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


[TOC] [part 54] [part 52] [Cutler's History]


The Third Territorial Legislature met at Lecompton January 4, 1858, and organized by the election of the following officers:

Council-Carmi W. Babcock, President; Cyrus K. Holliday, President pro tem. ; Joel K. Goodin, Secretary; Gustavus A. Colton, Assistant Secretary; Abram Cutler, Sergeant-at-arms; Jacob Branson, Door keeper; D. H. Weir, Engrossing Clerk; Benj. T. Hutchings, Enrolling Clerk; S. Y. Lum, Chaplain.

House-George W. Deitzler, Speaker; Cyrus F. Currier, Chief Clerk; Wm. B. Parsons, Assistant Clerk; Geo. F. Warren, Sergeant-at-arms; T. A. Blake, Door-keeper; Robert Speer, Messenger; C. H. Lovejoy, Chaplain.

On the 6th the Legislature adjourned to Lawrence.

On January 5, the Topeka Legislature convened at Topeka, and organized by the election of J. P. Root, President of the Senate, and Harry Stratton, Speaker of the House. Gov. Robinson delivered his message, urging the importance of still keeping up the Free-State organization pending the uncertain action of Congress, but in no manner countenancing the idea of putting the government in motion or otherwise obstruction the course of events, so long as they should tend to the ultimate triumph of the principles in defense of which the Topeka Constitution had been framed and the Free-State government organized.

January 7, the Legislature adjourned to Lawrence, and there presented to the Territorial Legislature the following concurrent resolutions:

WHEREAS, The people of Kansas, in the absence of any legitimate government, originated at Topeka, on the 23rd day of October, 1855, a State government, and subsequently elected officers, under the same; and

WHEREAS, the people have, on certain occasions, affirmed and re-affirmed said constitution and government, and have elected the present State officers and Legislature, in order to maintain said State organization as the government for the State of Kansas; therefore,

Resolved, By the House of Representatives of the State of Kansas (the Senate concurring), that we at once proceed to complete the organization of the State Government under the Constitution, and enact such laws as the necessities of the people seem to demand. And,

Resolved, Now, as heretofore, the Federal authority represented in the Territorial laws and Territorial Legislature, is an obstacle to the successful execution of the will of the people through the State Government, under the State Constitution; therefore;

Resolved, That we respectfully urge the General Assembly of the Territory of Kansas, now in session at Lawrence, to take immediate steps to remove the forms of a Territorial government, so that it shall not obstruct and embarrass the State Government.

Resolved, That the Speaker of the House cause a copy of this preamble and resolutions, properly authenticated, to be laid before the Council and House of Representatives or the General Assembly of the Territory of Kansas, and we respectfully request them to five it their earliest consideration, and that they send a reply to the respective officers of the two branches of the State Legislature.

The memorial was referred to special committees in both branches who reported as below stated, the reports being accepted and adopted.

The Council Committee reported:

The committee to whom was referred the memorial of the State Legislature, now in session in Lawrence, having had the subject-matter therein contained under consideration, beg leave to submit the following report: That we will manifest our readiness to accede to duty to our constituents and to our country, by adopting such measures, as soon as practicable, as in out judgment, may meet with the hearty concurrence and support of the people of Kansas. But, under the embarrassing circumstances in which we are placed by the complicated condition of political affairs in Kansas, and the relation in which we stand to the Federal Government, the uncertainty existing with regard to the policy indicated by the Congress of the United States toward us; in view of the understanding which we have of the wishes of our constituents, and regarding, as we do, the peace, well-being, and general welfare of Kansas, as of paramount importance; and in view of the fact that the Territorial Legislature is the only legal law-making power in Kansas, acknowledged by the General Government, we cannot consent to set aside the form of the Territorial government until further development may seem to render it necessary.


Andrew J. Mead, from the same committee, presented the following minority report:

The select committee, to whom was referred the concurrent resolutions of the Free-State Legislature, under the Topeka Constitution, would, in accordance with the instructions of the of the House, respectfully report the following resolution:

Resolved, That we have every confidence in the wisdom, patriotism, and prudence of the Free State Legislature; that we believe the movement it represents originated in a public necessity, and that it is their province to take such action in their own capacity as they may think legitimate and proper, they being responsible for their own action and we not for them, and as the Territorial Legislature is not, legitimately, in a position to dictate or concur in their acts, we have only respectfully to reiterate to them the course of action which we shall pursue, as clearly indicated in the resolution passed by this body, to the effect that we would proceed to the enactment of an entire code of laws which shall supersede all laws or pretended laws passed prior to the special session of this present Legislature.


A minority report was submitted through W. P. Badger, which concluded as follows: "Resolved, That the Clerk of this House is hereby instructed to return the concurrent resolutions sent here by an assemblage of people styling themselves the Topeka State Legislature, and inform that honorable body that the Governor and Legislative Assembly of the Territory of Kansas are the only legally authorized body possessing power to enact such or any laws that the necessities of the people seem to demand."

Neither the majority nor minority reports on the memorial recommended granting the request of the memorialists; those adopted virtually said: "Things are too precarious to allow the only government recognized by the National Government as a valid to voluntarily abdicate without legal authority in favor of a government which however clearly it may represent the will of the people, has no authority under the law, therefore wait until further developments may seem to render such a step necessary." The minority report went still further and said: "The Territorial Legislature is the only legal law-making body possible until the Territory is admitted as a State. The members of the present Legislature were duly elected, and are duly bound to perform the legislative functions whereto they were chosen. They will do it." The minority report doubtless reflected the sentiments of a large majority report, which was adopted.

The Topeka Legislature waited some ten days for further developments, and then adjourned to meet at Topeka on the 4th day of the coming March. At that time no quorum appeared. The leading minds had turned their attention to newer plans more in accord with the changed condition of affairs, and vitality had gone out of the Topeka movement. Ardent men still persistently clung to the old Free- State organization, not because it was the best that could be devised so much as because it had been the first. In spite of their efforts to further continue it, it was evident that the stanch and tried leaders who had originated it, and stood by it through evil and good repute, no longer viewed it as indispensable to success; and not a few believed that its persistent advocacy, in season and out of season, had become a serious obstacle to the success of the Free-State movement. The times had outgrown it and it fell, not into disrepute, but disuse. There was, after March 4, 1858, no further attempt to resuscitate or continue it.

It had for three years been the shrine at which the whole Free-State party had worshiped, and the citadel of liberty that had never been surrendered to the foe. No truer nor braver band of freemen ever fought the desperate fight for freedom against such appalling odds as did those who defended it. Their names will go down the ages in imperishable renown as the unconquerable defenders of free institutions under the regis of the Topeka Free-State Constitution.

The Territorial Legislature adjourned February 13 after a session of forty days. Early in the session, it passed the following:

Resolved, By the Territorial Legislature (the Council concurring), that we at once proceed to the enactment of an entire code of laws for the people of the Territory which shall supersede all laws, or pretended laws, passed prior to the special session of this Legislature securing all vested rights acquired in good faith.

Outside the routine proceedings and the passage of many private bills, the Legislature considered and acted upon matters of general interest noted below.

The militia of Kansas was divided into eight brigade divisions: Gen. I. G. Losee being appointed Brigadier General of the First Brigade; Gen. S. V. Jamison, of the Second; Gen. George Hillyer, of the Third; Gen. Asa Hall, of the Fourth; Gen. L. G. Cleveland, Fifth; Gen. Sam. Walker, Sixth; Gen. John H. Whistler, Seventh; Gen. Calvin McDaniel, Eighth. This was done under the provisions of the military bill passed at the extra session of December, 1857, over the veto if Secretary Stanton. The bill created one Major General, eight Brigadiers, and many Captains- the staff to constitute a military board with full power to call out the militia when a majority should think proper, provided the Legislature was not in session. When in session, that body to decide.

A bill making Minneola the seat of government passed by a two-thirds vote over the Governor's veto.* A bill passed for an election for delegates to a Constitutional Convention, election to be held March 2; convention to meet at Minneola on the fourth Tuesday in March. Bill abolishing slavery was passed over the veto of Acting Governor Denver.

During the session, a committee was appointed to investigate the frauds of the last two elections. The members were: Henry J. Adams, E. L. Taylor, Thomas Ewing, J. B. Abbott, Ely Moore, and Dillon Pickering. The report, made February 12, shows that the illegal votes cast were: On the acceptance of the Lecompton Constitution, December 21, 1857-at Kickapoo, 700; Delaware City, 145; Oxford, 1,200; Shawnee, 675; total, 2,720. At the election of officers under said Constitution, January 4, 1858- at Kickapoo, 600; Delaware City, 5; Delaware Agency, 336; Oxford, 696; Shawnee, 821; total, 2,458. The Commissioners reported that the Oxford returns were honestly made out by the officers of election, and subsequently 336 names were forged upon them, with the knowledge of John D. Henderson; and that John Calhoun was particeps criminis, after the fact.

* The removal of the capital to Minneola was subject to the suspicion of being a speculative movement, in which a working majority of the members had more or less interest. The vote passing the bill over the veto was 28 to 9. Many of the members owned lots in the embryo city. The removal was subsequently declared illegal by Jeremiah S. Black, United States Attorney General.


The act providing for a Constitutional Convention was passed and sent to the Governor for his signature on Wednesday, February 10. The law provided that "if any bill shall not be returned by the Governor within three days-Sundays excepted- after it shall have been presented to him, the same shall be a law in like manner as if he had sighed it, unless the Assembly, by adjournment, prevent its return, in which case it shall not be a law." The law also limited the length of sessions, except the first (this was the third) to forty days. Counting January 4, the day on which the Legislature convened, as a whole day, the Legislature stood adjourned by the provisions of the organic act on February 12. The Governor withheld his signature from the bill, whereupon, on the 13th the Assembly passed it notwithstanding, and then adjourned. This threw grave doubts, which were never entirely dispelled, upon the legality of the act.

The election of delegates, under the act as passed, took place March 9. The aggregate vote in the Territory was not far from 9,000, a respectable majority of the Free-State party participating in the election.

The convention met at Minneola March 23. Seventy-two delegates were present. Both the radical and conservative factions were represented. The radicals favored the formation of a Constitution on the basis of the Topeka Constitution, and the extreme radicals were for putting it in operation as soon as practicable, with or without the sanction of law; the conservatives were for simply framing the Constitution, and organizing a State government only in strict conformity with the prescribed forms of law. The officers elected were: President, James H. Lane; Clerk, Samuel F. Tappan; Assistant Clerk, B. T. Hutchings; Sergeant-at-Arms, George F. Warren; Reporter, R. J. Hinton.

On the 24th, the convention adjourned, to meet at Leavenworth on the 25th.

The convention assembled at Melodeon Hall, Leavenworth, on the evening of March 25, and upon the presentation of a report by W. F. M. Arny, to take so far as practicable, the Topeka Constitution for their basis. Gen. Lane tendered his resignation as President of the Convention, making a strong speech in favor of the Topeka Constitution, and giving as a reason for his resignation that he "did not wish to hinder a vote in Congress by his acting as President of the Convention."

Martin F. Conway was then elected President.

The convention finished its labors and adjourned, April 3. The questions of negro suffrage and separate schools for whites and blacks elicited a long and earnest discussion. It was finally decided to let the Constitution go to the people with the elective franchise extended to "every male citizen," the discrimination as appeared in the word white in the Topeka Constitution being stricken out. It was, however, provided that the suffrage question should be submitted for final decision to a direct vote of the people with the Constitution as framed. In its general features, the Constitution was framed after the model of the Topeka Constitution. The vote on its adoption was appointed to be held on the 3rd Tuesday of May, 1858, at which time was also to be holden a general election for the purpose of choosing State officers, Members of Assembly, Member of Congress, etc.

The members elected to the convention were as follows:

Jefferson County - Edward Lynde, James Monroe, J. C. Todd, A. W. McCauslin.

Shawnee - A. L. Winans, Lucian Fish, R. M. Fish, H. W. Curtis, William W. Ross, John Ritchie.

Atchison - Frank G. Adams, Caleb May, G. M. Fuller, C. A. Woodworth, H. S. Baker.

Breckinridge - P. B. Plumb, William McCulloch, John R. Swallow.

Butler and Hunter - Samuel Stewart.

Madison - G. D. Humphrey.

Linn - A. Danford, Thomas H. Butler, Robert B. Mitchell, Robert Ewing.

Brown - A. B. Anderson, Orville Root, A. W. Williams.

Richardson - James Fletcher, Henry Harvy.

Anderson - W. F. M. Arny, William Spriggs, W. L. Webster.

Coffey - R. A. Kinzie, D. A. Hawkins, J. M. Elliott.

Calhoun - W. E. Bowker, Adam Fuller.

Lykins - G. A. Colton, Thomas Roberts, Charles A. Foster, A. Knapp.

Franklin - Joel F. Goodin, J. C. Rees.

Wells - A. H. Shurtleff.

Allen and Bourbon - W. R. Griffith, M. H. Hudson, G. A. Nuller, A. G. Carpenter, G. W. Campbell.

Douglas and Johnson - M. F. Conway, E. S. Seudder, Charles H. Branscomb, A. Soule, W. R. Monteith, J. M. Shepherd, John L. Brown, D. Pickering, Charles Mayo, James D. Allen, T. Dwight Thacher, James S. Emery, Samuel N. Wood.

Riley - Issac T. Goodnow, F. N. Blake, George W. Higinbotham.

Pottawatomie - U. Cook, J. D. Adams.

Davis - J. H. Pillsbury.

Nemaha - S. S. Wright, R. U. Torrey.

Woodson - R. Austin.

Greenwood - M. L. Ashmore.

Wise - H. J. Espy.

Leavenworth - Henry J. Adams, Thomas Ewing Jr., John P. Hatterscheidt, John C. Douglass, James Davis, W. Y. Roberts, J. M. Walden, William H. Coffin, Thomas Trower, H. P. Johnson.

Richardson - James H. Winchell.

Not assigned - B. B. Newton, James Telfer, G. W. K. Twonibly.

The platform adopted was as follows:

Resolved, That we, the representatives of the Free-State party, do heartily accept the Leavenworth Constitution, and do pledge ourselves to favor its adoption and ratification by the people.

Resolved, That should Congress accept the application accompanying the Lecompton Constitution, and admit Kansas as a sovereign State into 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 living government of the State of Kansas, and that we will support and defend the same against any opposition, come from whatever quarter it may.

Resolved, That at the election upon the constitution, the voters of Kansas be requested to vote for or against negro suffrage, and for or against separate schools for white and negro children; and if a majority of the votes cast be against negro suffrage, it shall operate as instructions to the first Legislature to submit to the people at once an amendment to the constitution, prohibiting negro suffrage; and if a majority of the votes cast be in favor of separate schools, it shall operate in like manner, as instruction to the first Legislature to submit an amendment, providing for separate schools for white and negro children, except in districts where the people, by general consent, shall allow the school to be in common.

On April 28 and 29, a convention was held at Topeka, at which the following ticket, under the Leavenworth Constitution, was nominated:

Governor Henry J. Adams, Leavenworth; Lieutenant Governor, Cyrus K. Holliday, Topeka, Secretary of State, E. P. Bancroft, Emporia; Treasurer, J. B. Wheeler, Doniphan; Auditor, George S. Hillyer, Grasshopper Falls; Attorney General, Charles A. Foster, Osawatomie; Superintendent of Public Instruction, J. M. Walden, Quindaro; Commissioner of School Lands, J. W. Robinson, Manhattan; Representative in Congress, M. F. Conway, Lawrence; Supreme Judges, William A. Phillips, Lawrence, two years; Lorenzo Dow, Topeka, four years; William McKay, Wyandotte, six years; Reporter of Supreme Court, Albert D. Richardson, Sumner; Clerk of Supreme Court, W. F. M. Arny, Hyatt.

May 18, the election on the Leavenworth Constitution and for the choice of officers under its provisions was held. Owing to the doubts as to the legality of the convention, jealousy of the Free-State Democrats, many of whom had been prominent in the movement, and other causes, which may become apparent further on, the vote was so small as to show unmistakably that the movement had not the support of even a respectable minority of the Free-State party, and that it had further fallen into disrepute since its inauguration. The election of delegates in March had brought out a Free-State vote of 9,000; at the submission of their work tem weeks after, the whole vote polled numbered not far from 4.000, of which number 1,000 were against it, leaving but 3,000 out of an aggregate Free-State vote of not less that 12,000 in its favor. The indifferent vote showed plainly that it was viewed with no great favor at home, and consequently it did not meet a cordial reception, by even the Republican Members of Congress when presented. It was finally presented to the Senate of the United States, with a petition praying that Kansas be admitted into the Union under it, on January 6, 1859, and found its final rest in the bosom of the Committee on Territories to whom it was referred.

[TOC] [part 54] [part 52] [Cutler's History]