William G. Cutler's History of the State of Kansas


[TOC] [part 55] [part 53] [Cutler's History]


Hon. T. Dwight Thacher, a member of the Leavenworth Convention, on retiring from the Presidency of the Kansas State Historical Society, January 16, 1883, gave the following historical account of the Leavenworth Convention, its objects, the scope of its work, with recollections of its members. It is here preserved, entire, as the best sketch yet published.

I purpose to speak in this address upon that movement in the history of the Territory of Kansas which resulted in the formation and adoption of what is known as the Leavenworth Constitution.

Four constitutions were framed as the organic law before this State was admitted to the Union. The Topeka Constitution, which was the first in order, was adopted by the Convention which framed it on the 11th day of November, 1855, and by the people of the Territory, at an election held December 15, 1855.

The Lecompton Constitution was adopted by the Convention which framed it on the 7th day of November, 1857. It was submitted to a vote of the people by the Convention on the 21st of December, 1857, the form of the vote prescribed, being, "For the Constitution with slavery," and "For the constitution without slavery."

No opportunity was afforded at this election to vote against the Constitution, and the Free-State people of the Territory refrained from taking part in it. The Territorial Legislature having been summoned in extra session by Acting Gov. F. P. Stanton, passed an act submitting the Lecompton Constitution to a vote of the people at an election to be held on the 4th of January, 1858. At that election, 138 votes were cast for the Constitution and 10,226 votes against it. Notwithstanding this overwhelming vote against the constitution it was sent to Washington by its partisans; President Buchanan transmitted it to the Senate, urging the admission of the State under it, thus inaugurating the great contest which resulted in the division of the Democratic party, the election of Abraham Lincoln and the final overthrow of the slave power. The bill to admit Kansas as a State under the Lecompton constitution failed, and the English bill finally passed Congress, under the provisions of which the constitution was again submitted to a vote of the people on the 4th of August, 1858, with the result of 1.788 votes in its favor and 11,300 against it.

The constitutional convention, which framed the Leavenworth constitution, was provided for by an act of the Territorial Legislature passed in February, 1858, during the pendency of the Lecompton constitution in Congress. The constitution was adopted by the convention at Leavenworth April 3, 1858, and by the people at an election held May 18, 1858.

The Wyandotte constitution was adopted by the convention which framed it on the 29th day of July, 1859, and was adopted by the people at an election held October 4, 1859. The State was admitted into the Union under this constitution January 29, 1864.

The question is frequently asked, even by those of considerable information regarding our history, what did the Leavenworth constitutional convention movement mean? What relation did it hold to the great struggle through which our infant community passed in its long and perilous journey to the safe retreat of the bosom of the Union?

The Topeka constitutional movement was the instinctive effort of the Free- State people for unity about some recognized center. They must have something around which they could rally, and their leaders were sagacious enough to institute a movement which, while it served to consolidate the Free- State settlers into a compact organization, afforded a reasonable prospect of a safe and constitutional exit from their troubles. A recent precedent had been afforded by California for the spontaneous action of the people in the organization of a State Government, without an enabling act from Congress. Some of the most conspicuous leaders of the Topeka constitutional movement had participated in the California movement, and were enthusiastic in the conviction that a similar success would attend the effort here. The Topeka movement did come very near success. The House of Representatives, on the 3rd of July, 1856, passed a bill for the admission of Kansas into the Union under that constitution. Had the bill become a law, Kansas would have been saved the five years of turmoil and strife which elapsed before she was admitted into the Union, and the subsequent course of the great stream of our national history might have been diverted for a time at least from the bloody and fratricidal era to which it was then so rapidly and inevitably hastening.

The Topeka constitutional movement served to hold the Free-State people together until after the great wave of immigration in the spring of 1857 had virtually settled the question of the future status of the Territory. The first fruits of the emigration were the restoration of the Territorial Legislature in the fall election to the hands of the people from whom it had been rapaciously seized by fraud and violence in March, 1855. This gave the Free-State party a standpoint and leverage of undoubted legality for further proceedings. Heretofore their movements had been outside the pale of recognized authority. But the Territorial Legislature was recognized as valid by friends and foes alike. One of the first achievements of this new weapon in the hands of the people was the passage of an act, at the extra session called for that purpose by Secretary Stanton, submitting the Lecompton constitution to an honest and fair vote, for acceptance or rejection of the constitution by an overwhelming vote of unquestioned legality and authority, thus furnishing an argument against the admission of the State under that constitution, which the friends of free Kansas in Congress used with tremendous power and unanswerable effect. The population of the Territory during 1856 and 1857 had increased very largely. The total vote cast for State officers under the Topeka constitution January 15, 1856, was 1.706; the vote on the Lecompton constitution January 4, 1858, was 10.427, showing an increase of more than sixfold. The old movement had lost much of its hold upon the popular mind. Admission into the Union under that constitution had ceased to be regarded as probable. While the officers who had been elected to the various positions under it were still recognized, more or less, as leaders in the Free-State organization, it was nevertheless felt that the fifty thousand new settlers who had come into the Territory during the two years that had elapsed since their election ought to have some voice in choosing the future rulers of the State. In short, there was a general clamor for a new deal. Besides, it was argued with considerable force that the Free-State cause would be at a disadvantage should the battle in Congress and before the country against the Lecompton constitution be fought upon the basis of the Topeka constitution. That constitution had been framed by a convention elected without any authority of law; the total vote upon its adoption had been only 1,778, while two years had elapsed since it was framed and adopted, and meantime a large increase in the population had taken place. Its enemies might and probably would (and in fact did) claim that it no longer represented a majority of the people. The Lecompton constitution, on the other hand, could claim a quasi legality and regularity, the convention which framed it having been elected in conformity to an act passed by the Territorial Legislature. Having the wisdom to call a new convention which would have at least as good standing for regularity and legality as the Lecompton convention, and whose constitution would receive an overwhelming indorsement at the hands of the people. The Lecompton constitution would thus be confronted by a constitution of equal legality; of a more recent date and of undoubted popular support.

These considerations were undoubtedly the dominant ones in determining the call of a new constitutional convention. There were minor influences which contributed to the same result. One of these, which assumed considerable importance before the Legislature passed the act calling the convention, was the question of the location of the capital. The Topeka constitution had located the capital temporarily in Topeka, and the very name of the constitution served to keep the city prominently before the public. Other towns were ambitious of becoming the seat of Government. A new constitution bearing some other name would at least divert attention from Topeka. Before the act calling the convention was passed, a scheme for locating the capital at Minneola-a town existing only on paper, and created for the purpose-was broached, and successfully carried through the Legislature. The bill locating the seat of government of the Territory at Minneola was passed over the Governor's veto. And two days thereafter the bill calling a constitutional convention and fixing Minneola as the place where it should assemble, was also passed.

The "Minneola swindle," as it was called in those days. Created a great sensation in Kansas, so great as to seem almost extravagant as we look back upon it now. The gravamen was that the location of the capital at Minneola was a scheme to further the personal fortunes of members of the Legislature who were interested in the new town. In vain did they reply that the location was a good one, central, and well adapted to be the future capital of the State; that the capital was bound to be removed from Lecompton in any event, and that wherever located somebody's private fortunes would be enhanced thereby. The delegates elected to the constitutional convention were instructed by their constituents to vote for an immediate adjournment of the body to some other point in the Territory. It thus came about that the convention had no sooner completed its organization at Minneola than a motion was made to adjourn to some other place. This gave rise to a long and acrimonious debate. The session was prolonged during the whole night, and toward morning the motion to adjourn and fixing the city of Leavenworth as the place of re-assembling was passed. On the morning of the 24th of March, 1858, the members took their departure for section of Franklin County prairie. And thus the constitution, and not as the Minneola constitution, as its original projectors had expected.

The convention re-assembled in Leavenworth on the evening of the 25th of March. The constitution was adopted and signed on the 3rd of April. The work had been done with brevity and dispatch. Indeed there was no great amount of work to be done. Aside from the special features to be hereafter noted, the draft of the Topeka constitution was closely followed. There were few questions which gave rise to debate, and they were speedily settled. It was the aim of the convention to do its work as speedily as possible, make a good constitution and adjourn. The constitution was adopted by the people on the 18th day of May, 1858, and on the same day the following State officer were also elected under it, viz.: Governor, Henry J. Adams, Leavenworth; Lieutenant Governor, Cyrus K. Holliday, of Topeka; Secretary of State, E. P. Bancroft, of Emporia; Treasurer, J. B. Wheeler, of Doniphan; Auditor, Geo. S. Hillyer, of Grasshopper Falls; Attorney General, Chas A. Foster, of Osawatomie; Superintendent of Public Instruction, J. M. Walden, of Quindaro; Commissioner of School lands, J. W. Robinson, of Manhattan; Representative on Congress, M. F. Conway, of Lawrence; Supreme Judges, Wm. A. Phillips, of Lawrence; Lorenzo Dow, of Topeka, and Wm. McKay, of Wyandotte; Reporter of the Supreme Court, Albert D. Richardson, of Sumner, Clerk of the Supreme Court, W. F. M. Arny, of Hyatt. Of these, Messrs. Holliday and Conway had been elected to positions in the State government under the Topeka constitution, Mr. Holliday having been Secretary of State and Mr. Conway one of the Judges of the Supreme Court.

The State officers under the Leavenworth Constitution were nominated upon a platform whose chief resolve was, "That should Congress accept the application accompanying the Lecompton Constitution, and admit Kansas as a sovereign State in the Union, without the condition precedent that said constitution, at a fair election, shall receive the ratification of the people of Kansas, then we will put the Leavenworth Constitution, ratified by the people, and the government under it, into immediate and active operation as the organic law and against any opposition, come from whatever quarter it may." Before the election took place, however, the "English bill" had passed both Houses of Congress and become law, so that the Lecompton struggle was over, and the long and bitter and bloody contest to make Kansas a Slave State came to a close.

The movement for admission under the Leavenworth Constitution was prosecuted no further, and the convention and its work survives only upon the pages of our chequered history as one of the positions temporarily occupied by the great Free-State host in its onward march to final victory.

It would be an interesting study, had we time to do so, to compare the provisions of the four constitutions which were successively framed as the fundamental law of this State. Outside of the stormy and convulsed domain of the slavery question, the differences in the constitutions are not remarkable. In this domain, however, the differences are distinct and antipodal. The Lecompton instrument voiced the extremest doctrines of the slave power. In the article on "Slavery," for slavery was the subject of a separate article, it is declared that "The right of property is before and higher than any constitutional sanction, and the right of the owner of the slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever." The Legislature was declared to have no power to pass laws for the emancipation of slaves, without the consent of their owners, nor without paying to their owners before emancipation a full equivalent in money for them. The framers of this instrument seem to have labored to emphasize the degradation of manhood on the one hand and the elevation and sanctification of chattelhood on the other. Instead of the usual declaration that all men are equal in rights," and they add that "no freeman shall be taken or imprisoned or disseized of his freehold, liberties or privileges or deprived of his life, liberty, etc., but by the judgment of his peers or the law of the land." In the schedule to the constitution, they provide, that, even though the vote should be for the constitution without slavery, still, "the right of property in slaves now in the Territory shall in no manner be interfered with;" and in the section relating to amendments to the constitution, it is expressly and carefully provided "that no alteration shall be made to affect the rights of property in the ownership of slaves." Under these provisions, Kansas would in any event have been a Slave State, and remained such as long as any of the slaves then living in the Territory, or any of their descendants to the remotest generations, should have remained amongst us.

These extreme and almost frantic provisions for the perpetuity and sanctity of property in slaves, viewed from our present standpoint, and with the light of the past twenty-five years of eventful and startling history bearing full upon them, seem chimerical and almost childish; but we are to remember that at that time these monstrous doctrines dominated this country, controlled the utterances of the Supreme Court, were backed by the army and navy, and commanded the hearty support or the unprotesting acquiescence of a majority of the people. It was the merest margin and verge of chance that prevented these doctrines from being incorporated in the organic law of our State. The motion which finally resulted in what is known as the English bill, and saved us from admission under the Lecompton Constitution, passed the House of Representatives by a majority of only one vote.

The framers of the Leavenworth Constitution studied to antagonize these peculiar and abhorrent, though characteristic, Pro-slavery doctrines of the Lecompton instrument. Thus the first section of the bill of rights follows, almost the exact language of the Topeka Constitution, in saying that "all men are by nature equally free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety," and then goes on to add, "and the right of all men to the control of their persons, exists prior to law and is inalienable," a clause which is certainly somewhat pleonastic, and is not to be found in the corresponding section of the Wyandotte Constitution (which section, by the way, is more tersely and comprehensively expressed in the Wyandotte Constitution than in either of the others), but was added for the specific purpose of antagonizing the declaration of the Lecompton instrument that the right of property is before and higher than any constitutional sanction. Our idea was to antagonize the dogma of the right of man to property in man by the doctrine of the right of man to himself. It was liberty set over against slavery. So, too, the section of the Lecompton Constitution that no freeman shall be deprived of life, liberty, or property, except by the judgment of his peers, and the law of the land, is repeated, almost word for word, with the word "person" substituted for the word "freeman."

The section forbidding slavery is the same in the Leavenworth and Wyandotte Constitutions, and is a repetition of the section in the Topeka Constitution that "there shall be no slavery in this State, not involuntary servitude, unless for the punishment of crime, " and adding the clause, "whereof the party shall have been duly convicted."

The Leavenworth Constitution contains nowhere the word "white." There is not a word in it which refers to color. The expression "white male citizen" or "white male," which might probably then have been found in the constitution of every State in the Union, is not to be found in it. No change would have been required in its provisions or language to have made it in perfect harmony with the fourteenth and fifteenth amendments to the constitution of the United States. This was not the result of accident, but was achieved as we have related elsewhere, but the determined and persevering efforts of some of the most brave and far-seeing spirits of the convention, who meant, if possible, that the invidious and un-republican distinction of color as in any way affecting men's rights, should have neither place nor countenance in the constitution. This result was not achieved without a struggle. The question was debated in some form and upon some clause or section of the constitution nearly every day of the session, but always with the same result.

Strange as it may appear, the Lecompton constitution does not contain the word "white" in its article on elections and the right of suffrage. Section one begins: "Every male citizen of the United States, etc., etc., shall be entitled to vote." The Leavenworth constitution adopts in its article on the elective franchise the identical expression, "every male citizen of the United States." The correspondence was not accidental; it was intentional. The framers of the Lecompton instrument meant to emphasize the extreme doctrine of the slave power, that none but white men could be citizens of the United States; the framers of the Leavenworth constitution, on the other hand, meant to emphasize the doctrine that every man born upon the soil and under the flag on the Union was a citizen of the United States. Indeed, the careful reader of the two constitutions will not fail to note how radically antagonistic they are. The one was intended to offset the other. The one embodied the most radical doctrines of the slave power; the other anticipated the advanced and humane doctrines of republican equality which remain as the most precious legacy of the great war of the rebellion.

The convention consisted of eighty-four members. Of these, Caleb May and William R. Griffith had been members of the Topeka constitutional convention, and were afterward members of the Wyandotte constitutional convention, the only individuals who were member of all of them. Five others, namely, James H. Lane, M. F. Conway, W. Y. Roberts, James S. Emery, and Joel K. Goodin had also been members of the Topeka constitutional convention. C. A. Foster had been Assistant Secretary of the Topeka convention, James M. Winchell was afterward President of the Wyandotte constitutional convention, and John Ritchie and William McCulloch were also members of both. James H. Lane was elected President of the convention when organized at Minneola, but resigned at Leavenworth, and Martin F. Conway was elected his successor. Samuel F. Tappan was Secretary.

Of the eighty-four members, many have since made men of mark. Winchell, as I have just said, was President of the Wyandotte constitutional convention; Lane was one of our first United States Senators; Conway was our first Member of the House of Representatives; Thomas Ewing, Jr., was first Chief Justice of the State, and has since been eminent in the field and forum and at the bar; H. P. Johnson died at the head of his regiment during the war; William Spriggs was second State Treasurer; A. Larzelere was Speaker of the Territorial House of Representatives in 1859; W. Y. Roberts served with distinction as Colonel during the war; P. B. Plumb is our present efficient and popular junior United States Senator; J. R. Swallow was elected State Auditor in 1864; Henry J. Adams was nominated for Governor under the Leavenworth constitutional convention; F. G. Adams is the present able and excellent Secretary of the State Historical Society; W. F. M. Arny was Secretary of New Mexico for years, and has but recently passed away; C. H. Branscomb was United States Consul at Manchester, England; James S. Emery has been United States District Attorney for Kansas, and a Regent of the State University; Samuel N. Wood has been repeatedly a Member, and once Speaker, of the House of Representatives; John Ritchie was a Colonel during the war; William R. Griffith was our first and Isaac T. Goodnow our second Superintendent of Public Instruction; A. Danford was elected Attorney General in 1868; Robert B. Mitchell rose to distinction in the war, and was Governor of New Mexico; Edward Lynde was Colonel of the Ninth Kansas Regiment; F. N. Blake was United States Consul to Quebec; J. M. Walden has become an eminent clergyman in the Methodist Episcopal Church. There are others, I doubt not, worthy of mention, but these occur to me upon hastily reading over the list. Taking them as a whole, I doubt whether an abler body of men was ever assembled, in the State. Lane, of course, was the chief figure. He lived in Lawrence, but he appeared in the convention as a delegate from Doniphan County. He took little interest in the proceedings of the convention, but spent much of his time during the sessions in pacing up and down the area in the rear of the members seats, running his hands through his hair, from the base of the brain forward over the top of the shill, as his habit was. He looked merely at the political aspects of the movement. For the constitution, as a constitution, he seemed to care but little. Perhaps he foresaw the remote probability of the admission of the State under it. He wanted to be elected President of the convention because, first, he had been President of the Topeka convention, and secondly, he had had a quarrel with Gov. Denver and wanted his favorite "indorsement" from the representatives of the people. When Conway remonstrated with him at Minneola, for wanting to accumulate honors upon himself unduly, he promised to resign in Conway's favor when the convention should get to Leavenworth, and he kept his promise. He was inclined to side with the radical members of the convention, but he rendered them little assistance on the floor. He was not a leader. In the most exciting debate of the convention, namely, that over the question whether, in case the State were admitted under the Lecompton constitution, the government under the Leavenworth constitution should be put in operation, he took no part whatever. At Minneola, upon the night of adjournment, he made a powerful and dramatic speech. The night was far spent. The candles had burned down in their sockets. The debate had been long, and at times angry. Some of the members were deeply interested in Minneola, and in their excitement they threatened that if the convention should adjourn from Minneola, they would abandon the Free-State party and break it up. This threat aroused the sleeping lion in Lane. He came down from the chair where he had presided with great fairness during the long debate, and took the floor. All eyes were upon him. The drowsy member sat upright. As he proceeded with his speech the interest intensified, and members began to gather around him, sitting upon the desks and standing in the aisles. I shall never forget the scene-the dimly lighted room; the darkness without; the excited men within; little Warren, the Sergeant-at-arms, standing unconscious upon the floor, with partly unstretched arms and wholly carried away by the speech, and Lane himself aroused to a pitch of excitement which I never saw him manifest on any other occasion during his whole career.

As he drew near his peroration, he painted a picture of the Free-State party of Kansas, of what it had done and suffered for the great cause of human liberty, of the crisis that was then upon it. And of the responsibilities resting upon its members. He then alluded to the threats that these men interested in Minneola had made of abandoning and breaking up the party, and said that if in the momentous and supreme hour of the party's struggle, they were bound to leave it on account of a few paltry shares in Minneola, then let them go-and go to hell!

Conway followed Lane in the same strain, and in a speech which at any other time would have been a powerful one, but its effect was lost in the storm which Lane's outburst had aroused and it passed almost unnoticed. The vote was taken and the convention adjourned to Leavenworth.

Martin F. Conway was an active participant in all the proceedings of the convention. He was an excellent presiding officer, and his speeches when he took the floor, were earnest, impassioned, and logical. He had read and studied, more deeply perhaps, than any other member of the convention, the theory of our governmental system, and was positive and well fortified in his convictions.

Coming from a Slave State himself, and a great student of the writings and speeches of leading statesmen of the South, he more thoroughly comprehended the nature, the designs, and the ambitious of the slave-power, and seemed to more intensely hate it, than any other man amongst us. His subsequent life, with its single brief success and its numerous and prolonged misfortunes, down to his confinement and death in an asylum in Washington, made up a strange career even in this country of surprises and contradictions.

One of the most marked members of the convention was Thomas Ewing Jr. This gentleman added to the graces of a youthful and engaging person the charm of attractive manners and a brilliant mind. He took an intelligent interest in the work of the convention, and was ready and effective in debate. His speeches wore the air of preparation, while his manner had an appearance of dignity and restrained enthusiasm, which left the impression of reserved force and an unexpended power upon the mind of the hearer. He always seemed like a man who had not done his best, but who upon proper occasion could rise to still more masterful heights of argument and eloquence. He was the easy leader of the conservative wing of the convention and championed their views with conspicuous, though ineffectual ability.

It would be easy to indulge in personal reminiscences of many other members of the convention, but the limits of the present occasion will not allow me that pleasure.

The most exciting debate in the convention over any part of the Constitution occurred, as I have previously mentioned, in connection with Section 3 of the schedule, which provided that in case the Constitution should be adopted by the people, then upon the admission of Kansas in the Union as a State, the Constitution should be in full force, the State officers should immediately enter upon the discharge of their duties, and the Governor should immediately, by proclamation, convene the General Assembly. As we have already seen, this Leavenworth constitutional movement was going on at the very time that the bill for the admission of Kansas under the Lecompton Constitution was pending in Congress, and was intended as the counter movement of the Free-State people against that measure. The contingency of the admission of the State under the Lecompton Constitution had to be contemplated. The Free-State people had full control of the Territorial Legislature. A portion of them had really carried that election, electing the entire set of State officers under it, but on the face of the returns, including the fraudulent returns from Oxford, Shawnee, and Kickapoo, the Pro-slavery officers were elected, and Calhoun, the President of the Lecompton Constitutional Convention, had the granting of certificates both to the State officers and to the Legislature. There was no sufficient or reasonable doubt that Calhoun would carry out the Pro-slavery programme to the end. He had already declared the constitution "with slavery" adopted, and he would doubtless give the certificates to the Pro-slavery officers under it. The plain question which confronted the Free-State people was, what would they do under these circumstances. Their answer was contained in the 5th Section of the schedule, which we have above quoted. The debate over this section was fierce and prolonged. It lasted the whole day. Members felt that it involved what might become very practical and serious issues. The one side maintained that it was the only logical, consistent and courageous position for the Free-State people to take. The other contended that it looked to a conflict with the General Government, which could only result in disaster and defeat. Ewing led off on the conservative side in opposition to the section in a magnificent speech. Conway came down from the chair and spoke in its defense. Others followed, on either side, until the day wore away. When the vote was finally reached, the section was adopted b a decided majority. I do not recollect that Lane said a single word on either side of this debate. As to which side was right, it is unnecessary now to discuss. The progress of events fortunately prevented the question at issue from ever becoming a practical one. Had it become so, however, I am strong in the belief that the Free-State people would have been victorious in the struggle which must have ensued.

The events which we have been contemplating occurred a quarter of a century ago. The men who were then in middle or later life have now become aged men or have passed away. Those who were then in the loom and vigor of early manhood are now carrying gray hairs and looking upon the afternoon sun. Of the members of that convention, Lane and Conway, and Winchell, and Larzelere, and H. P. Johnson, and W. Y. Roberts, and Josiah Pillsbury, and Henry J. Adams and Henry Harvey, and Robert B. Mitchell, and Amasa Soule, and E. S. Scudder, and Swallow, and Griffith, and Arny, and I know not how many others, have passed over to the other side. Many are still left in active life, and some are occupying positions of trust and responsibility. The cause which they and so many others labored for has gloriously triumphed. The State, whose infancy they watched over with such solicitude, and the tides of whose life they so earnestly sought to turn into the channels of freedom, has become a free, prosperous and mighty commonwealth.

Ad astra per aspera. They saw the trials-we see the stars. It is the glory of the pioneers of Kansas, that, when called to fill a gap for freedom, they filled it; when summoned to meet a crisis for human rights, they met it; when appointed by God to resist and beat back the onward march of slavery and save a future State for civilization and liberty, they did it!

[TOC] [part 55] [part 53] [Cutler's History]