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


[TOC] [part 52] [part 50] [Cutler's History]


The result of the election showed a preponderance of Free-State voters far greater than the sanguine had been led to expect. Arrant frauds had again been perpetrated at several precincts, but they did not, as heretofore, overwhelm the resident vote of the entire Territory, nor appall or intimidate the Governor into recognition of them. The returns by countries were as given below:

COUNTIES                  Members of Leg.        Del. to Congress
                           As Returned              As Allowed
                      Free-State   Democratic     Parrott   Ransom
Leavenworth..........    1,038         1.370       1,046     1,297
Atchison.............      315           366         315       366
Doniphan.............      574           497         574       497
Brown................      138            72         136        72
Nemaha...............      145            30         145        30
Marshall.............        1           160           1       160
Pottawatomie.........      151            16         148        16
Riley................      251           106         251       106
Jefferson............      344           189         344       189
Calhoun..............      200            39         205        39
Douglas..............    1,638           187       1,638       187
Johnson..............       33         1,604          96       212
Shawnee..............      749            61         749        61
Richardson...........      127            --         127        --
Davis................      126            30         126        30
Wise & Breckenridge..      266             7         266         7
Madison & Butler.....       69             7          69         7
Bourbon..............       96           175          96       175
Dorn.................       --            18          --        18
Coffey...............      265            48         265        48
McGee................       24         1,202          --        --
Woodson..............       --            --          --        --
Weller...............       --            --          --        --
Godfrey..............       --            --          --        --
Wilson...............       --            --          --        --
Greenwood............       14            13          14        13
Allen................       65            20          65        20
Anderson.............      261             2         261         2
Franklin.............      345            10         345        10
Lykins...............      348            59         348        59
Total................    7,887         6,466       7,888     3,790

The returns, although giving, with all fraudulent votes included, a Free-State majority in the Territory, had been subject to the required manipulation and fraud to give a Pro-slavery majority in each branch of the Legislature, Johnson county, which, with Douglas County, constituted a single District, had returned 1,791 Democratic votes -- sufficient to elect eight Representatives and three Councilmen. Of this vote, the returns showed that 1,628 Democratic votes had been polled at Oxford precinct, a place containing not over a dozen houses. On the 19th, Gov. Walker and Secretary Stanton issued a proclamation throwing out the entire vote of the Oxford precinct on the ground of irregularity in the returns -- not appearing that the judges of election took the required oath, nor that the paper presented was one of the original poll books as requited by law; and on the further ground of fraud -- it being a physical impossibility that the number of votes purported to have been cast on the second day (1,500) could have been written, containing twenty-two candidates each within that time. "The further extraordinary fact tending to throw distrust on the whole proceeding was that, out of the 124 for the local candidates of the township." On these grounds, the vote was thrown out and the certificate of election given to "those who appear to have been elected by virtue of the other regular returns." Thus did Gov. Walker fulfill to the letter the pledges he had given for a fair election.

McGee County was, at the time, a part of the Cherokee Reservation, not yet open to settlement, where no white men lived, save a few missionaries and trades. From that stronghold of Democracy came up the extraordinary return of 1,200 Pro-slavery votes. The whole vote was rejected as too flagrant a fraud to be entertained. It did not, however, have the effect to unseat the three Democrats chosen from the district, and was therefore viewed by the Pro-slavery men with comparative complacency, as the 1,200 fraudulent votes were not needed.

The unseating of the Johnson county Democrats by the Governor was too serious a matter to be acquiesced in without resort to the never-failing source of sympathy and redress for Kansas - Democratic wrongs - the court Judge Cato was induced to try his hand on Gov. Walker. On the 20th, he issued the following:

Territory of Kansas

Whereas, Samuel J. Jones, William Hall, Hiram Bledsoe, J. II. Danforth, John T. Ector, L. S. Boling, A. P. Walker, William S. Wells, J. P. Thompson, Thomas B. Sykes and U. B. Winsor have been duly elected members of the Legislative Assembly of Kansas Territory, to writ: The above firs three named a member of the Council, the remainder as member of the House of Representatives of said Assembly, apportioned by law to meet on the first Monday in January, 1858, from the counties of Johnson and Douglas of the said Territory, to writ: On the 5th and 6th days of October, 1857, and ought to be commissioned as Councilmen and Representatives by you, nevertheless you, not being ignorant of the premises, but disregarding your duty therein, have not only refused, though thereto required by the members elect, to grant them their certificates of election, but you refuse to do so in contempt of us, and to the great damage of the said members elect as by their complaint we have understood. We, therefore, being willing that speedy justice should be done in their behalf, do command and enjoin you that immediately after the receipt of this writ, you do cause the said members elect to be granted their certificates of election, and do signify the cause to us why you cannot or will not grant the certificates as aforesaid, but in default, complaint should come to us, and how you have executed this writ. Make known to us at Lecompton on the 20th day of October, A. D. 1857, and have you then and there this writ.

Witness my hand and seal this 20th day of October, A. D. 1857.

Sterling G. Cato, Judge 2d Judicial District, K. T.

this remarkable judicial mandate did not have the desired effect. Gov. Walker good naturally replied to it, refusing to obey the order of the court offering to yield himself unresisting to arrest for contempt, if the Judge might please to order his arrest, and tendering him a posse of United States troops should he apprehend and disturbance of the peace by such proceeding. Cato dropped the case; as did his most noisy client, Ex-Sheriff Jones, after a slight season of vaporing and swearing around Lecompton, during which time he tried to pick a personal quarrel with Secretary Stanton.

The glory of the whole Pro-slavery gang had departed, and the days of intimidation had gone with it. The disappointed politicians vented their final indignation at the meeting held at Lecompton, on the evening of the 20th, at which after much fiery speech, seventeen resolutions condemning and denouncing Gov. Walker and his Secretary were passed.

At the same time the occurrences concerning the election returns above recounted were transpiring, Lecompton was the scene of great excitement and tumult form other causes. October 19 was the day to which the constitutional convention adjourned. Land and his followers, exasperated at the frauds in Johnson and McGee counties, had called a meeting, to be held in Lecompton on that day, and it was openly threatened that the convention would not be allowed to meet. Accordingly, a large number of the most restless, turbulent and indignant Free-State men of the vicinity appeared at Lecompton at the appointed time, and organized by the election of Philip C. Schuyler, President, and Richard Realf and O. E. Learnard, Secretaries. Resolutions were passed, exposing the frauds at the recent election, and affirming that the members of the convention about to assemble in no way represented the people, and most adjourn sine die. A committee was appointed, of which Lane was chairman, to acquaint the members of the decision. James H. Lane was the leading speaker, and, as usual, aroused the crowd to the highest pitch of noisy enthusiasm. The demonstration resulted in no violence, as it became known the Governor, true to his promises, had thrown out the fraudulent vote. It had, however the effect to intimidate many members of the convention from taking their seats, and for three days thereafter no quorum was in attendance. Gov. Walker, to re-assure the timid members and protect the convention against any possible outbreak during its deliberations, had some United States troops stationed at Lecompton, and on the 22d, a quorum being for the first time present, the work was begun.


The convention met, pursuant to adjournment, on the 19th. It continued in session until November 3. The debates on the submission of the constitution, when framed, to the ratification or rejection of the people, were prolonged and earnest, a very respectable minority being in favor of submission. The question was finally compromised by agreeing to a mock submission, whereby the people were allowed to vote for it "with slavery" or " without slavery" but no provision were made whereby any vote could be had on the question of rejecting it altogether. Below is given a summary of the constitution, with the unabridged text of the more important articles:

Article I, defines the boundaries of the State;
Article II, boundaries of the counties;
Article II, distribution of powers;
Article IV, executive department;
Article V, legislative department and election districts;
Article VI, judiciary;

Article VII, relating to slavery, reads as follows: Section 1. the right of property is before and high than any constitutional sanction, and the right of the owner of a slave to such slave and it increase, is the same and as inviolable as the right of the owner of any property whatever. Section 2. The Legislature shall have no power to pass laws for the emancipation of slaves without the consent of the owners, or without paying the owners previous to their emancipation a full equivalent in money for the slaves so emancipated. They shall have no power to prevent immigrants to the State from bringing with them to the State such persons as are deemed slaves by the laws of any one of the United States or Territories, so long as any person of the same age or description shall be continued in slavery by the laws of this State; provided that such person or slave be the bona fide property of such immigrants; and, provided also, that laws may be passed to prohibit the introduction into this State of slaves who have committed high crimes in other State or Territories. They shall have power to pass laws to permit the owners of slave to emancipate them, saving the rights of the creditors, and preventing them from becoming a public charge. They shall have power to oblige the owners of slaves to treat them with humanity, to provide for them necessary good an clothing, to abstain form all injuries to them extending to life or limb, and in ease of their neglect or refusal to comply with the direction of such laws, to have such slave or slaves sold for the benefit of the owner or owners. Section 3. In the prosecution of slaves for crimes of higher grade that petit larceny, the Legislature shall have no power to deprive them of an impartial trial by a petit jury. Section 4. Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offense had been committed on a free white person, and on the like proof, except in case of insurrection of said slave.

Article VIII, relates to elections and right of suffrage;
Article IX, to finance;
Article X, to revenue;
Article XI, to public domain and internal improvements;
Article XII to corporations;
Article XIII, to militia;
Article XIV, to education;
Article XV, miscellaneous.

The Bills of Rights established, varies little from that of the Topeka Constitution, save Section 23, which reads "Free negroes shall not be permitted to live in the State under any circumstances." Provision for submitting the Constitution to Congress, and to the voters of the Territory, were made as follows: "This Constitution shall be submitted to the Congress of the United States at its next ensuing session, and as soon as official information had been received that it is approved by the same, by the admission of the State of Kansas as one of the sovereign State of the United States, the President of the Convention shall issue his proclamation to convene the State Legislature at the seat of government within thirty-one days after publications. * * * * * *

Before this constitution shall be sent to Congress, asking for admission into the union as a State, it shall be submitted to all the white male, inhabitants of this Territory, for approval or disapproval, as follows: the President of this convention shall, by proclamation, declare that on the twenty-first day of December, one thousand eight hundred and fifty-seven, at the different election precincts now established by law, or which may be established as herein provided, in the Territory of Kansas, an election shall be held, over which shall preside three judges or a majority of them to be appointed as follows: * * * * * * * * The voting shall be by ballot. The judges of said election shall cause to be kept two pollbooks, by two clerks by them appointed. The ballots cast as said election shall be indorsed shall be returned within eight days to the President of this convention, and the other shall be retained by the judges of election, and kept open for inspection. The President, with two or more members of the Convention, shall examine said, pollbooks, and if it shall appear that a majority of the legal votes cast at said election be in favor of the "Constitution with no Slavery," then t article providing for slavery shall be stricken from this Constitution by the President of this Convention, and slavery no longer exist in the State of Kansas, except that the right of property slaves now in this Territory shall in no manner be interfered with, and shall have transmitted the Constitution, so ratified, to the Congress of the United States, as hereinbefore provided.

The slavery clause gave the Legislature power to provide for emancipation (by compensation to the owner) all slaves; but denied the power to prevent the introduction of more slaves. A vote 'for the Constitution with Slavery,' was a vote to establish and forever maintain the institution, with the power to emancipate vested solely in the Legislature. A vote 'for the Constitution with no slavery,' was a vote to recognize the existence of slavery now there, to keep those slaves now in the Territory, and the natural increase of slaves during their lives, and was a vote to 'strike out' the power of the Legislature to emancipate. The Constitution 'without Slavery,' meant that slavery in the Territory shall be confined to slaves now there, and their increase form generation to generation, with no power on the part of the Legislature so emancipate by compensation, or in any other way. The Constitution 'with Slavery,' allowed more slaves to be brought to Kansas, but gave the Legislature power to provide for their emancipation.

From the character of the convention and the known opinions of its members, it was certain that any Constitution framed by or receiving the sanction of that body, would be thoroughly Pro-slavery; on that point there had been no previous doubt, and there could been subsequent disappointment; on its failure to submit it to the vote of the people for acceptance or rejection, the case was quite reverse. Gov. Walker had in every speech he had made, and in every proclamation he had issued, urged its submission as the only basis on which it could become the constitution of the people of the Territory, or receive the sanction of himself of the administration. The leading members of the convention were also publicly pledged prior to the election, as appears by the following, which was published in the papers of the time:


It having been stated by the Abolition newspaper, the Herald of Freedom, and by some disaffected bogus Democrats, who have got up an independent ticket for the purpose of securing the vote of the Black Republicans, that the regular nominees of the Democratic convention were opposed to submitting the constitution to the people, we, the candidates of the Democratic party, submit the following resolutions, which were adopted by the Democratic convention which placed us in nomination, and which we fully and heartily indorse, as a complete refutation of the slander above alluded to.


Lecompton, Kan. Ter., June 13, 1857,

The resolve referred to above read as follows:

Resolved, That we will support no man as a delegate to the Constitutional Convention, whose duties it will be to frame the constitution of the future State of Kansas and mold the political institutions under which we, as a people, are to live, unless he pledge himself fully, freely, and without mental reservation, to use every honorable means to submit the same to every bond fide actual citizen of Kansas, at the proper time for the vote being taken upon the adoption by the people, in order that the said constitution may be adopted or rejected by the actual settlers in this Territory, as a majority of the voters may decide.

Under such pledges and assurances as these, the Free-State men had been led, first, to allow the election of delegates to go by default, and later, to defer setting the Topeka government in motion, believing that the power still lay in the future to reject the constitution at the ballot box, which, being done, the way would seem clear for the adoption of the Topeka constitution and the inauguration of the Free- State government, peacefully, and without the conflict which seemed inevitable in any independent proceedings while the Lecompton movement still had vitality under the authority of the organic last, and the sanction of the Federal Government. The result of the October election proved that the acceptance of an Pro-slavery State constitution by the votes of the people of Kansas was no longer possible, and hope grew brighter in the hearts of the freedom-loving people. There seemed but one last chance for the Pro-slavery faction to thwart the known will of the people. It involved the open violation of all the pledges made, and the attempt to foist the institution upon an unwilling people by means of the sham submission provided, which however it should result, could but modify the constitution, but could not defeat it. The vote, as proposed, must result in its acceptance in some form, and the consequent repudiation of the Topeka constitution and every Free-State movement thus made by the people of the Territory. The nefarious scheme was planned in Washington by Jefferson Davis and other Pro-slavery leaders, accepted by President Buchanan,* and executed as planned by the member of the convention. History records few attempts to over-ride the will of a free people involving so much of infamy and treachery in both high and low places. In the Gov. Walker had no part. The plot was never divulged to him. He was most shamelessly deceived by the Administration, and openly expressed his indignation and mortification. He left the Territory on the 16thof November, intending, as he stated, "to be absent on business three or four weeks.." He never returned as Governor of the Territory. He, like Geary, had been to faithful to his trust to be available in a position where only treachery and falsehood could win.

* The complicity of President Buchanan before the act is open to question. Calhoun told Gov. Walker that it (the device for a sham submission) came from the President and Administration, and urged him to support, inasmuch as he had been appointed by him. Gov. Walker stated before the 'Covode Committee,' that it was his belief that Buchanan knew nothing about it, but he knew nothing about it. He placed no reliance on Calhoun's statement, having ceased to have the slightest confidence in his veracity, from the infamous manner in which he behaved, forfeiting all his pledges, and from the fact he must have been privy to the forgeries of the returns from Oxford, and also many other forgeries. See Walkers testimony, pp 104, Report of Covode Investigation 1860.

The indignation of the people knew no bounds, and, as usual, found vent through mass meetings and conventions, at which various plans for resisting this outrage on free government were proposed and discussed.

A convention was held at Topeka, November 23, presided over by C. K. Holliday, assisted by Walter Oakley, John Ritchie and Dr. G. E. Martin, Vice Presidents. The resolutions reported looked to the immediate inauguration of a State government under the Topeka constitution, and earnestly requested Gov. Robinson to convene the Legislature in extra session as the earliest practical moment. A vigilance committee was appointed, to whose call the members of the convention pledged themselves to answer at all times. C. K. Holliday, Walter Oakley and John Ritchie were chosen delegates to a convention to be held at Lawrence, December 2, and were instructed to urge upon that convention the establishment of the Topeka government.

A mass convention was held in Leavenworth on Friday, November 27. The officers of the convention were: President, Judge S. N. Latta; Vice Presidents, Blacklidge of Tecumseh; Smith of Topeka; Atwood, of Lawrence; and Sparks, Gardner, Whitney, Woolman, Richardson, Harsh, McCauslin and Engleman of Leavenworth; Secretary, John McGee; Committee on Resolutions, Messrs. Kob, Land (J. H.) Davis, Fisher, Johnston, Atwood, Blacklidge, Hathaway and Green.

The resolutions, following a preamble stating the grievances of the people, repudiated the constitution and called upon the members elect of the Territorial Legislature "to meet at Lecompton on the 3d day of December next, to suggest such measures and adopt such action as the crisis demands." Acting Gov. Stanton was also requested to convene the Legislature forthwith to avert civil was, which was believed to be imminent. At a subsequent stage of the proceedings, the following resolution embodying a threat was adopted on motion of Col. Lane:

Resolved, that the people of Kansas, in mass convention assembled, assert, that in case his excellency, Acting Gov. Stanton, declines to convene the Territorial Legislature - that no other course will be open to the people by putting the Topeka Government in motion, and that we pledge ourselves to adopt that course and to stand or fall by it.

Delegates were also chosen to the Lawrence Convention.

Besides the resolutions which were forwarded to the Acting Governor, a petition was drawn up an signed by a majority of the members of the Assembly, in which they stated their belief that the peace of the Territory was in imminent danger and that violence and bloodshed could only be averted by the immediate assembling of the Territorial Legislature, inasmuch as it will have legal authority to provide for the unjust and extraordinary emergency forced upon them by the action of the late so-called Constitutional Convention. They furthermore pledged themselves, in case their petition was granted, to engage in no legislative business except such as was necessary to meet the exigencies which had moved them to make the request.

The petition, signed by G. W. Deitzler, John Speer, Lyman Allen and a large majority of the members besides, was placed in the hands of Gov. Stanton by Capt. Samuel Walker. It was accompanied by a letter of concurrence, signed by G. W. Brown, G. W. Smith, Charles Robinson and James h. Lane. In response, the following proclamation was issued:


An extraordinary occasion having occurred in the affairs of the Territory, within the meaning of the 30th Section of the organic act, which authorizes the Legislature to be called together upon such occasions:

I, Fredrick P. Stanton, Secretary and Acting Governor, do hereby summon the members of the Council and House of Representatives of the said Territory, to assemble in their perspective houses at Lecompton, on Monday next, the 7th inst. Then and there to consider matters of great moment, pertaining to the public welfare.

Given under the seal of the Territory, at Lecompton,
this the first day of December, A. D. 1857.
Fredrick P. Stanton

The above proclamation averted the direst calamity that had thus far threatened the Territory, viz, open and organized rebellion against the Federal Government, which have deluged the Territory in blood, and perhaps involved the whole country in a general conflict; such as came upon it four years after. It was the most important official proclamation ever issued by a Territorial Governor.

Concerning the critical and dangerous state of affairs at the time, the Herald of Freedom, of December 5, says -

Never have we seen the time since our residence in Kansas, when the undercurrent indicated so strongly the probability of a general collision of the people with usurped authority, and yet the surface appears as calm as during the last week. To detail the information in our possession, would be to betray important secrets intrusted to us, therefore we merely passingly remark the fact for what it is worth. A powerful party had resolved to set in motion the Topeka Government, and every instrumentality had been employed to induce the Governor, under that instrument, to convene an extra session of the Topeka Legislature to provide for the exigency, with a view of matching the Lecompton Constitution with the Constitution of the people. It was then designed to employ the force to crush out the Lecompton Constitution; but thanks for once to the good sense of Dr. Robinson, he has boldly resisted the movement, holding off, as was alleged, with the hope that the Acting Governor would come to the relief of the people, and thus prevent a renewal of the strife. The Mass Convention at Leavenworth on Friday last, as will be seen by reference to the proceedings in another column, took active measures on this question, and by well-expressed resolutions presented the question to his Excellency in tangible form. The following instrument (before mentioned) was then drawn up, an the signatures of a majority of the members of the Territorial Legislature, with great difficulty, were procured to it, and on Tuesday morning was sent to him by the hand of Capt. Samuel Walker.

The Legislature having been convened, the great anxiety abated and the Lawrence Convention convened on the 2d of December to find its proposed work less exciting and arduous than it would otherwise have been. The revolutionary project of putting the Topeka Government in motion was abandoned or held in abeyance waiting the action of the Legislature. A report of its proceedings is given, sufficiently full to show the modification in the popular feeling which had taken place.

[TOC] [part 52] [part 50] [Cutler's History]