THE TOPEKA CONSTITUTION
[Sidenote: "House Journal Kansas Territory," 1855. p. 30; "Council
Journal," 1855, p. 253.]
The bogus Legislature adjourned late on the night of the 30th of
August, 1855. They had elaborately built up their legal despotism,
commissioned trusty adherents to administer it, and provided their
principal and undoubted partisans with military authority to see that
it was duly executed. Going still a step further, they proposed so to
mold and control public opinion as to prevent the organization of any
party or faction to oppose their plans. In view of the coming
presidential campaign, it was the fashion in the States for Democrats
to style themselves "National Democrats"; and a few newspapers and
speakers in Kansas had adopted the prevailing political name. To
stifle any such movement, both houses of the Legislature on the last
night of their session adopted a concurrent resolution declaring that
the proposition to organize a National Democratic party, having
already misled some of their friends, would divide pro-slavery Whigs
from Democrats and weaken their party one-half; that it was the duty
of the pro-slavery, Union-loving men of Kansas "to know but one issue,
slavery; and that any party making or attempting to make any other is
and should be held as an ally of abolitionism and disunion."
Had the conspiracy been content to prosecute its designs through
moderate measures, it would inevitably have fastened slavery upon
Kansas. The organization of the invasion in western Missouri, carried
on under pre-acknowledged leadership, in populous counties, among
established homes, amid well-matured confidence growing out of long
personal and political relationship, would have been easy even without
the powerful bond of secret association. On the other hand, the union
of the actual inhabitants of Kansas, scattered in sparse settlements,
personal strangers to each other, coming from widely separated States,
and comprising radically different manners, sentiments, and
traditions, and burdened with the prime and unyielding necessity of
protecting themselves and their families against cold and hunger, was
in the very nature of the case slow and difficult. But the course of
the Border Ruffians created, in less than six weeks, a powerful and
determined opposition, which became united in support of what is known
as the Topeka Constitution.
It is noteworthy that this free-State movement originated in
Democratic circles, under Democratic auspices. The Republican party
did not yet exist. The opponents of the Kansas-Nebraska Act were
distributed among Whigs, Know-Nothings, and Free-soilers in the
States, and had no national affiliation, although they had won
overwhelming triumphs in a majority of the Congressional districts in
the fall elections of 1854. Nearly if not quite all the free-State
leaders originally went to Kansas as friends of President Pierce, and
as believers in the dogma of "Popular Sovereignty."
Now that this usurping Legislature had met, contemptuously expelled
the free-State members, defied the Governor's veto, set up its
ingeniously contrived legal despotism, and commissioned its partisan
followers to execute and administer it, the situation became
sufficiently grave to demand defensive action. The real settlers were
Democrats, it was true; they had voted for Pierce, shouted for the
platform of '52, applauded the Kansas-Nebraska Act, and emigrated to
the Territory to enjoy the new political gospel of popular
sovereignty. But the practical Democratic beatitudes of Kansas were
not calculated to strengthen the saints or confirm them in the faith.
A Democratic invasion had elected a Democratic Legislature, which
enacted laws, under whose arbitrary "non-intervention" a Democratic
court might fasten a ball and chain to their ankles if they should
happen to read the Declaration of Independence to a negro, or carry
Jefferson's "Notes on Virginia" in their carpet-bags.
The official resolution which the bogus Legislature proclaimed as a
final political test left no middle ground between those who were for
slavery and those who were against slavery--those who were for the
bogus laws in all their enormity, and those who were against them--and
all who were not willing to become active co-workers with the
conspiracy were forced to combine in self-defense.
It was in the town of Lawrence that the free-State movement naturally
found its beginning. The settlers of the Emigrant Aid Society were
comparatively few in number; but, supported by money, saw-mills,
printing-presses, boarding-houses, they became from the very first a
compact, self-reliant governing force. A few preliminary meetings,
instigated by the disfranchised free-State members of the Legislature,
brought together a large mass convention. The result of its two days'
deliberations was a regularly chosen delegate convention held at Big
Springs, a few miles west of Lawrence, on the 5th of September, 1855.
More important than all, perhaps, was the presence and active
participation of ex-Governor Reeder himself, who wrote the
resolutions, addressed the convention in a stirring and defiant
speech, and received by acclamation their nomination for territorial
delegate.
The platform adopted repudiated in strong terms the bogus Legislature
and its tyrannical enactments, and declared "that we will endure and
submit to these laws no longer than the best interests of the
Territory require, as the least of two evils, and will resist them to
a bloody issue as soon as we ascertain that peaceable remedies shall
fail." It also recommended the formation of volunteer companies and
the procurement of arms. The progressive and radical spirit of the
convention is illustrated in its endorsement of the free-State
movement, against the report of its own committee.
[Sidenote: Howard Report, pp. 48-58.]
The strongest point, however, made by the convention was a
determination, strictly adhered to for more than two years, to take no
part in any election under the bogus territorial laws. As a result
Whitfield received, without competition, the combined pro-slavery and
Border Ruffian vote for delegate on the first of October, a total of
2721 ballots. Measures had meanwhile been perfected by the free-State
men to elect delegates to a constitutional convention. On the 9th of
October, at a separate election, held by the free-State party alone,
under self-prescribed formalities and regulations, these were duly
chosen by an aggregate vote of 2710, ex-Governor Reeder receiving at
the same polls 2849 votes for delegate.
[Sidenote: "Globe," March 24, 1856, p. 698.]
By this series of political movements, carried out in quiet and
orderly proceedings, the free-State party was not only fully
constituted and organized, but was demonstrated to possess a decided
majority in the Territory. Still following out the policy agreed upon,
the delegates chosen met at Topeka on the 23d of October, and with
proper deliberation and decorum framed a State constitution, which was
in turn submitted to a vote of the people. Although this election was
held near midwinter (Dec. 15, 1855), and in the midst of serious
disturbances of the peace arising from other causes, it received an
affirmative vote of 1731, showing a hearty popular endorsement of it.
Of the document itself no extended criticism is necessary. It
prohibited slavery, but made reasonable provision for existing
property-rights in slaves actually in the Territory. In no sense a
radical, subversive, or "abolition" production, the Topeka
Constitution was remarkable only as being the indignant protest of the
people of the Territory against the Missouri usurpation. [Footnote:
Still another election was January 15, 1856, to choose held by the
free-State party on State officers to act under the new organization,
at which Charles Robinson received 1296 votes for governor, out of a
total of 1706, and Mark W. Delahay for Representative in Congress,
1828. A legislature elected at the same time, met, according to the
terms of the newly framed constitution, on the 4th of March,
organized, and elected Andrew H. Reeder and James H. Lane United
States Senators.] The new constitution was transmitted to Congress and
was formally presented as a petition to the Senate by General Cass, on
March 24, 1856, [Transcriber's Note: Lengthy footnote (1) relocated to
chapter end.] and to the House some days later.
[Sidenote: February 22, 1856.]
The Republican Senators in Congress (the Republican party had been
definitely organized a few weeks before at Pittsburg) now urged the
immediate reception of the Topeka Constitution and the admission of
Kansas as a free State, citing the cases of Michigan, Arkansas,
Florida, and California as justifying precedents. [Footnote: They
based their appeal more especially upon the opinion of the Attorney-
General in the case of Arkansas, that citizens of Territories possess
the constitutional right to assemble and petition Congress for the
redress of grievances; that the form of the petition is immaterial;
and that, "as the power of Congress over the whole subject is plenary,
they may accept any constitution, however framed, which in their
judgment meets the sense of the people to be affected by it."] For the
present, however, there was no hope of admission to the Union with the
Topeka Constitution. The Pierce Administration, under the domination
of the Southern States, had deposed Governor Reeder. Both in his
annual message and again in a special message, the President denounced
the Topeka movement as insurrectionary.
[Sidenote: Senate Report No. 34, 1st Session, 34th Congress, p. 32.]
In the Senate, too, the application was already prejudged; the
Committee on Territories through Douglas himself as chairman, in a
long partisan report, dismissed it with the assertion "that it was the
movement of a political party instead of the whole body of the people
of Kansas, conducted without the sanction of law, and in defiance of
the constituted authorities, for the avowed purpose of overthrowing
the territorial government established by Congress." In the mouth of a
consistent advocate of "Popular Sovereignty," this argument might have
had some force; but it came with a bad grace from Douglas, who in the
same report indorsed the bogus Legislature and sustained the bogus
laws upon purely technical assumptions. Congress was irreconcilably
divided in politics. The Democrats had an overwhelming majority in the
Senate; the opposition, through the election of Speaker Banks,
possessed a working control of the House. Some months later, after
prolonged debate, the House passed a bill for the admission of Kansas
under the Topeka Constitution; but as the Senate had already rejected
it, the movement remained without practical result. [Transcriber's
Note: Lengthy footnote (2) relocated to chapter end.]
The staple argument against the Topeka free-State movement, that it
was a rebellion against constitutional authority, though perhaps
correct as a mere theory was utterly refuted by the practical facts of
the case. The Big Springs resolutions, indeed, counseled resistance to
a "bloody issue"; but this was only to be made after "peaceable
remedies shall fail." The free-State leaders deserve credit for
pursuing their peaceable remedies and forbearing to exercise their
asserted right to resistance with a patience unexampled in American
annals. The bogus territorial laws were defied by the newspapers and
treated as a dead letter by the mass of the free-State men; as much as
possible they stood aloof from the civil officers appointed by and
through the bogus Legislature, recorded no title papers, began no
lawsuits, abstained from elections, and denied themselves privileges
which required any open recognition of the alien Missouri statutes.
Lane and others refused the test oath, and were excluded from practice
as attorneys in the courts; free-State newspapers were thrown out of
the mails as incendiary publications; sundry petty persecutions were
evaded or submitted to as special circumstances dictated. But
throughout their long and persistent non-conformity, for more than two
years, they constantly and cheerfully acknowledged the authority of
the organic act, and of the laws of Congress, and even counseled and
endured every forced submission to the bogus laws. Though they had
defiant and turbulent spirits in their own ranks, who often accused
them of imbecility and cowardice, they maintained a steady policy of
non-resistance, and, under every show of Federal authority in support
of the bogus laws, they submitted to obnoxious searches and seizures,
to capricious arrest and painful imprisonment, rather than by
resistance to place themselves in the attitude of deliberate outlaws.
[Footnote: See Governor Robinson's message to the free-State
Legislature, March 4, 1856. Mrs. S. T. L. Robinson, "Kansas," pp. 352,
364.]
[Illustration: James H. Lane.]
[Sidenote: February 11, 1856. "Statutes at Large," Vol. XI., p. 791.]
They were destined to have no lack of provocation. Since the removal
of Reeder, all the Federal officials of the Territory were affiliated
with the pro-slavery Missouri cabal. Both to secure the permanent
establishment of slavery in Kansas, and to gratify the personal pride
of their triumph, they were determined to make these recusant free-
State voters "bow down to the cap of Gessler." Despotism is never more
arrogant than in resenting all slights to its personal vanity. As a
first and necessary step, the cabal had procured, through its powerful
influence at Washington, a proclamation from the President commanding
"all persons engaged in unlawful combinations against the constituted
authority of the Territory of Kansas or of the United States to
disperse," etc. The language of the proclamation was sufficiently
comprehensive to include Border Ruffians and emigrant aid societies,
as well as the Topeka movement, and thus presented a show of
impartiality; but under dominant political influences the latter was
its evident and certain object.
With this proclamation as a sort of official fulcrum, Chief-Justice
Lecompte delivered at the May term of his court a most extraordinary
charge to the grand jury. He instructed them that the bogus
Legislature, being an instrument of Congress, and having passed laws,
"these laws are of United States authority and making." Persons
resisting these laws must be indicted for high treason. If no
resistance has been made, but combinations formed for the purpose of
resisting them, "then must you still find bills for constructive
treason, as the courts have decided that the blow need not be struck,
but only the intention be made evident." [Footnote: J. H. Gihon,
"Governor Geary's Administration," p. 77; also compare two copies of
the indictments, printed at full length in Phillips, "Conquest of
Kansas," pp. 351-4.] Indictments, writs, and the arrest of many
prominent free-State leaders followed as a matter of course. All these
proceedings, too, seemed to have been a part of the conspiracy. Before
the indictments were found, and in anticipation of the writs,
Robinson, the free-State Governor-elect, then on his way to the East,
was arrested while traveling on a Missouri River steamboat, at
Lexington in that State, detained, and finally sent back to Kansas
under the Governor's requisition. Upon this frivolous charge of
constructive treason he and others were held in military custody
nearly four months, and finally, at the end of that period, discharged
upon bail, the farce of longer imprisonment having become useless
through other events.
Apprehending fully that the Topeka movement was the only really
serious obstacle to their success, the pro-slavery cabal, watching its
opportunity, matured a still more formidable demonstration to suppress
and destroy it. The provisional free-State Legislature had, after
organizing on the 4th of March, adjourned, to reassemble on the 4th of
July, 1856, in order to await in the meantime the result of their
application to Congress. As the national holiday approached, it was
determined to call together a mass meeting at the same time and place,
to give both moral support and personal protection to the members.
Civil war, of which further mention will be made in the next chapter,
had now been raging for months, and had in its general results gone
against the free-State men. Their leaders were imprisoned or
scattered, their presses destroyed, their adherents dispirited with
defeat. Nevertheless, as the day of meeting approached, the remnant of
the provisional Legislature and some six to eight hundred citizens
gathered at Topeka, though without any definite purpose or pre-
arranged plan.
Governor Shannon, the second of the Kansas executives, had by this
time resigned his office, and Secretary Woodson was again acting
Governor. Here was a chance to put the free-State movement pointedly
under the ban of Federal authority which the cabal determined not to
neglect. Reciting the President's proclamation of February, Secretary
Woodson now issued his own proclamation forbidding all persons
claiming legislative power and authority as aforesaid from assembling,
organizing, or acting in any legislative capacity whatever. At the
hour of noon on the 4th of July several companies of United States
dragoons, which were brought into camp near town in anticipation of
the event, entered Topeka in military array, under command of Colonel
E. V. Sumner. A line of battle was formed in the street, cannon were
planted, and the machinery of war prepared for instant action. Colonel
Sumner, a most careful and conscientious officer and a free-State man
at heart, with due formality, with decision and firmness, but at the
same time openly expressing the painful nature of his duty, commanded
the provisional Legislature, then about to assemble, to disperse. The
members, not yet organized, immediately obeyed the order, having
neither the will nor the means to resist it. There was no tumult, no
violence, but little protest even in words; but the despotic purpose,
clothed in forms of law, made a none the less profound impression upon
the assembled citizens, and later, when the newspapers spread the
report of the act, upon the indignant public of the Northern States.
From this time onward, other events of paramount historical importance
supervene to crowd the Topeka Constitution out of view. In a feeble
way the organization still held together for a considerable length of
time. About a year later the provisional Legislature again went
through the forms of assembling, and although Governor Walker was
present in Topeka, there were no proclamations, no dragoons, no
cannon, because the cabal was for the moment defeated and disconcerted
and bent upon other and still more desperate schemes. The Topeka
Constitution was never received nor legalized; its officers never
became clothed with official authority; its scrip was never redeemed;
yet in the fate of Kansas and in the annals of the Union at large it
was a vital and pivotal transaction, without which the great conflict
between freedom and slavery, though perhaps neither avoided nor
delayed, might have assumed altogether different phases of
development.
[Relocated Footnote (1): Later, on April 7, General Cass presented to
the Senate another petition, purporting to be the Topeka Constitution,
which had been handed him by J. H. Lane, president of the convention
which framed it and Senator-elect under it ("Cong. Globe," 1856; April
7, p. 826). This paper proved to be a clerk's copy, with erasures and
interlineations and signatures in one handwriting, which being
questioned as probably spurious, Lane afterwards supplied the original
draft prepared by the committee and adopted by the convention, though
without signatures; also adding his explanatory affidavit ("Cong.
Globe," App. 1856, pp. 378-9), to the effect that, the committee had
devolved upon him the preparation of the formal copy, but that the
original signatures had been mislaid. The official action of the
Senate appears to have concerned itself exclusively with the copy
presented by General Cass on March 24. Lane's copies served only as
text for angry debate. As the Topeka Constitution had no legal origin
or quality, technical defeats were of little consequence, especially
in view of the action by the free-State voters of Kansas at their
voluntary elections for delegates on October 9, and to ratify it on
December 15, 1856.]
[Relocated Footnote (2): Nevertheless, the efforts of the free-State
party tinder this combination were not wholly barren. The contest
between Whitfield and Reeder for a seat in the House as territorial
delegate not only provoked searching discussion, but furnished the
occasion for sending an investigating committee to Kansas, attended by
the contestants in person. This committee with a fearless diligence
collected in the Territory, as well as from the border counties of
Missouri, a mass of sworn testimony amounting to some 1200 printed
pages, and which exposed the Border Ruffian invasions and the Missouri
usurpation in all their monstrous iniquity, and officially revealed to
the astounded North, for the first time and nearly two years after its
beginning, the full proportions of the conspiracy which held sway in
Kansas.]