and the second part, were too inherently virtuous to commit the alleged offense.20 Charles H. Brown, of Douglas county, who of all the company of wranglers was perhaps second only to Morton in resourcefulness and certainly excelled him in bold and fearless attack, was quite naturally next to Morton as the target of counter attack. Those who respectively advocated and opposed statehood in 1860 simply and nimbly changed sides in 1864; but those who changed to the affirmative had a relatively better excuse than their opponents for the exchange, because in the meantime the territory had become fitter, or less unfit, for statehood, in point of population and ability to maintain a government, than it had been in 1860. Frank philosophers from Gil Blas to Galsworthy have laughed at the conceit or pretension of consistent devotion to principles. "How much better principles are in theory than in practice," says the far-seeing Felix--in The Freelands--and an able eulogy of the life of the late Bishop Potter attributes its success largely to his capacity for carrying his principles in a kit. The Omaha Weekly Herald (February 9, 1866) denounced Crounse for "getting behind his privilege as a member of the House to assail Mr. Morton"; and it alleged that "Six thousand dollars for a State paper were offered one member, a known opponent of State, who declined the tender and laughed to scorn the effort to induce him to violate his sense of right." The constitution was prepared by a self-appointed committee of lawyers, which met for the purpose in Experience Estabrook's office in Omaha,21 and it based its 20 Ibid., page 203. 21 Mr. Estabrook said that this committee consisted of nine members and that they were appointed by the sixth territorial legislature in 1866.(See my footnote, 237, volume 111, page 123, History of Nebras- |
legitimacy upon the enabling act of 1864 and acknowledged acceptance of its terms, notwithstanding that the ka; also page 511, volume I, Ibid.) Judge Lorenzo Crounse said (volume II, page 211, Nebraska Reports): As is well known, the constitution was originally drafted in a lawyer's office by a few self-appointed individuals," and Chief Justice Mason, who was one of the committee, acquiesced In Crounse's statement. (Ibid., page 226.) See volume I, page 511, History of Nebraska, for a more extended account of the preparation of the constitution. The statement of the case on the part of the Democrats, charging that the constitution and the Republican candidates were dishonestly counted in, is published in the History of Nebraska, volume I, pages 529- 536. In the opinion of the court in the case of Brittle vs. the People (Nebraska Reports, volume II, page 214), Judge Lorenzo Crounse said: "A criminal is put upon his trial, and, as a defense, he offers to show that, at the June election in 1866, a clear majority voted against the adoption of the constitution, notwithstanding the board of canvassers have declared otherwise. . . I am satisfied that he could make a fair showing in that direction. It is said that a whole precinct in one county was thrown out, where the majority was largely against the constitution; that in another place a large number of soldiers voted in its favor with no pretext of right so to do; and in other respects irregularities Intervened which might easily overcome the declared majority of a hundred." Chief Justice Mason, who, like his confessing associate, came into his office by virtue of the alleged miscount--though indirectly--seemed almost persuaded to endorse the confession: "The history of the admission of Nebraska into the Union, given at length by my brother Crounse, may be briefly stated thus: A small number of men, without authority of law, drew up the constitution; and the legislature provided for its submission to a vote of the people. . . At an election held for the purpose, a majority voted for the constitution. This majority was small; and my brother seems anxious to concede that there was no majority at all, but that it was only made to appear by divers transparent frauds. Nevertheless, the canvassers appointed by the legislature for the purpose, consisting of the Territorial governor, secretary, and auditor declared the vote favorable to the constitution." (Ibid., page 226.) The averment of the last sentence quoted is erroneous. The constitution itself prescribed that the governor (Alvin Saunders), the territorial attorney (Daniel Gantt), and the chief Justice of the territory (William Kellogg) should canvass the votes for and against the constitution. The constitution also prescribed that the officers named by Justice Mason should canvass "the election returns for the governor, secretary of state, auditor, treasurer, and supreme judges." |
act specifically directed that the constitution should be formed by a convention to be organized according to its specific prescription. The Herald described the procedure in the legislature in the following terse terms: The Constitution ... was pressed through the legislature in such haste that not one man in six had a moment allowed to examine the instrument ... Democrats who favored the measure, and Democrats and Republicans who opposed, were denied the privilege of either amending or examining the Constitution. ... not one man in twenty in the legislature has ever read the Constitution ... This Constitution was not even printed. It was not even referred to a Committee of either House ... even discussion of the stray paragraphs which members caught the sense of from the hurried reading of the clerk, was denied to members under the resistless pressure brought to bear upon the majority to rush it through. The Herald's statement that the constitution was not referred to a committee of either House was too sweeping. The present editor has heretofore outlined the procedure according to the records of the two Houses. The constitution did not even enter the legislature through the natural channels of the judiciary, or any other committee, but was injected by Porter, of Douglas, that task being assigned to him, presumably because he was the only Democrat of his delegation or of prominence who favored its submission at all. it was then referred to a special committee consisting of Bennet, Porter, and Chapman, who recommended it for passage the same day when it was at once passed, the Council refusing, by a vote of 6 to 7, to hear it read the third time. The House even refused to let the important document go to a committee at all, the motion of Robertson to refer it to the committee on federal relations being defeated by 14 to 24, and two attempts to amend, made in the regular session, were frustrated by Lake's insistent motion to table. This fundamental law of a commonwealth was not even considered in committee of the whole in either House. It was cut by outside hands, and without time for drying was railroaded on its legislative passage. Even the Republican Nebraska City Press was moved to say that "a few broken down political hacks about Omaha seemed |
determined upon their mad scheme of forcing a constitution before the people through the legislature." 22 The first, or provisional state legislature contained thirteen senators and thirty-eight representatives.23 All of the five Democratic senators and six of the seventeen Democratic members of the House of Representatives joined in a protest, putatively drawn by James M. Woolworth, against the counting in of the four Republican candidates for seats in the House and one for the Senate, from Cass county, and a Republican candidate--John Cadman, of Lancaster--for a seat in the Senate from the district comprising the counties of Cass, Lancaster, Saline, Saunders and Seward: On the 19th of April, 1864, Congress passed an act authorizing the people of Nebraska to form a State government. The act provided for an election, in May, of members of a convention which should assemble on the fourth of July, and frame a constitution. This instrument was to be presented to the people, for their adoption or rejection, in October. The act did not provide for taking the sense of the people upon the fundamental question, whether or not they would become a State. But they asked it and answered it, and in this way: In the election for members of the convention, party lines were not drawn. On one side, candidates favorable to State organization were nominated; on the other, candidates who were pledged to vote for an adjournment, sine die, as soon as the convention was organized and before it proceeded to business. The result was, two-thirds of the members elected were favorable to adjourning, and they were elected by very large majorities. For instance, in Douglas, one of the most populous and wealthy counties in the Territory, but forty-five votes were cast for State organization. No record of the election was preserved, but we believe the majority was proportionately as large elsewhere as in that county. Accordingly, when the convention assembled on the fourth of July, 1864, it organized 22 Omaha Weekly Herald, Feb. 16, 1866; History of Nebraska, volume I, page 511. 23 The district comprising the counties of Lancaster, Seward and Saunders was not represented in this legislature. |
by the election of its officers and immediately adjourned, sine die. This emphatic expression of popular will, as was generally supposed, laid State organization at rest. At the general election in October, 1865, it was not even suggested. In its platform, adopted at a territorial convention for nominating candidates for auditor and treasurer, the Republican party did not mention the subject. The Democrats, in a very emphatic resolution, declared against any movement which did not provide for taking the popular vote on that subject, divested of all other issues, and before any step was taken toward framing a constitution. Had it been supposed possible that the territorial legislature would draft a constitution, many men who succeeded in obtaining an election to it would have failed to receive so much as a nomination. For instance, in the delegation from Otoe county were 0. P. Mason and J. B. Bennet of the Council, and J. H. Maxon of the House. These gentlemen, after the legislature assembled, showed themselves to be very ardent friends of the scheme for that body making a state of Nebraska. And yet their county rejected their constitution by a majority of over four hundred votes. So, too, the Cass delegation supported the measure, and their county gave a majority of three hundred and twenty-five against it. Not one of them could have been elected if they had been known to favor state organization. But after election the plan was developed. It was proposed now, for the first time, that the legislature should resolve itself into a convention, draft a constitution, and organize a State government. Conscious that such action was an exercise of powers confided to that body neither by the law nor the people, the attempt was made to obtain petitions, numerously signed, praying the two houses to perform this extra service. These petitions were in large numbers sent out of the "executive office" into all parts of the Territory, accompanied by letters urging the parties receiving them to circulate them generally in their neighborhood, obtain signatures and return them. The measure was prosecuted with great energy. Nearly every citizen in the Territory was solicited to sign one of these petitions. With all these efforts only about six hundred names were obtained. The attempt to give the scheme the appearance of a popular movement was confessedly abortive, so that the petitions were never made an apology for the actions of the legislature. At the opening of the session, a decided majority of the members of the House were opposed to the measure. Among the Republicans, many were determined in their opposition. All the federal officials, Governor Saunders, Chief Justice Kellogg, |
Secretary Paddock, Indian Superintendent Taylor, and others made a party question of it. It was given out that no man who opposed it could expect or should receive recognition in the party. Meeting after meeting was held and the matter urged by all the eloquence and sophistry possible, while private conversations were converted into private appeals and private bargains. One by one was won over--promises of offices and of contracts and yet more tangible influences doing the work. Chief Justice Kellogg, Secretary Paddock, Mr. Mason and two or three others now set themselves to draft the constitution which this legislature should adopt. In the calm and undisturbed retirement of private rooms, and under the protection, from interruption, of locks and keys, these gentlemen pursued their work. They produced an instrument suited to their purposes, which the legislature was to adopt at their discretion. Its chief merit was that it provided a cheap government. According to their estimates, its annual expenses would not exceed over twelve thousand dollars. Not a single State officer, except the judges, was to receive as much as a hod carrier's earnings. The people, it was insisted, were able to support a State government, but were not willing to pay their officers respectable soldiers' pay for their services. A respectable State government would, they argued, frighten the people, and they would reject the constitution. A cheap government of cheap men answered the purpose designed, inasmuch as the senators in Congress are paid by the United States. On the fourth day of February, 1866, their constitution was introduced into the Council, accompanied by a joint resolution in these words: Resolved, By the Council and House of Representatives of the Territory of Nebraska, That the foregoing constitution be submitted to the qualified electors of the Territory, for their adoption or rejection, at an election hereby authorized to be held at the time and in the manner specified in the seventh (7th) section of the schedule of said constitution, and that the returns and canvass of the votes cast at said election be made as in said section prescribed. The constitution was not printed for the use of either House. No amendment was permitted to one of its provisions. A strenuous effort was made to obtain an amendment separating the election upon the adoption or rejection of this instrument from that for State officers; but the decisive answer was candidates for office under the State organization will support the constitution. The effort therefore failed. |
This famous exposition sums up the irregularities of the judges and clerks of election in Rock Bluffs precinct: The charge of FRAUD. Mr. Spurlock himself swears that was no evidence of fraud, but the board thought that there was "possibility of fraud." On the other hand, the judges and clerks were sworn and they all agree in this statement: at noon Mr. Hutchinson, the senior judge, declared the poll closed for one hour. Mr. Murray, another judge, locked the ballot box securely and put the key in his pocket, and then the poll books were locked in a desk, Mr. Murray also taking the key. Mr. Hutchinson and Mr. Smith, one of the clerks, took the box and went to the house of the former to dinner. Mr. Murray went in another direction to his dinner. During the interval Mr. Hutchinson and Mr. Smith both had the box constantly in their view, and it was not opened or otherwise tampered with. All the members of the board met at the door of the house, about the same time after dinner, and went in together. The poll books had not been disturbed. The same thing was done at 6 o'clock in the evening. Each adjournment was about an hour in length. No one was deprived of the opportunity of voting by the adjournment. And all whose names were on the poll book voted, and all but one of them were qualified electors . . . . . . . . . . Now let us apply these salutary principles to this case. It was proved and we have stated above, that no one was deprived of his right to vote by anything that occurred at Rock Bluffs. With a single exception no one voted who had not the right to vote. The poll book, verified by the judges and clerks, and the tally list both included in the final certificate of the judges and clerks, show with absolute certainty what was the true number of legal votes. The three objects of the law specified by the court were accomplished. In its language, [quoting from The People vs. Cook, New York Court of Appeals, 6 Selden] 'to reject the whole vote, simply because the judges' went home to dinner and supper, and certified the poll book and tally sheet at the end of the abstract instead of separately 'is to place a higher value on the statute regulation than on the right itself. It would be a sacrifice of substance to form.' A radical board of canvassers thus declared the Democratic State ticket defeated. This declaration is made by refusing to count the votes of 158 bona fide citizens of the Rock Bluffs precinct in Cass county, and at the same time counting the soldier vote of men who lived anywhere but in Nebraska. We can illustrate this subject by an analysis of the respective |
votes given to David Butler, candidate for governor, a very strong leader of radicals in Nebraska, and his opponent, Morton, the Democratic candidate for governor:
That is to say, 4,014 citizens voted for Morton for
governor, and that honestly and legally elected him, by a
majority of just 23 votes over David Butler. 24 History of Nebraska, volume I, pages 533, 534. |
for the truth of them. And on these facts I insist that this Committee on Territories, or some other committee of this body, shall investigate the facts as to the validity of this election by which it is pretended that this constitution has been adopted by the people of Nebraska. Senator Kirkwood, of Iowa, who had declared, "I feel very sure that Iowa had not a soldier in Nebraska last June when this vote was taken," now pleaded, in confession and avoidance, that their numbers must have been very small anyway.25 It was alleged by Republicans that the vote of Rock Bluffs precinct was padded, and the Daily State Journal, January 25, 1880, alleged that prior to 1866 Republicans had always cast between 80 and 90 votes and the Democrats about 18 in this precinct, and that at the next election after 1866 a like division of votes occurred. Unfortunately the Cass county records, which alone would disclose the facts as to the relative votes in question, cannot be found, and so this once very disturbing question will remain vexed between two contradictory partisan contentions. It is significant, however, that this material statement by the Journal does not appear to have been thought of at the time of the contest. It was reasonably safe to venture it after the lapse of fourteen years. The Omaha Republican--October 16, 1867--said that Rock Bluffs precinct, "formerly the political Sodom of Cass county, is very nearly redeemed from its heresy. The copperhead majority has dwindled down to seven . . ."--in company with all the Democratic counties, which had gone Republican this year, Sarpy excepted. This statement, so near the time of the trouble, implies that prior to the year 1867 Democratic majorities were large 25 Congressional Globe, first session thirty-ninth Congress, pages 4211, 4212. |
in Rock Bluffs, and it completely discredits the statement of the Journal .26 In the contest proceedings in Cass county it had been stipulated that the testimony taken in the case of Cooper against Hanna should be used in the other contest for a seat in the Senate and in the contest over seats in the House of Representatives. It is said that by accident or oversight this stipulation was not placed on file, through it appears that it was at least verbally agreed to. The reports of the several committees of the legislature show that they took advantage of this technical irregularity, and five of the six contested seats were awarded to the Republicans without consideration of the facts .27 Benjamin F. Wade, of Ohio, introduced in the Senate, by unanimous consent, July 23, 1866, a bill (S. No. 447) for the admission of Nebraska into the Union.28 The bill, with a copy of the constitution, was then referred to the committee on territories of which Senator Wade was chairman. From first to last he was its indefati- 26 History of Nebraska, volume III, page 5, footnote 4. 27 Ibid., volume I, pages 529, 536. In a letter to me, dated March 28, 1904, Mr. Hiram D. Hathaway, Republican member of the House in the legislature in question, and afterward for many years business manager of the Nebraska State Journal relates that he and his colleagues from Cass county agreed to vote for adjournment without electing United States senators, which was the sole business of the session; but two of the four members of the House broke the compact and the object of the session was accomplished. (Ibid., page 536, note 2.) 28 Congressional Globe, first session thirty-ninth Congress, page 4044. John M. Thayer carried a copy of the constitution with him to Washington, when, he went to claim a seat in the senate, and presented it to Senator Wade. (History of Nebraska, volume I, page 568, footnote 2.) |
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