History of Nebraska - Chapters 23-25



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CHAPTER XXIII 
ORGANIZING THE STATE GOVERNMENT -- REMOVAL OF THE CAPITAL -- ESTABLISHING 
LINCOLN

   THE SESSION of the general assembly from July 4 to July 11, 1866, was 
the first overt act of Nebraska statehood, and from that occurrence until 
the first governor of the state, David Butler, formally superseded Alvin 
Saunders, the last governor of the territory, March 27, 1867, the 
commonwealth wore a mixed territorial and statehood garb. The enabling act 
passed by the federal Congress, April 19, 1864, authorized the governor of 
the territory to proclaim an election of delegates to a constitutional 
convention, with such rules and regulations as he might prescribe. The 
election was held on the 6th of June, 1864, but since a majority of the 
voters declared themselves against the proposition for statehood, which 
was submitted to them at this time, the convention to form a constitution 
met at the designated time, July 4th, and adjourned without action. But in 
1866 the territorial legislature submitted a constitution which was 
adopted at a popular election held in accordance with a provision of the 
instrument itself, on the 2d of June, 1866. By authority of the 
constitution, also, members of the first state legislature were elected on 
the same day and met on the 4th of July following. In accordance with the 
supplemental enabling act, passed by Congress February 9, 1867, which 
imposed the condition that the legislature should formally declare that 
there should be no denial of the right of suffrage on account of race or 
color, by the proposed state, Alvin Saunders, governor of the territory, 
called the legislature which had been chosen in October, 1866, to meet in 
special session, February 20, 1867, for the purpose of accepting this 
condition; but David Butler, who had been elected governor of the proposed 
state in June, 1866, delivered a message to the assembly at this meeting, 
as if there was a real state and he was actual governor. This session 
began two days after the final adjournment of the last session of the 
territorial legislature, and it lasted two days. Though the admission of 
the territory as a state was formally proclaimed on March 1, 1867, the 
territorial governor performed the executive functions until he was 
relieved by Governor Butler, March 27th.

   The first official act under statehood was Turner M. Marquett's 
assumption of the office of representative in Congress to which he had 
been elected, June 2, 1866, according to the terms of the constitution 
which was adopted by popular vote on the same day. The territorial law 
provided that a delegate to Congress should be chosen at the regular 
election held on the second Tuesday of October, 1866. On account of the 
hostility between President Johnson and the republican majority in 
Congress, it was uncertain in 1866 when the territory might become a 
state; and so at the republican convention for that year it was decided 
that Marquett should be the candidate at the regular fall election for 
delegate to Congress, and John Taffe for representative in case the 
territory should be admitted as a state during the time in which he would 
be entitled to his seat.

   Furthermore, the new constitution provided that returns for the 
election of a representative in Congress should be canvassed in the same 
manner as those for a delegate, and the territorial law in force in 1866 
required that the votes for delegates should be canvassed in the same 
manner as those for territorial officers. It seems therefore that the law 
pointed out that a second provisional election for representative in 
Congress should be held at the

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time of the regular territorial election in October. These explanations 
are pertinent, because friends of Mr. Marquett have indiscreetly contended 
that he deserved great praise for not insisting, when the state was 
admitted so early in 1867, that he was entitled to a seat as 
representative for the full term of the 40th Congress by virtue of his 
election in June, 1866, notwithstanding his intervening acceptance of a 
candidacy for the office of delegate and which at the time seemed more 
certain to give him a seat than to be a candidate for representative under 
statehood. Moreover, the enabling act provided that a representative in 
Congress "may be elected on the same day a vote is taken for or against 
the proposed constitution and state government," which day was the second 
Tuesday in October, 1864. Therefore the election of a representative in 
June, 1866, was not authorized at all. In the meantime the regular 
election came, which the convention evidently decided was the proper time 
for electing a prospective representative to the 40th Congress whose term 
would begin March 4, 1867, whether or not such election would supersede 
the as yet unrecognized election of June 2, 1866. Congress might have 
cured the first irregularity, but by so doing it could not have cured 
Marquett's bad faith if he had sought to displace Taffe.

   Mr. Marquett was admitted to the house of representatives March 2, 
1867, the day after Nebraska became a state. James M. Ashley, of Ohio (who 
moved the impeachment of Andrew Johnson), said, in making the motion for 
Marquett's admission, that the proclamation admitting Nebraska had been 
published that morning in the official organ. Ashley moved also that 
Marquett be paid from June 2, 1866, the day of his election. Spalding 
opposed on the ground that Nebraska was not a state, to which Ashley 
replied that having been admitted in the last session by the vote of 
Congress which was vetoed and since then having been admitted over the 
veto the act became effective on the 2d of June. Spalding, impatient at 
this logic which did not connect, said: "Make it a donation, then, and not 
call it the pay of a member of Congress." Ashley said also that Marquett 
had been elected a delegate to the incoming 40th Congress, which would 
give him more pay and mileage than his motion proposed, but the 
intervening admission of the state had kept him out of that. Ashley's 
motion was defeated by a vote of 43 to 105. Dawes, of Massachusetts, moved 
a reconsideration with the view of making Marquett's term take effect 
December 1, 1866, the beginning of the session, but the motion was laid on 
the table, 67 to 56.

   On the second day of the session, and before the governor's message had 
been received, Senator Leach offered the following partisan, or, rather, 
factional resolution:

   RESOLVED, That the Senate of the Legislature of the State of Nebraska 
heartily endorses the policy and acts of Andrew Johnson, President of the 
United States, in all his legitimate and conservative efforts to restore 
the Southern States recently in rebellion, to their legal status in the 
American Union, and that we pledge him our hearty and cordial support in 
all such efforts and against the heresies of radicalism, as advocated by 
Stevens and Sumner, whom the President himself patriotically, on the 22d 
day of February, A. D., 1866, denounced as disunionists.

   This endorsement of "my policy" was laid on the table by a party vote 
of 7 to 6. In the house, Mr. Robertson, democrat, offered a similar 
resolution, which was defeated by a vote of 5 to 20. Mr. Frazier then 
sugarcoated a friendly Johnson resolution, similar to that offered in the 
house, with a resolution invoking the favorable action of Congress for 
statehood, and it passed by a party vote of 22 to 15.

   Mr. Robertson, of Sarpy county, submitted a memorial to the President 
of the United States asking for an investigation of the alleged official 
maladministration of Edward B. Taylor, superintendent of Indian affairs 
for the northwest, and Orsamus H. Irish, superintendent of Indian affairs 
for southern Nebraska; but the house refused to adopt it by a party vote. 
Mr. Durant, vice president of the Union Pacaific railway company, invited 
the members of the legislature to go on an excursion to the end of the 
track -- 133 miles -- on Saturday July 7th. The house accepted the 
invitation and went; the senate declined

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on the plea of pressing business, but a large part of it went too; and, 
after a vain call of the house Saturday morning, there was an adjournment 
until Monday.

   The burden of the governor's message was an argument that the territory 
had a right to immediate admission as a state. In 1864, when the enabling 
act was passed, the population was 30,000; now it was 70,000. In a few 
weeks the track of the Union Pacific railway would be laid 200 miles west 
of Kearney. Territorial bonds were now worth ninety-seven cents on the 
dollar. The governor recommended the adoption of the fourteenth amendment 
to the constitution of the United States, and Maxwell introduced the 
measure in the house; but no action was taken upon it.

   The second legislature, at its first and special session, February 20 
and 21, 1867, performed no other function than to organize and formally 
accept the condition imposed by the federal Congress for the admission of 
the territory as a state. Governor Saunders (territorial governor) stated 
the object of the session in a message in which he said that it would have 
been more satisfactory to himself, and he thought to the members, if 
Congress had referred the question to the people instead of to the 
legislature.

   On the first day of the session Mr. Doom of Cass county introduced a 
bill declaring the assent of the legislature to the condition prescribed 
by Congress, which was referred to a special committee composed of Doom, 
Hascall, and Reeves. At the afternoon session, Doom and Hascall reported 
in favor of the bill, and it was at once passed, before Reeves could 
prepare his minority report, by a vote of 7 to 3, Freeman, Reeves, and 
Wardelf voting nay. On the next day Reeves offered his report, which the 
senate declined to receive. Doom moved to strike out certain passages of 
this report which he declared were offensive, and the motion was carried; 
whereupon Reeves withdrew the report entirely, and Freeman, Reeves, and 
Wardell left the chamber in a fit of disgust, but they were afterward 
permitted, at the request of Mr. Reeves, to record their votes against the 
bill. J. N. H. Patrick, who had not been sworn in when the bill was 
passed, was eluded from this arrangement.

   The senate bill was promptly passed in the house, under suspension of 
the rules, by a vote of 20 to 8, Anderson, Bates, Crawford Dunham, Graves, 
Harvey, Rolfe, and Trumble voting nay. All the democratic members of the 
legislature but Hascall adhered to the party policy of opposing the 
measure. If admission to statehood had been the one question at issue, 
their course would have been unwise; but since the proposition involved 
also the question of consenting that Congress and the legislature had the 
power to annul by resolution a provision of the state constitution, the 
democrats followed their plain duty, and Hascall's recreancy deserved the 
reproaches it won, though it seemed to surprise no one.

   The third session of the general assembly, being the second session of 
the second legislature, was convened by the call of the now full-fledged 
governor, dated April 4, 1867, on the 16th of May of that year, for the 
purpose of passing such laws as the governor throught necessary for the 
new state. The most important work of this session was the removal of the 
capital from Omaha to Lincoln, accomplished by the passage of an act, 
approved June 14, 1867, which constituted the governor, secretary of 
state, and auditor a commission to select a new location before July 15, 
1867, within certain specified limits, as follows; the county of Seward, 
the south half of Butler and Saunders counties and that part of Lancaster 
county north of the south line of township nine, the new capital city to 
be called Lincoln. A bill (S. No. 44) entitled "An act, to provide for the 
location of the seat of government of the state of Nebraska and for the 
erection of public buildings thereat," was introduced in the senate, June 
4th, by Mr. Presson, and its counterpart was introduced in the house (H. 
R. No. 50) by Mr. Crowe. The senate bill passed that body on the 10th of 
June; it passed the house on the 13th, and was approved by the governor on 
the 14th.

   The bill (S. No. 44) which was passed

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originally provided that a commission consisting of the governor, the 
secretary of state, and the auditor should select, before July 15, 1867, 
from lands belonging to the state, within the counties of Lancaster, 
Seward, and the south half of Butler and Saunders, not less than 640 acres 
for a town to be named and known as "Capitol City." The commissioners 
should cause the site to be surveyed and fix a minimum price on the lots 
of each alternate block, these lots to be sold at public vendue to the 
highest bidder and the proceeds deposited with the state treasurer as a 
state building fund, out of which a capitol, "to be designed as part of a 
larger edifice," should be constructed at a cost not to exceed $50,000, 
the building to be completed before November 1, 1868. The state university 
and the agricultural college, united in one institution, should be 
situated within the city, and a state penitentiary within or adjacent to 
the city. The removalists had their project firmly in hand, and the bill 
was pushed through with remarkably little halting or change. It was read 
the second time on the 5th of June, and on motion of Majors referred to 
the committee of finance, ways and means, composed of Presson, Reeves, and 
Holden -- all of the South Platte section. Hascall of Douglas county 
attempted to have it referred to the committee on public buildings where 
it really belonged, but without success, as two of the three members of 
this committee -- Patrick and Baird -- were of the North Platte. The next 
day Presson reported the bill back from the committee with amendments not 
of great importance; June 7th the committee of the whole reported the bill 
for the third reading, and on the 8th it was made a special order for the 
10th; on that day Rogers's motion to extend the limits of choice to all, 
instead of half of the counties of Butler and Saunders was lost by a vote 
of 5 to 8; and his motion to strike out the word permanent, applying to 
the relocation of the capital, was defeated by a like vote. Sheldon's 
motion, to amend so that the location might be made anywhere within Seward 
county or the south half of Saunders and Butler and that portion of 
Lancaster county lying north of the south line of township 9, was carried 
by a vote of 9 to 4, Freeman, Hascall, Patrick, and Rogers voting nay. 
Patrick's motion to amend section 11, so as to locate the state university 
and agricultural college at Nebraska City, was lost by a vote of 5 to 8; 
and the motion to locate the same institution at such place in Washington 
county as the county commissioners might select, was defeated by a like 
vote.

   It was left to Senator Patrick, an uncompromising democrat -- called in 
the drastic political phrase of the day a copperhead -- to move the 
substitution of Lincoln instead of the inexpressibly clumsy and ugly 
original name, Capitol City; and the motion was carried without division. 
It was read the first time in the house on the 11th, the second time on 
the 12th. Mr. Woolworth's motion to place the state university and 
agricultural college at Nebraska City instead of Lincoln was defeated, 11 
to 26. Griffin's motion to change the location to some place in Cass 
county, not particularly designated, but no more than three miles from the 
Missouri river, was lost by a vote of 10 to 25.

   The charge that there was corrupt collusion between the removalist 
members of the legislature and promoters and beneficiaries inside and 
outside of that body of various railway land grant schemes, was pressed 
with tremendous force but with little effect against removal. But the 
attacks along this line were effective in defeating all the land grant 
bills excepting that for the Air Line. Even while his home city and county 
were the backbone of the removal cause, Morton now began his opposition to 
land grants of this kind, which he persistently kept up through his life.

   On the day on which the successful removal bill was introduced in the 
senate, another, identical with it (H. R. No. 50), was introduced in the 
house; but it was dropped after having been favorably reported from the 
committee on ways and means. On the 11th of June Mr. Frost of Douglas 
county, of the committee of ways and means, presented a minority report on 
this bill, in which were compressed all the objections of the anti-
removalists. The number of commissioners was not large enough for so 
important a

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task, and there was danger, in particular, that the choice of a location 
would be too far from a railroad. "Railroads in this country are too 
expensive to be run in every direction, and a capital with public 
buildings located at any inconvenient distance from one would soon be 
removed." The time was too short for the selection of grounds; and, most 
important of all the objections to the bill, it failed to submit the 
location to the people for approval or rejection. "The question has not 
been fully discussed whether the university and agricultural college 
should be united or should be different institutions, wholly separated in 
their organization. Some of the best minds prefer the one course and some 
the other, but no expression could be obtained during the few days of the 
session to elapse." There was doubtful propriety in locating all the 
public buildings in one place. The time was not ripe for removal of the 
capital. "We have the best building ever occupied by any territorial 
government, and consequently the best ever belonging to a new state. With 
a trifle spent for repairs, it will be all that would be required for 
years. It is located centrally so far as our thoroughfares are concerned, 
and much more so than the proposed site could be for many years."

   The same day on which these two bills were introduced, Mr. Hascall of 
Douglas county, introduced another (S. No. 45) entitled "An act to locate 
the Capitol, State University, and Agricultural College." The bill 
provided that a commission composed of Governor Alvin Saunders and Turner 
M. Marquett should procure for the state of Nebraska an entire section of 
land in the valley of Salt creek within ten miles of its junction with the 
Platte river and at a cost of not more than $5 per acre. This land should 
be the site of the capitol, the state university, and the agricultural 
college, and reservations should also be made for buildings for an insane 
asylum, deaf and dumb institute, and for other purposes, "as the state may 
hereafter see fit to erect." The name of the proposed capital was left 
blank in the bill. It provided that the capitol at Omaha should revert to 
the city of Omaha for school purposes, on payment of the cost of the site 
of the new city. On the 7th of June Mr, Patrick, of the committee on 
public buildings, recommended the passage of the bill, and on the 8th Mr. 
Presson, of the same committee, reported against it, holding that the 
location proposed in the other bill -- No. 44 -- --"will better subserve, 
the interests of the state, in that it contemplates a more central 
location for the seat of government, and fixing the same where it will 
enhance the value of our state lands at least three hundred per cent." On 
the 12th the senate, in committee of the whole, reported in favor of 
tabling the bill, and that was the end of it. The movement for the removal 
of the capital was almost, if not altogether, a conspiracy, and the 
speculative gain of the conspirators was its chief motive and impulse.

   If the capital commissioners were acquainted with the proceedings of 
the early territorial legislatures -- and probably they were by hearsay, 
at least -- their attention had been already directed to Lancaster county 
and the vicinity of the salt springs as a favorite site of a new capital 
city. In the removal bill of the second legislature -- 1856 -- the 
proposed capital was to be in the immediate vicinity of the salt springs 
and called Chester, the name by which the principal salt basil, was known. 
It is important to revert here to the fact that J. Sterling Morton signed 
the report of the committee which favored the passage of this bill. In 
1857 the capital narrowly escaped removal to a place to be called Douglas 
City, also in Lancaster county, but not near to the salt springs. 
According to a map drawn in 1856 there were two places -- or rather 
prospective places -- of that name, one situated near the point where the 
Burlington railroad leaves Lancaster county and enters Cass, three miles 
southwest of the present town of Greenwood; and the other about two miles 
northwest on Salt creek, near the mouth of Camp creek. These locations on 
the map correspond with the statement of Governor Izard in his veto of the 
bill: "All agree, however, that there are two towns in Lancaster county, 
by the name of Douglas, already made upon paper. To

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which of these it is the intention of the legislature to remove the seat 
of government I am left wholly to conjecture. It might so happen and from 
my knowledge of the speculative genius of a certain class of our citizens, 
I think it highly probable that should the bill under consideration become 
a law each of these rival towns would set up a claim to the capital, which 
it might require long and tedious litigation to settle; leaving the people 
of the territory in the meantime without a seat of government."

   A bill to remove the seat of government to the same neighborhood 
precipitated the riot in the next (fourth) legislature.

   There are extant certificates of shares in Salt City and Bedford, 
issued in 1856, which show that the salt basin lent the contiguous land a 
speculative value for townsites. Salt City was to be situated on the 
western border of the basin, the site comprising 640 acres. According to a 
prospectus contained in the certificates of shares, Bedford had hopes of 
becoming the county seat: "It is situated near the center of Lancaster 
county, contains 640 acres, or 2,200 lots, 200 of which are to be given to 
the county in case the county-seat is there, besides public grounds for 
court house, churches, and parks. The timber on Stephen's Creek and Salt 
Creek lies convenient to Bedford; and the noted Salt Spring in Lancaster 
county is a "Sure evidence that it will at no distant day be the 
wealthiest county in the territory." The stock of each of these townsites 
was divided into 200 shares, and to Daniel H. Wheeler, the prominent Cass 
county pioneer, they seemed to have more than a paper value. He paid in 
gold $150 for a single share of Salt City and $100 for a share of Bedford, 
its rival.

   The suggestion or contention, often heard in recent years, that the 
confluence of several minor creeks was a strong secondary reason for 
placing the capital in the salt basin, in the expectation that the easy 
grades they offered would be a drawing invitation to converging railroads, 
must be regarded as an apologetic afterthought. The first two and 
vitalizing lines and two other distinct lines -- the Chicago & 
Northwestern and the Rock Island -- entered by the salt valley; the two 
principal western lines of the Burlington system climb arduous grades to 
get out, and only two of the four creek beds in question are used to any 
appreciable extent. Engineers of the converging systems assert that in 
comparison with Milford or Seward, for example, Lincoln is unfavorably 
situated in this respect, and that to avoid the heavy grades the through 
freight traffic of the main lines of the Burlington should be diverted to 
a new track along the Blue river. The "especial advantage" urged by the 
commissioners for the site of their choosing was that it lay approximately 
in the center of a circle with a diameter of 110 miles whose circumference 
intersected or passed near Omaha, Fremont, Columbus, Pawnee City, the 
Kansas-Nebraska line, Nebraska City, and Plattsmouth.

   On the 29th of July, 1867, the commissioners chose "Lancaster" for the 
site; August 14th they made proclamation of the event, and the next day 
August F. Harvey and A. B. Smith began to survey the ground, which 
comprised 960 acres.

   Sale of lots at public auction, which began September 18, 1867, was 
characterized by questionable expedients and irregularities. It was a 
common practice to bid in lots and hold them for an advance without paying 
for them, and the commissioners in their report made the remarkable 
admission that they deliberately violated the mandate of the law that the 
proceeds of the sales should be deposited in the state treasury, because 
they assumed that the treasurer might be as lawless as themselves and 
would refuse to give up the money for its lawful purpose -- for, being a 
resident of Omaha, he was personally hostile to the removal scheme.

   But whatever the sins, omissive or commissional, of the commissioners 
and other founders of Lincoln, they at least exercised great courage and 
enterprise. The fact that the mere arbitrary and fiat beginning has so 
soon developed into a prosperous and most attractive city challenges 
admiration for the unexcelled faith, resolution, and self-denial of its 
pioneer citizens. Of a surety, "thy row-

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ers have brought thee into great waters, but thy builders have perfected 
thy beauty."

   The Brownville Advertiser of February 12, 1870, congratulates the state 
on the business sagacity which has produced "a state house, ample for 
present purposes, completed, and has the funds raised from the sale of a 
section and a half of land, worth three years ago, five dollars an acre, 
to provide two other fine buildings, and some 500 lots left for future 
use." The entire sales of 1867, 1868, and 1869 brought $400,000.



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CHAPTER XXIV 
STARTING THE STATE -- SCANDALS IN THE STATE GOVERNMENT -- SENATOR TIPTON 
RE-ELECTED -- GOVERNOR BUTLER'S THIRD ELECTION -- HITCHCOCK UNITED STATES 
SENATOR -- IMPEACHMENT PROCEEDINGS

   THE CALL for the session of the legislature for providing the legal 
machinery necessary for operating the state organization covered thirty-
one subjects of legislation, though the last was a catch-all of doubtful 
validity. The first fourteen specifications proposed revision or amendment 
of existing statutes. The eighth proposed "to abolish the distinction 
between actions at law and suits in equity" by supplying the omission of 
the last territorial revision. The eighteenth specification called for 
provision for the "location and disposition of such lands as are, or may 
be hereafter donated to the state by the general government for any 
purpose." The school lands had all been located except the proper sections 
in the half-breed Indian tract, which, it was contended, was subject to 
such reservation. The principal enactments of the session were as follows: 
The state auditor was constituted state land commissioner and he was 
authorized to offer for sale all school lands at an appraised value which 
should not be less than seven dollars an acre. The state was divided into 
three judicial districts, the first district comprising the counties of 
Richardson, Nemaha, Otoe, Johnson, Pawnee, Gage, Jefferson, Saline, 
Fillmore, Nuckolls, and the territory west of them; the second district 
comprised the counties of Cass, Sarpy, Douglas, Saunders, Lancaster, 
Seward, Butler, and the territory west of them; the third district, the 
counties of Washington, Dodge, Platte, Cuming, Burt, Dakota, Dixon, Cedar, 
L'eau qui court, Kearney, Lincoln, Merrick, Hall, Buffalo, and the 
counties west and north of the Platte river. The chief justice, Oliver P. 
Mason, was assigned to the first district, Associate Justice George B. 
Lake to the second, and Associate Justice Lorenzo Crounse to the third. 
The office of district attorney for each district was established with an 
annual salary of $1,500. The bill locating the seat of government and the 
public buildings there at was passed; a state seal was adopted; provision 
was made for the transfer of suits from the territorial to the state 
courts; also for the appointment of four commissioners who should select 
and enter the public lands donated to the state; an apportionment act 
created eleven senatorial districts with thirteen members and nineteen 
representative districts with thirty-nine members. Four members each were 
allotted to Cass, Nemaha, and Richardson counties; five to Otoe; six to 
Douglas; two each to Sarpy and Washington; one each to Dakota, Dodge, 
Johnson, Lancaster, Platte, and Pawnee; one to Gage and Jefferson jointly; 
one to Butler, Saunders, and Seward; one to Kearney, Lincoln, and Saline; 
one to Buffalo, Hall, and Merrick; one to Burt and Cuming; and one to 
Cedar, Dixon, and L'eau qui court. Fifteen thousand dollars of the fund 
granted by the federal Congress to pay the expense of the militia raised 
for defense against Indians was appropriated to pay current and contingent 
expenses of the state for the year 1867. It was provided that one term of 
the supreme court should be held at Omaha and one at Nebraska City each 
year; but unless the commissioners of Otoe county should offer the use of 
the court house for the term, free of charge, it should be held instead at 
Brownville or such other place south of the Platte "as may offer the use 
of court room free of charge."

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   Distinction between actions at law and suits in equity were abolished; 
the revenue act was amended; a bill was passed to locate, establish, and 
endow a state normal school at Peru, provided that the tract of not less 
than sixty acres adjacent to the town, known as the grounds of Peru 
Seminary and College, with all buildings, should be donated to the state; 
the new school to be under the direction of a board of seven members, five 
to be appointed by the governor, the other two to consist of the state 
treasurer and state superintendent of public instruction. Twenty sections 
of state lands were appropriated to the school as an endowment, and $3,000 
was appropriated for completing the school building, procuring apparatus, 
and putting the school in operation. It was provided that the secretary of 
state should be state librarian. A drastic general registration law, under 
which the registrar of a precinct might exclude names from the voting list 
for "disloyalty" and other reasons, was passed; the general school law was 
revised; seventy-five sections of the public lands were granted to the 
Northern Nebraska Air Line railroad company to aid in the construction of 
a road from De Soto to Fremont. The act provided that the company should 
receive twenty sections on completion of each ten miles of the road, but 
definition of what "completion" meant was singularly neglected. The 
boundary of the new county of Cheyenne was defined, and the fourteenth 
amendment to the federal constitution was ratified.

   Memorials to the federal Congress prayed that a land office might be 
established at Lone Tree for the convenience of the many settlers along 
the line of the Union Pacific railroad, and vigorously protested against 
the continuance of the Indian policy: "We represent to you the unvarnished 
and unpalatable truth that at no point from the northern boundary of Texas 
to the British Possessions can either trade or travel be prosecuted from 
the western settlements to the Rocky mountains without imminent danger to 
life and property." This danger was much greater than it had been twenty-
five years before. It was insisted that the policy of treating with the 
Indians as independent nations was impracticable; for "the Indians will 
not and the government cannot respect them [the treaties] and fulfil their 
stipulations. The Indians of the plains are proverbially faithless." The 
only order to the military commander sent against the Indians ought to be 
to chastise them until they should sue for peace. With due allowance for 
the selfishness of the settlers who knew by actual experience the 
conditions of which they complained in urging this drastic policy, yet the 
fact that the proposed policy was soon adopted and permanently adhered to 
illustrates the superiority of popular judgment to that of the few wise 
men in whom authority is vested by virtue of their theoretical wisdom, as 
also the advantage of local over absentee government. Since by the cruel 
but inexorable rule of social progress the superior race was predestined 
to encroach upon the domain of the inferior, and forcibly dispossess it, 
the ultimate forcible subjugation of the latter was inevitable, and its 
inevitability should have been sooner recognized in our Indian policy.

   In the year 1867, the capital contest had distracted and all but 
demoralized the commonwealth which, still wrestling with the doubts and 
discouragements of occupying and subduing the unpromising interior plains 
that constituted most of its domain and its main productive dependence, 
needed its utmost resources for the difficult industrial conquest. But the 
year 1868, with the capital experiment still held doubtful, with a special 
session of the legislature, with state elections, involving the choice of 
a United States senator, and the presidential election as well, gave no 
relief from the continuous curse of politics but rather an increase of its 
distractions. The first important political incident of the year was the 
appointment of a federal district judge. Dundy had the advantage of 
holding the corresponding office under the territorial organization, but 
his application for appointment for the district covering the whole state 
was sharply disputed, and it took a year to settle the controversy. In the 
early part of January it was publicly reported that Judge Lake had been 
appointed, and after the party organs had dutifully commended the choice, 
it was announced that Colonel Henry G.

Page 535

Worthington had been nominated. Notwithstanding that he was a carpet-
bagger, having come to Nebraska but a year before, and by political stages 
from far off California, via Nevada, where he had achieved the office of 
delegate to Congress, the Omaha Republican accepted the appointment, 
carpet-bag and all, as a solution of a difficult problem. But the wily 
Dundy had won the territorial judgeship after he had apparently lost it, 
and he soon repeated that rather remarkable feat. The warring executive 
and senate agreed to a truce in Dundy's favor, and his appointment was 
confirmed in the early part of April.

   A democratic state convention was held at Nebraska City, January 8, 
1868, for the purpose of choosing delegates to the national convention. 
The national party was divided upon the question whether the 5-20 bonds 
should be paid in greenbacks or in gold, as it was divided in 1896 on the 
silver question, though not as sharply. Not only did the Nebraska 
delegates to the convention support George H. Pendleton, apostle of 
greenbacks, for the nomination for president, but the two most prominent 
leaders of the party in the state -- Dr. Geo. L. Miller and J. Sterling 
Morton -- who left the party in 1896, on account of their opposition to 
silver, stoutly advocated the greenback theory, so far as it involved 
redemption of the bonds in that currency. Though the fact that it was 
expressly provided by law that the 10-40 bonds should be paid in gold 
while there was no such provision as to the 5-20s, afforded a strong 
argument that it was the original intention that the latter should be 
redeemed in the same kind of money that the capitalist holders had paid 
for them, namely, greenbacks, and that such payment would not involve bad 
faith, yet, at bottom, the question was the same in kind as the silver 
question of 1896.

   The republican state convention for 1868 was held at Nebraska City on 
the 29th of April. The state administration had been the object of 
constant merciless attack by the democratic press, and its defense was 
left mainly to the republican organ at the capital. It was necessary. 
therefore, either to repudiate the old crowd or to put on a bold front and 
unanimously endorse them. The drastic alternative was postponed, and the 
state officers were nominated by acclamation for a second term.

   Turner M. Marquett's home paper had urged that the nomination for 
member of Congress was due him because, though he had been elected twice, 
he had held the office only two days, and because "he met upon the stump 
the great war horse of democracy -- the power and eloquence of the 
democratic party -- the acknowledged best democratic stump orator the 
west, J. Sterling Morton -- and he completely whipped him, a thing which 
democrats say was never before done." But considerable virile ability did 
not find favor in competition with smooth and comparatively colorless vote-
getting qualities, and John Taffe was nominated on the first ballot by a 
vote of 34 to 18. At this time the civil war capital of the republican 
party was drawn on without stint, and it found characteristic expression 
in the resolutions through the medium of General Robert R. Livingston's 
appropriately florid phrase. Though an anti-prohibition plank was 
introduced with studied apology, it was afterward summarily ejected. This 
incident shows that though the party had become a great business machine, 
politically and commercially, it showed a lingering trace of the 
sentimental philanthrophy on which it was founded.

   The second democratic convention for the year 1868 was held at Omaha on 
the 5th of August. Democratic and republican newspapers alike expatiated 
on the harmony of the respective party conventions this year. It has been 
heretofore pointed out that, owing to the extreme factional discord in the 
republican party, which had grown, mainly, out of the removal of the 
capital and the questionable methods of the pro-removal administration, a 
show of harmony was the alternative of repudiation of the administration; 
and since possession of power and of spoils was at stake, harmony was 
necessary. For the democrats, harmony was easier. They had nothing 
materialistic to quarrel over but unpromising prospects of power. At the 
January convention, S. H. Calhoun, a leader of the anti-Morton

Page 536

"young democracy" of Otoe county, was chosen temporary chairman, permanent 
president, and a member of the committee on resolutions, and Morton was 
unanimously chosen as a delagate to the national convention.

   In the convention of August 5th, Andrew J. Poppleton, a favorite of 
Morton and of the Omaha Herald, was nominated by acclamation as the 
candidate for Congress and thus made leader of the party for the campaign, 
and he sympathized with the general Pendleton-greenback sentiment of the 
party in the state. The specific declaration, in his speech to the 
convention, in favor of a policy which should encourage the building of 
railroads in the state, while in accord with a prevailing and natural 
public sentiment, yet, between the lines, foreshadowed a subsequent 
division of the party which tended to keep it in an almost inconsequential 
minority until it united with the professedly anti-monopoly populist party 
in 1894. The candidates for the state offices were also nominated by 
acclamation, a mode of choice with which democratic conventions became 
familiar through the common practice of some twenty-five years. The office 
seeks the man only when there is little or no chance that it will find him.

   The political campaign of 1868 was a tornado of vehement offense and 
defense -- virulent epithets and violent personalities; though the climax 
of this viciousness was not reached until the eve of the impeachment of 
the governor and auditor. It excites the wonder of their successors of the 
very next generation that these men of considerable parts could have 
played the game of politics on a plane so mean. Morton in the News and 
Miller in the Herald led in this unbridled offensive partisanship, partly 
because it was the business of the outs to attack the ins, partly because 
the reckless conduct of the administration offered so many vulnerable 
points of attack, but more largely because Morton and Miller were greater 
masters of epithet than their still willing and resourceful antagonists of 
the Republican and the Commonwealth.

   The republicans won the elections by majorities ranging above 2,000, 
though it is questionable whether they fairly won at all two years before. 
While local conditions favored the democrats, the result of this contest 
plainly indicated that thenceforth, owing to the prevailing republicanism 
of the large immigration and the great prestige and influence of the 
national republican party; the organization in Nebraska was destined to be 
invincible for very many years. But the democratic party was not wanting 
in faults which strengthened and lengthened republican power in the state.

   At this time the "old soldier" shibboleth began to be an open sesame to 
public office at whose door it continued to knock for some twenty-five 
years with a persistency and success unfavorable to fair politics and good 
government. The indebtedness and general preference which were naturally 
conceded to this peculiar class, were naturally overworked and overdrawn, 
sometimes by themselves and constantly by selfish partisan demagogues at 
the frequent expense of due discrimination.

   The interval between the elections of 1868 and the meeting of the 
legislature in regular session January 7, 1869, was busily employed by the 
democratic press in continuing the bombardment of the state 
administration -- and Governor Butler in particular -- for corruption and 
by the administration organs in denying, rather than refuting the damaging 
charges. The Journal, the organ at the capital, was the thick-and-thin 
defender, and the Omaha Republican, for the time, substituted a policy of 
apology for its former hostility. In the latter part of this year the 
capital coterie of politicians began agitation for a new state 
constitution. The first constitution was condemned as inadequate and 
otherwise faulty because it limited the number of judicial districts to 
three for the next six years, and they were "entirely inadequate, even 
now"; because under its provisions the supreme court was composed of the 
three judges of the inferior judicial districts, whereas a distinct and 
independent supreme tribunal was necessary; because the salaries of state 
officers were to low -- so paltry that they degraded the state; because 
the period of forty days to which sessions of the legislature were limited 
was too short for the proper transaction of business;

Page 537

and because improved provisions for the creation and regulation of 
corporations were needed.

   After the third session of the legislature had adjourned it was 
discovered that no provision had been made for the election of 
presidential electors, and on account of this oversight it became 
necessary to call the fourth special session which began at Omaha, October 
27, 1868, and lasted two days. The members of this legislature were 
elected in October, 1866.

   The beginning of the period of almost safe supremacy of the republican 
party in the state was indicated by the composition of the third state 
legislature -- but the first to have a regular session and the first, 
also, to hold a session at Lincoln. The observation that the half dozen 
democratic members looked very lonesome does not impute partisan bias in 
the observing party organ; for this was a familiar phenomenon of many 
succeeding sessions. This legislature convened in the new capitol January 
7, 1869. The officers of both houses were elected unanimously. Edward B. 
Taylor of Douglas county was president of the senate, and William McLennan 
of Otoe, speaker of the house. The prospectively rich resources of the 
salt springs had lured the capital to its site and largely carried the 
hazardous enterprise of establishing it. The result of actual experiment 
in their development had already become disappointing and embarrassing to 
the sponsors of the capital removal scheme. The governor complained in his 
message that the Nebraska Salt Company, of Chicago, which had acquired a 
half interest in Tichenor's lease of the principal springs, had failed to 
fulfil its obligations; even the local demand for salt had not been 
supplied, and the company "has been unable at times to supply even a 
single bushel for home consumption, and has refused to pay its debts among 
our citizens." The governor urged the legislature to take such action as 
would promote the manufacture of salt to the greatest extent. He urged the 
legislature to provide compensation for the company of volunteers which 
had been organized under his advice in the fall of 1867, consisting of 
those settlers who had been plundered of everything and compelled to 
abandon their homes. He also urged the passage of a militia organization 
law.

   The most exciting procedure of this session was the choosing of a 
United States senator to succeed Mr. Tipton. In the first caucus, Senator 
Tipton commanded less than a third of the total number of votes. He was 
supported by the eleven members from Nemaha and Richardson counties, the 
representative from Gage, and from one to three from the North Platte. 
Turner M. Marquett of Cass and Dwight J. McCann of Otoe, each controlled 
the seven members from his own county and those attached to make up the 
districts, and in addition two to three scattering votes. Governor David 
Butler controlled the votes of ten to twelve members, four from back 
counties south of the Platte, two from Douglas, and the remainder 
scattering from the North Platte. Four scattering ballots from Douglas 
county were probably held in reserve for Phineas W. Hitchcock. At the 
second caucus, held Saturday evening, January 16th, Tipton's highest vote 
was 15, Butler's 12, Marquett's 11, McCann's 10. Butler and Marquett tried 
to tie up their forces in the hope of winning enough to elect one of them, 
but at the third caucus, held January 18th, the votes needed for the 
success of the plan began to go to Tipton, the first vote standing, Tipton 
22, Marquett 15, McCann S. The third ballot stood Tipton 27, Marquett 15, 
McCann 2, and the independent and recalcitrant senator succeeded to a long 
term, while his carefully conforming colleague, Thayer, was put off with a 
single fractional term of four years. Charles H. Brown of Douglas county, 
as aggressive and independent as Tipton, but without his graces of oratory 
and too harsh in his methods for a successful politician, received the 
complimentary vote of the seven democratic members.

   The most important question of the session was that of applying the 
public improvement lands to encourage the building of railroads. There was 
a general public sentiment in favor of the general policy of subsidizing 
railroad companies with these lands, and the only im-

Page 538

portant dispute was as to the extent of the grants and the manner in which 
they should be awarded. While the wisdom of the policy of subsidizing 
railroads or other private enterprises with public property is open to 
question, and certainly it has been very often, if not generally 
misapplied or abused, yet there were strong arguments in its favor in this 
case. For without railroads there could be no appreciable market for land 
or its products and so no general settlement. Locally, then, the question 
was one-sided; for the settlers who had cast their fortunes with the 
Plains country could not afford to await the voluntary coming of the 
railroads. But whether, considering the ample room and the undeveloped 
condition of states farther to the east which railroads had already 
reached, it was good economic policy to force the development of the trans-
Missouri plains by expensive subsidies, is another question. So the 
present question is one of local speculation -- whether in a particular 
case it will pay a local community to invest a part of its property with 
the purpose of increasing the value of the remainder. In this case the 
state at large came within the purview of a local community. In the 
circumstances, therefore, the allegation that, "by common consent these 
lands, or the greater part of them, seem destined to be used for railroad 
purposes" is explicable, and it was also a correct forecast.

   A resolution declaratory of the policy of the legislature, offered in 
the house, provided that all of the internal improvement grant, "or as 
much thereof as the legislature may deem proper," should be reserved for 
actual settlement, all the net proceeds of the sale of such lands to be 
used for aiding in the construction of railroads and for such other 
improvements as the legislature should deem best for the interests of the 
state. This policy was impracticable because it involved the immediate 
sale of the land and therefore at a very low price, so that the proceeds 
would have amounted to but a small gratuity; while under the policy which 
was adopted, of granting the lands themselves, the corporations would 
reckon on their prospective values which a rise largely from the building 
of the roads in their propinquity.

   The measure adopted was the product of a compromise between the 
differing views. It provided that two thousand acres should be granted for 
each mile of road that any company should construct ready for rolling 
stock, within the state; but ten consecutive miles of road must be built 
within one year from the passage of the act and before any land could be 
awarded. To prevent injurious competition with the lands retained by the 
state, the railroad companies were prohibited from selling their subsidy 
lands at less than $1.25 an acre, and to prevent "large tracts of land 
from being held for any considerable length of time, thereby retarding 
settlement and cultivation," the companies were required to offer annually 
at public sale all lands which they should still hold after five years 
from the time they were acquired. The act contained the conservative 
provision that it should not remain in force more than five years. The 
Union Pacific and the Burlington & Missouri companies were let into 
limited participation by the provision that companies which had received 
grants from the United States would be entitled to two thousand acres for 
each mile of road thereafter constructed, but only to the extent of twenty-
five miles.

   Lingering resentment against the notorious grant of seventy-five 
sections of the public lands to the Northern Nebraska Air Line R. R. Co. 
at the session of June, 1867, was manifested in the vote -- 12 
affirmative, 23 negative -- on a bill offered by Brush to repeal that 
measure and to appropriate the lands for the construction of bridges 
across the Platte river.

   Another important act of the session was that providing for the 
establishment of "The University of Nebraska." An act requiring the state 
treasurer "to keep constantly on hand the identical funds received by him 
from any source whatever," until they were paid out according to law, was 
so inconvenient in practice that it was repealed at the special session in 
March of the following year. Doubtless the sense of the inconvenience was 
manifested quite as much by those who hoped to profit by an open-door 
policy as by the treasurer

Page 539

himself. Disastrous experience in later years has shown that the makers of 
the inconvenient law did not act without prevision or reason.

   A law was passed prohibiting the sale of intoxicating liquors on 
election day. Similar laws are now generally in force throughout the 
Union. Five thousand dollars was appropriated for the compensation of 
Capt. John R. Brown's militia -- company A, First Nebraska cavalry -- 
"called into service against the Indians by the governor from August 13 to 
November 15, 1867, and to satisfy claims of citizens who furnished to said 
company transportation and quartermaster's stores." The report of the 
capital commissioners was accepted, and Lincoln was formally declared the 
capital of the state. The original capitol grounds at Omaha were re-
transferred to that city, "for the purpose of a high school, college or 
other institution of learning, and for no other purpose whatever." Alvin 
Saunders, George W. Frost, Thomas Davis, John H. Kellom, Augustus Kountze, 
James M. Woolworth, and their successors were constituted a board of 
regents to manage and control the contemplated school. A joint resolution 
authorizing and recommending the people to vote upon the question whether 
there should be a constitutional convention aroused more attention and 
caused more contention than any other enactment of the session.

   A bill "to regulate the passenger fare and tariff of freight on all 
railroads in the state" was prematurely perhaps introduced into the house 
by Stout. Tender nursing and indulgence of this class of corporations, 
rather than correction or restraint, was a natural public policy when 
expansion and development of the area of settlement was a serious, and 
perhaps the chief public care. But a self-seeking and powerful standpat 
element seized upon the opportunity afforded by this peculiar condition to 
project its influence far beyond a legitimate period.

   As a condition of admission to the union, Nebraska was required by the 
national Congress to grant the right of suffrage to negroes. just three 
years later the state was called on to give the assent needed for the 
adoption of the fifteenth amendment to the federal constitution which 
guaranteed universal right of suffrage to the black men. The motive for 
the first requirement was mainly philanthropic and was animated by a small 
number of political idealists led by Charles Sumner. The motive for the 
second was also partly philanthropic but very largely selfish partisan 
advantage. This partisan exigency or ambition demanded expedition, and of 
the objects of a special session of the legislature, the governor's call, 
issued February 7, 1870, first specified the ratification of the 
amendment. The second object of the session was to provide for the 
erection of a penitentiary. Among the other proposed subjects of 
legislation were the ratification of the remarkable contract made by the 
governor with Isaac Cahn and John M. Evans for the development of salt 
manufacturing, and division of the state into congressional districts.

   The republican state convention for 1870 was held at Lincoln on the 
10th of August. John Taffe was nominated for member of the national House 
of Representatives for a third and last term, on the first ballot, his 
principal competitor being Joseph E. Lamaster. After a fierce contest, 
David Butler was nominated for governor for the third time on the ninth 
ballot. His principal competitors were Robert W. Furnas and Samuel 
Maxwell. Furnas received sixty-five votes on the seventh ballot -- within 
three votes of a choice. Maxwell received his highest vote -- 32 -- on the 
informal ballot.

   The omission from the resolutions adopted by the convention of any 
reference to the state administration or state affairs was significant and 
in harmony with the adage that the least said about some things the 
better, and it was tacit approval of Mr. Chase's warning as to the 
impropriety of nominating Butler. The glittering-generality character of 
the platform was illustrative of the fact that the republican party was 
still resting on the prejudices and laurels of the Civil war, and had not 
yet grappled with economic principles or accepted the economic policy of 
Pennsylvania and other almost exclusively manufacturing states of the 
northeast.

   This year a third party organization was

Page 540

formed, composed in the main of republican dissenters and in effect 
chiefly an ally of the democrats. This dissenting and fusion movement 
progressed, though intermittently, until, twenty-four years later, it came 
into power in the state and held it for six years. At this time the 
mainspring of the movement was opposition to the maladministration of the 
republicans, or the Lincoln machine; and though at the period of its 
greatest strength the third party espoused drastic and radical principles, 
maladministration of its opponents still lent it a large part of its 
strength. The new party adopted the same name -- the people's party -- by 
which it was known in later years until the more distinctive and technical 
adaptation, "populist," displaced it. The state conventions of the 
democratic party and the new people's party were held simultaneously at 
Plattsmouth on the 7th of September, and their proceedings were in 
substantial harmony.

   The political canvass was violent even for an unsettled frontier 
society. The democrats, led by an able and unrestrained press, let slip 
its dogs of war more particularly at Governor Butler, and they were ably 
assisted by antiButler republican insurgents, including Senator Tipton, 
now in open rebellion and probably the cleverest campaigner in the state. 
Andrew J. Cropsey bearded the lion in his den and was elected state 
senator over his straight republican competitor, Dr. Stewart of Pawnee 
county, carrying his home county of Lancaster by a vote of 742 against 
393. The republicans made virulent charges of crooked business 
transactions against Croxton, the democratic candidate for governor, but 
they naturally had little effect as an offset to the charges of official 
corruption urged against Butler. The chief and most specific of the 
accusations was that the governor had appropriated to his own use a large 
sum of the public school fund. In the face of unsatisfactory and often 
evasive denials, Mr. Croxton, accompanied by General Experience Estabrook, 
demanded permission to examine the books of the treasurer's office, which 
was refused.

   While Butler received a majority of only 2,478 votes over Croxton, 
Taffe, the republican candidate for member of the federal house of 
representatives, received a majority of 4,408 votes over his opponent, 
Judge Lake, a much stronger candidate than Croxton. This discrepancy does 
not fully reflect the effectiveness of the bold and relentless attacks on 
Butler in, and previous to, the campaign, and since he was peculiarly apt 
in turning obloquy into reactionary sympathy, belief in his guilt as 
charged must have been widespread. Audacity is a very effective force in a 
political, as well as a military campaign; but unless it is backed by 
rectitude and other substantial qualities it soon deteriorates into mere 
hardihood, and a fall follows.

   Though older northern states were beginning to drop out of the 
republican ranks, a premonition of the long period of democratic control 
of the national House of Representatives which began four years later, 
yet, in the dependent new community, the perquisites of power were so 
strong a stimulus and stay of popular support that to cry the republican 
shibboleth loudly, as the organs, and especially as the organ at the 
capital cried it, in alarming tone, insured victory in the most adverse 
circumstances. And so the republicans were able to carry off a crippled 
state victory and also to win a large majority of the members of the 
legislature. The sensitive and solicitous machine at the capital was 
rudely jarred by the election of Cropsey as a senator, but its interests 
were otherwise sustained at the polls by a vote of 798 for Butler and only 
318 for Croxton, and 523 in favor of a constitutional convention and only 
2 against it.

   In the temper and condition of the majority party at this time negative 
qualities in a candidate for office were most successful, and so in this 
rather perilous campaign John Taffe easily, if not triumphantly, achieved 
his third, though last election as member of the national House of 
Representatives, against a man of decided ability and individuality.

   The eighth session -- second regular session of the state legislature 
convened January 5, 1871. Ebenezer E. Cunningham of Richardson county, was 
president of the senate; John C. Myers of Douglas county,

Page 541

was temporary speaker of the house; and George W. Collins of Pawnee, was 
elected permanent speaker, over Elam Clark of Washington county, by a vote 
of 21 to 16. Upon the organization of the house, Mr. Doom of Otoe county, 
anticipated in a virtuous resolution, though less sweepingly, what 
Governor Folk actually did at the session of the Missouri legislature in 
1905, as follows:

   Resolved, That all lobby members of this legislature, who have any 
business to attend to at home, and all federal office-holders within the 
state, who are drawing salaries from the government, be granted leave of 
absence until the 25th day of June, 1871.
   That federal officers, holding office in any other state or territory, 
be excused from further attendance upon this legislature.

   This was a Hitchcock broadside against Thayer's platoon of placeholders.

   The showing of the state's finances in the governor's message was still 
unfavorable. There was a balance in the treasury, December 1, 1868, of $48,
526.92. The receipts from all sources, up to November 30, 1870, had been 
$937,414.97, and the disbursements, including $315,188.60 expended for 
public buildings, were $908,055.33, leaving a balance of $77,886.56; but 
current funds were wanting, and the message complained that a large amount 
of warrants on the treasury remained unpaid, and they had been at a 
discount of ten cents to fifteen cents on the dollar much of the time 
during the last two years. This was owing, it was said, to the difficulty 
in collecting taxes. The assessed valuation of property in the state had 
increased from thirty-two million dollars in 1868, to fifty-three million 
in 1870. The total amount of public lands received by the state was 727,
960 acres. This was exclusive of the 2,643,080 acres of common school 
lands, of which 72,578 acres had been sold at an average price of $8.93 an 
acre. Of the 500,000 acres of public improvement lands, 257,312.71 acres 
had been awarded to railroad companies as bonuses.

   During the past two years 2,382,157 acres of land had been entered -- 
918,081 acres as homesteads and the remainder as preëmptions. The entries 
at the Lincoln land office were 877,129, and at the Beatrice office, 381,
931; at the Dakota City office, 737,176 acres; and at the West Point 
office, 385,921. Thus the growth of the North Platte and that of the South 
Platte sections were nearly equal. The Union Pacific railroad company had 
sold 289,644.42 acres of their land grant in the state -- since July 28, 
1869 -- and the Burlington & Missouri company, 61,303.25 acres. Lincoln 
lots and saline lands which had been sold at auction but not taken by the 
bidders, to the amount of $74,200, remained in the hands of the 
commissioners. This indicates either a remarkable unreliability of buyers 
or a very loose way of conducting the sales.

   The movement for encouraging immigration had been organized under the 
law passed at the last special session of the legislature by the 
appointment of C. C. Smith of Falls City, William Bischoff of Nebraska 
City, and Fred Krug of Omaha, as members of the board of immigration; and 
C. N. Karstein of Nebraska City, was chosen as the commissioner to reside 
in New York city.

   The election of a United States senator is usually the star play of a 
legislative session, but in that of 1871 this special feature was outshone 
by its more dramatic impeachment rival. The three principal candidates for 
senator were John M. Thayer, who sought reëlection, Phineas W. Hitchcock, 
and Alvin Saunders, -- all residents of Omaha. The twelve democratic 
members decided in caucus to vote for Hitchcock, and he owed his election 
to their questionable policy. Since they were too weak to conquer their 
greatly outnumbering enemy, they would inflict as much damage as possible 
by assisting one of the factions to the defeat of the "regular" candidate.

   Regularity was Thayer's standing and standard virtue, and he was more 
objectionable to the democrats than either of the other candidates because 
he particularly represented, and was the willing sponsor of the national 
administration.

   It was charged with truth, that Thayer's only occupation since he came 
to Nebraska had been office-seeking and officeholding, and

Page 542

this objection yielded some advantage to those candidates who had been 
less persistent or less prosperous in this regard. He was "always a 
candidate for office, never a lawyer, save in name, nor a plain or 
ornamental farmer; he has joined his senatorial fortunes with Stout and 
Kennard." After his defeat he was comfortably cared for in the office of 
governor of the territory of Wyoming during nearly four years.

   General Thayer's military merit lay chiefly in the careful execution of 
superior orders, supplemented by the more superficial and yet important 
qualities of good personal appearance and deportment. This disposition not 
to reason why, which was a virtue of the soldier, was a fault of the 
statesman, though it was not then rated and resented by the public as it 
is at the present day. This defeat ended General Thayer's important 
officeholding in Nebraska during his virile years. Edward Rosewater 
opposed the election of Hitchcock, but his political temper was 
antithetical to Thayer's. Instead of bending to the success of the object 
of his opposition, he forecast his future career as the leader in Nebraska 
journalism by regarding the assault as the mere beginning of a war to the 
finish. He took counsel of the future instead of the past, and at the end 
of six years the now triumphant Hitchcock met his quietus -- the first 
important victim of this nemesis of numberless Nebraska politicians.

   Impeachment of Governor Butler. As soon as the senatorial question was 
out of the way, the legislature took up the question of impeachment of 
Governor Butler. The anti-Butler press, both democratic and republican, 
had crystallized the sentiment for such act before the legislature 
convened. On the 25th of January Edward Rosewater offered a resolution, 
requesting the governor to communicate to the house, "at the earliest 
moment," the name of the agent appointed, by act of the legislature, to 
collect from the United States five per cent of the proceeds of the sale 
of public lands made before the admission of the state into the Union, the 
amount collected, and the amount paid the agent for his services.

   The governor reported that the $16,881.26 had been collected and 
deposited in the state treasury, and that there were no fees for the 
collection. It developed that the governor had used the funds for private 
purposes and had given the state real estate mortgages as security. The 
governor made a plain admission of the act. The governor was suspended 
during the trial, and after the impeachment abdicated the office.

   By act of the legislature, March 3, 1873, a commission composed of the 
governor, secretary of state, and the state treasurer, was authorized to 
liquidate and settle all claims of the state against David Butler by 
taking from him a warranty deed for lands in lieu and release of all 
mortgages against him, but neither his residence nor his lands in 
Lancaster county should be included in the deed which ineluded 3,400 acres 
lying in Gage, Jefferson, and Pawnee counties.

   Impeachment of Auditor Gillespie. Auditor Gillespie bad joined the anti-
Butler faction and had assisted in exposing Butler's derelictions. The 
sobriquet "Honest John" was bestowed upon him by the reform faction as a 
sort of objective contrast. This was a dangerous distinction, and the 
Butler partisans used it as a derisive epithet. As soon as the Butler 
proceedings were out of the way, Galey of Lancaster county offered a 
resolution providing for a committee to investigate the letting of 
printing contracts in 1869. A summons was issued for Gillespie and he 
appeared before the senate with his counsel; he was allowed six days in 
which to prepare an answer. The anti-Butler faction prevented action by 
breaking the quorum, and finally by adjournment until the second Tuesday 
in January, 1872.



Page 543

CHAPTER XXV 
ANARCHY IN THE LEGISLATURE -- SESSIONS OF 1871-1872 -- THE LUNATIC ASYLUM 
BURNED -- CONSTITUTIONAL CONVENTION OF 1871

   THE BUTLER faction in pressing the impeachment of Gillespie was only 
playing a game of tit for tat; and its organ, the State Journal, made the 
most of its opportunity to take the right side of a technical question of 
the controversy:

   The two houses, in the absence of a quorum, having failed to do the 
only thing they had a constitutional right to do, viz: to adjourn from day 
to day and dispatch the sergeant-at-arms after absentees, are dead as a 
doornail and can no more meet on the "2d Tuesday in January, 1872," or any 
other time, of their own motion, than a cow can jump over the moon. They 
cannot adjourn over twenty-four hours unless a Sunday intervenes, when 
they can make it forty-eight.

   Nevertheless, the excommunicated legislature, or, rather, a part of it, 
did reconvene on Tuesday, January 9, 1872. There were eight senators 
present at the opening of the session, and three of those who had been 
elected to fill vacancies were admitted. Only twenty-three members were 
present when the house was called to order. Each house could muster a 
quorum for ordinary business, but it was easy for the senate to fall short 
of the two-thirds necessary to go on with the trial of the auditor. 
Corrupt and despotic procedure, incident to the attempt to remove the 
capital, demoralized and divided the fourth territorial legislature. 
Sectional animosity arising out of the actual removal which largely 
justified itself by exposure of the rottenness of the successful capital 
cabal, together with unbridled, though rather small-bore, political 
ambitions, produced a like state of anarchy at this adjourned session of 
1872. The Butler faction approximately localized in the South Platte 
section, longing for a more comprehensive state constitution -- and with 
particular regard to more offices and larger salaries -- and unwilling to 
follow again the slow course of regular procedure, was bent on the 
remarkable scheme of reviving by legislative enactment the constitutional 
convention which had surely become extinct by its own act of adjournment 
without day.

   On the second day of the session a bill authorizing the convention to 
reconvene passed the senate by a vote of 8 to 2, and on the following day 
it passed the house, 21 to 9. The next day -- January 12th -- the senate 
concurred in an amendment by the house; on the 15th Acting Governor James 
vetoed the bill; on the 17tb the senate passed it over the veto by a bare 
constitutional majority -- 8 to 4 -- but on the 19th the house failed in 
its attempt by a vote of 12 to 21. The veto message set forth that in 
section 1, under the title "Amendments," the constitution provided that a 
majority of the two houses of the legislature might call a convention to 
revise or change that instrument whenever they should deem it necessary, 
and thereupon the proposal of the joint resolution in favor of holding a 
convention passed February 15, 1869, was adopted by a meager vote at the 
general election in October of that year; that by authority of the act of 
March 27, 1871, delegates to the convention were elected and convened June 
13, 1871, and after fifty-eight days labor "ceased to exist" as a body by 
an adjournment, sine die, and were resolved back to the body of the 
people. The constitution prepared by this convention was rejected at an 
election held according to a provision in the instrument itself.

   Section 1 of Article 9 of the constitution,

Page 544

which the short-cut device of the legislature would have avoided, provided 
that if a majority of both houses of the legislature should deem it 
necessary to call a convention to revise or change the constitution, they 
should recommend to the electors to vote for or against a convention at 
the next election of members of the legislature, and if a majority of the 
electors should vote for a convention, then the legislature, at its next 
session, should provide for calling it. The population at that time was 
very unstable, and since no method had been prescribed for filling 
vacancies, it is probable that many districts would have been without 
representation at the proposed second sitting of the convention which must 
have occurred nearly a year after the delegates had been elected. Inasmuch 
as the method of procedure in question is incorporated in substance in the 
present constitution, according to the contention of the revivalists of 
1872, of whom the State Journal was evangelist, the convention of 1875 is 
a perpetual body whose powers are merely dormant and capable of being 
reinspired into action at the call of any legislature. That venerable 
body, thus reassembled by the omnipotent legislative fiat, might well 
recur to the apostrophe of St. Paul (or Alexander Pope): "0, grave, where 
is thy victory!" Mr. Estabrook's contention that this was "the next 
legislature" which had power to call the convention and therefore had 
power to recall it, was merely ingenious and scarcely to be taken 
seriously.

   On the 19th a conference committee of the two houses reported a 
resolution to adjourn sine die on the 24th, at 11 o'clock p. m. The house 
adopted the report the same day, but a motion in the senate to concur 
under suspension of the rules was defeated, and in the regular order the 
question lay over one day. The senate remained in fruitless session all 
night, but on the morning of the 20th, during a call of the house, Sheldon 
moved to adjourn until December 31st. Thereupon Scofield raised the point 
of order that no business could be transacted while the call was pending, 
which the president overruled. On the question, "Shall the decision of the 
chair stand as the judgment of the house?" there was an even division, 
Abbott, Cropsey, Metz, Sheldon, Thomas, and President Hascall votinge aye, 
and Hilton, Linch, Larsh, Scofield, Tennant, and Tucker, no, which, it was 
asserted, of course defeated the affirmative side of the question 
according to the rules of the senate and all other legislative bodies. But 
political assemblies, especially when under factional incitement, seldom 
hesitate to live up to the venerable maxim that where there's a will, 
there's a way; and with Hascall in the chair that was an easy task -- as 
easy as it had been in former not more or less halycon days, with Hanscom 
presiding on the floor. On the same day, the acting governor, with good 
reason, construing this contrary action as a constitutional "case of 
disagreement between the two houses in respect to the time of adjournment,
" interposed the following message:

State of Nebraska, Ex. Chamber,
January 20, 1872.
To the Honorable the Speaker of the House of Representatives:

   WHEREAS, The House of Representatives adopted a resolution to adjourn 
sine die on the 24th inst., in which the senate failed to concur and 
adopted a resolution to adjourn until the 31st day of December, 1872: And 
whereas, no reasonable hope is entertained that the longer continuance in 
session of this legislature will result in the adoption of any measures 
which have for their object the public good.
   Now, Therefore, I, William H. James, Acting Governor of the State of 
Nebraska, under and by virtue of the authority vested in me by the 
Constitution, do hereby declare this legis]ature adjourned without a day.
WILLIAM H. JAMES.

   Having declared the senate adjourned, Hascal dropped out, and on the 
evening of the 20th, Hilton was elected president pro tem. On Monday, the 
22d, the senate, ignoring the action of the acting governor, took up the 
conference report in regular order and adopted it. With the exception of 
Kennedy of Douglas, only the old guard of the Butler faction -- Hilton, 
Linch, Larsh, Scofield, Tucker; and Tennant -- were present. In attempting 
to prorogue the legislature without day, the acting governor exceeded his 
constitutional au-

Page 545

thority, which was as follows: "In case of disagreement between the two 
houses, in respect to the time of adjournment, the [the governor] shall 
have power to adjourn the legislature to such time as he may think proper, 
but not beyond the regular meetings thereof."

   On the 22d the rump remnant of the senate also agreed to a preamble and 
joint resolution, declaring the office of governor vacant, and that the 
two houses should fill the vacancy on the 24th, When the house met at two 
o'clock in the afternoon of the 22d, its journal was missing, but it was 
found in the auditor's office with the governor's adjournment message, 
which had not been regularly received, "attached by some other hand than 
that of the clerk who made up the journal; and it was forthwith expunged 
from the record." The attempted sessions of the 23d were a farce, and the 
meetings of both houses on the 24th expired of imbecility. On the 23d, the 
acting governor illustrated the efficiency of the vaunted "checks and 
balances" of our constitutions by shutting off the coal supply from the 
legislative chambers.

   The most important of the few enactments of the session of 1871 was a 
law providing for a constitutional convention which should meet on the 
second Tuesday in June of that year. The law provided that fifty-two 
delegates to the convention, one from each senate and representative 
district, should be chosen on the first Tuesday of May, and that the 
delegates and the secretaries of the convention should receive $3 a day 
and the same mileage that was allowed members of the legislature. A herd 
law was enacted which held owners of cattle, horses, mules, sheep, and 
swine responsible for all damage done by them upon cultivated lands.

   In a memorial which recited that Nebraska had never received more than 
the 500,000 acres of public lands, given on admission as a state, while 
not less than one million acres had been given to foreign corporations and 
an equal amount for the endowment of agricultural colleges, Congress was 
asked to grant lands to aid in the construction of a railroad from Lincoln 
to Denver, and another from Brownville to Denver; also in aid of the Omaha 
and Northwestern, and the Fremont, Elkhorn and Missouri Valley lines. 
Because, owing to the great depression in business, preëmptors of lands 
could not pay for them, Congress was asked to extend the time of payment 
to three years from the time of filing. Congress was petitioned also to 
grant 90,000 acres of land for the endowment of an agricultural college -- 
30,000 acres for each senator and representative -- under the act of July 
2, 1862; to reimburse citizens of the state for losses on account of 
Indian depredations during the last eight years; and for the removal of 
the national capital to the great basin of the Missouri valley.

   At the adjourned session of 1872 only fourteen acts, none of much 
importance, were passed. By one of these, Guy A. Brown was appointed a 
commissioner to revise and compile the laws of the state, a work in which 
he continued for many years until his death; an act appropriated, 
annually, $3,000 to the state board of agriculture, and $2,000 to the 
state horticultural society, "for the sole purpose of advancing, 
developing, and making known the agricultural and horticultural capacities 
of the state"; and another appropriated $4,500 out of the insane asylum 
fund to be used for the erection of a temporary hospital in place of that 
recently destroyed by fire.

   Thomas F. Hall, chairman of the ways and means committee, which had 
been directed by the house to investigate the condition of the state 
treasury, on the fifth of June reported the resources of the treasury as 
follows: tax levy of 1870, general fund, $122,500; general fund 1870, 
delinquent, $60,500; levy of 1870, sinking fund, $26,800; sinking fund 
delinquent, $18,000. The report estimated that there would be a shortage 
of $100,000 in collections of these nominal resources. There were $9,000 
uninvested in the permanent school fund; $73,000 invested in United 
States, and Union Pacific bonds; and $73,000 due the state from insurance 
companies. The liabilities of the state were as follows: general fund, 
$200,000; interest on bonds and floating indebtedness, $25,000; 
outstanding warrants, general fund, $130,000; building

Page 546

fund, $40,000; territorial bonds belonging to school fund, $36,300; loan 
of university fund (to pay impeachment expenses), $16,000; total, $447,
300, leaving a balance of indebtedness, 219,500. The warrants were fifteen 
per cent below par value.

   By the state treasurer's report it appears that the amount received 
into the treasury from January 21, 1869, to January 11, 1871, was $893,
268.66. This report was largely a statement of grievances. Owing to the 
financial depression, farmers were scarcely able to realize prices for 
their crops exceeding the cost of production, consequently nearly all the 
taxes of 1869 and a large part of the levies of former years remained 
uncollected. "Besides this, wealthy railroad corporations, operating lines 
of railroad within the borders of the state, and, doubtless, fully able at 
any time to meet the demands upon them for taxes assessed, are 
delinquents, proposing, as is supposed, by the power of their wealth and 
influence, to override the just demands due the state for the protection 
afforded by law to their rights and privileges, thereby casting the whole 
burden of the state government upon the less powerful."

   The year 1871 in Nebraska was one of gloomy poverty -- morally and 
economically; its only resource, agriculture, was as yet doubtful and 
undeveloped. Prices of products which, owing to imperfect transportation 
to long distant markets, were normally low, were pressed by the impending 
industrial panic down to an unprofitable scale. As we have seen, official 
speculation and factional strife had demoralized and almost destroyed 
social order. This very bad condition was illustrated and made worse by 
the incendiary burning of the insane asylum on the 17th of April.

   One inmate perished in the fire. Ten convicts escaped from the 
penitentiary during the night of the conflagration, and it was charged, 
though without proof or probability, that they were let loose to assist in 
kindling it. The leading republican, but anti-administration, organ summed 
up the case as follows:

   The lunatic asylum ought to have been a substantial public building and 
an honor to the state. By law the expense was limited to $50,000, but the 
state officers took the responsibility of increasing it, until the amount 
actually paid was about $150,000. The main building was 72x90 feet, and 
five stories high, with a four story wing running northward, 42x80, making 
a total frontage of 170 feet. A brick structure of this size, and costing 
so much money, should have been something for every Nebraskan to be proud 
of. But this asylum did not excite emotions of that sort, being so badly 
put together that visitors were fearful it would fall while under its 
roof. . . The builder of this matchless specimen of architecture was one 
Joseph Ward. An attempt was made to burn it several months ago, by placing 
combustibles in the roof, but failed . . . Of the grand delivery of 
penitentiary convicts, we have too few facts to justify comment. But ten 
convicted criminals are certainly at large . . . What a history the 
capital has furnished of late. The state officers charged with peculating 
and speculating -- Impeachments, queerly handled -- Burning of a Lunatic 
Asylum and Lunatics -- and winding up with the quiet departure of one-
third of the convicts in the Penitentiary. Surely it is about time for a 
constitutional Convention that will build for the state anew, and let it 
start again with a clear record. The chief care of the compilers of the 
constitution of 1866 was to make it a password to statehood; and so they 
craftily contrived that it should resemble the territorial organic act as 
closely as practicable. The judicial system for the state was the exact 
counterpart of that of the territory; there was no change in the number of 
the members of the legislative houses; the number of executive officers 
was not increased and their salaries were kept down nearly to the old 
beggarly level; and against the emotional sentiment for negro 
enfranchisement with which the republican party was possessed, its 
devotees in Nebraska opposed the ancient and reactionary restriction to 
white suffrage. This concession was calculated to weaken or subdue the 
opposition of the democrats who lacked the stimulus of prospective 
senatorships and high federal offices which temporarily stifled the 
principles and stultified the philanthropic professions of 4 the expectant 
republicans. But by 1869 the partisan emoluments of the change to statehood

Page 547

had been seized and the dominant Butler faction felt that its new capital, 
which was an outgrowth of admission, was now established so that it might 
safely proceed to enlarge it powers, privileges, and emoluments through a 
new Constitution of broader scope. The malcontents insisted that the state 
was "hampered by the want of courts, by the need of proper grades in the 
judiciary and by the picayunishness and general meanness that breathes 
throughout our organic law." Every fourth year two general elections were 
necessary because the constitution fixed the time of the state election 
earlier than that of the national election; the supreme court, en banc, 
"sit on their own decisions"; the code "is a conglomerated patchwork, it 
is neither the Ohio nor the New York code, which are radically different 
from foundation to turret, but is a compromise between the two with a lot 
of loose rubbish culled from all the rest of the states thrown in."

   The constitution of 1871 was in the main a replica of that of Illinois 
which had been adopted the year before, and the long session of the 
convention was chiefly occupied in rather tedious discussion over proposed 
changes of the Illinois pattern, but very few of which were made. The 
spirit of the Granger movement, at that time becoming rife in the north 
central states, was positively and plentifully reflected in the Illinois 
constitution; and since the principal debates in the Nebraska convention 
were devoted to questions of that class they served to disclose the 
attitudes of the members toward the new and progressive doctrines and also 
to disseminate them among the people with the recommendation or approval 
of many of the most influential citizens and political leaders.

   The convention is subject only to the secondary liability of an 
endorser for the long preaching preamble which it copied verbatim from its 
Illinois model. The Illinois bill of rights was also copied with few and 
unimportant changes. Five sections were added defining treason; 
guaranteeing the right to a writ of error in cases of felony; requiring 
the passage of property exemption laws; establishing the same rights of 
property for aliens as for native citizens; and reserving to the people 
all rights not delegated by the constitution. The section regulating 
eminent domain was amplified, and through the persistency of Mason there 
was added the radical provision that compensation for taking or damaging 
property, except in time of war or other public exigency or for roads 
which should be open to the public without charge, "shall in every case be 
without deduction for benefits to any property of the owner." In the 
Illinois constitution this question of damages was left to be ascertained 
by a jury, "as shall be prescribed by law"; and the Nebraska constitution 
of 1875 has only the simple provision that, "the property of no person 
shall be taken or damaged for public use without just compensation 
therefor." There was no counterpart of the robust, radical democrat, 
Mason, in the convention of 1875.

   The article relating to corporations in the constitution of 1871 
differs from that of the Illinois constitution only in permitting counties 
and municipal subdivisions to make donations to them after a proposal to 
make such grants had been submitted to the electors of the district or 
division to be affected and approved by three-fifths of those voting upon 
the question, and in the addition of a few precautionary restrictions. The 
provision of the constitution of 1871 and of its Illinois original that 
"the legislature from time to time shall pass laws establishing reasonable 
maximum rates of charges for the transportation of passengers and freight 
on the different railroads in this state," was changed in the constitution 
of 1875 by substituting the merely permissive "may" for the mandatory 
"shall." While this change was of no practical importance, because there 
is no power except its own will which can compel a legislative body to 
this or that action, yet it foreshadowed the complete subserviency to the 
railroads which has distinguished the political history of the state.

   That the committee on railroad corporations were willing to report the 
Illinois article indicates that the inspiriting influence of the Granger 
sentiment had reached across the Missouri; and the thunder tones of Mason

Page 548

reveal that the idea of control was clear and insistent. The bold heroics 
employed by the chief justice in opposing public donations to railroads 
are not improved upon by the stump speeches or in the judicial harangues 
of the present anti-corporation heyday, which neither cost courage nor 
inspire caution:

   There was a time when the name of king was hateful to the whole 
American people. When our forefathers rebelled against British tyranny 
they came to couple in their minds, with their dislike of oppression, an 
aversion to the very title under which tyrannical power had been 
personified. But now we bear constantly of railroad kings -- just as if 
railroad kings were any less odious than political kings! We want no kings 
of any kind in America -- neither political kings nor railroad kings! If 
the power of the great railway corporations be not curbed and repressed 
and lessened, and that right speedily, we fear it will be difficult to 
preserve the liberties of the people in opposition to them. Stich 
aggregations of capital are always naturally and inherently unfavorable to 
popular instincts and rights. We do not say that the collection and 
concentration of capital may not sometimes be made to contribute to the 
public good, but then it should be regulated and controlled by the strong 
hand of law. It should also be vigilantly and always watched as liable at 
all times to assume the character of a public enemy. Our great railway 
corporations already elect state legislatures. These legislatures make 
laws and exercise more or less power over state judges. At any election of 
president they may be able to turn the scales in favor of the one 
candidate or the other. Presidents appoint federal judges, and thus the 
national courts may be reached. The railway power is the most dangerous 
power existing in the country today; to make this fact generally realized 
is the first step toward effecting the reduction of that power.

   Robinson skilfully argued that each case of voting aid to railroads and 
other partially public enterprises was one of expediency to be decided in 
some fair way by the people themselves and that there was no difference in 
principle between taxing private property to aid in building railroads and 
in doing the same thing to maintain public highways or public schools.

   Now relative or conventional necessity is but another term for 
expediency. So if the proposition is to have any force at all strict 
necessity must be meant . . . A small amount of travel, a low state of 
commerce would not demand a railroad, while it might demand a highway. 
Again, travel and trade might be so low as to make even a highway 
unnecessary. In the one case it would he expedient to build a railroad, in 
the other to build a highway. This, I think, is sufficient to show that 
the quality of the necessity which ought to enter into the purpose of 
taxation is wholly conventional and the question whether not the tax ought 
to be levied for a given purpose, wholly a question of expediency. Where a 
tax is levied upon all for a purpose which is exclusively for the benefit 
of a portion of the community, that is wrong; but that case is not this 
case nor resembles it.

   There was an ostentatious anti-monopoly demonstration also in the long 
and heated discussion over the liability of stockholders in banking 
corporations. The committee on banking reported the section of the 
constitution of Illinois which provided for a liability of an amount equal 
to the stock held in addition thereto the provision of the present 
constitution of Nebraska. This convention discussed at length a proposed 
section providing for the compulsory attendance at the public schools of 
children between the ages of eight years and sixteen years and for 
establishing a reform school. The usual arguments in favor of compulsory 
education were advanced by Estabrook, Lake, Manderson, Neligh, Vifquain, 
and Wakeley, and the familiar arguments against it by Kirkpatrick, 
Maxwell, Newsom, and Robinson. Apparently owing to the fact that the 
proposal for compulsory education was complicated with that for a reform 
school which certain members feared might lead to unwarranted expense, the 
section was separately submitted to the popular vote.

   A proposal to insert a section providing that lands granted within the 
state by the United States to railroad corporations should be subject to 
taxation as soon as the grant became effective provoked an aggressive 
discussion in which Boyd's voice alone was heard in opposition. At Judge 
Mason's instance, the subject was referred to the judiciary committee, 
with Estabrook, Sprague, and Wakely added

Page 549

for information as to the legal power of the convention to reach the 
desired end. A less definite section than that proposed was adopted.

   There was a stirring discussion of Philpott's proposal to add to the 
section of the bill of rights which made the usual exclusive provision for 
the grand jury system a proviso that "the grand jury system may be 
abolished by law in all cases." Estabrook, always progressive, said, "it 
does seem to me that the occasion for the grand jury has gone," and Lake, 
Majors, Maxwell, Strickland, and Thomas also supported the amendment, 
while Campbell, Manderson, Mason, Myers, Wakeley, and Wilson opposed it. 
Mason, as usual, spoke to the principle involved, contending emphatically 
that the alternative method of accusation by information placed an 
undemocratic and dangerous power in the hands of one man. The dispute 
resulted in a compromise by which it was left to the courts to impanel 
grand juries in their discretion -- substantially the provision of the 
Illinois constitution and the present constitution of Nebraska. The 
convention frequently set out on an original departure from its Illinois 
copy but seldom got far astray.

   The report of the legislative committee provided that the first Senate 
under the new constitution should have twenty-five members and the first 
house of representatives, seventy-five. This precipitated a heated debate, 
and the number was reduced to nineteen for the senate and fifty-seven for 
the house. In both cases it was left to subsequent legislatures to fix the 
number of members, but it should not exceed thirty-three for the senate or 
one hundred for the house. Delegates from the western counties clamored 
for the larger number so that they might have effective representation. 
The more conservative members insisted first the chambers would not 
accommodate the proposed numbers and that the expense of so large a body 
would be too great.

   Lake warned the convention that a feeling of opposition to the 
constitution throughout the state had already been engendered on account 
of its extravagant provisions which might defeat its adoption. He pointed 
out that there were only two important objects in reforming the 
constitution, the first to create an independent supreme court and perhaps 
add one more judicial district, and the second to consider the question of 
extending county and municipal aid to railroads; but, be complained, "we 
are getting up a constitution which will require a much larger expenditure 
of money in order to carry out its provisions properly than is expended in 
many of the older states."

   The various petitions relating to the liquor traffic were referred to a 
special committee of which Oliver P. Mason was chairman. Judge Mason made 
a long report which was chiefly an arraignment of the traffic, and it 
stopped short of recommending absolute prohibition only because the 
committee feared that it would not be a practicable remedy for the evils 
which the report portrayed. "Had your committee the evidence that a 
prohibitory liquor law would be sustained by the vote of a majority of the 
legal voters of the state, they would earnestly recommend to this 
convention the adoption of the inhibitory principle . . . but not having 
this evidence before us and realizing that such a law unsanctioned by the 
people might be productive of evil and not good," the committee proceeded 
to recommend an article directing the legislature to pass a local option 
law essentially the same as the measure later favored by prohibitionists 
and which came near being adopted at the session of 1911. The question was 
compromised by submitting the prohibition provision separately and simply 
authorizing the taxing of liquor dealers in the article on revenue and 
finance.

   The proposal to confer the right of suffrage upon women caused a rather 
one-sided debate in which Estabrook and Manderson argued for the 
affirmative in extended and able speeches. Manderson saw the early advent 
of the expanded suffrage in the agitation then going on in England. ". . 
Meetings are being held in every city and town and some of the foremost 
men and women of that country are advocating the measure. They are 
knocking at the doors of parliament, and we are told that not many months 
will elapse

Page 550

ere this [right] will be extended to woman." The fact that just such a 
demonstration is now stirring English politics coupled with the fact that 
Wakeley's statement in the convention that he wanted women to have the 
right to vote whenever they demanded it and favored the submission of the 
question to them alone expresses the present common sentiment of men 
toward the question and indicates that there has been but little change in 
its status in the intervening forty years. Estabrook stated that in the 
opinion of able constitutional lawyers the fourteenth and fifteenth 
amendments conferred the right to vote upon women, and he cited the recent 
favorable expression of Jeremiah S. Black and Michael C. Kerr, leading 
democrats, as the basis of his belief that woman suffrage would soon be 
adopted as an issue of the democratic party. But neither of the national 
party conventions of 1908 seriously thought of favoring woman suffrage. 
The convention evaded the question by shifting it on to the people by the 
convenient separate submission device.

   The clause affecting the taxation of church property was the most 
important provision of the constitution because it was chiefly responsible 
for its rejection by the people; and yet it was adopted after thorough 
discussion and was probably just and fair. Mason precipitated the debate 
by a motion to strike the word "religious" from the section reported by 
the committee which classified the property usually held exempt from 
taxation.

   A section reported by the committee, which provided that "the capital 
or seat of government shall remain at the city of Lincoln," precipitated a 
lengthy and heated debate. Boyd moved an amendment which provided that it 
should remain in Lincoln until 1880 and thereafter until it should be 
removed by a law designating some other place to be approved by a vote of 
the people. Estabrook, Hascall and Myers, all of Omaha, and Kirkpatrick 
and Stevenson advocated the original section, while Philpott of Lancaster 
county, Mason, and Wakeley supported Boyd's amendment which was carried. 
The constitution cured the uncertainty as to when the functions of an 
impeached officer should cease by providing that no officer shall exercise 
his office after he shall have been impeached and notified therof until he 
shall have been acquitted. This amendment was carried into the 
constitution of 1875 though that instrument lodged the power of impeaching 
in both houses instead of the House of Representatives alone and the 
authority to try the impeached officerin the supreme court instead of the 
senate.

   The constitution was rejected at the election held September 19th, by a 
preponderance of 641 votes. While some of the objections urged against it 
were legitimate, yet they were not of sufficient importance to warrant its 
repudiation; but they were used to increase and justify the factional and 
sectional prejudices and to cover the corporation hostility, which 
together mainly inspired the opposition.

   Owing to the adverse conditions in which Nebraska was first occupied by 
white settlers, the plea of poverty became a habitual state of mind which 
has long outlived the economic fact which produced it. The chief objection 
to statehood in 1860 and in 1866, and to the adoption of the constitutions 
of 1871 and 1875 was that they would be too expensive. This now venerable 
obsession reduced salaries of public officers to the level of beggary in 
the first constitution, to inadequacy in the two subsequent constitutions, 
and still keeps certain of the state institutions in penny wise and pound 
foolish starvation. And so economy was the war cry against adoption of the 
constitution. It was objected that it was better fitted for a state of 
half a million, than for one of only 175,000 people; that the salaries of 
executive officers were too high; that the number of members of the 
legislature was too large, and that their compensation was unnecessarily 
increased from $3 to $4 a day, and no limit was fixed to the length of the 
sessions. By defeating the constitution the state would save annually $17,
000 in judicial and $10,000 in executive salaries; $10,000 in extra 
expense of census taking; and $60,000 by avoiding a special session of the 
legislature. At an anti-constitution public meeting held in Omaha, August 
29th, the statement

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was made that the salary provided for judges of the supreme court in the 
proposed constitution --$3,500 -- was the highest of a list of salaries 
paid such officers in twenty-three states. Judge Oliver P. Mason spoke in 
favor of adoption at this meeting.

   The fact that the recently adopted constition of Illinois had been 
drawn on freely for material by the Nebraska convention was used as an 
argument in favor of the approval of its work. It was said that it 
contained "nearly all the wholesome reforms embodied in the new 
constitution of Illinois, which is acknowledged to be the best in the 
United States," and was ratified by a majority of more than 100,000 votes. 
Although the proposed constitution was bitterly assailed, on the other 
hand its friends were alike active, and the arguments in its favor were 
promulgated with ability and industry. Printed copies of the instrument, 
preceded by an address which explained and moderately extolled its merits, 
and underwritten by a committee composed of Chas. F. Manderson, chairman; 
John C. Campbell, David T. Moore, Eleazer Wakeley, Enos F. Gray, Alexander 
S. Stewart, and Charles A. Speice, were distributed to voters. Friendly 
speakers and newspapers also enlivened the thirty days' campaign.

   Encouragement of railroad building had thus far been the prime article 
of economic and political faith in Nebraska; and, therefore, railroad 
interests would naturally be inclined to nip in the bud the presumptuous 
heresy that was propagated in the regulatory provisions. Other corporation 
interests had reasons of their own for joining the railroads in opposition 
to adoption. But while these considerations contributed toward rejection, 
it was chiefly due, no doubt, to the general public disapprobation and 
distrust of the political status. The spectacle of the impeachment 
proceedings and the succeeding political anarchy, which just then filled 
the public eye, were well calculated to produce a restive public 
disposition. While sentiment for and against the constitution was not 
clearly defined by the old Platte river sectional line, yet the vote of 
the North Platte section was 4,932 against and 2,068 for; while that of 
the South Platte was 5,918 for and 3,695 against, and eighteen of the 
twenty-two North Platte counties gave majorities against, and ten of the 
sixteen South Platte counties for adoption. The vote of the four North 
Platte counties that favored the constitution, with the exception of 
Cuming, was very small. It is significant also that the decidedly 
democratic counties of Dakota, Platte, and Sarpy were almost unanimous, 
and Dodge was strongly against the constitution.

   The vote on the five sections submitted separately follows; Liability 
of stockholders, 7,286 for, 8,580 against; municipal aid to corporations, 
6,690 for, 9,549 against; compulsory education, 6,286 for, 9,958 against; 
submission of prohibition proposition, 6,071 for, 1,060 against; woman 
suffrage, 8,502 for, 12,676 against.