USA > Kansas > A standard history of Kansas and Kansans, Volume II > Part 37
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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 rad- icals. 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, Hill- yer, Hunting, O. C. Brown, Knight, and Schuyler voted against it. So the limitation went in, and it afterwards appeared in the Wyandotte eonstitution 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 docu- ment. 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 contra- dietory 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
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prevent eneroachment of the executive upon the powers of the Legisla- ture. Another section provided a double liability for stockholders in banking companies. Other provisions were the establishment of a uni- versity, as well as a complete system of common schools; the complete divorcement of church and state; the prohibition of wealth as a quali- fication 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 eoverture, 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 Legis- lature 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 offi- cers cansed 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 Con- stitution 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 organ- ized resistanee 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. IToward and Mordecai Oliver, was appointed to inquire into the validity of the bogus Legislature and the election of Whitfield. It ar- rived in Kansas April 18, 1856, and the new state offieers sought the advice of Sherman and Howard, the republican members. After a dis- cussion of the whole situation it was decided to stand by the Topeka
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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 Legis- lature 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 Con- vention 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 Kausas 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 serap 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.
LECOMPTON CONSTITUTION
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.
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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 terri- tory. 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 Lecomp- ton. 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 Novem- ber 3, 1857. The constitution is a lengthy document but its only pro- visions 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 Con- gress 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 con- stitution, 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
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men not voting, with the result of 6,266 for the constitution with slav- ery and 569 for the constitution with no slavery. In the meantime Gov- ernor 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 follow- ing result. (Free-state men participating-pro-slavery men not par- ticipating.)
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 Con- gress 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 Con- gress, passed both Houses on April 30th, and was signed by Buchanan on May 4, 1858. It became known as the English (name of its anthor ; 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
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party or the republicans until 1882 when Gliek, a democrat, was elected governor.
The action of Buchanan and his advisors in trying to force the Le- compton Constitution alienated Douglas and the northern democrats, split the party at the election of 1860, and elected Abraham Lincoln, president.
LEAVENWORTH CONSTITUTION
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 con- vention 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 phraseclogy 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 deelares "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 erimes 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 de- prived 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
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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 sys- tem ; 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.
WYANDOTTE CONSTITUTION
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 considera- tion. 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. Win- chell, a skilled parliamentarian, good debater and afterwards a promi- nent 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 Honse 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; Benja- min 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
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impeachment; Samuel A. Kingman, afterwards chief justice of the State of Kansas; and John J. Ingalls, the incomparable master of invee- tive 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 republi- cans and seventeen democrats. Eighteen of the delegates were lawyers, sixteen farmers, eight merchants and five physicians, with one or more surveyors, land agents, manufacturers, mechanies and printers. John A. Martin, afterwards governor of the state, was secretary of the con- vention. The acknowledged leaders at the convention were Thacher and Kingman on the republican side and Stinson and MeDowell on the demo- cratie 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 mem- bers 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, earried 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 Com- mittee 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, how- ever, 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 ealled 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 doenment 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 eare with which it was put together. Every article and nearly every sentence was carefully considered and debated, not only in the sub-committees 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 Thaeher said :
"For terseness of expression and vigor of general outline. I believe it to be unexcelled by that of any State in this Union.
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"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.
"It has been the aim of the majority of this body to make this Con- stitution the draft, the outline of great civil truths and rights, leaving out, as far as possible, special legislation.
"There is scarce a feature of this Constitution but what will com- mand 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 Constitu- tion 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.
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