Ninth. Because the act of giving certificates of election to the persons
named in the order aforesaid would directly affect important rights of other
persons claiming, as we believe justly, to have been duly elected to the said
offices, which said persons are not made parties to this proceeding, and have
had no notice thereof.
Tenth. Because, prior to the date of the rule or order aforesaid of the 23d
October, 1857, the undersigned had duly cast up the votes given at the elec-
tion aforesaid, held at the time aforesaid, for the counties of Douglas and
Johnson, as aforesaid, and finding by the genuine, valid and legal returns
thereof that Lyman Allen, Carmi W. Babcock and Edwin S. Nash had the
majority for the council, and John Speer, George W. Deitzler, Oliver Bar-
bour, Hiram Appleman, Andrew J. Still, George W. Zinn, Gideon Seymour, and
John Lockhart, the majority of votes for members of the house of repre-
sentatives of the legislative assembly aforesaid, certificates of election were,
before the date of said rule or order, issued in due form of law to the said
persons respectively for the offices aforesaid, which certificates are now in
their possession and beyond the power of the undersigned to recall. It is,
therefore, impossible for the undersigned to issue certificates to the other
parties named in the said rule or order.
Eleventh. Because, whilst the undersigned cannot doubt that the honor-
able judge will decline to exercise the jurisdiction claimed in this case, they
feel it their duty to say, most respectfully, that they would regard a judg-
ment in this case directing them to issue certificates of election as an usur-
pation of power, and therefore a nullity, which, under their oath of office, it
would be their duty to disregard.
Yet, with a view to prevent a dangerous confiict between the judicial and
executive power, and to enable the supreme court of this territory, or, as a
final resort, the supreme court of the United States, to correct any error of
the judge in this case if judgment should be rendered against them on this
rule or order, they pray an appeal to the supreme court of the territory, it
having been decided by the supreme court of the United States that a judg-
ment on a mandamus presents a case in which an appeal lies from an in-
ferior to the proper appellate tribunal.
The undersigned beg leave further to state that, if the said judge should
command them to issue certificates of election as aforesaid, and should deem
it his duty to subject them to imprisonment for disobeying his order, as they
would be compelled to do by their conviction of its usurpation and utter
nullity, and because the certificates before the date of said rule or order had
already been issued to other persons, such is their desire to maintain the
peace of this territory that they will submit individually to such imprison-
ment, and if any tumult should be apprehended by said judge in conse-
quence of the monstrous frauds which have been perpetrated upon the elective
franchise in the recent election, the governor will direct the regular troops
of the United States, now here and subject to his order, to act as a "posse
comitatus" in aid of the sheriff or marshal who may be directed by said judge
to execute said mandate of imprisonment.
R. J. WALKER, Governor of Kansas Territory.
FRED. P. STANTON, Secretary.
Governor Walker's Administration. 411
MR. STANTON TO MR. CASS.
Lecompton, K. T., November 9, 1857.
Sir: I hereby tender my resignation of the office of secretary of Kansas
Territory, to take effect after the 31st of December next.
I have the honor to be, very respectfully, your obedient servant,
FRED. P. STANTON.
Hon. Lewis Cass, Secretary of State.
MR. STANTON TO THE PRESIDENT.
Lecompton, November 11, 1857.
Sir: Since the date of my letter to the secretary of state, offering my res-
ignation, to take effect from the 31st December next, I have seen various let-
ters and dispatches from Washington to the effect that you and your cabinet
had resolved to reprimand the governor and myself for our action upon the
Oxford returns. I cannot believe there is any truth in these reports; but
if there should be, I beg leave to withdraw my resignation, in order that I may
stand upon the merit of the act in question. I would not wish to be under-
stood as disposed to dodge the responsibility of my official conduct in refer-
ence to the Oxford and McGee forgeries. If they should be the subject of
animadversion on your part, I wish to take my full share of the blame; at the
same time I repeat my expression of confidence that you will not be so far
misled by any misrepresentations as to approve the hasty condemnation
which has been pronounced against us by a few interested individuals.
Very respectfully, your obedient servant,
FRED. P. STANTON.
His Excellency, James Buchanan,
President of the United States, Washington, D. C.
MR. CASS TO MR. STANTON.
Department of State, Washington, November 30, 1857.
Sir: Since, by the absence of Governor Walker from the territory, you
have become acting governor of Kansas, it is proper to call your attention
to the views of the President with respect to the administration of that office,
as they have been from time to time communicated to Governor Walker.
These instructions are, doubtless, within your reach, and will be a sufficient
guide to your official action. In those which bear date of March 28, 1857,
occurs the following paragraph:
"The regular legislature of the territory having authorized the assem-
bling of a convention to frame a constitution to be accepted or rejected by
Congress, under the provisions of the federal constitution, the people of Kan-
sas have the right to be protected in the peaceful election of delegates for
such a purpose under such authority, and the convention itself has a right to
similar protection in the opportunity for tranquil and undisturbed deliber-
ation. When such a constitution shall be submitted to the people of the ter-
ritory, they must be protected in the exercise of their right of voting for or
against that instrument, and the fair expression of the popular will must not
be interrupted by fraud or violence. The President concurs in the hope ex-
pressed by you that the intervention of the military force will not be necessary;
but should this just expectation be disappointed, he refers you for the measures
you must adopt, and for the necessary authority in that emergency, to the in-
412 Kansas State Historical Society.
structions heretofore given by the President of the United States and by this
department to your predecessors. Copies of these instructions accompany this
communication, and also copies of the instructions heretofore issued by the
war department, and of those issued by the present secretary of war, respect-
ing the employment of the troops of the United States upon your requisition."
More detailed instructions on the subject of employing military force in
aid of the civil power were given in a communication from this department
to Governor Walker, dated July 25, 1857, from which the following is an
"It is the duty of the President, to take care that the laws are faithfully
executed. He is an executive, not a judicial officer, and he has no power to
declare authoritatively who shall or shall not vote under the laws of Kansas.
By the territorial act of August 29, 1855, to regulate elections, this power is
conferred upon the judges of election 'in each county or voting precinct,' and
these judges are appointed by the county commissioners, and not by the gov-
ernor. . . . Thus, the governor seems to have been excluded from any
participation in the conduct of elections. It is his duty, required as he is to
see that the laws of the territory are faithfully executed, to take care that
the elections shall be free and fair, and to resist whatever violence may be
employed to prevent any individual from going to the polls and having his
claim to vote decided by the judges; but this decision, whatever it may be,
is final, so far as the executive is concerned."
In my dispatch of September 2, 1857, the views of the President were still
further given in reference to the appropriate duty of the executive in preserv-
ing the peace of the territory and in preventing its citizens, at any legal elec-
tion, from being restrained by violence from the free exercise of the elective
franchise. Governor Walker was then insti'ucted as follows:
"He [the President] confidently relies upon your discretion as well as your
firmness, and feels assured that this force will be actually employed in those
cases only where there is a resistance to the law, which cannot be overcome
by the proper civil officers with the ordinary means at their command. . . .
When a civil ofl^cer has reason to believe that process placed in his hands
will be resisted by force, he has the right to call for the aid of such portions
of the "posse comitatus" as he may think necessary; and at this point may
rightfully commence the action of the military force. It may be called upon
as a part of the "posse comitatus" to aid such officer in the execution of his
duty, and while so acting the troops act under his authoritj'."
Thus far the peace of the territory, to the preservation of which these
instructions were all directed, has been happily maintained, and the President
earnestly hopes that nothing will occur to interrupt it in the future. It is
understood that the constitutional convention which assembled at Lecompton
on the first Monday of September has completed its labors, and that the great
question which has so long agitated Kansas will be submitted to the de-
cision of its people on the 21st of December next. An opportunity will thus
be afforded to remove this question from the arena of political dispute, and
to determine whether Kansas shall be a slave state or a free state in the very
manner contemplated by its organic law. In order to give the result of the
election that full force and authority which it ought to possess upon a subject
of so much interest, it is highly important, I need hardly inform you, that it
should be counducted under circumstances of the utmost fairness and security.
It is for this reason that I have drawn your attention to the previous instruc-
tions of the President upon this general subject. The importance of preserv-
Governor Walkei^^s Administration. 413
ing the peace of the tenntory at this critical period in its affairs cannot be
overestimated, and the President relies upon your most earnest efforts to
accomplish this result. I am, very respectfully yours,
Frederick P. Stanton, Esq., Lecompton.
MR. CASS TO MR. STANTON.
Department of State, Washington, December 2, 1857.
Sir: I am instructed by the President to communicate to you that portion
of his annual message which he intends to deliver to Congress at the com-
mencement of the approaching session, relating to the affairs of Kansas. I
send this by special messenger, so that it may reach you with the least pos-
sible delay. You are instructed to have it as extensively published as possible
throughout the territory, before the election of the 21st instant, so that no
voter may misunderstand the President's views in regard to proceedings of
the late convention in Kansas. It seems due to you and to the people of the
tex'ritory, under the peculiar circumstances which now exist there, that these
views should not be withheld. I shall also send a copy to General Denver,
the commissioner of Indian affairs, who left here yesterday for Kansas on
business connected with his office, so that you and he may consult together
as to the best mode of giving it an immediate and extensive circulation. For
any expense which may be incurred for this purpose, you may draw on the
state department. I am, &c., LEWIS CASS.
Frederick P. Stanton, Esq., &c., &c., &c., Lecompton.
MR. CASS TO MR. STANTON.
Department of State, Washington, December 8, 1857.
Sir: I enclose to you, by direction of the President, a copy of his message,
which was this day communicated to Congress. That portion of it which re-
lates to the affairs of Kansas was transmitted to you on the 2d instant, by a
special messenger. You are, therefore, fully informed of the views of the
President on this subject, and you will be careful to conform to them in your
official conduct. The opportunity is now presented to the people of Kansas
of settling forever the agitating question which has so long distracted their
attention and interrupted their prosperity, and of obtaining entire control
of their own affairs, by procuring the admission of the territory into the
federal union as a sovereign state. It is not to be expected that such an oppor-
tunity will be allowed to pass unimproved, and you will do everything in
your power to preserve the peace of the territory at this critical period. Your
duties and authority with respect to the freedom and security of elections
and the employment of troops were sufficiently stated in my instructions of
November 30, and to these you are referred for your guidance on that subject.
It is rumored, in the public journals, that you intend to call together the
legislature before the regular time of their assembling, but the President re-
gards the report as wholly unworthy of credit. Very respectfully, &c.,
Frederick P. Stanton, Esq.,
Secretary and Acting Governor of Kansas Territory.
414 Kansas State Historical Society.
MR. STANTON TO MR. CASS.
Lecompton, December 9, 1857.
Sir: I inclose to you copies of the proclamation, issued on the 1st instant,
convening an extra session of the legislature, and also of the communication
made to that body at a late hour yesterday afternoon.
It is proper for me to say that this important step of calling the legislature
together was taken only after I had become satisfied that the election ordered
by the convention on the 21st instant could not be conducted without collision
and bloodshed. The free-state party had organized vigilance committees
throughout the whole territory, and were assembling in large mass-meetings,
calculated still further to inflame the public mind. I ascertained that de-
signs of a most desperate character were freely discussed in their private
meetings, and that violent measures had probably been agreed upon to be
executed at a favorable time. It was to me certain that the mass of the peo-
ple were determined not to submit to the constitution, nor to participate in
the election, but probably to prevent its taking place. A large military force
would have been necessary everywhere to enforce order.
Under these circumstances, it was suggested that the legislature might
provide for a vote on the adoption or rejection of the constitution, and that
this would give satisfaction to the people. Being well convinced that no
power could enforce the constitution, and that the demand of the people to
vote upon it is only just and proper, and having received the individual
pledge of a majority of the members that they would do nothing but pro-
vide for something of that kind, I thought the peace of the territory would
be cheaply maintained at the expense of a short session of the legislative
I have the honor to be, very respectfully, your obedient servant,
FRED. P. STANTON.
Hon. Lewis Cass, Secretary of State, Washington, D. C.
To the Members of the Legislative Assembly of the Territary of Kansas:
An extraordinary occasion having occurred in the affairs of the terri-
tory, within the meaning of the thirtieth section of the organic act, which au-
thorizes the legislature to be called together upon such occasions:
I, Frederick P. Stanton, secretary and acting governor, do hereby summon
the members of the council and house of representatives of the said territory to
assemble in their respective houses, at Lecompton, on Monday next, the 7th
instant, then and there to consider matters of great moment pertaining to
the public welfare.
Given under the seal of the territory, at Lecompton, this 1st day of De-
cember, A. D. 1857. [L. S.] FRED. P. STANTON.
MESSAGE OF THE ACTING GOVERNOR.
Lecompton, December 8, 1857.
Fellow Citizens of the Council and House of Representatives:
In the absence of the governor, who, by leave of the President, has gone for
a short time to Washington on important public business, and while thus
temporarily clothed, by the organic act, with all the powers and duties of the
chief executive officer of the territory, I find myself compelled, by a sense of
Governor Walker's Adininistration. 415
duty, to call you together in order that you may adopt prompt legislative
measures to avert the calamities which imminently threaten the public
peace. From the representations of a majority of your own bodies, as well as
from other information of an authentic character, I have reason to know that
recent events have produced a profound agitation of the public mind, and
that a sense of wrong and injustice, whether well- or ill-founded, and an
apprehension of greater evils to arise therefrom, have aroused the people of
the territory to a condition of dangerous excitement. The proceedings of
the late constitutional convention are the immediate cause of this trouble and
The law passed at the last session of the legislative assembly, providing for
the organization of a convention to frame a constitution for the government
of Kansas as one of the states of the union, was adopted at a period when, un-
fortunately, the people of the territory were divided by a bitter hostility, re-
sulting from the previous state of commotion and civil war. In consequence
of this embittered feeling, and the mutual distrust naturally thereby en-
gendered, one of the parties, constituting a large majority of the people, re-
frained almost entirely from any participation in the proceedings instituted
under the law aforesaid. The census therein provided for was imperfectly
obtained from an unwilling people, in 19 counties of the territory; while, in
the remaining counties, being also 19 in number, from various causes, no at-
tempt was made to comply with the law. In some instances, people and
officers were alike averse to the proceeding; in others, the officers neglected or
refused to act: and in some there was but a small population, and no efficient
organization, enabling the people to secure a representation in the convention.
Under the operation of all these causes combined, a census list was obtained
of only 9,251 legal voters, confined to precisely one-half of the counties of the
territory, though these, undoubtedly, contained much the larger part of the
At the election which followed in pursuance of the law, only 2,200 persons,
being less than one-fourth of the registered voters, participated, in any man-
ner, in the choice of delegates, either by voting for those elected, or for other
persons. The average aggregate vote in favor of the successful candidates
was about 1,800.
It thus appears that in the election of the 15th June last, for delegates to
the convention, the great mass of the people purposely refrained from voting,
and left the whole proceeding, with all its important consequences, to the act-
ive minority, under whose auspices the law had been enacted, and also exe-
cuted, so far as that could be done by the executive officers, without the con-
currence of the majority of the people.
That the refusal of the majority to go into the election for delegates was
unfortunate, is now too apparent to be denied. It has produced all the evils
and dangers of the present critical hour. It has enabled a body of men, not
actually representing the opinions of the people, though regularly and legiti-
mately clothed with their authority, to prepare for them a form of govern-
ment, and to withhold the greater part of its most important provisions from
the test of popular judgment and sanction. It has created the present pro-
found excitement, consequent upon the apprehension that Congress may admit
the state under this constitution, and that the people of Kansas may be thus
forced to submit to the operation of a fundamental law, in the adoption of
which they have had no actual participation.
It is not my purpose, nor is it necessary, to inquire how far either of the
416 KcDisas Slate Historical Society.
parties into wtiich the people were unhappily divided upon the proceedings
in question was justifiable in the course pursued. The only important ques-
tion which seems now to concern the people, or their representatives, is, as to
the legal and political effect of the facts as stated; whether they do, or do
not, impose upon the whole people an obligation to accept the work of the
convention, and to acquiesce in its plan of adopting the constitution and
sending it up to Congress for the admission of Kansas as a state into the
If a convention, organized as this was, can be considered as embodying
in itself the sovereignty of the people, the difficulty is undoubtedly insuper-
able, and the omission of the majority to vote last June is past all present
remedy. But, in my judment, such a position cannot be successfully main-
tained. The fundamen.tal principle of popular self-government, and espe-
cially of that "republican form" which the constitution of the United States
guarantees to every member of the confederacy, excludes the possibility of
the delegation or transfer of their sovereignty, by the people, to any authority
whatever. In its very nature that sovereignty which erects governments
and endows them with their legitimate powers can be exercised only by the
people themselves. It is incapable of alienation, and is as inseparably in-
herent in the body of the people as are personal identity and independent
will in each individual. The people cannot divest themselves of it any more
than an individual can divest himself of his own moral responsibility. Any
other theory would involve the absurdity of the possible subjection of the
sovereign to its delegated agent. For if the sovereignty be actually delegated
or transferred, it may evidently be used to enslave the sovereign people them-
selves. If the convention could enact a constitution, and put it in force of its
own authority, it could readily adopt and perpetuate the most tyrannical
provisions; for, if the constitution, as in this case, may be made permanent
until 1868, it might equally be made perpetual and unalterable.
In its essential character, when about to frame a state government, the
sovereignty of the people of a territory is identical with that of the people
of a state. It must necessarily be equally as plenary and independent; other-
wise, the new state would not stand upon an equality with the old ones. The
perfect equality of all the members of the confederacy is the very basis of
the federal constitution. It is true that a territory cannot become a state of
the union without the consent of Congress. But this discretion on the part
of Congress does not imply the power to dictate institutions to the people of
the territory, or in any way to restrain, or limit, or farce their sovereignty in
the exercise of its high function of framing its own state government. The
only rightful power which Congress has in the premises is to determine when
the new community is sufficiently mature to assume an independent govern-
ment, and to recognize the identity of the people in their new form of a state.
That clause of the constitution guaranteeing to the states a "republican form
of government" imposes the obligation to protect the people in their sov-
ereignty, and to prevent its alienation, if that were possible, as a departure
from the true republican form. Congress, therefore, has no rightful power to
accept a state government which has not received the sanction of the people
who are to live under it. The attempt to exercise such a power would be a
plain violation of the constitution. It would be none the less a usurpation,
becatise the people of the state might afterwards regain their violated sov-
The instances in which Congress has recognized and received new states.
Governor Walker''s Administration. 417
without the actual submission of their constitutions to the vote of the people,
are not necessarily in conflict with the principles now asserted. Doubtless
if the people of a territory should quietly acquiesce in the adoption of a con-
stitution passed for them they might thus give very satisfactory evidence of
their approbation. But no instance can be found on record of a constitution