Settling the Kansas Territory--the Rightness of the Missouri Cause

The Kansas-Missouri college football rivalry in 2007, where the winner may go to the BCS Championship game, has cast an eerie light on events 150 years ago, when Kansas was a Territory and Missourians moved into Kansas to elect the first pro-slavery Territorial legislature on March 30, 1855. The Wall Street Journal even reflected on the issue and the continuing animosity felt mutually by Kansans and Missourians in its edition today. The popular account, written by the "winners," i.e., those who opposed the extension of slavery into Kansas, emphasizes Missouri's dastardly role in "rigging" the first legislative election. Horace Greeley, the abolitionist editor of the New York Tribune coined a name for these people in 1855. They were "border ruffians."

As I have been thinking about the issue for some time, however, it seems to me that in order to understand events of 1855, where more than 4,000 Missourians crossed over into the Kansas Territory to vote, usually under threat of force, in the Mar. 30 election, we need to divest ourselves of the prejudices of the winners, even if they happen to be our values, in order to understand the true nature of the problems at the time. When we do this, we discover that the language of the KS-NE Act of May 30, 1854, which set up the Kansas Territory, was shockingly different than the language in other Territory/State Organic Acts on the issue of who gets to vote. My point is that Congress, either deliberately (probably so) or ignorantly (probably not) created the conditions which all but encouraged the Missourians to enter into Kansas and vote on March 30.

In order to make this case, I need to give you the language of a few statutes.

First, The Nebraska-Kansas Act of May 30, 1854

This Act is most unusual in its form, being 37 sections in length, with mirror provisions (18 for NE; 18 for KS) comprising nearly the entire statute. Nebraska is treated first (secs. 1-18) and Kansas second (secs. 19-36). Why isn't it generally called the "Nebraska-Kansas Act" then? Especially when the Act is entitled: "An Act to Organize the Territories of Nebraska and Kansas." Well, I think I will start calling it the "Nebraska-Kansas Act," as my little act of defiance wherever I go. I am on good grounds for it. By the end of my lifetime, I hope to have the nation calling it the Nebraska-Kansas Act (10 Statutes at Large 277-290). But what is sec. 37, you might ask? Well, it is a rather chilling one--especially once we know the subsequent history of how the United States has treated Native Americans. Part of sec. 37 reads:

"That all treaties, laws, and other engagements made by the government of the United States with the Indian tribes inhabiting the territories embraced within this act, shall be faithfully and rigidly observed...."

Right. Until the US Government, goaded on by its citizens, decided not faithfully and rigidly to observe them...

As mentioned above, sections 19-36 deal with the setting up of the Kansas Territory. Though much of the statute is interesting, for my purposes here the voting provision in sec. 23 is important. Who may vote?

"every free white male inhabitant above the age of twenty-one years, who shall be an actual resident of said Territory..."

Then there is language which says "and shall possess the qualifications hereinafter prescribed," but these relate to foreign born people and don't give flesh to the concept of "actual resident."

I thought when I read this phraseology at first that it might create a legal avenue for Missouri people to argue that they could participate in the election. Even though Governor Reeder declared that oaths had to be taken and intent to remain in the Territory were required, I don't see any statutory justification for this kind of proclamation. He had the authority to call the election, but the legislature itself would be the body to lay out the qualifications of eligibility for voters. Thus, we must fall back on the language of the statute to determine eligibility to vote. But what does "actual resident" mean?

Two Other Examples--from MN and OR

I thought that I might try to create a linguistic context for understanding the Nebraska-Kansas Act (see, you can say it too!) by looking at the Organic Acts of the Minnesota Territory and the Oregon Provisional Legislature. These were written in 1849 and 1845, respectively, and were the kind of statements that Congress had 'lying around' when it penned the Nebraska-Kansas Act. So, let's look first at Oregon. In Article II, Section 10 of the 1845 Act (it only exists online on my web site), we have:

"Every free male descendant of a white man, inhabitant of this territory, of the age of twenty-one years an upwards, who shall have been an inhabitant of this territory at the time of its organization [i.e., in 1843], shall be entitled to vote.."

Ah, we have a rift between the Oregon and the Nebraska-Kansas Act, centering on the length of residency in the territory. So, let's look at Minnesota's Organic Act, passed by Congress in 1849. Sec. 5 provides, in relevant part:

"That every free white male inhabitant above the age of twenty-one years, who shall have been a resident of said Territory at the time of the passage of this act, shall be entitled to vote..."

Analysis

Though the Oregon and Minnesota language aren't identical, they both point to a period of time that was required for residency in order to become eligible to vote. The reason that such was required was to prevent vast ingresses of "illegitimate" voters into the legislative process at the first legislative elections.

But note how the Nebraska-Kansas Act handles the issue. Congress could easily have used language lying readily at hand to require residency since the passage of the Act. This would only have been, as it turns out, a residency of about 10 months. But by not defining the residency requirement differently, Congress left itself open to the real interpretative possiblity that "actual resident" differs from a "period of time" as spelled out for other territories. If I were a MO lawyer, I would argue that the burden would be upon those in KS to show that "actual resident" means a specified period of time rather than that the voting is open to whoever shows up on that day and claims to be a resident. I suppose KS could have countered that if one's name was on the census list, completed in Feb. 1855, that you would be able to vote, but there is no warrant for that in the language of "actual" resident.

Conclusion

When you add to this the idea, popular in the 1850s, that Kansas and Nebraska would be added to the union as one slave and one free state, in order to keep the balance of slave and free, and that the New Englanders and others who wanted to enter Kansas to vote it a free state were people who were coming from 1500 miles rather than across a river or a few miles, you have all the more reason for seeing the actions of Missouri men on March 30, 1855 as justified. Well, some of them were highhanded, to be sure. But if you want to look for a culprit in all this, don't look at Missouri men or at Sen. David Atchison of Missouri. Look at Congress. Blame them. As a matter of fact, we have been doing it ever since for most other things...

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