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


[TOC] [part 60] [part 58] [Cutler's History]


I have mentioned the fact that Mr. Winchell was the author of the section providing that all bills should originate in the House. It should be stated that Mr. Ingalls was the author of the provision that "in actions for libel, the truth may he given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused shall be acquitted." Another original provision of the Constitution is the homestead section. This was first proposed by Mr. Foster, of Leavenworth County, on the sixth day of the session, and reported by the committee on miscellaneous and amendments on the thirteenth day. No other feature of the Constitution, perhaps, elicited more animated and earnest debate. It was discussed for several days, amended, referred and again submitted. As originally reported, it provided for the exemption of "a homestead of 160 acres of land, or a house and lot not exceeding $2,000 in value, or real, personal and mixed property not exceeding $2,000, to any family." This was adopted by a vote of twenty-eight ayes to sixteen nays. Two days later the vote was reconsidered, and President Winchell proposed the wording finally adopted: "A homestead of 160 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, where the relation exists." Thus perfected, it was adopted by a vote of thirty-three to seven.

I thought at the time, however, and a review of the proceedings and debates has confirmed my impression, that favorable action on this provision was due to the earnest and eloquent advocacy of Judge Kingman, who was its most zealous, logical and courageous supporter. The homestead clause of the Kansas Constitution has been severely criticised, but I believe the people of the State generally regard it as a most beneficent provision of their organic law. For nearly a quarter of a century it has been maintained, and it still stands, as Judge Kingman said it would, guarding "the home, the hearthstone, the fireside around which a man may gather his family with the certainty of assurance that neither the hand of the law, nor any, nor all of the uncertainties of life, can eject them from the possession of it."

The finance and taxation and the executive articles were adopted on the fourteenth day, and the miscellaneous articles considered. This originally provided for the election of a public printer, but that section was stricken out, after a vigorous protest by Messrs. Ross and Ingalls. Nine years later their idea was indorsed by the adoption of an amendment creating the office of State Printer.

On the seventeenth day the temporary capital was located at Topeka, the second ballot resulting: for Topeka, 29; for Lawrence, 14; for Atchison, 6.

On the same day a proposition was made by Mr. Preston, of Shawnee County, to amend the miscellaneous article by adding the following section:

"The Legislature shall have power to regulate or prohibit the sale of alcoholic liquors, except for mechanical and medicinal purposes."

A motion made to lay this amendment on the table was defeated by a vote of eighteen ayes to thirty-nine nays. But the anxiety of the members to exclude from the constitution any provision that might render its adoption doubtful or prevent the admission of the State finally prevailed, and after a full interchange of views, Mr. Preston withdrew his amendment. There is, it is said, nothing new under the sun. Those who imagine that the prohibition amendment adopted in 1880 was a new departure in constitution making, have never examined the records of the Wyandotte convention.

On the nineteenth day occurred the last struggle over the slavery question in Kansas. Section 6 of the bill of rights, prohibiting slavery or involuntary servitude, came up for adoption, and it was resolved to add a proviso suspending the operation of this section for the period of twelve months after the admission of the State. This proviso received eleven votes, and twenty-eight were recorded against it. A most exciting discussion occurred on the same day over the apportionment article, which the Democrats denounced as a "gerrymander."

The work of the convention was practically completed on the twenty-first day. The various articles had each been considered and adopted, first in committee of the whole, then in convention, then referred to the committee on Phraseology and Arrangement, and, after report of the committee, again considered by sections and adopted. But so anxious were the members that every word used should be the right word, expressing the idea intended most clearly and directly, that when the reading of the completed constitution was finished on the morning of the twenty-first day, it was decided to refer it to a special committee, consisting of Messrs. Ingalls, Winchell, Ross and Slough, for further revision and verification. This committee reported the same afternoon, and again the constitution was read by sections, for final revision, with the same painstaking carefulness and attention to the minutest details. All that afternoon, and all the next day, with brief interruptions for action on the closing work, this revision went on, and it was 5 o'clock in the afternoon of the 29th before the last section was perfected. Then occurred one of the most dramatic scenes of the convention. Mr. Hutchinson submitted a resolution declaring that "we do now adopt and proceed to sign the constitution."

At once Mr. Slough addressed the chair, and after warmly eulogizing the general features of the constitution, pronouncing it "a model instrument" he formally announced that political objections impelled himself and his Democratic associates to decline attaching their signatures to it. These objections he stated at length. They were, briefly: The curtailment of the boundaries of the State; the large Legislative body provided for, the exclusion of Indians made citizens of the United States from the privilege of voting; the registry of voters at the election on the constitution; the refusal to exclude free negroes from the State and the apportionment.

This action of the Democratic members had been foreshadowed for several days, but it was, nevertheless, something of a surprise. The Republicans understood that several of the Democrats had earnestly opposed such a course, and hoped that some of them would be governed by their own convictions, rather than by the mandate of their caucus. For a few moments after Mr. Slough concluded, the convention sat, hushed and expectant. But no other Democratic member rose. It was evident that the caucus ruled. Then Judge Thacher, the President pro tem., addressed the chair, and in a speech of remarkable vigor and eloquence, accepted the gauge of battle thrown down. "Upon this constitution," he declared "we will meet our opponents in the popular arena. It is a better, a nobler issue than ever the old Free-State issue. They have thrown down the gauntlet: we joyfully take it up." He then proceeded to defend, with great earnestness and power, the features of the constitution objected to by Mr. Slough. "The members of the convention," he asserted, "have perfected a work that will be enduring. "The constitution, he affirmed, would "commend itself to the true and good everywhere, because through every line and syllable there glows the generous sunshine of liberty." It was and should be, be declared:

"Like some tall cliff, that lifts it's awful form,
Swells from the vale and midway leaves the storm;
Though round its breast, the rolling clouds shall spread
Eternal sunshine settles on its head."

Read in the light of subsequent history these declarations appear almost prophetic. The twilights shadows were gathering about Wyandotte when this debate closed, and the convention proceeded to vote on Mr. Hutchinson's resolution, which was adopted by thirty-four ayes to thirteen nays -- one Republican and four Democrats being absent. The roll was then called, and the constitution was signed by all the Republican members except one, Mr. Wright, of Nemaha, who was absent, sick. The work of the convention was completed and after voting thanks to its officers, it adjourned without date.

Each party, I think, was guilty of one blunder it afterward seriously regretted -- the Republicans in refusing to include the South Platte country within the boundaries of Kansas; the Democrats in refusing to sign the constitution they had labored diligently to perfect. I speak of what I consider the great mistake of the Republicans with all the more frankness because I was, at the time, in hearty sympathy with their action; but I feel confident that no Republican member is living today who does not deplore that decision. And I am equally confident that within a brief time after the convention adjourned, there were few Democratic members who did not seriously regret their refusal to sign the constitution.

On the 4th of October, 1859, the constitution was submitted to the people for ratification or rejection, and, for the first time in the history of Kansas, all parties cast a full, free and unintimidated vote. The Republicans favored, and the Democrats generally opposed its adoption. Nearly 16,000 votes were polled, of which 10,421 were for, and 5,530 against the constitution. The homestead clause, submitted as an independent proposition, was ratified by a vote of 8,788 for, to 4,772 against it. Every county in the Territory except two, Johnson and Morris, gave a majority for the constitution.

Two months later, December 6, State and county officers and members of the Legislature were elected, and the people of Kansas, having exhausted their authority in State building, patiently awaited the action of Congress. On the 11th of April, 1860 the House of Representatives voted, 134 to 73, to admit Kansas as a State, under the Wyandotte Constitution. Twice, during the next eight months, the Senate defeated motions to consider the Kansas bill, but on the 21st of January, 1861, several Southern Senators having seceded, Mr. Seward "took a pinch of snuff" and called it up again. It passed by a vote of 36 to 16, and on the 29th of the same month President Buchanan approved it. Thus young Kansas through many difficulties and turmoils, was "added to the stars."

During nearly twenty-two of the most eventful and exciting years of American history, the Constitution thus framed and ratified, has defined the powers and regulated the duties of the government of Kansas. Three Legislatures have voted down propositions to call a new Constitutional Convention. Twelve or fifteen amendments have been submitted, but only eight have been approved by the people. Finally, in 1880, the Legislature voted to submit a proposal for a new convention, and at the regular election held in November of that year, this ballot was taken. The result was an indorcement of the old Wyandotte Constitution by a majority far more emphatic and overwhelming than that by which it was originally adopted, the vote standing 22,870 for, and 146,279 against the proposed convention, or nearly seven to one.

It is doubtful whether the organic law of any other State in the Union has more successfully survived the mutations of time and inconstant public sentiment, and the no less fluctuating necessities of a swiftly developing commonwealth. Of its seventeen articles, only four, and of its one hundred and seventy-eight sections, only eight, have been amended. And of the eight amendments adopted, only five have revoked or modified the principles of policy originally formulated, the others being changes demanded by the growth of the State, or by the events of the civil war. The first amendment, ratified in 1861, provides that no banking institution shall issue circulating notes of a less denomination than $1 -- the original limitation being $5. In 1864, the proration requiring all bills to originate in the House of Representatives was repealed, and a section intended to prevent United States soldiers from voting, but which was so worded that it deprived our volunteers of that right, was also repealed. In 1867, an amendment was adopted disfranchising all persons who aided the "Lost Cause," or who were dishonorably discharged from the army of the United States, or who had defrauded the United States, or any State during the war. In 1868, the State Printer amendment was ratified. In 1873, the number of Senators and Representatives, originally limited to 33 and 100 respectively, was increased to 40 and 125. In 1875, three propositions, each having in view biennial, instead of annual sessions of the Legislature, were adopted. And in 1880 the prohibition amendment was ratified. These are all the changes that have been made in our organic law during nearly a quarter of a century.

It would violate the proprieties of such an occasion to comment on the personal feuds or partisan broils which once or twice marred the general harmony and orderly progress of the proceedings. These were very few, indeed, and none of them, I think, outlasted the convention. The members parted, when the final adjournment came, with mutual respect and good will, and the friendships formed during the session have been unusually warm and enduring.

It seems fitting that, in concluding this sketch of the convention and its labors, I should briefly narrate the subsequent history of its members. It was a small company, that which parted here twenty-three years ago today, and it was made up, as I have said, largely of young and vigorous men. But when this reunion was first suggested, and I came to look over the familiar names I had so often called during the long, hot days of that far away July it was painful to note the havoc death had made. It impressed me something as did a roll-call I once witnessed, in the red glare of bivouac fires after one of the great battles of the war, when surviving comrades answered "killed," or "wounded," to one-half the names of a regiment. Ten of the fifty two members composing the convention, I have not heard of for many years. Of the remaining forty-two, twenty rest quietly in --

"The reconciling grave
Where all alike lie down in peace together."

The largest delegation was that from Leavenworth County, and only one of the ten gentlemen comprising it, R. C. Foster, certainly survives. Rare Sam Stinson, whose genial wit and brilliant accomplishments won all hearts, was elected Attorney General in 1861, by a unanimous vote, and died in his old Maine home in February, 1856 (sic). William C. McDowell was chosen Judge of the First Judicial District, at the first election under the Constitution; served four years; was killed in a fall from an omnibus in St. Louis, July 16, 1866. John P. Slough removed to Colorado, was Colonel of a regiment raised in that State, and later a Brigadier General; was appointed, after the war, Chief Justice of New Mexico, and was killed at Santa Fe. Samuel Hipple removed to Atchison County; served as Quartermaster during the war; was elected State Senator in 1867; and died in January, 1876. William Perry removed to Colorado, where he died. P. S. Parks returned to Indiana, and engaged in journalism and the law, until his death, three years ago. Fred Brown died in St. Joseph, Mo., and John Wright at his house in Leavenworth County. Robert Graham, of Atchison County, the oldest member, died in 1868. Three of the members from Doniphan County, Robert J. Porter, Benjamin Wrigley, John Stairwalt, are dead. The members from Linn, James M. Arthur and Josiah Lamb, are both dead, as are also N. C. Blood, of Douglas, and T. S. Wright of Nemaha. W. H. Griffith, of Bourbon, was elected the first State Superintendent of Public Instruction, and died February 12, 1862, before the completion of his term. James G. Blunt, of Anderson, who became a Major General during the war, and won renown as a brave and skillful soldier, died in Washington a year or more ago. James Hanway, of Franklin, after a long life of usefulness, died at his old home, only a brief while ago. President James M. Winchell returned to New York shortly alter the outbreak of the rebellion and resumed his connection with the Times, first as war correspondent and afterward as an editorial writer. Until his death, a few years since, he was employed upon that great journal.

Of the surviving members, many have attained the highest distinctions of the State and all, I believe, are useful and honored citizens. At the first election under the Constitution, Samuel A. Kingman was chosen as Associate Justice of the Supreme Court. In 1866, he was elected Chief Justice, and re-elected in 1872.

Benjamin F. Simpson was elected the first Attorney General of the State, but resigned the position to enter the army, in which he served throughout the war. He has since been Speaker of the House of Representatives; several times a State Senator, and is now serving his second term as United States Marshal.

Solon O. Thacher was chosen District Judge at the first election under the Constitution and has since occupied many positions of honor and responsibility, and is a member of the present State Senate.

J. C. Burnett, S. D. Houston and S. E. Hoffman were members of the first State Senate, and George H. Lillie was a member of the first House of Representatives.

E. G. Ross was appointed United States Senator in 1866, and elected in 1867, serving until 1871.

John J. Ingalls was chosen as State Senator in 1861; was elected as United States Senator in 1873, and re-elected in 1879, and is still occupying that distinguished place.

John T. Burris was Lieutenant Colonel of the Tenth Kansas Volunteer Infantry, and subsequently District Judge.

William P. Dutton, James Blood, L. R. Palmer, John P. Greer and John Ritchie, have filled many positions of local trust and prominence, with credit and usefulness.

R. C. Foster and John W. Forman are residing in Texas, William Hutchinson lives in Washington, and C. B. McClellan, E. Moore and E. M. Hubbard are still prominent and honored citizens of the counties they represented.

My old friend, Col. Caleb May, sole surviving member of the three Free-State Constitutional Conventions, lives in Montgomery County. If Dean Swift was right in saying, that "Whoever could make two ears of corn, or two blades of grass, to grow on a spot of ground where one grew before, would deserve better of mankind, and do more essential service to his country than the whole race of politicians," what honor is due this sturdy Kansas farmer, who, during a residence of twenty-eight years in the State, has never, not even in the disastrous seasons of 1860 and 1874, failed to raise a good crop? Even the heroic service he rendered the cause of Freedom -- during the darkest days of the struggle in Kansas -- was less valuable to the State than this practical and triumphant vindication of its soil and climate.

Stalwart, quiet William McCullough, I have not heard of for many years.

John A. Middleton, of Marshall County, was a soldier in the Seventh Kansas Volunteer Infantry; removed to Montana in 1864, and I have learned nothing of him since.

H. D. Preston, of Shawnee; R. L. Williams, P. H. Townsend and Ed. Stokes, of Douglas; Allen Crocker, of Woodson; A. D. McCune, of Leavenworth, J. H. Signor, of Allen, and J. T. Barton, of Johnson, have all disappeared, and left no sign. I know not whether they are living or dead.

Of the officers of the Convention -- queer old George Warren, Sergeant-at Arms of nearly all the early Kansas Legislatures and Conventions? died many years ago.

Edward S. Nash -- the Journal Clerk -- was Adjutant of the First Kansas Volunteer Infantry, and died some years since in Chicago.

Robert St. Clair Graham, one of the Enrolling Clerks, was elected Judge of the Second Judicial District in 1866, and died in 1880.

Richard J. Hinton, also an Enrolling Clerk, is the editor of the Washington (D. C.) Gazette and a widely known journalist.

Werter R. Davis -- the Chaplain -- was a member of the First State Legislature; was Chaplain of the Twelfth, and Colonel of the Sixteenth Kansas Regiments during the war, and is one of the most prominent clergymen of his denomination in the State.

S. D. McDonald, printer to the Convention, is still engaged in journalism.

J. M. Funk -- the Doorkeeper -- and J. L. Blanchard -- the Assistant Secretary -- I have not heard from or of for many years.

I wish I could sketch more in detail the work and history of the members of the Convention, but this paper is, I know, already too long. I have tried to tell how our Constitution was made. I could not narrate, within reasonable limits,

"What workman wrought its ribs of steel;
Who made each mast, and sail, and rope;
What anvils rang -- what hammers beat --
In what a forge, and what a heat,
Were shaped the anchors of its Hope".

It is enough to say, that the work has proved strong and enduring. Through the groping inexperience of our State's childhood, and the still more perilous ambitions of its youth, through the storm of civil war, and the calm of prosperous peace, the Wyandotte Convention has justified the confident hopes of its early friends. The most marvelous changes have been wrought in this country since it was framed. The huge brick building, in which the Convention held its sessions, long ago crumbled and fell. The distracted dependent and turbulent Territory, has grown to be a peaceful, powerful and prosperous State. Its hundred thousand people have multiplied to a million. Upon its vast and solitary prairies, where then bloomed a wild and unprofitable vegetation, "wherewith the mower filleth not his hand nor he that bindeth sheaves his bosom." miles of green meadows now glisten with the morning dew, and thousands of golden wheat-fields shimmer in the noonday sun, and millions of acres of tasseling corn, rustling in the sweet, twilight air, tell of harvests so bountiful that they would feed a continent. Every quiet valley and prairie swell is dotted with pleasant homes where happy children laugh and play, and men and women go their busy ways in prosperous content. Eager learners throng 8,000 schoolhouses. Church bells ring in nearly every county, from the Missouri to the Colorado line. More than 4,000 miles of railway bind town and country, factory, and farm, and store, into one community. And over all the institutions and activities of this great, intelligent and orderly Commonwealth broods the genius and the spirit of the Wyandotte Constitution. Under its ample authority and direction, just and generous laws have maintained the rights of citizenship; given protection to labor and property; stimulated enterprise; multiplied industries; opened to every child and youth the door of school and college; encouraged morality; fostered temperance; protected the weak; restrained the strong; and sternly punished outbreaking crime. And still the sunshine of popular confidence and favor falls upon the Constitution. It has outlived half of its framers; and when, a quarter of a century hence, the last surviving member of the Convention awaits the inevitable hour, the Wyandotte Constitution may yet be the chart and compass ordering and guiding the destinies of a State, whose imperial manhood is foreshadowed by its stalwart and stately youth.*

* The Wyandotte Constitution, with the amendments thereto since adopted, appears in the Appendix to the State History.

[TOC] [part 60] [part 58] [Cutler's History]