Constitution Writing: The Zombie Lecompton Constitution; A Young Abolitionist Watches the Proslavers at Work

I’m stepping back from the constitution-writing convention in Wyandotte, Kansas Territory — the one that made Kansas a free state — to take a look at the Lecompton Constitution. That was the one that would have allowed human enslavement in Kansas.

The Lecompton Constitution wore a lot of unflattering tags during its difficult and unnaturally prolonged life: The Lecompton Swindle, the Bogus Baby, the Lecompton Humbug, the Felon Constitution. Begun in early 1857, it was voted up and voted down. It was sustained by conspiracy, micro-targeted voters, procedural twistiness, by extraordinary congressional measures and then crash-carted with a fake incentive for the acceptance of slavery.[1]

Here is what the Lecompton Constitution specified. “The right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever.”  That, the key clause of the Lecompton Constitution, ordained that people could own other people and those people’s children, same as they could own a horse or a saddle.

Its year-and-a-half trudge from Kansas Territory to Washington and back to Kansas Territory ended when voters (white males only) finally administered the guillotine to the Lecompton Constitution in August 1858.

One of the voters dispatching the constitution was Thomas Gay, a young Wisconsin slavery opponent who had moved himself down to Jefferson County, Kansas Territory, in 1856 to make Kansas a free state.

Because he has told his story so well, Thomas Gay (1837-1908) will fill you in on the Lecompton Constitution. Gay had an interesting perspective on the slavery constitution because he, a young and idealistic abolitionist, attended a bit of the constitution-writing convention as a guest. Gay was a guest of one of Jefferson County’s three slavery-supporting delegates (William H. Swift) at this convention, the climactic proslavery gala ball to make Kansas a slave state like its neighbor Missouri.

Swift smiled faintly when I told him I should think it would be easy enough for Missourians to make a constitution for Kansas, especially when it was not intended to consult the people of Kansas as to whether they approved it or not. Oh! He said, “What was good enough for Missouri was good enough for Kansas, and the Kansas constitution was to be the Missouri instrument made to fit the more modern idea of how things should be done.” – Thomas Gay

Lecompton Constitutional Convention stories like Thomas Gay’s are rare, as far as I can tell. His is all the more rare because Gay was a Jefferson County narrator, and the county’s recorded territorial narrative is skimpy. Gay wrote a dozen droll articles about his short time in Kansas Territory for the Chariton (Iowa) Herald newspaper in the 1890s.

Gay’s stories, published in the 1890s, don’t appear to have seen a lot of light. They turned up as cut-out newspaper columns from the Chariton Herald pasted onto paper and put in scrapbooks archived at the Kansas State Historical Society and the Lucas County, Iowa, Genealogical Society. About seven years ago I read part of column written by Thomas Gay in an old Jefferson County booklet. Gay offered a fantastically dramatic description of a political speech given at Osawkee from when he lived there, and it looked like he had written about other Kansas Territory experiences.

I set out to find his newspaper articles (Gay’s Iowa hometown was incorrect in the version I read, which slowed me down.) and was rewarded with copies of a dozen of his clipped and pasted Kansas Territory stories, thanks again to archivists in Iowa and Kansas.

A newspaper clip from the “Daily Free Democrat” of Milwaukee, Wisconsin, March 20, 1856, page 2. You may see the clip here. Image from newspapers.com.

The 18-year-old Thomas Gay, who worked for a gunsmith in Fond du Lac, Wisconsin, read sensational newspaper accounts about Missouri border ruffian proslavers and their outrages against Kansas freestaters (anti-slavery) in 1856. The newspapers he had access to probably didn’t apply much ink to report any misdeeds committed by freestaters and abolitionists. Free-state partisans held rallies and meetings across the north, often offering aid to those who would settle in Kansas, rich in agricultural – and cheap – land. Gay told his parents he wanted to go.

Gay’s first Kansas article said that he “…burned with a desire to leave my quiet home in Wisconsin and follow Jim Lane in what I believed to be his cyclonic march through the hordes of border-ruffianism.”[2]  Then, he determined, when he was old enough, he would cast a vote for freedom in Kansas.

A newspaper clip from the “Daily Free Democrat” of Milwaukee, Wisconsin, March 20, 1856, page 2. You may see the clip here. Image from newspapers.com.

Nothing was as divisive in Kansas Territory as just about anything related to elections related to making Kansas a slavery or free state. An agitated nation watched this defining crisis for its own future, too. Stories of Bleeding Kansas election strife, civil disobedience and violence headlined in northern and southern newspapers, particularly in 1856.

In May of that year, Gay landed in Kansas Territory armed with a double-barreled rifle he had crafted in Wisconsin. He attached an engraved brass plate to it that read: “Anti-slavery rifle. Always loaded for border ruffians. – T.G.”

Immediately upon Gay’s arrival at Osawkee (renamed Ozawkie), Jefferson County’s county seat and proslavery beehive, his new host spotted the inscription on Gay’s rifle. This man was a New Englander, a family friend with whom Gay would live the new few years. He insisted Gay remove the inflammatory plate from his rifle. The two freestaters needed to keep a low profile at Osawkee.

Gay did survive a scrape or two before freestaters increased their numbers enough in 1857 to begin steering Kansas off of its proslavery course. But somehow, Gay and his family’s New England friend managed to stay friendly with some of the Osawkee proslavery leaders.

One of them, William H. Swift — although he apparently was not actually an Osawkee or Jefferson County resident — was one of three Jefferson County proslavery delegates elected to write the Lecompton Constitution. As Gay tells it, Swift invited him to come along for an educational visit to Constitution Hall in Lecompton[3] to watch the constitution writing.

Gay tells the story in his April 10, 1894, Chariton (Iowa) Herald article, transcribed here. The memoir, Part 11 of his Kansas series, was published nearly 40 years after the convention, a length of time that will furrow historians’ brows. It does give one pause. Gay may have taken some of his material from letters he wrote home while he was in Kansas Territory, or maybe he kept a journal, and he probably consulted the history books for some of the more exacting political details and sequences. I have altered some punctuation and paragraph blocks to make his story easier to read, and have rearranged some of his material. Endnotes and copy in brackets are mine. Thomas Gay’s words are italicized.

Personal Recollections of Life in Territorial Kansas in Border Ruffian Days, By Thomas Gay

Part XI.  March 10, 1857, Robert J. Walker of Mississippi,[4] was appointed governor of Kansas. Before his appointment, which he only accepted at the earnest solicitation of President [James] Buchanan, he stipulated as a condition of his acceptance that the constitution then provided for, and which was passed in the fall of the same year should be submitted to the people for their endorsement or rejection.  President Buchanan is on record as having expressly promised his power for such submission, and with this promise, Walker accepted the undesirable position and arrived in Lecompton May 27, 1857.[5]

Early in 1857 I made the acquaintance of a man by the name of Swift. For some reason quite a strong friendship had grown up between us, although he was Simon pure pro-slavery, and I was equally untainted “visa-versa.”

He was elected one of the delegates from Jefferson County to the Lecompton constitutional convention, notwithstanding he was not a bona fide resident of the territory. The well-known fact that he had his residence in Missouri did not operate as a practical bar to shut him off from assisting to make a constitution for Kansas.

[Jefferson County sent three proslavery delegates to the convention: Alexander Bayne, a 46-year-old Virginian who lived in Jefferson County’s southern border slavery stronghold; Thomas D. Chiles, a  43-year-old Kentuckian living in the north part of the county, a proslavery-leaning district;[6] and William H. Swift, address unknown.[7]]

He was frequently in Osawkee looking after his fences, and as often as he came he would drop in on Abner[8] and I, and we would get an intellectual treat from him.

When his duties commenced at Lecompton, he would generally come up Saturday and stop with us and visit the Dyers[9] till Monday. One Saturday he proposed to me that I go down to Lecompton with him the following Monday and witness the process of constitution-making and study the characters of the builders.

So I went with him, with the understanding that he was to protect me and explain to the solons that I was on a voyage of discovery as to what kind of a document they would be likely to turn out with such a dreadful lot of raw material to build with.

Swift smiled faintly when I told him I should think it would be easy enough for Missourians to make a constitution for Kansas, especially when it was not intended to consult the people of Kansas as to whether they approved it or not. Oh! He said, “What was good enough for Missouri was good enough for Kansas, and the Kansas constitution was to be the Missouri instrument made to fit the more modern idea of how things should be done.”

Swift was honest enough to say to me “that Kansas must be made a slave state, and that the convention received its instructions from Washington as to the best methods of procedure to secure that result.”

The central idea of the delegates from Missouri was that with free Iowa on the north and free Illinois on the east and a free state to the west [Kansas], her peculiar institution would be subject to such adverse influences as to render slave property insecure, and as a consequence materially reduce the value of her slaves.

So this convention, entirely pro-slavery and largely interested in slave property in Missouri, backed up and advised by the pro-slavery administration [President Buchanan and the slavery strong U.S. Senate], built this instrument to perpetuate their financial and political interests.  What a majority of the residents of the territory desired had no influence in this body or in the White House.

[By the time the Lecompton  convention delegates were writing their slavery enabling constitution (Oct. 19 – Nov. 8, 1857), Kansas Territory had had another election for the new territorial legislature (Oct. 5, 1857). This time, freestaters won the majority of seats for the new  legislature and, importantly, showed that Kansas Territory’s majority was free-state and against slavery in Kansas. The Lecompton Constitution was still alive, however, and not ready to die.]

 John Calhoun,[10] afterwards known as “Candle Box John,” presided over their deliberations, and as they were mostly of one mind in regard to the central idea, there was not sufficient antagonism developed among the delegates to spice up the proceedings beyond a kind of monotonous perfunctory state.

Before the call to order, Swift introduced me to Calhoun and others, as a hot-blooded young abolitionist from Wisconsin – a protégé of his – who had come down to study the modus operandi of things in the capital; and he, with mock solemnity, suggested that it would be wise to behave themselves, as I had carried arms successfully at Hickory Point,[11] and also treat me respectfully.

With that, Tom Childs [Chiles], another delegate from our county, reached to his rear and pulled out a flask from his coat tail pocket, and a half dozen others followed suit, till I was in danger of being swamped by the excess of their well-meant hospitality.

Swift then told them that I was studying for the ministry and he had heard it reported that abolition preachers didn’t indulge in anything stronger than aqua pura.

Then Calhoun blurted out, “Bub, take a little for your stomach’s sake anyhow. See what a good round one Sam Kookagee[12] has, and he built it up on old rye and pure bourbon. Come, young man, it will make a bishop of you.

“And say, Swift, get your friend to act as chaplain, for I’m sure there is a lot of these unregenerate that need praying for.”

 So they joked and badgered the innocent boy till the gavel fell, when they went on lazily building, building the famous organic structure on a foundation of sand, destined to soon come tumbling down upon them, burying them fathoms deep in infamy and disgrace.

Let me here, as briefly as is possible for a proper understanding of the objections to the notorious instrument, recite the conditions under which it was formed, and the means used to fasten it on the territory.

  • First. The legislature providing for the convention to formulate the [Lecompton proslavery] constitution was a “bogus legislature,” [unfairly elected, earlier] to which three-fourths of the adult residents gave only a forced allegiance.
  • Second. The census by which the delegates were elected was taken in only fifteen counties. In nineteen counties strongly free state there was no census and could be no vote for delegates.

[Most of the Lecompton Constitution Convention delegates were from southern slave states. Of 59 delegates on the roster in this newspaper clip, 18 had reported coming to Kansas Territory from Missouri. William H. Swift was listed as having come to Kansas Territory from Alabama.]

  • Third. The registry of voters was exclusively in pro slavery hands.
  • Fourth. A constitution was formed exclusively by delegates from a proslavery constituency, the free state party abstaining from voting. [Explained below.]
  • Fifth. The convention only provided its submission in this form: “Constitution with slavery; or, constitution without slavery.”  In either event, slavery already existing, could not be interfered with.

[This was the worst of the Lecompton Constitution’s proslavery handling. Under popular sovereignty, Kansas Territory voters were supposed to vote on a complete constitution setting out not only the question of slavery, but all sorts of ruling principles like who gets to vote, how the militia will work, what kind of banking laws to enact. But instead, the Lecompton slavery leadership dismembered the document and offered a couple of slavery questions to voters. Both choices allowed slavery. There was no option through which voters could reject slavery there was no intact constitution document to vote on.]

What was called an election on these two propositions was held December 21, 1857, and resulted in 6226 votes for constitution with slavery, and 569 votes for constitution without slavery. [“Without slavery” somehow meant enslaved people already in Kansas, and their future children, would remain slaves.]

Of this larger vote, 3000 were rejected as fraudulent.

On the 2nd day of February, 1858, President Buchanan, false to all his solemn pledges to Governor Walker, sent this constitution to the Senate of the United States, with a message asking its acceptance.  He had also previous to this endorsed it in his annual message to Congress.

Stephen A. Douglas took issue with the president, on the ground that a failure to submit the constitution to the people of Kansas was in direct conflict with the doctrine of squatter sovereignty, the leading feature of the Kansas-Nebraska bill.[13]  The ruptures in the democratic party by this action of Douglas was not healed.  The breach constantly widened till a complete separation took place by which, in 1860, two candidates for president, representing the extreme and moderate view, in regard to slavery, went before the country, and by that action, Lincoln was elected to the presidency.

April 30, 1858, the “English compromise bill” was proposed by congress. By this bill the “Lecompton swindle” was sent back to the people for submission, with a promise that if they would accept it the government would be very liberal to them in the way of public lands, etc.[14]

On the 2nd day of August I cast my first vote, and it was one out of 11,300 “nays” recorded against the constitution, while the lonely number of 1,786 said “yea” to the proposition.[15]  That vote settled the slavery question in Kansas, and there was hallelujahs among the “Sunflowers.”

Thomas Gay is voter No. 37 on this poll list from his very first election. The voting was conducted at Judge Joseph L. Speer’s office in Osawkee, Jefferson County, Kansas Territory. Image from the Kansas State Historical Society’s archives, territorial executive records, Topeka. Copy and reuse restrictions apply.

[Reflecting on life’s journeys – from Wisconsin to Osawkee, or from Lecompton to Lincoln – Gay ended his account with this parting thought:]

When the conscience of a people is thoroughly awakened, how easily are the laborious and systematic efforts of villains brought to naught.

[A follow-up post will examine the tangled course of the Lecompton Constitution and the shifting political winds that brought it down.]


[1] I’ve relied heavily on several excellent articles, papers and books for my brief outline of the Lecompton Constitution’s history. I urge you to read some of them. One that summarizes state and national effects of the Lecompton Constitution may be found on Historic Lecompton’s website

An excellent history explaining the Lecompton Constitution’s profound effect on national questions of democracy, politics, constitutional rights and moral issues like slavery. “The Great Principle of Self-Government: Popular Sovereignty and Bleeding Kansas” by Nicole Etcheson. It ran in Kansas History: A Journal of the Central Plains 27 (Spring–Summer 2004): 14–29.

Another is a 1957 article by Robert W. Johannsen, “The Lecompton Constitutional Convention: An Analysis of Its Membership.”  The Kansas Historical Quarterly, Volume XXIII, Autumn 1957, No. 3: 225-243.

The Kansas State Historical Society’s Kansapedia entry on Kansas Constitutions explains fully the four constitutions pitched during Kansas Territory’s struggle to decide the slavery issue. The 1859 Wyandotte Constitution is the one that made Kansas a free state in 1861.

Kenneth M. Stampp, America in 1857: A Nation on the Brink (New York, Oxford University Press, 1990).

[2] Thomas Gay wrote 12 newspaper recollections about his years as a Kansas Territory freestater. They appeared in his hometown newspaper, the Chariton (Iowa) Herald in 1894. This quotation is from his first article, which appeared Feb. 8, 1894. Gay refers to free-state leader James H. Lane, a former U.S. congressman from Indiana and later a Kansas U.S. senator and Civil War general, who had been in northern states rallying and recruiting new free-state partisans for Kansas Territory.

[3] Constitution Hall is a Kansas State Historic Site and is listed as a National Historic Landmark. It is a museum of Kansas history. https://www.kshs.org/p/constitution-hall/19562

[4] Territorial governors were appointed by the president of the United States. Kansas Territory had already gone through three governors appointed by U.S. President Franklin Pierce starting in 1855 and before President James Buchanan appointed Robert J. Walker to the job in March 1857 and he arrived for work May 27, 1857; unpopular with proslavery partisans, Walker resigned Dec. 15, 1857. Walker drew proslavery ire for urging freestaters to participate in elections. Kansas Territory governors had a difficult position, and none of the six total territorial governors kept the job for long. Those six governors don’t include the nearly 20 “acting” territorial gubernatorial  appointments who filled in between other governors who were fired or resigned and fled Kansas Territory.

[5] What’s important about the agreement between Robert J. Walker and President Buchanan was that Kansas Territory voters were to vote on a constitution in a free and fair election and to send that constitution, backed by the vote of the people,  to Washington for approval by Congress and the president.

[6] Thomas D. Chiles came to Kansas Territory in 1856 and lived in Atchison and Leavenworth counties after he left Jefferson County in 1860. The Kansas State Census for 1859 shows one “colored person” living in his household in Jefferson County. A U.S. slave schedule (census) for 1850 for a Thomas D. Chiles in Estill County, Kentucky, lists a 14-year-old enslaved girl. In Kansas, he was a merchant and operated a hotel or boarding house.

[7] I have not found census data indicating William H. Swift lived in Kansas Territory. However, Swift does appear in voter polling lists for the Dec. 21, 1857 and Jan. 4, 1858 elections related to the Lecompton Constitution. Swift also served as an election official for those elections. The New York Tribune article offering details about each Lecompton Constitution delegate (linked in Thomas Gay’s narrative above) says Swift was from Pennsylvania and came to Kansas Territory from Alabama.

[8] Throughout his 12 memoirs, Thomas Gay refers to the man he lived with (the Wisconsin family friend) as “Abner Lowell.” Gay described him as a Massachusetts man connected to the fiercest free-state partisans but who had been injured in an earlier skirmish between the antislavery- and proslavery factions. I believe Gay assigned a pseudonym to this man, as I have been unable so far to find “Abner Lowell” on voter rolls, census rolls, territorial militia listings, other reminiscences or emigrant rosters.

[9] Brothers William and George Dyer ran a store in Osawkee (Ozawkie), were town leaders and were among Jefferson County’s slavery advocates.

[10] John Calhoun, surveyor general for Kansas and Nebraska territories and proslavery leader, was twice accused of tampering with election results. The second time involved the hiding of ballots in a box that had been used to ship candles. The box contained fraudulent voter returns from Johnson County, a long list of fake voter names, hundreds for the proslavery cause. Election officials had submitted the election tally numbers, but hidden the physical ballot returns themselves.

[11] Gay was in the Battle of Hickory Point Sept. 13-14, 1856, in Jefferson County, a skirmish between proslavery partisans and freestaters led by James H. Lane and J.A. Harvey. An abbreviated account of Hickory Point and related events may be found here: https://jeffersonjayhawkers.com/2016/10/10/north-of-the-kansas-river/

[12] Samuel J. Kookagey, a Leavenworth County delegate. Click on the link in the copy above in the sentence containing this endnote reference to find a compelling story of written by Antonio Rafael de la Cova: Samuel J. Kookogey in Bleeding Kansas: A “Fearless vindicator of the rights of the South.” It was published in Kansas History: A Journal of the Central Plains 35 (Autumn 2012): 146–63.

[13] The Kansas-Nebraska Act in 1854 handed the decision of whether to allow slavery in Kansas Territory (and Nebraska Territory) to voters. The principle was “popular sovereignty,” which was to allow voters to decide their own governance. Before the act, the 1820 Missouri Compromise had determined that new states south of the Mason-Dixon line would be slave states and those north of it free states. Kansas was north of the old dividing point. Stephen A. Douglas is considered the father of the Kansas-Nebraska Act and its principle of popular sovereignty.

[14] When territories became states, the federal government provided designated lands to be used for the public benefit, like land for schools or railroads. The English Bill offer made it appear Kansas would get more than the usual amount of free land. But as it turned out, the offer was for only the usual amount of land a state would get.

[15] Kansas State Historical Society information indicates slightly different returns — 11,812 to 1,926 – but still a decisive defeat.

Kansas Day

January 29, 1861

Forget for the moment Bleeding Kansas, fraudulent elections, Border Ruffians and murderous abolitionists. Kansas Territory, having fought off slavery from 1854 into 1859, was about to slip into the Union as the 34th state.

“HAIL! YE SOVEREIGNS!,” crowed The Oskaloosa Independent in its January 30, 1861, edition. “LATEST. – We learn from a private source that a telegraph was received in Leavenworth at three o’clock yesterday (Tuesday) announcing that Kansas is admitted into the Union as a sovereign State.”

Cause for joy, all right, but on that same page we have this: “Beyond all question, we are on the brink of a terrible chasm; it may be [our] destruction as a nation. No one can look the danger fairly in the face, and not feel a cold tremor run through the frame.  War! Bloody, relentless, fratricidal war stares us in the face!”

Not so celebratory, and here’s a refresher about why that was.

Kansas Territory voters finally sent a free-state constitution to Congress and the president on October 4, 1859. Kansans had wrangled through three other  proposed constitutions with opposing positions on slavery before settling on the Wyandotte Constitution, which barred slavery. Note that date.

In the spring of 1860, enough U.S. House of Representatives members stamped the legislation OK by them and sent Kansas statehood to the U.S. Senate.  Despite effort from northern senators, the legislation went nowhere. Southern slave states didn’t like slavery-free states and they had the votes to paralyze the legislation. The Kansas question was shoved down to a committee.  Congress adjourned.

Abraham Lincoln, the Republican, was elected president November 6, 1860. Within five days, South Carolina’s two senators dismissed themselves from the U.S. Senate, their state about to secede from the Union.

Mississippi’s two senators, then Alabama’s, then Florida’s all quit the Senate January 21, 1861,  their states having quit the Union.

With the southern senators’ departing footprints fresh on the ground, Kansas backers saw their chance and quickly brought up the Kansas bill, which finally passed the Senate. Having a pack of  “no” votes disappear with secession gave Kansas the passage numbers it needed.

The Kansas legislation make a quick flight back to the House to check a minor amendment, approved Jan. 28, 1861. The next day, the outgoing slavery-supporting president, James Buchanan, signed the bill.

Editor John Wesley Roberts and his associate John W. Day had it right in their Oskaloosa newspaper that day. Happy that Kansas was a state, they saw what the seceding southern states would bring in a Civil War. Still, Kansas had became a free state and that was cause for elation.

“The President has signed the bill, and we are now citizens of the United States,” read The Emporia News on February 2, 1861. “The joyful news was received here on Thursday afternoon, and soon was communicated to all within hearing by the booming of the ‘big gun.’ A national salute of thirty-four guns was fired – one for each State and a ‘tiger’ for Kansas.”

The Kansas National Democrat, the proslavery newspaper based in Kansas Territory’s slavery-backing HQ, Lecompton, agreed to be glad Kansas was a state in its February 7, 1861, edition. “No one can fail to notice that the admission of Kansas as a State is producing much interest among the people of the country. Our brethren of the Republican school – including editors of Kansas journals – are all at the height of glorification.”

And, finally, there was outrage from a Kansas supporter relieved at the new free state’s admission, The Evansville Daily Journal (Indiana) of February 1, 1861: “The states which endeavored to thrust a blighting institution on her, failing in their work, are now madly rushing to destruction on account of the same institution that they tried to force on her.” And, “We confidently believe that the day will come when the whole secession scheme with all of its attendant horrors will be stigmatized as the work of the maniacs of South Carolina.”

 

(Sources for this article include the U.S. Senate’s website at https://www.senate.gov/ and the Kansas State Historical Society’s Kansapedia article, Kansas Constitutions, at https://www.kshs.org/kansapedia/kansas-constitutions/16532 )