|1918 KANSAS AND KANSANS||Kansas Laws and Their Origin||Part 1|
KANSAS LAWS AND THEIR ORIGIN, TOPEKA CONVENTION, LECOMPTON CONSTITUTION
BY HON. ROBERT STONE, OF THE TOPEKA BAR
The beginnings of a government are an interesting study. The story of Kansas and her constitutions is a novel that grips and holds you to the end. You see the dusty throngs gathering to hear Lincoln and Douglas debate squatter sovereignty. You hear the whispered conspiracy of the Washington politicians planning the betrayal of Kansas and Nebraska. You hear the stentorian challenge of Seward when the bill is passed in the Senate.
Then the friends of freedom step upon the stage and the pioneers of New England mingle with those of New York, Pennsylvania, Ohio, Indiana and Illinois, crowding the trains and steamboats and filling the dusty highways with prairie schooners on their way to Kansas. Other settlers arrive from south of the Mason and Dixon line. Every town and village along the eastern border of the territory becomes a wayside stopping place for all sorts and conditions of men on their way to Kansas. Some come to make homes; others to seek adventure; all contribute in one way or another to the pioneer life and activity of the new country. Tents are pitched, log cabins and sod houses axe built; fields are broken and planted; towns are platted; conventions are held. A new state is breaking into history.
Before the final admission of Kansas into the Union four constitutions were drafted and submitted to its voters.
The Topeka Constitution, drawn in 1855, was the palladium of free government around which the free-state men rallied for three years of bloody contest. It was christened their "Blood Stained Banner."
The Lecompton Constitution, drawn in 1857, was the instrument by which the pro-slavery advocates intended to permanently fasten slavery upon the real settlers of Kansas. It proved to be a rock on which the democratic party was split asunder and the election of Lincoln made possible.
The Leavenworth Constitution, drawn in 1858, was used as a counter to prevent the passage of the Lecompton Constitution. Its purpose was accomplished when the latter was defeated.
The Wyandotte Constitution, drawn in 1859, is the beneficent instrument under which Kansas was admitted and its people have enjoyed such happiness and prosperity.
From these fundamental instruments Kansas drew her laws. Upon them she founded her institutions. We shall see how these constitutions were made, and which were pregnant with principles of liberty and progress, and which reactionary with a tendency to barbarism. We shall see, too, with what discrimination Kansas rejected the bad even to the bloody issue, and how she chose the living principles which make for progress and liberty and freedom always.
At this writing, June 30, 1917, when the blood of all nations is mingled on the fields of France to drown the hydra-heads of tyranny, the struggle of bleeding Kansas for freedom seems small. But it was the same issue between tyranny and liberty; between force and law; between truth and error. To each individual involved the decision was just as important as to the individuals in the larger struggle of today. It originated in a conflict between slavery and anti-slavery. But that struggle was soon merged into the larger one of self government by the real settlers of Kansas. The Kansas-Nebraska Bill was signed by President Pierce May 30, 1854, and contained the provision, "When admitted as a state or states the said territory or any portion of the same shall be received into the Union with or without slavery as their coinstitution may prescribe at the time of their admission." This provision was supposed to give to the bona fide settlers of each of these states the right to determine by the adoption of a constitution whether that state should be free or slave, and the right so given was called "squatter sovereignty." After the passage of the act it was claimed, however, that there was a tacit understanding that Nebraska was to be admitted as a free state and Kansas as a slave state. The North refused to recognize any such secret agreement, and not only came as individuals to make Kansas free but organized emigrant aid societies for that purpose. The South claimed that this was a repudiation of an agreement, and felt justified in using every means, including fraud and violence, to accomplish the enslavement of Kansas.
The act itself made the whole contest center about the form of the constitution to be adopted, and the form of the constitution, of course, would depend upon the results of the election of delegates to a constitutional convention. The first election held in the territory was for a delegate to Congress, November 29, 1854. The pro-slavery candidate, Whitfield, received 2,258 out of 2,905 votes cast, but in precincts giving him the largest majority his vote alone was greater than the number of voters in the respective precincts as shown by the census taken shortly thereafter. For instance, at Doctor Chapman's he received 140 votes while the census gave only 40 voters. At "110" he received 597, where the census gave only 53. At Marysville he received 237, where the census gave only 24 voters. He was, however, declared by the governor to be legally elected and received his certificate.
The next election was to choose members of the first Territorial Legislature and was held March 30, 1855. This election was of prime importance because it was supposed that the Legislature would provide for the holding of a constitutional convention and prescribe rules for the election of delegates thereto. Nearly 1,000 Missourians came over to Lawrence to vote. They were fully armed and brought two cannon loaded with musket balls. They voted, as did other invaders, at most of the election polling places. The result was that the pro-slavery votes cast showed 5,427 as against 791, although the census taken in January and February showed a voting population of only 2,905.
Lawrence was founded by New England emigrants, who were all free-state men and yet the pro-slavery candidate, according to returns, received at that precinct 781 votes. Governor Reeder, who was sent to the territory as friendly to the pro-slavery interests, was so outraged at the fraud that he declared the election in this district void, for irregularities and called a new election therein. But when the Legislature met in July it promptly seated the discredited candidate and petitioned the President to remove Reeder as governor. Their petition was granted by the President. The free-state men were put in a difficult situation. The Federal Government had shown its bias in the controversy by removing Governor Reeder because he protested against fraud at the election, though another matter was given as the cause. The bogus Legislature had its credentials. If this Legislature should call a constitutional convention it would undoubtedly so control the election that no one but pro-slavery men could be delegates to the convention. If such an election were called the free-state men must then determine whether they would refuse to recognize any act of the bogus Legislature and refuse to participate in the election or take part in the election and seek seats in the constitutional convention. If they chose the former course they would be charged with allowing the contest to go by default. If they chose the latter they would stultify themselves by recognizing the fraudulent Legislature and would be almost certain of defeat by fraud or violence, in which event there was little prospect that they could obtain any relief by appeal to the National Government. Some definite decision must be reached. To determine on a definite policy a series of conferences or conventions was held. A free-state convention was held at Lawrence on June 8th. It adopted among others the following resolution:
|"In reply to the threats of war so frequently made in our neighboring state our answer is 'we are ready.'|
On June 27th, the national democracy held a convention at Lawrence, which endorsed the democratic platform of 1853, but kindly requested the citizens of adjoining states to let them alone and resolved that they could not permit "the purity of the ballot box to be polluted by outsiders or illegal voting from any quarter." James H. Lane, who was then a democrat, was chairman of this convention.
On August 14th and 15th the first convention of free-state men, made up from various political parties, was held at Lawrence. This was presided over by Philip C. Schuyler and was attended by members of all parties. Charles Robinson, afterwards governor, reported the resolutions and James H. Lane took an active part in the meeting.
The convention adopted the following resolution which was the inception of the 'Topeka Constitution:
"Resolved, That we, the people of Kansas Territory, in mass meeting assembled, irrespective of party distinctions, influenced by common necessity, and greatly desirous of promoting the common good, do hereby call upon and request all bona fide citizens of Kansas Territory, of whatever political views and predilections, to consult together in their respective election districts, and, in mass convention or otherwise, elect three delegates for each Representative to which said election district is entitled in the House of Representatives of the Legislative Assembly, by proclamation of Governor Reeder of date 19th of March, 1855; said delegates to assemble in convention, at the town of Topeka, on the 19th day of September, 1855, then and there to consider and determine upon all subjects of public interest, and particularly upon that having reference to the speedy formation of a State Constitution, with an intention of an immediate application to be admitted as a State into the Union of the United States of America."
This was the beginning of what was afterwards known as the Topeka Movement. It resulted in the submission of the Topeka Constitution, the election of officers and a Legislature thereunder, the dispersion of the Legislature at the mouth of the cannon by Federal troops, and the arrest and imprisonment of sixteen of the promoters on the charge of treason. They did not wait for the bogus Legislature to tender the issue. That Legislature in the meantime had met on July 2, 1855, and passed a long list of laws, many of which were aimed to perpetuate the institution of slavery, and also to make permanent the control of the affairs of the territory by the pro-slavery adherents. It was a felony for any person to speak, write, maintain or circulate any writing in the territory denying the right of persons to hold slaves in the territory. Any person conscientiously opposed to the holding of slaves was disqualified from sitting as a juror in any cause involving the protection of slave property, or the punishment for crimes committed against that property. Every member of succeeding Legislatures, judge of election, and voter in the territory "must swear to his faithfulness on the test-questions of slavery." These acts of the Legislature only strengthened the position of the free-state men. It brought to their standard not only every abolitionist and every free-state man, but many democrats like Lane, who were not particularly opposed to slavery but wanted to see fair play and self-government, and many southern men who had no interest in slavery. There were others who disliked the negro and wanted to exclude him, free or slave, from the state. All these were drawn together in one common issue which was no longer slavery or anti-slavery but resistance to outside interference.
On September 5, 1855, at Big Springs, a larger convention was held at which the free-state party was formally organized and adopted its platform. In this platform members of all parties joined, setting aside minor issues of partisan politics for the time being in order that they might achieve political freedom, vindicate their right of self-government and become an independent state of the Union, resolving that when these things were accomplished it would be "time enough to divide our organization by these tests" of party fealty. The resolution on one hand denounced slavery as a curse to the master and the community and on the other declared "that the stale and ridiculous charge of Abolitionism, so industriously imputed to the Free-State party, and so persistently adhered to in spite of all the evidence to the contrary, is without a shadow of truth to support it," and pledged the people to "discountenance and denounce any attempt to encroach upon the constitutional rights of the people of the state, or to interfere with their slaves; conceding to their citizens the right to regulate their own institutions, and to hold and recover their slaves without any molestation or obstruction from the people of Kansas." This provision and a further one "that the best interests of Kansas require a population of free white men, and that in the organization we are in favor of stringent laws excluding all negroes, bond or free, from the territory" were largely a concession to the personal wishes of James H. Lane. Governor Reeder who had shortly before been removed by President Pierce was a member of the convention and wrote a number of resolutions which were adopted, denouncing citizens of neighboring states controlling the election and pledging resistance by every peaceable and legal means and if necessary "to a bloody issue."
The call for the Topeka convention was also endorsed.
Pursuant to call the convention met at Topeka on September 19, 1855, and called an election of delegates to a constitutional convention to be held at Topeka on October 23, 1855. The election was held October 19, 1855, and a full list of forty-seven delegates was elected. The pro-slavery people did not participate in the election. The breach was too wide between the parties. And they contended a constitutional convention could be called only by the Legislature. They ridiculed the whole movement. The free-state men on the other hand contended that a constitution might be drafted by any convention however informally called; that the vital question was its ultimate adoption or rejection by the legal voters at an election held for that purpose. To support their contention they had the precedent of California, whose constitution was drafted by a convention held under a popular call.
The constitutional convention met at Topeka on October 23, 1855. It consisted of forty-seven delegates, including eighteen democrats, six whigs, four republicans, two free-soilers, one free-state man and one independent. The whole membership did not attend all sessions.
It was not divided on party lines but between conservatives and radicals. The conservatives organized the convention by electing James H. Lane, president. Another evidence of conservatism was to submit with the constitution a separate proposition to exclude all negroes from the state. Strange to say this proposition was carried by a vote of 1,287 to 458 by the very people who had come to Kansas to make her a free state.
Another question arose over inserting the word "white" in stating the qualification of voters. Only seven persons, Robinson, Crosby, Hillyer, Hunting, O. C. Brown, Knight, and Schuyler voted against it. So the limitation went in, and it afterwards appeared in the Wyandotte constitution where it remains to this day but inoperative because of the XVth amendment to the Constitution of the United States.
This constitution was by no means an unimportant or mediocre document. While the Ohio Constitution was formally the basis taken at the Wyandotte convention for the drafting of our present constitution, those men had before them constantly the Topeka Constitution and used many portions of it in their final draft. There are many interesting provisions in the Topeka Constitution, some of them apparently contradictory to the liberal terms of it, but evidently inserted as a compromise to the more conservative element. Fear of a free negro population caused the insertion of the word "white" in several places beside the one mentioned above. For instance, it provides for an enumeration of all the "white" inhabitants of the state every two years; that the Militia shall consist of all able bodied "white" male persons between the ages of eighteen and forty years; that every "white" male person * * * shall be deemed a qualified voter.
One very salutary provision which should have been but was not incorporated in the Wyandotte Constitution provided that no senator or representative should during the term of office for which he was elected be appointed to any civil office of profit created, or the emoluments of which have been increased during such term. That no person holding office under the United States or any lucrative office under the state shall be eligible to hold a seat in the Legislature. These provisions would prevent encroachment of the executive upon the powers of the Legislature. Another section provided a double liability for stockholders in banking companies. Other provisions were the establishment of a university, as well as a complete system of common schools; the complete divorcement of church and state; the prohibition of wealth as a qualification for the right of suffrage. The rights of married women were provided for as follows:
|The first General Assembly shall provide by law for securing to the wife the separate property acquired by her before or after coverture, and the equal right with the husband to the custody of their children during their minority.|
There was, however, no provision for homestead exemption from debts.
The constitution provided for its immediate submission to a vote of the people and the election of state officers thereunder.
This election was held December 15, 1855, and the constitution adopted by a vote of 1,731 to 46. The radicals and conservatives each put up a set of state officers and the radicals were elected by a vote of 1,296 to 410. While the free negro exclusion proposition was carried by the surprising vote of 1,287 to 458, the election of the radicals put a quietus upon it and the phrase "a free white state" became thereafter obsolete.
Charles Robinson was elected governor and the first Free-State Legislature met at Topeka March 4, 1856. It elected ex-Governor Reeder and James H. Lane United States senators.
The adoption of the constitution and the election of these state officers caused no small commotion in the political circles at Washington. The "bogus" Legislature was still in existence and recognized by the Government at Washington as the only legislative authority in Kansas and the territorial governor appointed by the President was in full charge of the executive branch with the United States army at his command and the Federal judiciary submissive to his desires. The whole Topeka movement was regarded as treasonable. President Pierce in a special message to Congress on January 24, 1856, said:
|No principle of public law, no practice or precedent under the Constitution of the United States, no rule of reason, right, or common sense, confers any such power as that now claimed by a mere party in the territory. In fact, what has been done is of a revolutionary character. It will become treasonable insurrection if it reaches the length of organized resistance by force to the fundamental or any other federal law.|
The Free-State Legislature adjourned on March 15th to meet July 4, 1856. A congressional committee, consisting of John Sherman, William A. Howard and Mordecai Oliver, was appointed to inquire into the validity of the bogus Legislature and the election of Whitfield. It arrived in Kansas April 18, 1856, and the new state officers sought the advice of Sherman and Howard, the republican members. After a discussion of the whole situation it was decided to stand by the Topeka government against the Federal authority even by force if necessary. But shortly thereafter Governor Robinson and other free-state leaders were indicted and arrested on the charge of treason. When the Legislature convened July 4, 1856, at Topeka, it was dispersed, at the mouth of loaded cannon, by Colonel Sumner under instructions of the President.
In the meantime, on June 15th, the first National Republican Convention declared "that Kansas should be immediately admitted as a state of the Union, with her present free Constitution." On June 25th Galusha A. Grow, of Pennsylvania, introduced a bill in Congress to admit Kansas under the Topeka Constitution. This bill passed the House on July 3, 1856, by a vote of 99 to 97 but when it reached the Senate that body passed the Douglas substitute providing that the people of Kansas should frame a new constitution. To this the House refused to accede.
There was nothing remarkable about the Topeka constitution except that it epitomized the vital issue of the day. For nearly three years of bloody conflict it was the rallying banner around which the free-state men gathered. Under its folds they stood in the Wakarusa war, the bombardment of Lawrence, at Hickory Point, Franklin and the Battle of Black Jack. It was named by Lane "the old blood stained banner" and so it was. It became the chief issue in the National Campaign of 1856. Its story became known in the homes of the nation and it induced a wave of immigration to Kansas in the spring of 1857. The Free-State Legislature met again in January, 1857, and memorialized Congress to admit Kansas under it. Again in June the Legislature petitioned Congress to the same effect but without result.
The Topeka Constitution had again been submitted to the people in August, 1857, and again carried by a vote of 7,257 to 34. The free-state people having obtained possession of the Territorial Legislature in the meantime, the Topeka movement was in January, 1858, abandoned and the Topeka Constitution became only "a scrap of paper," but like an old love letter or an old battle tattered flag still dear to the memory of those who know its story.
The bogus Legislature elected on March 30, 1855, might have called a constitutional convention at its first session in July, 1855, but it did not do so. One house passed a resolution to that effect, but the other, fearing the result of the election, declined to concur. From the pro-slavery standpoint it was a fatal mistake. Never again was that interest so strongly entrenched in the territory. The governor, the courts, the army and the President and his cabinet and Congress all were with them, and the Legislature might have called a convention with the assurance that the election could be carried by the same methods by which it was elected and that those methods would be approved at Washington. In all probability if this had been done Kansas would have been admitted in 1855 with a pro-slavery constitution.
Instead the pro-slavery men chose to make the fight against admission at this time because so long as the Federal Government was behind them they could control the territorial government and they believed that by pro-slavery laws they could drive the free-state men out of the territory. This was especially true if they could make the charge of treason stick against the promotors of the Topeka movement. But these charges broke down. The great increase of immigration from the East in the spring of 1857 came on.
The majority of free-state men was becoming larger every day and their heroic struggle for free government was becoming every day better known throughout the nation. The Washington cabal concluded to force a pro-slavery constitution at once. Under its direction on February 19, 1857, the bogus Legislature called a constitutional convention at Lecompton. The bill made no provision for submitting the constitution, when drafted, to a vote of the people. Governor Geary vetoed the bill for that reason, but it was passed over his veto. The election of delegates was held June 15, 1857, the free-state men refusing to participate. The convention met September 7, 1857, and concluded its proceedings November 3, 1857. The constitution is a lengthy document but its only provisions of interest at this time relate to slavery.
It provides: "The right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase is the same and as inviolate as the right of the owner of any property whatever. The legislature shall have no power to pass laws for the emancipation of slaves without the consent of the owners."
"Free negroes shall not be permitted to live in this State under any circumstances."
The schedule provided that after 1864 the constitution might be amended by a special convention "but no alteration shall be made to affect the rights of property in the ownership of slaves."
If this constitution could be once fastened legally upon the people it was believed they would be permanently tied to slavery. It was the original plan to have the constitution adopted by the convention which drafted it and to forward it immediately to Congress and then for Congress to admit Kansas as a state under it. But Governor Geary's veto had exposed the conspiracy so that the convention conceived a thin subterfuge for the sake of appearances. The schedule provided for a popular vote under the supervision of three commissioners in each county to be appointed by the president of the convention. On the ballots were endorsed "Constitution with slavery" and "Constitution with no slavery," so that every one who voted must vote for the constitution, his only choice being with or without slavery. It was further provided that if a majority voted for the constitution with no slavery then "slavery shall no longer exist in the state of Kansas, except that the right of property in slaves now in this Territory shall in no manner be interfered with."
On December 21st the election was held under this call, the free-state men not voting, with the result of 6,266 for the constitution with slavery and 569 for the constitution with no slavery. In the meantime Governor Geary had resigned (March 4, 1857). Governor Walker, who was appointed by Buchanan on March 10, 1857, and Secretary Stanton united in asking the free-state men to participate in the election and guaranteed them a fair vote and honest counts. These fair promises and the great influx of northerners, induced the free-state men to change their whole policy. They went into the election of the territorial legislators on October 5, 1857, and elected a substantial majority of both Houses. At three of the precincts, Oxford, Shawnee Mission and Kickapoo, nearly 3,000 illegal votes were cast and Governor Walker, true to his promise, set aside returns from Oxford and McGhee precincts. His action forced him to leave the state on November 16th, and to hand in his resignation a month later. Secretary Stanton, acting governor, called a special session of the new Legislature and that body submitted the Lecompton Constitution to a vote of the people on January 4, 1858, with the following result. (Free-state men participating - pro-slavery men not participating.)
Against the Constitution ............ 10,226 For the constitution with slavery ...... 138 For the constitution without slavery ... 23
On December 24, 1857, a democratic convention held at Leavenworth utterly repudiated the Lecompton Constitution and memorialized Congress to reject it.
J. H. Stringfellow, ex-speaker of the bogus Legislature, January 7, 1858, protested against the admission of Kansas under it and said "to do so will break down the Democratic party at the North and seriously endanger the peace and interests of Missouri and Kansas if not of the whole Union. The slavery question in Kansas is settled against the South by immigration." Governor Denver sent Rush Elmore to Washington with a confidential message to Buchanan not to present the Lecompton Constitution to Congress at all.
Stephen A. Douglas on November 28, 1857, opposed the Lecompton Constitution.
A joint resolution of the new Legislature was passed on December 7, 1857, asking Congress to admit Kansas under the Topeka Constitution.
But President Buchanan denounced the Topeka Constitution, and on December 7th endorsed the Lecompton Constitution and urged Congress to adopt it. On April 23, 1858, a compromise bill was introduced in Congress, passed both Houses on April 30th, and was signed by Buchanan on May 4, 1858. It became known as the English (name of its author) Swindle or Lecompton Junior. Under it the Lecompton Constitution was again submitted to a vote with the disastrous results of 1,788 for the proposition and 11,300 against it, a majority of 9,512.
This was the last stand of the pro-slavery party in Kansas. Every election held in Kansas thereafter was carried either by the free-state party or the republicans until 1882 when Glick, a democrat, was elected governor.
The action of Buchanan and his advisors in trying to force the Lecompton Constitution alienated Douglas and the northern democrats, split the party at the election of 1860, and elected Abraham Lincoln, president.
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