
We, the undersigned members of the house of representatives of Kansas
Territory, believing the organic act organizing the said territory gives this
house no power to oust any member from this house who has received a cer-
tificate of his election from the governor; that this house cannot go behind an
election called by the governor and consider any claims based on a prior elec-
tion, we would therefore protest against such a proceeding, and ask this pro-
test to be spread upon the journal of this house.
E. D. LADD.
July 4, 1855.
[House Journal. 1855, p. 17.]
GOVERNOR REEDER'S MESSAGE, JULY 3, 1855.
To the Honorable the Council and House of Representatives of the Territory
Having been duly notified that your respective bodies have organized for
the performance of your official functions, I herewith submit to you the usual
executive communication, relative to subjects of legislation, which universal
and long-continued usage in analogous cases would seem to demand, although
no express requirement of it is to be found in the act of Congress which has
brought us into ofl^cial existence and prescribed our several duties.
The position which we occupy, and the solemn trust that is confided to us,
for originating the laws and institutions, and molding the destinies of a new
republic, in the very geographical center of our vast and magnificent confed-
eration, cannot but impress us with a deep and solemn sense of the heavy re-
Governor Reedcr's Administration. 191
sponsibility which we have assumed, and admonish us to lay aside all the sel-
fish and equivocal motives, to discard all unworthy ends, and in the spirit of
justice and charity to each other, with pure hearts, tempered feelings and
sober judgments to address ourselves to our task, and so perform it in the fear
and reverence of that God who oversees our work that the star we expect to
add to the national banner shall be dimmed by no taint or tarnish of dishonor,
and that, when viewed from the trying and scrutinizing standpoint of the
future, we shall be subject to no reproach save that which springs from the in-
evitable infallibility of just and upright men.
In the business of legislation, the very first necessity is the ascertainment
of the existing law, as it is impossible to determine what we need in that
respect until we ascertain what we already possess. It will be found, I think,
upon slight investigation, that we are already provided with an ample and
valuable store of laws for the redress of civil wrongs, and the punishment of
criminal offenses, which will materially diminish your labors.
The present territory of Kansas has been, at various periods since the
treaty of April 30, 1803, with the French republic, a portion of the district
of Louisiana, of the territory of Louisiana, the territory of Indiana, and the
territory of Missouri; and it becomes necessary to take a brief review of the
legislation of Congress relating to it during each of these periods. Im-
mediately after the acquisition of the territory of Louisiana by the treaty
before mentioned, provision was made, by act of Congress, passed 31st
October, 1803, for its temporary government; which continued the civil, mili-
tary and judicial powers then existing until the expiration of the first session
of the eighth Congress. On the 26th of March, 1804, being the day before the
close of said session, the said territory was divided into the territory of
Orleans and the district of Louisiana; and the thirty-third parallel of north
latitude from the Mississippi west was designated as the boundary line
between the two, thus including the present territory of Kansas in the
northern division; and by the same act this portion, by the name of the
district of Louisiana, was subjected to the government of the territory of
Indiana, and became a part of it. The territory of Indiana had been a por-
tion of the old Northwestern territory, which was first organized by the
ordinance of July 13, 1787. This ordinance was subsequently adapted to the
provisions of the constitution of the United States, by act of Congress of
August 7, 1789; and by act of Congress passed May 7, 1800, a portion of this
Northwestern territory was organized as the territory of Indiana, to which,
as already stated, the district of Louisiana was annexed. On the 3d of March,
1805, the district of Louisiana was again severed from the territory of
Indiana, and organized by the name of the territory of Louisiana, and on the
4th day of June, 1812, was converted into the territory of Missouri, with
considerable modification of the rules for its government.
It will thus be seen, as I have stated, that the country composing our
territory has been successfully subjected to the French code, existing at the
acquisition of Louisiana by the treaty of Paris, to the laws of Indiana, de-
rived from The Northwestern territory, as well as those enacted for Indiana
after its severance, to the laws of the territory of Louisiana, and the laws of
the territory of Missouri. The severance of a portion of the latter territory,
and its erection into the state of Missouri in the year 1821, did not, in my
opinion, at all affect the laws in force outside of the bounds of the state,
which remained as valid after that event as they were before.
Under the ordinance of 1787, amended in 1789, it was provided that a
192 Kansas State Historical Society.
certain legislative power should be vested in the governor and judges, who
were directed to adopt and publish such laws, criminal and civil, of the
original states, as they might consider necessary, which were to remain in
force unless altered by the legislature. It was also provided by authority of
Congress, among other things, that the inhabitants should "always be en-
titled to the benefit of the writ of habeas corpus and of the trial by jury, of
a proportionate representation of the people in the legislature, and of judicial
proceedings according to the course of the common law."
By the act of May 7, 1800, erecting the territory of Indiana, a government
was provided "in all respects similar to that provided by the ordinance of
Congress passed July 13, 1787, for the government of the territory of United
States north of the river Ohio; and the inhabitants shall enjoy all the
singular, the rights, privileges and advantages granted and secured to the
people by the said ordinance," and the same powers were conferred and duties
enjoined upon its officers as had been exercised by the officers of the North-
western territory under the said ordinance.
By the act of 26th March, 1804, annexing the district of Louisiana to
Indiana territory, power was given to the governor and judges "to make all
laws which they may deem conducive to the good government of the inhabit-
ants thereof"; and it was also further provided, "that the judges shall possess
the same jurisdiction they possess in the Indiana territory." This arrange-
ment, however, was of short duration; for, in less than a year, the territory
of Louisiana was erected, by a law which took effect on the 4th day of July
following, and Congress then vested the entire legislative power in the gov-
ernor and judges, securing trial by jury in all criminal prosecutions, and in
all civil cases involving over $100, if demanded, and saving all laws previously
in force in the district and not inconsistent with the act of Congress.
The act of 1812, changing the name of the territory to Missouri, and taking
effect on the first Monday of December following, provided for a more
efficient and thorough organization, and was much more comprehensive in
its details, vesting the legislative power in a general assembly, but taking
care to provide that the people should "always be entitled to judicial pro-
ceedings according to the course of the common law, and the laws and usages
in force in the territory; and that the laws and regulations in force in the
territory of Louisiana at the aate of the act, and not inconsistent therewith,
should continue in force until changed by the legislative assembly."
The act of Congress organizing the territory of Kansas does not alter the
congressional legislation as left on the first Monday of December, 1812, and
its results through the territorial legislature, except that it repeals all former
laws recognizing or prohibiting slavery, and applies all laws of the United
States not locally inapplicable, by which we are to understand all United
States statutes enacted for other localities which are capable of being trans-
planted and adapted to our territory.
The legislatures of the territories of Louisiana and Missouri enacted, of
course, many general laws, and among them is a statute of January 19, 1816,
adopting for the territory of Missouri the common law and the English stat-
utes in aid thereof prior to the fourth year of James I, with some qualifi-
From this summary, the length of which has been unavoidable, it appears
that the laws of the United States, not inapplicable to our locality; the laws of
the territory of Indiana made between the 26th March, 1804, and the 3d March,
1805, enacted for the district of Louisiana; the laws of the territory of Louis-
Governor Reeder's Administration. 193
iana; the laws of the territory of Missouri; the common law, and the law of
the province of Louisiana at the time of the cession, except so far as the
latter have superceded the former, still remain in force in the territory of
Kansas. As the common law, to a considerable extent, was adopted for the
territory by Congress as late as 1812, and by the Missouri legislature as late
as 1816, and it is perhaps the most complete and comprehensive system in
the world, it has, without doubt superseded and supplied a great amount of
law previously existing. In this mass of conflicting legislation, however, it
will impose upon your courts much embarrassment and trouble to decide the
questions of implied repeal which will continually arise, and I would, there-
fore, call your attention to the necessity of curing this evil by some legislation
which will declare distinctly which of these previous laws are in force, and
which are not.
There are many specific subjects of legislation, some of which are expressly
i-eferred to you by the bill organizing our territory, and others spring from the
necessity of our community. Prominent among them is the question whether
we shall build our government upon the basis of free or of slave labor. Claim-
ing as we do the same capacity for self-government as our fellow citizens of
the states, 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 constitution of the
United States, should be molded by ourselves, stimulated by the absorbing
interest we must feel in them, rather than by the representatives or citizens
of other states, who are no more competent to the task than we, who have no
stake with us in their results, and who would most indignantly repel any
offer of reciprocity from us in assisting to manage their affairs. The pro-
visions 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 legiti-
mately be 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 to 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 justifica-
tion or excuse. This view of the case, however, is not to be confounded with the
discussion and settlement of the slavery question in our territory, in 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 priv-
ilege 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
licentiousness, are of the very essence of republicanism at all times, are peculiarly
to be 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
194 Kansas State Historical Society.
question. In the meantime, however, a territorial legislature may, undoubtedly,
act upon the question to a limited and partial extent, and may temporarily pro-
hibit, 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 re-
pealed by the same power that enacted it.
Among the several objects of legislation which are referred to your action by
the act organizing the territory, is the creation and defining of counties. The
non-completion of the surveys would seem at first to require a resort to natural
boundaries in the performance of this work : but from a map of projected sur-
veys, made in the office of the surveyor-general and kindly furnished me for the
purpose, it is probable the county lines may be designated in advance, at least
over a portion of the territory. You will decide whether it is expedient to pro-
vide that the said designation shall be made before the lines are run. on the
ground. Of the 18 ranges east on the base line, and the 35 townships south, the
lands lying within townships 1 to 15 south, of ranges 9 to 18 east, and continuing
on to the Missouri river and state line, will be first surveyed. Outside of these
limits it, perhaps, would be premature to adopt the projected lines of survey,
as boundaries of counties. The map alluded to is submitted with this com-
The census of the territory, taken under the provisions of the act of Congress,
exhibits a return of 2,904 qualified voters, and an entire population of 8,521 per-
sons, exclusive of Indians and officers, soldiers and employees of the army of the
United States not residing in the territory. The census returns, which are sub-
mitted for your inspection, contain a considerable amount of statistical informa-
tion, such as the place of emigration, ages, occupations, etc. This population
consists of 5,138 males, and 3,383 females ; and it is a fact worthy of remark, as
peculiar to a great extent to this territory, that they are not, as usual, collected
about one point or along a frontier line, but are dispersed over a district of more
thap 15,000 square miles. This state of things, although it has its inconveniences
at present, is nevertheless highly gratifying, as it indicates that our territory
has many points of strong interest, and promises an early development of our
In obedience to the act of Congress, I have, until otherwise provided by
law, divided the territory into judicial districts, designated the places for courts,
and assigned the judges, as stated in my proclamation of the 26th of February
last, which, together with all other proclamations from the executive department,
will be submitted to you. The designation of terms of the supreme court was
purposely omitted, for the reason that my action was only provisional until the
subject could be committed to your charge, and the jurisdiction of the court, as
yet being probably only appellate, there could be for some time no business to
evoke its action.
The provisions for county courts and the offices connected with them, and the
other offices of the territory which you may consider necessary, the laws for reg-
ulating and holding elections, the qualifications of voters, the jurisdiction of the
supreme and district courts, the election or appointment of justices of the peace
and constable, their powers and jurisdiction, the means of settling descendants'
estates (so far as their several matters are unprovided for by existing laws), to-
gether with other obvious subjects, need no special comment from me. In regard
to constable and justices, however, I desire to state that I have issued a number
of commissions throughout the territory, which, under the act of Congress, will
expire at the end of the present session, and it would probably prevent public
and private detriment to authorize them to complete any proceedings which may
Governor Recders Administration. 195
then be pending before them. If, as is probable, you shall provide for filling
these offices by election, I would suggest that some provision be made for the
time that shall elapse between the expiration of the present commissions and
qualifications of new incumbents.
The presence in our territory of so large a number of Indians, interspersed as
they are with the white population, adds a feature to the indiscriminate sale of
intoxicating liquors, which does not exist in other communities. A portion of
them indulge, upon almost every opportunity, in the excessive use of ardent
spirits, and the friends and enemies of prohibition who are acquainted with the
Indian character, and its frenzied developments under the inflvience of intoxica-
tion, will probably all unite in the admission that special precautions in this
respect are necessary, as well for the protection of the Indian against degredation
as of the v>^hites against violence. The most estimable members of most of the
tribes are using their influence to check this evil, and we should second their
efforts, as well for our sake as their own.
The cause of education I need scarcely recommend to your especial attention.
It is always better to pay for the education of the boy than the punishment of
the man. To enlarge upon the necessity of general education for producing a
good government would be at this day a work of supererogation, and I leave the