Geary and Kansas by John H. Gihon, M.D.



Passage of the census bill.--Governor Geary's veto message.--The manner in which the census was taken.--Repeal of the test laws.--Adjournment of the Legislature.--Secretary Marcy and the Topeka Legislature.--Letter to the Secretary of State.--Arrest of a fugitive.--Rencontre at Topeka.--Complaint of prisoners.--Breaking up of the Kansas River.

    THE crowning act of the legislature was the passage, near the close of its session, of what is called the "Census Bill." This was the most infamous scheme to rob thousands of free-men of their right of the elective franchise, that has ever been devised in this or any other country. The bill was created with much care and cunning, by certain prominent United States senators at Washington, and sent to Lecompton, with orders for its adoption without alteration or amendment.

    It provides for the taking of a census, preparatory to an election to be held in June, 1857, for delegates to a convention to frame a state constitution, to be presented to the next Congress for its approval. At the election no citizen is allowed to vote, who was not in the territory on or before the 15th of March. The census takers and judges of election are the sheriffs and other officers appointed by the pro-slavery party, and bound to its interests.

    Agreeably to this regulation, the hundreds of free-state men who had been forcibly driven from their claims and homes during the past year's disturbances, and who, in consequence of the difficulty of travel, could not return until after the 15th of March, were disfranchised, as were also the thousands of emigrants that were expected to arrive after that period, and prior to the day fixed for the election. Whilst on the other hand, thousands of Missourians could simply cross the border into the territory, register their names as voters, and return to their homes to await the election. But even that trouble was at length considered unnecessary, for the sheriffs and census takers found it more convenient to carry their books into Missouri and there record their names. Although this was really done, the names of many of the most prominent and oldest free-state residents of the territory were never registered. Under the regulations of this bill the free-state people wisely concluded to take no part whatever in the election; for it was a matter of certainty that there was no possibility of justice being done them, and their participation in the fraud in any way would only be to give it their sanction. Had they resolved to vote, and showed a majority of three to one, the judges would have had no difficulty in returning them in the minority. The past history of the officials was a sufficient guarantee of what might be expected from their future conduct. To pretend that such men as Sheriff Jones would do anything like justice to the free-state residents, is simply an insult to the common sense of all who understand the history of the country. But even the possibility of the free-state people coming forward to vote, was guarded against by the insertion of a clause in the bill, intended for their intimidation, that the voting should be viva voce. Another feature of the bill is, that although it was framed expressly to defraud the free-state citizens of their rights, it requires them to pay a tax to assist in the accomplishment of the fraud.

    Upon ascertaining the nature of this act, Governor Geary, before its passage, sent for the chairmen of the committees of the two branches of the Legislature, General Coffey of the Council and Colonel Anderson of the House, and informed them that if they would consent to add a clause referring the constitution that might be formed by the convention to the citizens of the territory, for their sanction or rejection, before its being submitted to Congress, he would waive all other objections, and give it his approval. The reply was, that that suggestion had already been fully considered and discussed, and could not be adopted, as it would defeat the only object of the act, which was to secure, beyond any possibility of failure, the territory of Kansas to the south as a slave state. Any alteration in the bill would be fatal to their projects. Even should they allow the spring immigration to take part in the election, their plans would be frustrated. This, they said, was their last hope, and they could not let the opportunity pass unimproved. They had already, in anticipation of the passage of the bill, so apportioned the territory, and made such other preliminary arrangements, that the success of this grand project was placed beyond the reach of any contingency that might now occur.

    The bill was passed by both houses and sent to the governor for his signature, who returned it with the following objections:--

"Gentlemen of the Council of Kansas Territory:
    "After mature consideration of the bill entitled 'An Act to provide for the taking of a census, and election for delegates to convention,' I am constrained to return the same without my approval.

    "Passing over other objections, I desire to call your serious attention to a material omission in the bill.

    "I refer to the fact that the Legislature has failed to make any provision to submit the constitution, when framed, to the consideration of the people, for their ratification or rejection.

    "The position that a convention can do no wrong, and ought to be invested with sovereign power, and that its constituents have no right to judge of its acts, is extraordinary and untenable .

    "The history of state constitutions, with scarcely an exception, will exhibit a uniform and sacred adherence to the salutary rule of popular ratification.

    "The practice of the federal and state governments, in the adoption of their respective constitutions, exhibiting the wisdom of the past, will furnish us with a safe and reliable rule of action.

    "The federal constitution was first proposed by a convention of delegates from twelve states, assembled in Philadelphia. This constitution derived no authority from the first convention. It was submitted to the various states, fully discussed in all its features, and concurred in by the people of the states in conventions assembled; and that concurrence armed it with power and invested it with dignity. Article seventh of the constitution makes the ratification of nine states, three-fourths of the number represented in the convention, essential to its adoption.

    "In the adoption, not only of the federal constitution, but of nearly all the state constitutions, the popular ratification was made essential; and all amendments to those of most of the states are required to pass two legislatures, and then be submitted to the people for their approval.

    "In Kentucky, especially, all amendments to the constitution must pass two legislatures, and for two years be submitted to the vote of the people, upon the question of convention or no convention, on the specific amendments proposed.

    "Treaties made by ambassadors are not binding until duly ratified by their respective governments, whose agents they are.

    "Members of the legislature or of conventions are but the agents of the people, who have an inherent right to judge of the acts of their agents, and to condemn or approve them, as in their deliberate judgment they may deem proper.

    "The fundamental law of a commonwealth so inseparably connected with the happiness and prosperity of the citizens, cannot be too well discussed, and cannot pass through too many ordeals of popular scrutiny.

    "What delegates to conventions may do or what omit, cannot be known until they have assembled and developed their action. If the whole power be vested in them without recourse over to the people, there is no guarantee that the popular wishes will be fairly and fully expressed.

    "Although the people may have voted for a convention to form a state constitution, yet they have by no just rule of construction voted away the usual and universal right of ratification.

    "Special instructions, covering every point arising in the formation of a constitution, cannot be given in the elections preliminary to a convention; and it is, therefore, proper that the action of the convention, necessarily covering new ground, should be submitted to the people for their consideration.

    "The practical right of the people to ordain and establish governments is found in the expressive and beautiful preamble to the federal constitution--'We the people,' &c., 'do ordain and establish this constitution.'

    "Let the constitution of Kansas be ratified and established by the solemn vote of the people, surrounded by such safeguards as will insure a fair and unbiassed expression of the actual bona fide citizens, and it will remain inviolably fixed in the affections of the people.

    "In his report upon the Toombs bill, its distinguished author thus logically enumerates the various steps in the formation of a constitution: 'the preliminary meetings; the calling of the convention; the appointment of delegates; the assembling of the convention; the formation of the constitution; the voting on its ratification; the election of officers under it.'

    "In the same report, the author most justly remarks:-- 'Whenever a constitution shall be formed in any territory, preparatory to its admission into the Union as a state, justice, the genius of our institutions, the whole theory of our republican system, imperatively demand that the voice of the people shall be fairly expressed, and their will embodied in that fundamental law, without fraud or violence, or intimidation, or any other improper or unlawful influence, and subject to no other restrictions than those imposed by the Constitution of the United States.'

    "The voice of the people fairly expressed, and its embodiment in the fundamental law, should be the earnest desire of every citizen of a republic.

    "But how can the voice of the people be fairly expressed, and their will be embodied in the organic law, unless that law, when made, be submitted to them to determine whether it is their will which the convention has proclaimed?

    "The leading idea and fundamental principle of our organic act, as expressed in the law itself, was to leave the actual bona fide inhabitants of the territory 'perfectly free to form and regulate their domestic institutions in their own way.' The act confers almost unlimited power upon the people, and the only restriction imposed upon its exercise is the Constitution of the United States.

    "The great principle, then, upon which our free institutions rest, is the unqualified and absolute sovereignty of the people; and constituting, as that principle does, the most positive and essential feature in the great charter of our liberties, so it is better calculated than any other to give elevation to our hopes and dignity to our actions. So long as the people feel that the power to alter the form or change the character of the government abides in them, so long will they be impressed with that sense of security and of dignity which must ever spring from the consciousness that they hold within their own hands a remedy for every political evil--a corrective for every governmental abuse and usurpation.

    "'This principle must be upheld and maintained, at all hazards and at every sacrifice--maintained in all the power and fulness--in all the breadth and depth of its utmost capacity and signification. It is not sufficient that it be acknowledged as a mere abstraction, or theory, or doctrine; but as a practical, substantial, living reality, vital in every part.'

    "The idea of surrendering the sovereignty of the territories, the common property of the people of the several states, into the hands of the few who first chanced to wander into them, is, to me, a political novelty. Is it just that the territories should exercise the rights of sovereign states until their condition and numbers become such as to entitle them to be admitted into the union on an equality with the original states?

    "In speaking of the proper construction of the Organic Act, its distinguished author remarks:--'The act recognises the rights of the people thereof, while a territory, to form and regulate their own domestic institutions in their own way, subject only to the Constitution of the United States, and to be received into the union, as soon as they should attain the requisite number of inhabitants, on an equal footing with the original states in all respects whatever.'

    "In the report before alluded to, the author says:--'The point upon which your committee have entertained the most serious and grave doubts in regard to the propriety of endorsing this proposition, relates to the fact that, in the absence of any census of the inhabitants, there is reason to apprehend that the territory does not contain sufficient population to entitle them to demand admission under the treaty with France, if we take the ratio of representation for a member of Congress as the rule.'

    "In accordance with the foregoing views, I remarked in my first message to your body, that 'the durability and imperative authority of a state constitution, when the interests of the people require a state government, and a direct popular vote is necessary to give it sanction and effect, will be the proper occasion, once for all, to decide the grave political questions which underlie a well regulated commonwealth.' And in another portion of the same message, I said:--'Justice to the country and the dictates of sound policy, require that the legislature should confine itself to such subjects as will preserve the basis of entire equality; and when a sufficient population is here, and they choose to adopt a state government, that they shall be "perfectly free," without let or hindrance, to form all their domestic institutions in their own way, and to dictate that form of government, which, in their deliberate judgment, may be deemed proper.'

    "The expressions, 'requisite number of inhabitants,' 'sufficient population,' --and others, of similar import, can have no other meaning than that given them by our leading statesmen, and by the common judgment of the country, to wit:-- 'the ratio of representation for a member of Congress.'

    "The present ratio for a member of Congress, is 93,420 inhabitants. What, then, is the present population of Kansas; or what will it be on the 15th of March next? as after that time, no person arriving in the territory can vote for a member of the convention under the provisions of this bill.

    "At the last October election, the whole vote polled for delegate to Congress, was four thousand two hundred and seventy-six; (4276;) while the vote in favor of a convention to frame a state constitution, was but two thousand six hundred and seventy. (2670.)

    "It is a well known fact, to every person at all conversant with the circumstances attending the last election, that the question of a state government entered but little into the canvas, and the small vote polled for a convention is significantly indicative of the popular indifference on the subject.

    "No one will claim that 2670 is a majority of the voters of this territory, though it is a majority of those voting, and it is conceded that those not voting are bound by the act of those who did.

    "The bill under consideration seems to be drawn from the bill known as the Toombs Bill; but in several respects it differs from that bill, and in these particulars it does not furnish equal guarantees for fairness and impartiality. The former secured the appointment of five impartial commissioners to take and correct the census, to make a partial apportionment among the several counties, and generally to superintend all the preliminaries so as to secure a fair election, while by the present bill all these important duties are to be performed by probate judges and sheriffs, elected by and owing allegiance to a party. It differs in other important particulars. The bill of Mr. Toombs conferred valuable rights and privileges upon this territory, and provided means to pay the expenses of the convention; while this bill does neither.

    "If we are disposed to avail ourselves of the wisdom of the past, we will pause some time before we throw off our territorial condition, under present circumstances, by the adoption of a state government.

    "The state of Michigan remained a territory for five years after she had the requisite population, and so with other states; and when they were admitted, they were strong enough in all the elements of material wealth to be self-supporting. And hence they knocked at the door of the union with that manly confidence which spoke of equality and self-reliance.

    "California was admitted under peculiar and extraordinary circumstances. Her rich mines of the precious metals attracted a teeming population to her shores, and her isolated position from the parent government, with her superabundant wealth, at once suggested the experiment of self-government; and at the time of her state constitution, ratified by the vote of the people, the population of California entitled her to two representatives in Congress.

    "I observe by the message of the governor of Minnesota, that the population of that thriving territory exceeds 180,000. The taxable property amounts to between thirty and thirty-five millions of dollars. And in view of these facts, and of the large increase of agricultural products, cash capital, etc., the governor favors a change from a territorial to a state government. To this end he suggests that a convention be called to form a constitution; that an act be passed for the taking of a census in April, and for such other preliminary steps as are necessary; and that if the constitution be 'ratified by the people' at the next October election, it shall be presented to Congress in December following.

    "These facts furnish an additional argument why the constitution should be submitted to the people, as the majority, preferring a territorial government, and thinking a state government premature, may desire to avail themselves of that opportunity to vote against any state constitution whatever.

    "Burthened with heavy liabilities; without titles to our lands; our public buildings unfinished; our jail and courthouses not erected; without money even to pay the expenses of a convention; and just emerging from the disastrous effects of a bitter civil feud; it seems unwise for a few thousand people, scarcely sufficient to make a good county, to discard the protecting and fostering care of a government, ready to assist us with her treasures and to protect us with her armies.

                      "JNO W. GEARY,
                    "Governor of Kansas Territory.
"Lecompton, K. T., February 19, 1857."

    Notwithstanding these objections, the bill was adopted, without discussion, by an almost unanimous vote of both branches of the Assembly. The pro-slavery party were in raptures. They did not pretend to conceal their exultation. They freely boasted that they had now the advantage of their political adversaries, and that the question of slavery in Kansas was no longer a matter of uncertainty. So positive were they that the whole affair was entirely at their own disposal, and that the territory would soon become a slave state, that they went to work to select officers for its management, ridiculing any expression of doubt in regard to their success.

    The new secretary of the territory, Mr. Stanton, and also Governor Walker, have endeavored to convince the free-state people that it is the intention of the pro-slavery convention to submit the constitution they may frame, to the people of the territory for their ratification, previous to its being presented to Congress. If these gentlemen are sincere in the expression of this opinion, they have been most successfully blindfolded by the persons from whom they received their ideas of Kansas affairs before entering upon the duties of their mission. The very reverse of this was the avowed intention of the pro-slavery leaders. That the people should have no voice in the matter, was the object of their chief concern. Hence, none should vote save those who were registered as being in the territory prior to the 15th of March; and hence the early election in June, and the putting off the meeting of the convention until September, that no time would be allowed to pass between the termination of their labors and the organization of Congress. The principal operators in this scheme did not hesitate to aver that their only hope was in getting the constitution through Congress despite the wishes of the majority of the inhabitants, which would not be the case should it be submitted to the popular vote.

    The fairness of their intentions may be learned from the manner in which the census has been taken, the apportionments made, and the character of the parties who are nominated as delegates to the convention. Such names as Henderson, Calhoun, Boling, Jones, &c., should certainly encourage the free-state settlers to hope that justice will be done them. The taking of the census was a mere farce and a gross imposition. No returns were made of some of the largest towns in the territory, and even whole counties were neglected. To have carried out the letter of the law in this regard, would have been a useless trouble and expense, as the whole matter was settled when the law was passed. A writer, who dates from Lecompton, May 25, 1857, says:--

    "A proclamation has been issued for the delegate election, by Mr. Stanton, as acting governor. An apportionment of representation has been made by him. Out of thirty-six counties, as organized by the authorities, only twenty-one have even a nominal representation. The census has only been taken in ten of these, and in only some portions of these ten. In six of these twenty-one counties thus reported, no census was taken, but a list of voters was taken from their old poll-books; this having been done after the time for taking the census had expired. The other five are counties forming parts of districts which are mentioned because they are connected with others; but in these no census was taken, and no former vote or representation on account of former vote, has been allowed. By this proclamation three-fifths of the settled counties of the territory are allowed no representation. In these there are at least two-fifths of the people in the whole territory, and including the emigration of this spring, one-half.

    "There are twenty counties to the south of the Kansas river, lying in a great solid mass, and filled with free-state towns and settlements, teeming with active life and industry; in one-half of them the great majority of claims are taken, and all are about as well settled as the majority of counties in most of the western states, and the whole of these are left without a particle of representation by this proclamation!"

    One part of the plan, as explained to Governor Geary, is to adopt a constitution in which no reference whatever shall be made to the subject of slavery; and this fact has been announced in the administration organs as an evidence of the conciliatory disposition of the pro-slavery party of Kansas. But the pretended merit of this scheme will disappear as soon as it is understood that slavery already exists in the territory, by statute, and even though no mention may be made of it in the constitution, it will still remain an established institution of the new state.

    The pro-slavery papers of the country have also claimed for the late Legislative Assembly much credit for having repealed the odious and oppressive test and election laws created at the preceding session. But in this matter a reprehensible deception has been practiced. In repealing certain sections of these enactments, the legislature took especial care to permit others to remain upon the statute books, which contain all their most obnoxious features; so that, in fact, no improvement has been made. These acts, which "are disgraceful to the age," are claimed, as has already been said, to be the production of a member from Missouri, who, in explanation of their existence, has since said: "Well, I wrote them one night when I was drunk, and presented them more for fun than anything else; but they were unanimously adopted, all the members being as drunk as myself; though none of us intended that they should ever be enforced." The plea of insanity, well sustained, is all-sufficient in a court of law; that of drunkenness does not excuse the conduct of an offender.

    The Legislative Assembly adjourned at midnight, on the 21st of February, when the members of both houses, with all the clerks, door-keepers, and other attachés, called upon the governor, in a body, to pay their respects, previous to their departure for their several homes. This was a sort of salvo for the wholesale abuse of which he had been for six weeks the constant subject.

    Jan. 23d.--A letter was received from Secretary Marcy, in which he expresses great concern about the meeting of the Topeka Legislature, already noticed. He says:--

    "I learn, with regret, that a body of men calling themselves a Legislature, are about to assemble at Topeka. The President's views in relation to the origin and purpose of such an assemblage, assuming the name and function of a legislative body, are fully set forth in his message to Congress of the 24th day of January, 1856, a copy of which accompanied your instructions. The title used is, in itself, an unwarrantable assumption. There can be but one legal legislative assembly in Kansas, and that, the one organized under the law of Congress. The assembling of the body referred to under the name and in the character of a legislature, is a procedure which ought to receive no countenance, whatever may be the assurances of any individuals as to the acts which it will or will not do."

     26th.--A dispatch from the governor to the Secretary of State, of this date, contains the following paragraph:--

    "The peace of the country remains unimpaired, and I have daily the most gratifying evidence of the general feeling of security which pervades all classes of the community. Notwithstanding, there are some amongst us who cannot exist much longer without commotion. I am closely watching their movements, and am determined to maintain peace at every hazard."

    In the same communication the necessity of additional land offices is urged, and also the disposal at an early day of the residue of the Delaware Trust Lands.

     28th.-A requisition, through the hands of Charles P. Arnold, was received by Governor Geary from Governor Wise of Virginia, for the arrest of a fugitive from that state named J. L. McCubbin, charged with the larceny of nine hundred dollars. Governor Geary immediately dispatched a force of dragoons in company with Mr. Arnold and a deputy marshal, in pursuit of McCubbin, who was arrested, and sent back to Virginia.

     31st.--A communication having appeared in the Topeka Tribune, written by its special correspondent, and reflecting somewhat severely upon Judge Elmore, the latter met Mr. Kagi, the author, in front of the Court House, in Tecumseh, and attempted to chastise him by striking him across the head with a cane. Kagi drew a pistol and inflicted a severe flesh wound in the thigh of Elmore, when the latter fired several shots at Kagi, who had started to run, one of which slightly wounded him in the side. Neither of them was seriously injured. An attempt to create an excitement on this occasion proved a failure.

    March 3d.--The prisoners at Tecumseh petitioned Governor Geary to do something toward the amelioration of their condition. They represented that for four days the only article of subsistence they had was coffee. The person who had contracted to furnish provisions, had stopped the rations because of the marshal having neglected to pay his bills.

     6th.--The ice in the Kansas river, which had been frozen over for a long while, broke up in consequence of a freshet produced by heavy rains which had continued several days. All communication between the north and south sides of the river was, for the time being, consequently suspended.


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