Kansas Territorial History VI: Dueling Laws or Constitutions in 1855

By Fall 1855 the situation in the Kansas Territory was already deteriorating rapidly, even though most people were trying to "contain" the disagreements under the color of law. As we have seen, the Territorial Legislature met from July 2-6 in Pawnee before it removed itself to the Shawnee Manual Labor School, also known as Shawnee Mission, in the vicinity of what is now Kansas City. There, over the veto of Gov. Andrew Reeder, the Legislature met from July 16-August 30. As we also saw, while at Pawnee they first stripped the free-staters elected in the "make-up" election of May 22, 1855 (the original election was Mar. 30) because the Credentials Committe of the Legislature concluded that Gov. Reeder didn't have the statutory authority to nullify results of an election or call for replacement elections.

While at Shawnee, the pro-slavery Legislature, now fully shorn of free-staters, adopted a 1200+ page statute book, modeled on the laws of Missouri (which were modeled on New York), except that the Legislature also enacted a series of what was known as "Black Laws," dealing especially with penalties to be meted out to people who aided, abetted or even spoke against the slave interests. Here are a few examples of the most severe kind:

"SECTION 1. If any person shall entice, decoy or carry away out of this Territory any slave belonging to another, with intent to deprive the owner thereof of the services of such slave, or with intent to effect or procure the freedom of such slave, he shall be adjudged guilty of grand larceny, and on conviction thereof shall suffer death.

SEC. 2. If any person shall aid or assist in enticing, decoying or persuading or carrying out of any State or Territory, any slave belonging to another, with intent to effect or procure the freedom of such slave, he shall be adjudged guilty of grand larceny, and, on conviction there, suffer death.

SEC. 3. If any person shall entice, decoy, or carry away, out of any State or Territory of the United States, any slave belonging to another, with intent to procure or effect the freedom of such slave, or to deprive the owner thereof of the services of such slave, and shall bring such slave into this territory, he shall be adjudged guilty of grand larceny, in the same manner as if such slave had been enticed, decoyed, or carried away out of this territory; and in such case the larceny may be charged to have been committed in any county of this Territory, into or through which such slave shall have been brought by such person and, on conviction thereof, the person offending shall suffer death."

Then there was also the the law regulating elections. We saw that the NE-KS Act really could be interpreted by Missourians in a way that justified their entrance into KS in March 1855 to vote for pro-slavery men. So, the 1855 Legislature passed a law which read in part:

"Every free white male citizen of the United States, and every free male Indian who is made a citizen by treaty or otherwise, and over the age of twenty-one years, who shall be an inhabitant of this Territory, and of the county or district in which he offers to vote, and shall have paid a Territorial tax, shall be a qualified elector for all elective offices.."

Note the broad but, at the same time, narrow language for voting qualifications. All you need to be is an "inhabitant of this Territory" and the district and pay a poll tax. The former provision would allow Missouri people to vote in KS elections, as long as they declared they were "inhabitants," and the latter provision would discriminate against the free-staters, most of whom lived in penurious circumstances at the time.

By the time these laws were passed, in late August, Gov. Reeder had been dismissed by President Franklin Pierce and the new Governor, Shannon, had not yet arrived. Thus, they were signed by Acting Gov. Woodson, a pro-slavery man.

These laws, by the way, were never enforced, but the show of force embodied in them actually provoked such a huge reaction among free-staters that the pro-slavery forces were eventually buried with hordes of free-staters. That is, the work of the pro-slavery Legislature of 1855 ignored the basic rule of politics and life: never overplay your hand; never try to assume yourself more powerful than you are; husband rather than expend your strength; seek to fly under the radar with your efforts than make a big splash--a splash that may end up drowning you. But it takes maturity to know how to act moderately, especially in a highly-charged environment.

Free-Staters Respond

As we have also seen, the free-staters didn't take their legislative expulsion lightly. Even Gov. Reeder got into the act by becoming the free-state candidate for Congress in the 1855 Congressional election (recall; he was replaced on August 16, 1855; he lost to the incumbent Whitfield). But groups of free-staters met, first in Lawrence and Big Springs in the summer and then in Topeka, where they drew up a free-state Constitution for Kansas. Though they had no legislative mandate to do this, they wrapped themselves in legal forms. They picked up on Gov. Reeder's theory behind his veto of the Legislative move to Shawnee--that this act, being illegal, made the Legislature in Shawnee an illegal body, which only then passed "bogus" laws. Thus, the free-staters went through the formalities of drafting of a constitution (Oct.-Nov. 1855), approval of the Constitution (of course, only "free-staters" voted) in Dec. 1855, legislative elections in Winter 1856 and even a free-state Legislature beginning in March 1856. We, thus, have shadow or mirror processes going on, with the free-staters actually having a jump on the pro-slavery men in terms of constitution-drafting.

Though much about the Topeka Constitution could be mentioned, I only have space to mention one thing: the article (Article II) on the "Elective Franchise." Contrast this with the laws of the pro-slavery 1855 Legislature:

"Every white male person, and every civilized male Indian who has adopted the habits of the white man, of the age of twenty-one years and upward, who shall be a citizen of the United States; who shall have resided and had his habitation, domicile, home and place of permanent abode in the State of Kansas for six months next preceding the election at which he offers his vote; who, at such time, and for thirty days immediately preceding such time, shall have had his actual habitation, domicile, home, and place of abode in the county in which he offers to vote; and who shall have resided in the precinct or election district for at least ten days immediately preceding the election, shall be deemed a qualified elector at all elections under this Constitution..."

Can't you tell that the free-staters are now doing everything in their power to limit the franchise to actual residents, that is, to people who have long resided in the Territory?

Conclusion

Well, these dueling laws might have been of some effect if the people were inclined to act peacably towards each other. But, since the Territory was such a tinder box, all it took was a "spark to get a fire going," as the popular Christian chorus says. And, such a spark happened in Nov. 1855...described in the next essay.

3071