|1918 KANSAS AND KANSANS||Kansas Laws and their Origin||Part 2|
LEAVENWORTH CONSTITUTION, WYANDOTTE CONSTITUTI0N
On February 2, 1858, Buchanan sent the Lecompton. Constitution to the Senate with a special message recommending its immediate adoption. Immediate action was not taken because in each House minority reports were filed. The danger, however, was imminent that Congress would admit Kansas and the slavery question be closed. It was claimed that because of the great increase in population the Topeka Constitution no longer represented the sentiment of the people. A new constitution was therefore provided for by the Legislature on February 10, 1858. The election for delegates to a convention was held March 9th. The convention met March 23d at Minneola, Franklin County, and adjourned to Leavenworth March 25th. It completed its labors April 3, 1858. This constitution was submitted to a vote of the people May 18, 1858, and was adopted by a vote of about 1,000 to 4,000.
This convention was probably composed of a greater number of able men than any of the other constitutional conventions held in Kansas. Among them were Frank G. Adams, Caleb May, P. B. Plumb, W. E. Bowker, Joel K. Goodin, M. F. Conway, T. Dwight Thacher, James S. Emery, S. N. Wood, James H. Lane, Henry J. Adams, Thomas Ewing Jr., James M. Winchell and others of equal ability. Many of these men had not been participants in the earlier struggles but had come only recently fresh from college and were destined to military as well as civil service of high order.
The constitution which they drafted was intended by its terms and phraseology to direct the attention of Congress and the nation to the peculiar vices of the Lecompton Constitution. The latter exalts the rights of property especially in human beings and asserts it to be higher than any constitution. The former declares "the right of all men to the control of their persons exists prior to law and is inalienable." The Lecompton Constitution guarantees an impartial trial by jury to "slaves for crimes of higher grade than petit larceny;" and "that no freeman shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land." The Leavenworth Constitution says "the right of trial by jury shall be inviolate, and extend to persons of every condition. "
The Leavenworth Constitution contained many notable provisions. It recognized the negro as a citizen and gave him the right to vote. It provided that the first general assembly of the Legislature should submit the question of universal suffrage to the people. It provided that a homestead of 160 acres or a house and lot should be exempt to the head of a family. It provided for a complete common and higher school system; for the rights of married women in holding property separate from their husbands. These and many other provisions mark the authors as men of high intelligence and progressive ideas.
When the "English Swindle," alias "Lecompton Jr.," was defeated in August, 1858, the purpose of the Leavenworth constitution had been accomplished and it was never again submitted to the people, but was presented to Congress January 5, 1859. No action was ever taken on it by that body.
The Wyandotte convention was different from any which preceded it. Each of those was assembled to frame an issue. This was assembled to form a state. In each of those there was one central thought which dominated the men who drafted the document. In this each part of the constitution drafted was of equal importance and had equal consideration. In those, two passions controlled - slavery and self-government - subordinating all other thoughts. In this slavery and self-government had already been settled and the task was to formulate its constitution for a free people. Those were partisan gatherings. This was bi-partisan.
The personnel of the Wyandotte convention was different from that of any of the earlier conventions. For the most part it was made up of younger, and, as to Kansas, newer men. The early conflict had developed some great characters whose names have become known throughout the nation, such as Robinson, Lane, Conway, Parrott, John Brown, Reeder, Holliday and Phillips. These men were either not candidates or had been defeated at the polls and so were not members of this convention.
Two of its members, Caleb May and William R. Griffith, had also sat in the Topeka and Leavenworth conventions, and three others, James Winchell, John Ritchie and. William McCullough, were members of the Leavenworth convention.
There were in that notable gathering the president, James M. Winchell, a skilled parliamentarian, good debater and afterwards a prominent candidate for the United States Senate; John P. Greer, judge advocate during the war; James G. Blunt, afterwards brigadier general, distinguished in military service; John Ritchie, one of the founders of Washburn College; Samuel A. Stinson, the third attorney general of the new state; John T. Burris, afterwards speaker of the Kansas House of Representatives and for many years a district judge; Solon O. Thacher, judge of a district court and acknowledged leader of the bar of Kansas for nearly half a century - a man of great ability and eloquence; Benjamin F. Simpson, afterwards United States marshal for Kansas, the first attorney general of the state, speaker of the House of Representatives and Supreme Court commissioner; Edmund G. Ross, afterwards United States senator, whose vote saved Andrew Johnson from conviction after impeachment; Samuel A. Kingman, afterwards chief justice of the State of Kansas; and John J. Ingalls, the incomparable master of invective and of the Queen's English - one of the most brilliant men who ever sat in the United States Senate.
There were fifty-two delegates to the convention, thirty-five republicans and seventeen democrats. Eighteen of the delegates were lawyers, sixteen farmers, eight merchants and five physicians, with one or more surveyors, land agents, manufacturers, mechanics and printers. John A. Martin, afterwards governor of the state, was secretary of the convention. The acknowledged leaders at the convention were Thacher and Kingman on the republican side and Stinson and McDowell on the democratic side, all four of whom were lawyers. Stinson afterwards became attorney general and Kingman, as said above, chief justice of the state. Of the delegates fourteen came from Ohio, six from Indiana, five from Kentucky, two from Massachusetts, six from Pennsylvania, three from New Hampshire, four from Vermont, two from Maine, five from New York and one each from Virginia, England, Scotland, Germany and Ireland.
The convention assembled on July 5, 1859, and completed its labors on July 29th. After the constitution was finished the democratic members refused to sign it. It was signed by thirty-four republicans. On October 4, 1859, it was submitted to the people and adopted by a vote of 10,421 to 5,530. The homestead clause, submitted separately, carried by a vote of 8,788 to 4,772.
On the 14th day of February, 1860, the president of the United States Senate presented the Wyandotte constitution to that body. On the 29th of March following, Galusha A. Grow, chairman of the Committee on Territories, recommended the admission of Kansas under this constitution. On the 11th day of the next month the House voted to admit Kansas to the Union by a vote of 134 to 73. The Senate, however, on two different occasions refused to consider motions to admit the territory. On the 21st day of January, 1861, several of the Southern senators, having resigned by reason of the secession of their states, Mr. Seward called up the Kansas bill and secured its passage by a vote of thirty-six to sixteen. On the 29th day of that month President Buchanan signed the bill and Kansas became a state.
The Wyandotte Constitution is not a document remarkable for its originality, because in the main it was taken from other constitutions; but it is remarkable because of the intelligence and the great care with which it was put together. Every article and nearly every sentence was carefully considered and debated, not only in the subcommittees of the convention, but upon the floor of the convention itself. When the instrument was finally signed its authors were well justified in claiming it "to be a model one." In the closing hours of the session when the constitution was ready for signature, Solon Thacher said:
"This constitution has come through a fiery debate. Every line almost has been subjected to the scorch of high-wrought argument. Mr. President, I believe this Constitution to be one that will be clasped to the hearts of the people and under it Kansas will glide to an enviable position with the sister states.
"There is scarce a feature of this Constitution but what will command the homage of all good men. But, sir, the feature which most endears this Constitution to my heart, and which will commend it most to the true and good everywhere, is that through every line and syllable there glows the generous sunshine of liberty. No repulsive allusion, no wicked prejudice, no ignorant and heathenish distinction mars its beauty or disfigures its fair symmetry."
Such was the constitution which they drafted and under which the people of Kansas have lived and prospered for more than fifty years. It has been found necessary to make but few amendments to it, and most of those have been made only on account of change in conditions of the people.
When the convention convened one of the first questions which arose was whether or not to use the constitution of some other state or some former draft of the Kansas constitution as a model from which to draw the new document. On the first ballot Ohio received 13 votes; Indiana 12; Kentucky 6; the Leavenworth Constitution 5; the Topeka Constitution 3; Pennsylvania 2; Iowa 2; Wisconsin 2; Massachusetts, Michigan, Maine, Minnesota and Oregon 1 each. On the second ballot Ohio received 25, Indiana 23, and Kentucky 1. The constitution of Ohio, having received the majority, was declared to be the proposed basis for the new document.
The greatest speech of the convention was made by Thacher in opposition to a proposal to exclude free negroes from the state. This speech forever settled the question of absolute freedom of Kansas soil, although the vote upon the proposition when taken stood twenty-one ayes and twenty-six nays.
To us of this day it seems strange that any argument was necessary to defeat the proposition. But the sentiment in favor of it was so strong in the convention that several of the members predicted that the constitution would be defeated unless the provision excluding the free negro from the state should be included in it. Their apprehension proved to be without foundation.
A very interesting discussion arose over the northern boundary of Kansas. Delegates came from Southern Nebraska and petitioned the convention to fix the northern boundary of the state at the Platte River. They argued with great earnestness that the present boundary was an artificial one, while the river was a natural boundary because it could not be forded because of quick sand, could not be bridged because no bottom could be found for the piers, and could not be ferried because there was not enough water to float a boat. That at times it was a raging torrent and at other times a stretch of sand. They offered to give to Kansas a rich area of territory and the democratic members of the convention were unanimously in favor of the tender. But the republicans "feared the Greeks bearing gifts," they suspected the inhabitants of that land were democrats and might either defeat the constitution altogether, or elect democratic United States senators from the new state, so the boundary line was fixed at the 40th parallel.
Two of the older states, New York for the North and Virginia for the South, have furnished the models for most of the constitutions of the several states. The Ohio constitution was in the main founded upon that of New York. All sub-committees of the convention were instructed to use the Ohio constitution as a model for their particular articles and in the main they followed those instructions, but throughout the proceedings we find frequent allusion to the constitutions of the different states and also to the Topeka and the Leavenworth constitutions, showing that while the Ohio constitution was used as the model in the main it was not strictly followed. The constitutions from which provisions were taken other than the Ohio constitution were principally Michigan, Kentucky, Indiana, Iowa, Wisconsin, Illinois, Pennsylvania, and the Topeka and Leavenworth and even the Lecompton constitutions. The ordinance was taken largely from the Lecompton Constitution. The executive and legislative articles followed largely the Ohio precedent, but the qualifications of the members of the Legislature is taken from the Wisconsin Constitution, with a number of the sections adopted from the Topeka and Leavenworth constitutions. One provision improving the status of women which provides "the legislature in providing for the formation and regulation of common schools shall make no distinction between the rights and privileges of males and females" was taken from the Constitution of Kentucky. The article on elections and suffrage followed largely the Topeka Constitution. The article on education was a merger of provisions found in Iowa, Oregon, Michigan, Wisconsin and California. The article on banking and currency was made up from the Topeka and Leavenworth constitutions. Nearly every section can be traced to some provision of some preceding constitution, except perhaps the provision that all bills should originate in the House of Representatives, and this provision was repealed in November, 1864.
This, however, does not mean that the instrument was not progressive in its character. On the contrary most of the constitutions from which its provisions were taken had been recently adopted by the respective states and from them were gleaned the best and most progressive provisions. The sagacity of the Wyandotte Convention consisted in its selection of these provisions and the amalgamation of them into a consistent and harmonious instrument. Most of the progressive ideas of the decade were incorporated in the instrument. Slavery was prohibited. Free negroes were not excluded. Wild cat banking paper was proscribed. Ample provision was made for common school and higher education. The rights of women were recognized and advanced and the homestead was guarded against covetous creditors. It is true that some progressive measures were suggested to the convention which were not adopted. John Ritchie offered the following: "That the state of Kansas shall confer power on the legislature to prohibit the introduction, manufacture or sale of spirituous liquor in the state." The provision was not adopted. But twenty-one years later, in November, 1880, the prohibition amendment was passed.
Mr. Ritchie moved to strike the word "white" from the article establishing the state militia. Only six voted in favor of the motion, but the section was so amended in 1888. Mr. Hutchinson presented a petition of 252 inhabitants of Douglas and Shawnee counties asking that the right of suffrage be extended to women. The petition was not granted, but in 1913 that right was extended to women.
There are two provisions in the Wyandotte Constitution which make it a mile post in legislation. One is the extension of married women's rights and the other the homestead exemption. These provisions are linked together and touch the social life of the state through the family. The two sections are as follows:
"Section 6. The Legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children."
".Section 9. A Homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. Provided: the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife."
From early history woman has been little better than a chattel and even under the common law of England a woman upon her marriage surrendered all her right to hold personal or real property to her husband. Not only her individuality became merged in her husband, but he enjoyed the right of possession and disposition of her property. Her goods became liable to seizure and appropriation by his creditors. Through the profligacy or ill-management of the husband a woman who was well-to-do in her own right before her marriage might be reduced to poverty after her marriage. Except as modified or repealed by the constitution or statutes the common law of England applied to most of the states, including Kansas. The men of the Wyandotte convention determined that no such injustice would be fastened upon the women of Kansas, and by the section first above quoted they restored for all time to their women the management and control of their own property so far as law can give it to them. By the second provision they fixed for her and her children a homestead which could not be violated or torn from her and them by the malice, ill-management or misfortune of the husband and father, except by the joint consent of the wife and mother.
Homestead laws are an American institution, unknown in other lands. The first statutory provision exempting the home from execution was enacted by the Republic of Texas in 1839, and the first homestead exemption placed in a constitution was in that of Texas in 1845. The second was the constitutional provision adopted by Vermont in 1849. In 1859, when the Wyandotte convention assembled, it was a scarcely recognized political doctrine. The leading advocate for a constitutional homestead exemption was Samuel A. Kingman. Without his great earnestness and logical argument it never would have been adopted by the convention, because other men strong in debate, such as Thacher, Ingalls and Stinson opposed it, claiming that the homestead exemption would enable men to avoid their just debts and would injure the credit of the state. One of the opponents said: "I would rather abolish all laws for the collection of debts than that the section should pass in its present shape," and that he would prefer a $2,000 exemption rather than a homestead exemption. It was left for Houston, Griffith and Kingman to point out the distinction between a homestead and an exemption law, Kingman saying:
"The object of a homestead law is very unlike that of an exemption law. And I think the amendment proposed is calculated to defeat the homestead principle. I think that is its object. It is within the recollection of many when it was the settled policy of many of the States, that the land should not be subject to sale for the payment of debts. But the commercial interests of the country by their power and skill produced a change which has subjected the farms and homes of the people to be sold under execution, and so nearly converted our people into a class of nomads. I want, if possible, to restore the old policy - to change back again - so that every man or woman, if he plants a tree or she cultivates a rose - that both may beautify and adorn their homes as they may choose, and have the benefit of the protection of the law. But if we put it in the power of the husband or the fortunes of trade to convey by lien or mortgage, the grasping creditor will take away the homestead. I want to separate this subject from anything like the consideration of an exemption law. I approach this as a great measure which rises above all considerations of the rights of debtor and creditor. I abhor an exemption law. This is not of the same nature. This is to go forth, the promulgation of a great principle, that shall encourage the cultivation of the soil. The case was well illustrated by the gentleman from Riley (Mr. Houston); and though it would be impossible for me to emulate the flights of his fancy and the boldness and strength of his doctrine, I am not therefore restricted as to my full share of feeling and anxiety for the success of this most important measure."
That was a novel doctrine then, but since that time every state in the Union, except, we believe, Delaware, Indiana, Maryland, Pennsylvania and Rhode Island, has, by constitutional or statutory provision, recognized its soundness. It fosters the family as the primal factor of society and thus promotes general welfare. To protect the home is to preserve the family from, disintegration. To dignify the wife is to develop citizenry. If the homes are permanent in character the community will build schools, churches, libraries. The spirit of free citizenship and patriotism will thrive, and the state will be healthy and prosperous. The Kansas courts have given liberal construction to the constitutional provision. Early in the history of the state, while Kingman was chief justice, the court declared that the wife's interest in a homestead under this provision was not an inchoate and expectant thing, a mere veto upon the right of the husband to alienate the estate but that it was a real existing estate under which the occupation and enjoyment thereof is secure to her against any act of her husband or creditors without her consent. If her husband abandon her the use of the homestead remains to her and the family. It is not like dower depending on uncertain events, but fixed and certain without need of any statutory enactment. In later years the same court has declared that the right belongs to the wife alone, independent of any children. The great bereavement of her husband's death would not admit the gaunt grey wolf of debt to ravage the home and turn into mockery the constitutional provision prepared against the days of her adversity. On the contrary, she continues in the enjoyment of precisely the same right of immunity from the loss of her hearthstone by suit of her husband's creditors as before his death. And so the widow is protected as well as the wife. But the court has gone farther still and now holds that while the right of exemption cannot originate without the existence of a family consisting of more than one person, when the homestead character has once attached and the head of the family remains in continuous occupation of the property, though all others may die or forsake him, it is still occupied as a residence by a constituent part of the family and he may hold it sacred from invasion for his sole use and occupation.
By these provisions the wife and mother becomes a proprietor in her own right, part owner of her home and queen of her domain. The husband and father has a castle safe from invasion where he may retreat in time of storm or adversity. Failure cannot affect it, disaster cannot destroy it. Friends may desert him but his enemies cannot reach him. He and his family are secure. For the present and for the future the permanency of the home is established. His place in the community is fixed and his interests in the state are anchored and strengthened.
No marble column or granite shaft could be so fine a tribute to the memory of the men of the Wyandotte convention as the married women and the homestead exemption provisions of the constitution. These two clauses make every happy family and peaceful home in Kansas a monument to their memory. Succeeding generations of Kansans will hold them in grateful veneration.
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