History of Nebraska - Chapter 26



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CHAPTER XXVI 
A SPECIAL SESSION FIASCO -- THE TENNANT CASE -- RIGHT OF A NEGRO TO BE A 
JURYMAN --VALIDITY OF ADMISSION TO STATEHOOD -- POLITICAL DISRUPTION OF 
1872 -- THE FURNAS LIBEL SUIT -- THE KENNARD CLAIMS -- STATE FINANCE -- 
RETIREMENT OF TIPTON AND ELECTION OF PADDOCK FOR UNITED STATES SENATOR -- 
FINAL DEFEAT OF THAYER -- CAPITAL REMOVAL --LEGISLATURE OF 1875

   IT DID NOT satisfy the hunger for disorder that the cup of anarchy had 
been filled by the performances of the adjourned session of 1872; and the 
enemies of the acting governor's regime set about causing an overflow. The 
disturbers had won over to their side Hascall, the president of the 
senate, who in the temporary absence of Acting Governor James from the 
state, himself assumed the office of acting governor, and, on the 8th of 
February, hastily issued a call for the legislature to convene in special 
session, February 15th. The objects of the session as stated in the call 
were to enact laws, (1) providing for the encouragement of immigration; 
(2) for the issuance of funding bonds to the amount of $50,000; (3) to 
declare the cases in which offices were deemed vacant and the mode of 
filling them; (4) for investigation; (5) relating to common schools; (6) 
to cities and towns; (7) to new counties; (8) appropriation of money for 
the general welfare; (9) for the keeping of state prisoners; (10) 
increasing jurisdiction of probate judges; (11) correction of the journals 
of the last regular session of the legislature.

   Acting Governor James left the state February 6th, to go to Washington 
on public business. He did not take the usual course of notifying Mr. 
Hascall, who, according to the constitution, would become acting governor 
in case of his own absence from the state, probably because he was 
unwilling to contribute toward Hascall's authority for convening the 
legislature. The faction which was clamoring for a special session charged 
James with bad faith in violating an alleged agreement to call it, as a 
condition of the settlement of the adjournment imbroglio of the January 
session. Whether this assertion is true or not is past finding out, and it 
has little or no bearing upon the question of the propriety or legality of 
Hascall's obtrusion. On the 13th, Acting Governor James issued a 
proclamation declaring that issued by Hascall unauthorized, null, and 
void, and enjoining the legislature to disregard it.

   On the 15th, seven senators -- a bare quorum -- and fifteen members of 
the house -- five less than a quorum -- mustered at the capitol in 
response to the spurious call, but they found the doors of the chambers 
locked and barricaded on the inside. Twenty members of both houses -- 
presumably all who were whole-hearted in the enterprise -- united in a 
petition to the acting governor, who had hastened back from Washington 
after a stay of only six hours, for admission to their respective halls. A 
teapot revolution followed the firm denial of the request, and emissaries 
of the insurgents gained access to the chambers by unusual and devious 
ways. Those who honored the call were, in the main, representative of the 
Lincoln cabal, and the coterie which had favored the salt subsidy and the 
impeachment of Gillespie. "After the room was cleared of the barricades, 
and the janitors had made the fires, the senate proceeded to business," 
which consisted of the appointment of a committee to inform the

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house that it was ready for business, and another to report rules. The 
house appointed T. B. Hartzell as sergeant-at-arms, and seven assistants, 
and instructed them to bring in absentee members. On the second day the 
accession of Cropsey, Linch, and Tennant, with the loss of Sheldon and 
Smith, raised the number of senators to eight. The house reported twenty 
absent, which meant one less than a quorum present. But trickery and fraud 
quite commonly defeat themselves. On the 17th the senate passed a bill 
providing for the filling of vacancies in executive offices. But it was 
now easy to discern that this ill-considered scheme was a failure, and as 
rats desert the sinking ship, the members who came were not inclined to 
stay. On the 19th the opposition played its trump. On the arrest of 
Senator Tennant by the sergeant-at-arms, to compel his attendance, a writ 
of habeas corpus was applied for in the supreme court. At the hearing on 
the 21st, the testimony of Acting Governor James, his private secretary, 
and Senator Hascall was taken. In the report of the case it is stated 
that, "Hascall, who resided in Omaha, learning of James's absence, went at 
once to Lincoln, the capital, and under pretense that the document was one 
certifying that some person was a 'notary public, obtained from James's 
private secretary the great seal, long enough to get its impress to a 
paper of which the following (the proclamation) is a copy, and which was 
published in some of the papers of the state."

   Eleazer Wakeley and Mark H. Sessions, counsel for Tennant, adopted and 
emphasized the theory that Hascall had not assumed the office of governor, 
according to the spirit and form contemplated by the constitution. He had 
not acted in good faith, but had clandestinely slipped into the governor's 
office and, under a false pretense, appropriated and used the seal for 
this single specific purpose. Judge Lake leaned to this view in his 
opinion; but Crounse did not commit himself on that point. Both of these 
judges, however, contended that the executive had complete control of the 
proclamation up to the time when it had become finally effective, and 
that, having recalled it, the legislature was not in legal session, had no 
authority to compel the attendance of members, and so its "every act is 
without the shadow of authority." Judge Mason, in his dissenting opinion, 
made the very strong point that the regularity of the procedure, 
preliminary to the assembling of the legislature, could not be questioned 
collaterally; it had resulted in a session, at least de facto, of a 
coördinate department of the government of which the other departments 
were bound to take judicial notice. The chief justice also strenuously 
maintained that Hascall's call became vitalized beyond revocation the 
moment that it was issued. He plausibly more than hinted that the majority 
was governed by political bias. "Courts should yield to no clamor, and 
shrink from no responsibility," he said. Justice Crounse protested against 
Mason's insinuations in a curt note appended to the opinions, in which he 
said that his opinion and that of Judge Lake were given hastily at the 
time of the hearing, while Mason had taken time for investigation before 
preparing his own.

   Decisions of questions with a political bearing by mere majorities in 
our courts, high and low, are so common, that Judge Mason's strictures 
need not excite our wonder. It seems relevant to note that the domicile of 
the two agreeing judges was in the North Platte, and that of the dissenter 
was in the South Platte. There is ground for perpetual dispute as to 
whether the contention of the majority or that of the minority is the 
better sustained by reason. The effect of the decision was at least 
salutary in summarily circumventing the cheap trickery of Hascall and 
relieving the state from another scandalous exhibition of imbecility. For 
it is not probable that a working quorum could have been kept together. 
The attitude of the press is as clearly explicable as the opinions of the 
learned judges are indeterminate and confusing. The Lincoln organ was of 
course in favor of a session, and so the Tribune-Republican at Omaha was 
of course violently opposed to it. The Bee, just then fighting for a 
foothold in the Omaha journalistic field, was against its local rival, and 
so supported Hascall. The episode moved the nearly republican organ in the 
neighboring

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state to a drastic summing up of political conditions in Nebraska:

   That the state of Nebraska is blessed with the scurviest set of 
political rascals outside of New York, no one who has noticed the course 
of events in that state during the past twelve months will question. The 
governor has been impeached and deposed, and the last session of the 
legislature was an illegitimate and abnormal affair, characterized 
throughout by scenes of violence and disorder that would have disgraced 
the lowest bar-room brawl. And now comes Senator Hascall, president of the 
senate, proclaiming himself acting governor in the absence of Governor 
James who is at present out of the state. His first act is to issue a 
proclamation convening the legislature on the 15th inst . . . The Omaha 
Tribune, in a double-leaded article, denounces this action as 
revolutionary, "the cheap and dirty trick of an irresponsible and 
unprincipled politician, an insult to the state and a dastardly game of 
personal revenge against Gov. James."

   The game of politics, played upon a larger scale and by the larger men, 
though never fastidious or on a very high plane, is interesting and 
instructive. In this degenerate aspect, however, its petty story is told 
and tolerated chiefly for the incidental light it throws upon the 
evolution of the commonwealth.

   In February, 1872, the supreme court of the state decided that the 
statute confining the legal right to sit on juries to free white males was 
overruled by the condition to admission interposed by Congress, which 
declared that there should be "no denial of the elective franchise, or of 
any other right, to any person by reason of race or color." The question 
arose in the trial of one Brittle on a charge of burglary, in the district 
court of Douglas county, when the right of Howard W. Crossley, a negro, to 
sit on the jury was challenged by the defendant. Chief Justice Mason 
dissented from the decision of justices Crounse and Lake. Justice Mason 
answered in the negative his question, "Could Congress change the 
constitution which the people had adopted and admit the state into the 
Union with its fundamental law so changed, without the consent of the 
people?" He contended that, "being elected by the people to legislate 
under the restrictions of the constitution, the legislature was not, nor 
could Congress, by recognition or otherwise, constitute it, the 
representative of the people to overturn the law which the people had 
established for it as well as for the citizen." The "very best 
constitutional lawyers of the land," who were members of the Congress 
which imposed the condition, knew that it was without force or effect. 
"The people of this state never voluntarily entered the Union with a 
constitution amended by the erasure of the word 'white.' Congress admitted 
representatives from the state, and the territorial government was 
withdrawn; and nothing remained for the people but to go on under the 
state government. Coerced in this way their action is now said to conclude 
them."

   This question "is too serious to be answered by a sneer. It is too 
profound to be solved by an appeal to partisanship . . . It has always 
been conceded that Congress could not prescribe a form of government to a 
people, save that it should be republican in form."

   In the majority opinion it was pointed out that the enabling act-of 
1864 -- prescribed that a convention, organized according to provisions of 
the act, should meet in July, 1864, and form a constitution which should 
be submitted to the electors of the territory, for their ratification or 
rejection, in the following October; and that the sentiment of the people 
at that time being opposed to a change to statehood, the convention 
"refused to make a constitution and adjourned sine die." Afterward, in 
1866, "as is well known, the constitution was originally drafted in a 
lawyer's office by a few self- appointed individuals," who "importuned the 
legislature then sitting, to submit it to a vote of the people."

   And then the opinion proceeds to pronounce, little short of a dictum 
that the constitution was not fairly adopted by the popular vote on 
account of the throwing out of the Rock Bluffs ballots and the improper 
counting of the soldier vote:

   Suppose, then . . . a criminal is put upon his trial; and, as a 
defense, he offers to show that at the June election in 1866, a clear 
majority voted against the adoption of the, constitution, notwithstanding 
the board of canvassers have declared otherwise . . . I am satisfied that 
he could make a fair showing in that direction. It is said that a whole 
precinct

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in one county was thrown out, where the majority was already against the 
constitution; that, in another place, a large number of soldiers voted in 
its favor, with no pretext of right so to do; and in other respects, 
irregularities intervened which might easily overcome the declared 
majority of a hundred. This might well be where a vote was had under no 
competent authority, and where no one, for ballot-box stuffing or for 
false returns could be punished. Would the court allow the evidence?

   The opinion held that it was clearly too late to question the validity 
of statehood, and so of the terms and conditions under which admission to 
statehood had been effected. The federal constitution simply prescribed 
that, "new states may be admitted into the Union," and "this is all that 
is said. The manner in which such states shall be formed, or how they 
shall be introduced, is nowhere prescribed. It is a political question, to 
be settled by the people of the territory on the one side and the Congress 
on the other, When the fact of admission is established, the courts are 
bound by it and cannot go behind it." It was argued that the question, how 
or by whom the constitution was formed, was of no consequence, neither was 
it necessary to submit it to a vote of the people. Congress had prescribed 
submission in the original enabling act, but that act was not regarded as 
a standing offer; so in 1867 Congress amended the constitution offered by 
the legislature, the territory accepted the amendment, the territory was 
then formally admitted under this last provision of Congress and assumed 
the functions of statehood.

   Justice Mason was no doubt right in his emphatic contention that 
Congress could not force a constitution, or any part of one, upon a 
prospective state, and that the condition of admission which undertook to 
confer suffrage upon negroes was null and void. "At the time of the 
discussions over the Lecompton constitution in Kansas, by which the whole 
country was convulsed, it was universally supposed that the doctrine was 
once and forever settled, that no territory could be forced into the Union 
until its people had a full, fair, free opportunity to express their 
approval or disapproval of its constitution . . . Until the case of our 
state arose, no single instance ever occurred of Congress admitting a 
state without the popular approval of the constitution." The Congress 
which imposed this condition comprised many very able men -- among them 
the most eminent leaders of the republican party -- most of whom, without 
partisan distinction, emphatically expressed the opinion adopted by 
Justice Mason. His dissenting opinion reduced the controversy to two 
points: "There are but two circumstances in the whole course of this 
history which deserve a moment's consideration one, the vote of the people 
upon the constitution, without which all that had gone before was of no 
avail; the other the action of Congress. Each, in its turn, cured all 
irregularities which preceded it, and relieves us of the necessity of any 
inquiry in respect of everything else."

   Jurisprudence being very far from an exact science, as is illustrated 
by the not infrequent five to four decisions of our highest judicial 
tribunal, we may not be expected to see clearly why subsequent uses, by 
assumption of the functions of statehood under the color of a contract, 
consisting of the acceptance of at least a part of the constitution by a 
formal popular vote and of another alleged part of it by the legislature 
on the one hand, and the act of Congress and the proclamation of the 
president on the other, should have cured all irregularities except the 
suffrage condition or amendment. Yet when it is considered that the 
constitution which the people approved does not contain the suffrage 
condition, there appears to be at least a judicial distinction, or color 
of reason, which justifies justice Mason's conclusion.

   But Justice Mason's second contention, that the statute excluding 
negroes from jury service was not inimical to the fourteenth amendment of 
the federal constitution, was swept away by a decision of the federal 
Supreme Court in 1879. The court made a distinction which left some 
plausibility for Justice Mason's distinction that jury service was not a 
"right" but a public duty or burden. "We do not say that within the limits 
from which it is not excluded a state may not prescribe the qualifications 
of

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jurors, and in so doing make discriminations. It may confine the selection 
to males, to freeholders, to citizens, to persons within certain ages, or 
to persons having educational qualifications"; but the aim of the 
fourteenth amendment was to prevent discrimination on account of race or 
color, and this was the effect of the statute of West Virginia, as also of 
that of Nebraska in question.

   The year 1872 was distinguished by political revolt: within the 
republican party against a corrupt and despotic machine, commonly called 
Grantism; within the democratic party against a bourbonisin which kept it 
chained to a dead past. The movement led to the nomination of Horace 
Greeley for president, by a formidable rebellious faction called "Liberal 
Republicans" and also by the democratic party, whereby the latter turned 
its back on its traditions and on some of its principles. Dissatisfaction 
and disgust with local conditions had particularly prepared those Nebraska 
republicans who were courageous enough, to revolt even in the cause of 
reform for the general weal.

   At a mass meeting of liberal republicans, held in Nebraska City, the 
last week in April, Geo. W. Ambrose and John McCormick, of Omaha, Dr. 
Renner, of Nebraska City, and A. W. Kellogg, of Lincoln, were chosen as 
delegates to the liberal republican national convention, which was held in 
Cincinnati. In June and July, David Butler, ex-governor; Oliver P. Mason, 
chief justice of the supreme court; Thomas W. Tipton, United States 
senator; Monroe L. Hayward, many years afterward a United States senator; 
Experience Estabrook, ex-attorney-general; and Elder John M. Young, of 
Lincoln, all prominent republicans, made speeches for Greeley. Hayward, 
Mason, and J. Sterling Morton spoke at a Greeley meeting in Nebraska City. 
Spectacles of like incongruity are found only in the proverbial strange 
bedfellowships of politics; though all three of these men were inclined to 
independent action. Mr. Hayward also signed the call for the liberal 
republican state convention held this year. The prematurity of this 
attempted local fusion almost equaled the like attempt in the national 
campaign, and in such conditions success in either case was not to be 
expected. The signal failure of this reform movement in its national 
aspect greatly strengthened the regulars locally and left them in power 
until the successful populist revolt twenty years later. A republican 
convention was held at Lincoln, May 15th and 16th, for the purpose of 
choosing delegates to the national convention. The strained formality of 
long lists of vice presidents and large committees and tedious two-day 
sessions, even, with but a single simple function to perform, was still in 
vogue. The remarkable feature of the convention was the advocacy of 
popular election, not only of United States senators, one of our present-
day most prominent objective reforms, but federal administrative officers 
in general. Acquiescence by this body in national political conditions was 
perfunctory and a matter of course.

   But that devil which had so long inspired the local republican machine 
was content to recognize, monk-like, the sickness of the national 
organization arid to prescribe civil service reform; and revenue reform, 
also, by "adjustment of the tariff until protection shall bear equally 
upon the different sections of the country." The republican organ at Omaha 
continued its complaints against the northeastern sectional tariff policy, 
but to which the party throughout the west fell complete captive during 
the following decade.

   The democratic convention, held at Lincoln on the 20th of June, joined 
the Greeley reform movement, which had been formally started at the 
Cincinnati convention. Notwithstanding the consistency and justification 
of the reform slogan, of which there was forcible local illustration, and 
the considerable license allowed in politics for strange bedfellowship, 
the incongruity between the leader and the new departure following was too 
great to be taken seriously. The moral effect of this independent protest 
was lasting and greatly aided the logical leadership of Tilden to sweep 
the country -- by the popular vote at least -- four years later, and 
substantial victory eight years later still. Greeley and his traditions 
were a dish bitterer than crow for bourbons of the Morton type, who were 
leaders of the Nebraska democracy; but their lane of defeats had been

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very long, with still no sign of turning, and anything that involved a 
possibility of change doubtless seemed better than to further pursue the 
monotonously direct course to failure.

   In the fall there was a formal fusion of democrats and liberal 
republicans for the local campaign by the same methods which were employed 
by democrats and populists in and after 1894. Henry C. Lett of Nemaha 
county, headed the fusion ticket as candidate for governor; James M. 
Woolworth of Douglas county, was nominated for chief justice of the 
supreme court; and Jesse F. Warner of Dakota county, for member of the 
lower house of Congress. At the republican convention, held Sepember 4th, 
Robert W. Furnas was nominated for governor, and George B. Lake for chief 
justice of the supreme court. John Taffe was at last retired from Nebraska 
politics by this convention, and Lorenzo Crounse, an improvement in 
ability and virility, was nominated for member of the national House of 
Representatives, in his stead. Lett, Woolworth, Warner, Lake, and Crounse 
were all men of a higher average of character and ability than previous 
nominees for the same offices. While not nearly as bright a man as his 
opponent, Mr. Furnas had an advantage of military prestige and as a 
pioneer devotee and demonstrator of horticulture and agriculture.

   It can only be said that the political canvass of 1872 was less 
acrimonious than its later predecessors. The recent shocking exposure of 
crookedness which had characterized the whole career of the state ought to 
have caused a reaction which would have assured the nomination for 
governor of a man above corruption or suspicion. But the relentless editor 
of the Omaha Herald remembered that, as a member of the third territorial 
legislature, Furnas had been charged with receiving a bribe to vote 
against the removal of the capital from Omaha to Douglas City, and the 
Herald opened its campaign with specific reiteration of the old 
accusations. The fact that fear of defeat drove Furnas to boldly meet the 
accuser by beginning a libel suit against the Herald at least indicates 
the appearance, or reappearance, of a public conscience, though friends of 
the candidate, much shrewder than he, advised against this course as 
unnecessary and unwise. There were counter charges that Lett had 
fraudulently obtained twenty thousand acres of the state's public 
improvement lands for the Brownville, Fort Kearney & Pacific railroad 
company, of which he was president, by making a false affidavit that ten 
miles of the road had been constructed when rails had been laid on only 
seven miles, and all of the work done was of very inferior quality. 
Incidentally, the Omaha & Southwestern, or the Atchison & Nebraska company 
had been thus swindled out of a just right to these lands. John J. Gosper, 
republican candidate for secretary of state, was also smirched by the 
campaign character-painters.

   Because the independent or insurrectionary movement meant chiefly a 
"new departure," looking to the weakening or breaking of now unnecessary 
and only hurtful party bonds -- this purpose was emphasized by Greeley -- 
it was premature. It also unwisely sought to unite incongruous political 
elements. Greeley, therefore, carried only six states, all of the south. 
Economic conditions in Nebraska still encouraged dependence on the 
paternalistic republican party, and notwithstanding the defection of many 
of its influential leaders, it was successful by an increased majority of 
about 6,000. But the charge of bribery against Furnas was not ineffective, 
and he ran about 600 behind the average vote for his party ticket.

   The fifth legislature met in the ninth session, being the third regular 
session, January 9, 1873, and finally adjourned March 3, 1873. William A. 
Gwyer of Douglas county, was elected president of the senate, Guy C. 
Barton of Lincoln county, the democratic candidate, receiving only two 
votes. Mark H. Sessions of Lancaster county, was elected speaker of the 
house; his opponent, R. F. Stevenson of Cuming county, receiving only 
seven votes.

   Acting Governor James, who had at least successfully held on to his 
office with pertinacity against the schemes and machinations of the 
Lincoln machine, in his retiring mes-

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sage to the legislature expressed the hope that "the animosities 
engendered by the fierce political strifes through which we have passed in 
the last two years, may be buried and forgotten." Practical encouragement 
to immigration was still urgently needed, and the message justly commended 
the Burlington & Missouri and the Union Pacific railroad companies "for 
their material aid in advancing this important interest." In the face of 
the chronic denunciation of the State University as a failure by the Omaha 
press, the message commended its purpose and progress -- a needed, and, 
coming from the North Platte, a notable concession.

   Governor Furnas in his inaugural address complained that the law 
exempting lands planted to trees from taxation had become oppressive, 
causing an annual loss to the state in revenue of $200,000; he urged the 
revision of the constitution in the most expeditious manner possible; 
recommended the development of coal and salt deposits by the state; and 
insisted that the Indians should be removed from their reservations, and. 
from the state. Governor Furnas was a man of humane and gentle impulses, 
and to the Indians the persistent determination to dispossess them of 
their ancient domains was cruel. But this was a question of economic 
competition, which is in its nature relentless, and by its pressure within 
a decade three of the tribes of the weaker race were forced to go because 
they were the weaker race.

   Political turbulence, which had thus far characterized the state's 
career, had apparently exhausted itself. No doubt the formidable beginning 
of dismemberment of the dominant party had also a sobering effect; and so 
the session of the legislature was not marked by so much as a single 
violent episode or even by any procedure of unusual importance. William F. 
Cody, beter known as Buffalo Bill, was the democratic candidate for member 
of the house from the twenty-sixth district and according to the returns 
of the board of canvassers of the district he was elected by a majority of 
44 votes. The report of the committee on privileges and elections 
disclosed that the clerk of Harlan county had neglected to transmit the 
returns of the election in that county to the canvassers of Lincoln county 
as he was by law required to do. The committee found that by counting the 
votes of Harlan county, D. P. Ashburn, Cody's opponent, was elected by a 
majority of 42 votes. The house thereupon decided to "go behind the 
returns" of the canvassers and seat Ashburn. Mr. Cody did not appear to 
claim the seat, and the erroneous popular belief that he was a member of 
the legislature arose from the finding of the canvassers of Lincoln county 
who were authorized to canvass the returns of the seven counties 
comprising the district.

   Two resolutions were reported in the house authorizing the resubmission 
of the constitution of 1871 with such changes as the legislature might 
make. The majority of the committee to whom they were referred recommended 
the adoption of one of them (H. R. 71), but Babcock's minority report, 
which contended that the proposed "revision and submission of the so-
called new constitution" was beyond the powers of the legislature, and 
recommended that the question of calling a new constitutional convention 
be submitted to a vote of the people at the next general election, was 
adopted; and thus the foundation was laid for the convention of 1875.

   Erroneous information that a bill to remove the capital had passed, 
sent to the Omaha newspapers on the 12th, led them to expose their anti-
Lincoln animus. The next morning the Herald entitled its editorial leader, 
"Move it, yes, move it!" and the Republican was equally vociferous. On the 
same day, also, over sanguine removalists telegraphed to Senator Hitchcock 
at Washington, that the capital was on wheels, Lincoln was dead, and an 
appropriation for a postoffice was needless. A motion to indefinitely 
postpone this bill was lost by a vote of 14 to 22; but it was not 
difficult to demoralize the removalists because they could not agree on a 
new location, and the bill was finally laid on the table by a vote of 25 
to 11, six members from the North Platte -- Bartlett and Goodman of 
Douglas county, May of Dodge, Nelson of Burt, Sprick of Washington, and 
Tzschuck of Sarpy --

[image caption: William F. Cody "Buffalo Bill"]

Pagr 559

voting with the majority. The eleven who voted against the motion were all 
of the North Platte section, except Brown, of Cass. Two of the six members 
from Douglas voted for postponement.

   The Bee, February 19, 1873, declared, "that Lincoln could not remain 
the permanent seat of state government must be conceded on all hands." It 
offered as a salve for its unwarranted cocksure conclusion the theory or 
argument that the Herald had used when Omaha lost the capital, namely; 
that Lincoln as a city was now a fixed fact and would not permanently 
suffer from removal. Its solicitude for getting the capital away was 
ostensibly based on a condition, not a theory. "A most pernicious 
atmosphere of corruption surrounds our legislators whenever they assemble 
there."

   Reiterated charges by the press that the act of the legislature 
authorizing the construction of a state penitentiary had been corruptly 
violated by the state prison inspectors in entering into a contract whose 
consideration greatly exceeded the proceeds of the lands which were 
appropriated to pay for the structure, and that the contractors, Stout and 
Jamison, had done dishonest and inferior work, forced the legislature to 
enter on an investigation. A. K. White, J. S. Brown, Charles L. Metz, and 
R. H. Wilbur of the house committee on the penitentiary made a majority 
report which was little more or less than a whitewash. Henry Sprick made a 
minority report which contended that the original act appropriating the 
fifty sections of pententiary land for the purpose of building a 
penitentiary and the amendatory act granting twenty additional sections, 
"commonly known as the capitol building lands," for the same purpose, 
clearly contemplated that the cost of the building should be limited to 
the proceeds of the lands, and that the contract made June 13, 1870, 
providing for an expenditure of $307,950, an amount in excess of the 
proceeds of the lands, violated the law. The report showed also that the 
builders had not complied with the specifications. A special investigating 
committee of the house, consisting of Silas Garber, M. Dunham, A. H. 
Babcock, L. M. Howard, and C. W. Wheeler, made an extended inquiry in 
which many witnesses were examined. All of the members of the committee 
excepting Wheeler joined in applying a finishing coat of whitewash to the 
transaction. Mr. Wheeler's minority report reenforced that of Mr. Sprick. 
He pointed out that the provision of the original act, which limited the 
time for the erection of the building to one year, clearly showed that it 
was the intention of the act to limit the expenditure to the proceeds of 
the appropriation of fifty thousand acres of land. This time limit was not 
extended by the legislature until February 10, 1871, eight months after 
the excessive contract had been made. Experience proved, what this 
unlawful contract showed on its face, that its execution would take a 
great many years. Mr. Wheeler contended that if the inspectors who 
executed the contract could bind the state for any amount whatever beyond 
the appropriation they could have so bound it to an unlimited amount, and 
that the proposed building was disproportionate to the needs and financial 
condition of the state. In July, 1870, new plans and specifications were 
improperly substituted for the originals; inferior lime was used in the 
walls when the specifications called for cement; and heading courses had 
been omitted.

   The administration of our great public land trust has been 
distinguished by gross frauds during the last forty years, but it is only 
under the administration of the late strenuous executive that the honest 
determination and indomitable will requisite for their detection and 
punishment have come together. In that earlier heyday of fraud and 
profligacy it would not be expected that a legislature of Nebraska, whose 
paramount fealty was party fetichism, would have the will to find the way 
to fraud in the sale of the penitentiary land if the vociferous 
allegations of their perpetration were true. The Omaha newspapers led of 
course in these charges of fraud. The Herald alleged that lands were sold 
for two dollars an acre which under an honest sale would have brought from 
five dollars to ten dollars. The Republican was equally censorious. "It 
seems

Page 560

to us that $307,000 was a pretty large sum for the prison inspectors to 
pay for a penitentiary in so young a state and so sparsely populated, and 
it further seems to us that $174,000 was a low price for 44,800 acres of 
land." The lands, it was insisted, were to pay in full for the buildings. 
It was never dreamed that the state would be called upon for the payment 
of $160,000 or any other sum. But, as a matter of course, the legislature 
authorized the levy of a half mill state tax for 1873 and 1874, and a mill 
tax for 1875 and 1876 to pay the excess which was incurred not only 
unlawfully but unreasonably. This tax was a grievous burden on the 
settlers in those years of grasshopper devastation and a still more 
hurtful burden for many years to come in the shape of Stout politics as 
well as Stout contracts.

   It was a grievous fault of the newspapers at that time to make 
extravagant and often reckless assertions as to malfeasance of public 
officers upon hearsay. Thus the editor of the Omaha Herald made the 
boldest charges against the Butler administration and in the penitentiary 
affair, yet in both cases, when summoned to testify, he as positively 
asserted that he did not know "a solitary fact" -- except of course by 
hearsay. A juster public opinion today requires of newspapers an available 
basis of fact to justify accusations of this nature; and so the press is 
doing the most effective as well as genuine detective and reform work. 
Demands by the legislature in the form of joint resolutions, upon the late 
acting governor, auditor, and superintendent of the insane asylum, for 
funds and furniture belonging to the state, which, the resolutions 
alleged, had been wrongfully appropriated by those officers to their 
personal use, illustrate the continuing disgraceful public corruption, or 
else a mean and outrageously slanderous spirit. The legislature seconded 
the contention of the governor that the state should be rid of the Indians 
by memorializing Congress to that end, and continued the now familiar 
complaint of manipulation by the railway companies of their land grants in 
a manner unfair and oppressive to the homesteaders and preëmptors.

   The continuing aggression of the Indians on the westerly settlements 
was set forth in a request for the establishment of a military post, west 
of Red Willow county, by the federal government; and the impracticability 
of leaving an uncivilized and unassimilable, though peaceably inclined, 
people in juxtaposition with aggressive civilization was emphatically set 
forth in a demand that the Otoe and Missouri, Omaha, and Pawnee be 
absolutely restrained from passing through the white settlements on their 
way to the hunting grounds now beyond the frontier.

   The public scandals which had been continuous since the organization of 
the state government -- and especially since the removal of the capital to 
Lincoln -- up to this period, were varied or signalized by periodical, 
explosive episodes. There was the impeachment of Governor Butler in 1871, 
the anarchical disturbances between the legislature and Governor James in 
1872, and now, in 1873, another famous state trial in which Governor 
Furnas, though nominally plaintiff, was really defendant. Furnas foolishly 
began the suit but, in view of the damaging facts which it judicially 
established, he more foolishly allowed it to be brought to trial. The 
defendants were George L. Miller and Lyman Richardson, publishers of the 
Omaha Herald, and they were charged with having libelously alleged that 
Furnas stipulated to receive and had received $3,000 in gold, while a 
member of the council of the third territorial legislature, in 1857, to 
influence his vote on the question of the removal of the capital from 
Omaha to Douglas City. The trial began June 19, 1873. Oliver P. Mason, 
Seth Robinson, and John C. Corwin were counsel for Furnas, and Eleazer 
Wakeley, James W. Savage, and George W. Ambrose for the defendants.

   Furnas voted for the removal bill when it passed the council, but on 
the dilatory motions made by its friends who favored a test vote on the 
question of passing the bill over the governor's veto, he changed sides 
and voted with the anti-removalists. Finney, member of the house from 
Nemaha -- the same county which Furnas represented

Page 561

voted against the passage of the bill. These two were the only members 
from the South Platte section who stood against passing the bill over the 
veto, and, more significantly, only the vote of each was lacking in his 
respective house to override the veto.

   Benjamin P. Rankin, who had been member of the territorial legislature 
and also treasurer of the territory, was a lobbyist in the legislature of 
1857 and conducted negotiations with Furnas. At the time of the trial he 
lived at San Jose, California, and Oliver P. Mason took his deposition at 
that place. In the course of his testimony he said: "I may have told, and 
probably did tell, Poppleton and others that I had paid, or was to pay, R. 
W. Furnas money in consideration of his vote." He also testified that he 
made no offer or promise of money to Furnas except to compensate him for 
loss of profit on public printing which might be taken away from him by 
the majority of the legislature, which favored removal of the capital, if 
he should vote against them. The witness "understood" that there was $3,
000 deposited at Moffat's bank to secure the vote of R. W. Furnas, but did 
not see it deposited or taken from the bank.

   The following pledge which Furnas signed was introduced in evidence: "I 
hereby pledge myself to oppose any and every bill for the removal of the 
capital from Omaha city at the present session of the legislature of 
Nebraska, and for the division of Douglas county and for the change of the 
county seat of said county." Furnas testified that this pledge was in 
Rankin's handwriting, but he himself signed it. Rankin said to him, "If 
you will sign this pledge I will protect you in the profits of public 
printing." "I think since," Furnas answered, "that it was very improper 
for me to sign it. Other men may have reaped benefits from it, and I have 
had to lay under that cloud for seventeen years." He expected that 
citizens of Douglas county would make up the loss of the profits on his 
contract for the territorial printing if there should be any, and that was 
the admitted reason why he signed the pledge. His reason for having torn 
his name from the pledge was, "I did not want my name to remain there 
anymore." He thought there was no impropriety in this. "You are aware that 
was the way things were done in those days."

   Furnas voted in accordance with the pledge against the Douglas county 
division bill and so against the sentiment of his section of the territory.

   There were printed shares of the site of Douglas City which were 
promoted by McComas and Nuckolls. He took some of these shares himself, 
but that was before he was elected a member of the council. To Wakeley's 
question, "Did you know it was a fact that McComas had distributed shares 
to all the members who would go for the removal of the capital?" he 
answered no. He admitted that he heard about the charge that money had 
been deposited for him in the Moffat bank the following winter. When 
pressed to explain why he did not go to the bank to look up such an 
important matter, he answered, "I don't know why I didn't." He testified 
that he was never in the bank, but Alfred D. Jones and James A. Jackson 
testified that they saw him there during the session of the legislature. 
Furnas also denied that he received the certificate of deposit as alleged 
by other witnesss [sic].

   David H. Moffat, who became a very prominent banker and railroad 
builder, of Denver, Colorado, was at the time of the alleged bribery 
teller and bookkeeper of the Bank of Nebraska at Omaha and was only 
eighteen years of age. He testified as follows: "There was a sum of $3,000 
deposited in the bank in which I was teller, to be paid to Robert W. 
Furnas on the condition that be voted for the retention of the capital at 
Omaha. I issued a certificate of deposit, payable on the condition above 
mentioned to the order of Robert W. Furnas, and delivered that certificate 
to Benjamin P. Rankin. After the adjournment of the legislature that 
winter, Mr. Rankin and Robert W. Furnas came into the bank with the 
certificate properly endorsed and satisfied me that its conditions had 
been complied with, and I paid over the money. I suppose that certificate 
is among the papers of the Bank of Nebraska, in the possession of B. F. 
Allen, at Fort Des Moines, in the state

Page 562

of Iowa. I do not recollect whether Rankin took the package of money away 
from the counter, or whether Furnas did. They were both together." Q. "Do 
you know for whose use the package of money was received, or what was to 
be done with it?" A. "I understood it was for the use and benefit of 
Robert W. Furnas."

   Andrew J. Poppleton testified that B. P. Rankin told him, "during the 
canvass for delegate to Congress," that he got $3,000 for Furnas on his 
vote on the question of capital removal and that Furnas used the money to 
pay debts and buy a printing press.

   Theodore H. Robertson testified that he saw the certificate of deposit 
in Moffat's bank, that it was payable to Furnas or his order, on condition 
of the defeat of the capital removal bill and the bill for the division of 
Douglas county at that session of the legislature. Witness also saw the 
pledge signed by Furnas with the certificate of deposit. Joshua Hanscom's 
testimony showed that the certificate was delivered to Rankin but was 
payable to Furnas, and that he saw the pledge. Experience Estabrook showed 
that Furnas was in favor of the removal bill until the governor vetoed it. 
This witness also saw the certificate in the bank in the fall of 1858 and 
made a copy of it. William B. Hail, member of the first five territorial 
legislatures, testified that Furnas advocated removal in the caucuses of 
the legislature which were held for the consideration of that question, 
"up to near the time of the bill being voted on by the council."

   James A. Jackson testified that Rankin represented to him that a fund 
must be raised to prevent the removal of the capital, and $3,000 was 
collected. Furnas asked him if he knew what would have to be done to 
prevent removal. "About the time the bill was to come up for final action 
in the council," said this witness, "myself and others were notified to 
make a deposit of the fund of $3,000 raised that morning for Furnas, the 
plaintiff, or it would be too late. I went to the Bank of Omaha 
[Nebraska], of which one David Moffat was cashier [teller], on the morning 
designated, and found plaintiff Furnas in waiting with Dr. Rankin. The $3,
000 raised was that morning placed in the hands of Mr. Moffat in the 
presence of Furnas, the plaintiff.

   At the time the money was so deposited, Mr. Furnas, the plaintiff, said 
to me, 'My constituents will go after me for this,' or, 'make it mighty 
hot for me,' or something of that kind, and I have seen nothing of the 
money so deposited or any portion thereof since."

   The jury disagreed, but only two stood for the plaintiff, which was, of 
course, a damaging defeat. Furnas complained that sectional prejudice was 
so strong, that he, being of the South Platte section, could not have a 
fair trial in Douglas county, and that, through the influence of the 
defendants, "the court officer having principally in charge the making up 
and handling of the jury, there were and are, good grounds for a belief 
that partiality would be and was exercised for the defense and against the 
plaintiff." The defendants, on the other hand, alleged in the Herald that 
the jury was composed of six republicans, only four democrats, one 
"temperance party" and one "mixed."

   The principal tactics of the prosecution was to make a scapegoat of 
Rankin. His reputation so nearly adjusted itself to the other 
circumstances of the case as to make the theory that Rankin was the real 
culprit and beneficiary of the bribery fund at least very plausible. Mr. 
Cowin contended in his argument to the jury that Rankin's testimony showed 
that Furnas was the victim of conspirators who divided the plunder they 
procured in his name. When the trial went against him, Furnas pursued the 
same policy by extra-judicial methods. In January, 1873, in preparation 
for the trial, he wrote to Rankin requesting him to make a statement of 
the facts in relation to the charges as he remembered them, as he thought 
it might lead to a settlement of the suit without trial. Rankin's reply 
was evasive and of little help to Furnas, so that it became necessary to 
take his deposition. After the trial, Furnas made a passionate appeal to 
Rankin to write a statement exonerating him from the guilt which the 
evidence and the verdict of the trial had fastened upon him, and the 
response was more favorable, though

Page 563

still equivocal. James A. Jackson and David H. Moffat wrote letters to 
Furnas in which they expressed a belief that he had been the innocent 
victim of a base conspiracy. Furnas was severely criticised for publishing 
these letters of his friend Rankin, who had admonished him to regard them 
as confidential.

   The testimony of David H. Moffat that he made out the certificate of 
deposit of the $3,000 payable to Furnas, which Furnas and Rankin afterward 
brought to the bank "properly endorsed," and of Theodore H. Robertson that 
about eighteen months afterward he saw the certificate so described in 
Moffat's bank, with the strong corroborative evidence, is very difficult 
to overcome or explain away; but it leaves some room for the theory that 
Rankin fooled Furnas with promises and actually got all the money himself. 
But Furnas's own admissions leave him in a plight but little better than 
if he had confessed to taking the money itself. Though the Bee was only 
less hostile and aggressive in personal attack than the Herald, yet its 
estimate of Furnas's admissions seems fair and correct: "That testimony 
needs no comment. It proves that things were 'loosely managed in those 
days.' It exhibits a lack of moral stamina that was properly characterized 
by one of the able legal councillors [counsel] of the governor as 
decidedly compromising . . . The admissions made by the plaintiff are, 
however, of such a nature that we cannot comprehend what can be gained by 
dragging this suit to another court or before another jury." But Furnas 
came to comprehend that nothing could be gained for himself by a retrial, 
and he dismissed the suit notwithstanding his pre-mature and too heroic 
declaration that he would "be further vindicated though it cost me my last 
dime and last breath." The unusual temptations and vicious practices 
incident to newly formed societies are commonly but unwisely pleaded in 
palliation of dishonesty in public relations. Moreover, there were public 
servants in Nebraska from the beginning who walked uprightly.

   There were no general elections in the state in 1873 and so no partisan 
convention, but a convention of the "Grand Castle of the Order of American 
Farmers and Mechanics of Nebraska" was held in Lincoln July 29 and 30, 
1873. The resolutions adopted declared that while the objects of the order 
were to exert a general benevolent, beneficent, educational influence, yet 
a part of its duty was to rid legislatures and the federal Congress of 
monopolists and corruptionists and procure the passage and enforcement of 
just laws, etc.; that the beneficiaries of the "back and increased pay" in 
Congress were knowingly guilty of a gross and brazen fraud upon the 
nation; that freight and passenger railroad tariffs on trunk lines were 
unjust and oppressive; that there should be no pooling or combinations of 
railroads; no subsidy for railroads or other corporations -- hotels, 
printing companies, and flouring mills were as much entitled to such aid 
as railroads; that the members of the order were friends to the railroads 
as servants but opposed to them as masters; and that organization of all 
industrial classes was necessary.

   All of the state conventions of 1874 were held in Lincoln. The 
republican convention was in session September 2d and 3d. Charles H. Gere 
of Lancaster county, was temporary chairman and Nathan K. Griggs of Gage 
county, president. Lorenzo Crounse of Washington county, was nominated by 
acclamation for member of Congress for a second term. Silas Garber of 
Webster county was nominated for governor on the first ballot; Patrick 0. 
Hawes of Douglas county, for contingent member of Congress; Bruno Tzschuck 
of Sarpy county, for secretary of state; J. C. McBride of Colfax county, 
for treasurer; George H. Roberts of Harlan county, for attorney-general; 
J. M. McKenzie of Nemaha county, for superintendent of public instruction; 
Nathan S. Porter of Dixon county, for state prison inspector. Two of the 
state officers, Governor Furnas and Attorney-General Webster, were denied 
the customary second term -- Furnas, because of the scandals associated 
with his political career, and Webster, because he had not been as 
subservient to the ruling political powers as safety demanded, and, in 
particular, because with imprudent temerity he had begun suit for the 
state against

Page 564

Thomas P. Kennard to recover proceeds of the sale of certain lots of the 
capitol site which, the petition alleged, the defendant had not accounted 
for.

   The platform contained a timid recommendation for return to a metallic 
basis for money; a milder insinuation of the monopolistic tendency of the 
national bank system; a positive declaration against a presidential third 
term, aimed at signs of a movement to again nominate General Grant in 
1876; and positive denunciation of political outrages in the southern 
states and of the so-called Quaker Indian policy which had "failed to 
afford either benefits to the Indians or protection to the frontier 
settlers." The declaration in favor of an amendment to the federal 
constitution providing for the election by direct popular vote of the 
president, vice president, and all other federal officers, and also of 
United States senators, superficially regarded, seems an inexplicable 
freak of radicalism; but it should probably be accounted for on the ground 
that the republican party then still felt the progressive impulse of youth 
and had not yet attained the condition of an almost 'reactionary defender 
of vested interests, now popularly known as "big business," which 
characterized it for about a quarter of a century and up to the revival of 
recent years. There was an apologetic show of protest against excessive 
railroad rates, earnest of the long innocuous policy of the party which 
was to follow. The pristine radicalism of the party broke out also in the 
declaration favoring the establishment and operation by the federal 
government of a double-track railroad from the Missouri river to the 
Atlantic seaboard; and in view of the burden imposed upon people and 
products by the still uncontrolled system of private ownership, it would 
perhaps be rash to stigmatize this policy of the young republican party as 
radical. The demand for equable taxation of railroad property was direct, 
and it was emphasized and particularized by the request for the passage of 
the bill for taxing non-patented subsidy railroad lands in the state, 
which had been introduced in Congress by Mr. Crounse.

   The convention recognized that there was by this time a positive and 
growing popular sentiment in favor of stricter control of the liquor 
traffic, by advising that the question of incorporating prohibition, local 
option, and license in the new constitution be submitted separately. A 
resolution offered by ex-Governor David Butler declaring in favor of a 
local option law which should empower the people of the several towns, 
precincts, and municipalities to decide to prohibit or regulate the sale 
of intoxicating liquors, was defeated by a vote of 47 to 181. Governor 
Butler led in the debate in favor of the resolution and Edward Rosewater 
against it.

   The "People's Independent Convention" met September 8th, with about one 
hundred delegates in attendance. J. F. Gardner of Richardson county was 
temporary chairman and A. Deyo of Cass, temporary secretary. Robert R. 
Livingston of Cass was president and John D. Calhoun of Franklin, 
secretary of the permanent organization. J. F. Gardner was nominated for 
governor; Fred Weibe of Hall county, for secretary of state; Thompson 
Bissell of Saunders county, for attorney-general; R. H. Walker of Douglas 
county, for state prison inspector; J. M. McKenzie of Nemaha county, for 
state superintendent of public instruction; James W. Davis of Douglas 
county, for member of Congress, and John D. Calhoun for contingent 
congressman. The platform declared with emphasis that all political power 
is inherent in the people; in favor of the restoration of gold and silver 
as the basis of the currency and the resumption of specie payment "at the 
earliest practicable day without injury to the business interests of the 
country," and the maintenance of the credit of the country until the 
resumption of specie payment by "a system of currency based upon the 
credit of the nation, issued by the government directly to the people"; 
opposed all combinations and devices that tend to increase the cost of 
transportation beyond a fair remuneration to the carrier; and demanded the 
exercise of all constitutional powers to remedy these evils; opposed any 
further land grants, subsidies to steamships, and all donations of bonds 
to aid public enterprises; favored a tariff for revenue only; demanded the

Page 565

election of President and United States senators by a direct vote of the 
people; favored strictest economy in all public affairs; stated that taxes 
in the state were high beyond endurance and must be reduced; favored 
revision of homestead laws and a memorial to Congress for relief of 
homesteaders in the grasshopper district; declared that interstate 
commerce should be regulated by Congress and that railroad pools like that 
of the Burlington and Missouri, Chicago & Northwestern, Chicago, Rock 
Island & Pacific, and Kansas City, St. Joe & Council Bluffs, be prohibited 
so that competition might be encouraged.

   The democratic state convention was held in the opera house, September 
10th. E. A. Allen of Douglas county was temporary chairman and Frank P. 
Ireland of Otoe, temporary secretary. Mr. Allen was president of the 
permanent organization; Samuel Cowdrey of Saline county, J. W. Pollock of 
Cuming, Loren Miller of Douglas, Dr. John Black of Cass, and Israel Loomis 
of Johnson, vice presidents; Frank P. Ireland and F. G. Beecher of Platte 
county, secretaries. A committee consisting of J. F. Morton, Stephen H. 
Calhoun, Benjamin Hankins, Milton Montgomery, and James E. North reported 
the following platform which was adopted by the convention: 1st. The 
restoration of gold and silver as the basis of currency; resumption of 
specie payments as soon as possible without disaster to the business 
interests of the country by steadily opposing inflation and by the payment 
of the national indebtedness in the money of the civilized world. 2d. 
Individual liberty and opposition to sumptuary or prohibition laws, free 
commerce, and no tariff except for revenue purposes. 3d. Rigid restriction 
of the governments, both state and national, to the legitimate domain of 
political power by excluding therefrom all executive and legislative 
intermeddling with the affairs of society, whereby monopolies are 
fostered, privileged classes aggrandized, and individual freedom 
unnecessarily and oppressively restrained. 4th. The right and duty of the 
state to protect its citizens from extortion and unjust discrimination by 
chartered monopolies. 5th. That we appreciate the beneficial influence of 
railroads in developing the resources of the country, and favor liberal 
legislation in that direction, but only on a basis of taxation equitable 
in its application both to citizens and to corporations. 6th. That we 
believe the people are the source of all power and that their will and not 
the wishes of mere party demagogues should govern and form the real basis 
of all republican governments.

   The following nominations were made without opposition: For governor, 
Albert Tuxbury of Otoe county; secretary of state, John A. Eatherly of 
York county; treasurer, Robert C. Jordan of Hall county; attorney-general, 
Milton Montgomery of Lancaster county; superintendent of public 
instruction, Eli Huber of Otoe county; state prison inspector, R. H. 
Walker of Douglas county; member of Congress, James W. Savage of Douglas 
county. Only twenty-eight of the fifty-eight counties on the secretary's 
list were represented.

   The republicans foreshadowed the facile opportunism which later came to 
characterize their party by making theirs the most radical of the three 
platforms. The money plank of the democrats shows that they had ceased to 
follow the greenback god of Pendletonism, where J. Sterling Morton had led 
them a few years before, and it is more orthodox than the republican 
declaration. The independents contradicted themselves by demanding a 
return to specie payment, but also that its way be blocked by an 
intermediate system of uncovered paper currency. They took what was then 
advanced ground in favor of the regulation of interstate commerce by 
Congress, a position which the already apparent and to be long continued 
devotion of the leaders of the two old parties to railroad interests 
prevented them from assuming; and so their declarations on this subject 
were perfunctory generalities, lacking point and specification essential 
to real meaning. The declaration of the republicans in favor of the 
construction of a railroad by the federal government and popular election 
of United States senators and federal officers was a temporary lapse or 
aber-

Page 566

ration, and misrepresented the dominant influence of the party at that 
time.

   The first prohibition convention to nominate a state ticket was held 
September 9th. It kept the middle of the road, steadfastly refusing to 
endorse the nominations of the other parties save one. Notably, also, the 
convention declared in favor of a currency convertible into gold and 
silver but upon a gold basis. This is the first declaration distinctly 
favoring a gold standard ever made by a party convention in Nebraska. 
Besides demanding prohibition of the sale of intoxicating liquors, the 
convention called for the lowest rates of railroad transportation. But the 
influence of the railroad corporations was soon able to check this rising 
popular reform sentiment, and through the subserviency of the political 
leaders they were able to hold it in virtual subjection for upwards of 
thirty years.

   Though the political campaign this year was much milder than its 
predecessors under the state government, yet the republicans were again 
vigorously assailed on account of the continuing corruption, now centered 
in the Kennard-Stout ring, successors to the Butler regime. The staunch 
party habit of that period inevitably induced ring and boss dominance and 
graft, which in turn commanded the submission of all aspirants to place 
and power, irrespective of their original inclination to cleanliness or 
corruption. The report of the Garber penitentiary investigating committee 
was adduced to show the subserviency of the republican candidate for 
governor to the dominant ring. This report, it was charged, whitewashed 
"the most monstrous system of swindling that has occurred in the whole 
history of the state." That the penchant for personal attack still 
survived, appeared in the showing that Roberts, republican candidate for 
attorney-general, while captain in the Nineteenth Pennsylvania cavalry, 
had been dishonorably discharged in 1864. The republicans, however, 
published an order issued by direction of the president "to correct the 
record" and to issue an honorable discharge. It was contended that the 
first order was obtained through spite.

   The republican candidate for governor received 21,568 votes; the 
democratic candidate, 8,946; the people's independent candidate, 4,159; 
and the prohibition candidate, 1,346. The vote for the rest of the 
candidates did not vary much from that for the heads of the tickets, 
except that Roberts, candidate for attorney-general, received only 19,797 
votes, while his fusion opponent, General Montgomery, whose career in the 
Civil war left him with an empty sleeve, received 15,709. The proposal for 
a constitutional convention carried by a vote of 18,067 to 3,880. The 
opposition was scattered irrespective of sections -- Burt, Cass, Dixon, 
Dodge, Nemaha, Otoe, Pawnee, Platte, and Sarpy making the largest relative 
showing. In this campaign the Omaha Bee fairly entered on its long course 
of peculiarly aggressive and relentless personal political journalism 
which destroyed a large number of political ambitions -- in most cases, 
however, to the public advantage. At this time, Mr. Hitchcock, United 
States senator, was Mr. Rosewater's principal target and his fire proved 
fatal. For defense the senator, striving for reëlection, bought the Union. 
John Taffe was again editor of the Republican, which pursued a 
conservative course and so considered the Union a useless injection into 
the already overfilled field of Omaha journalism.

   Butler, the star of the political stage, having been driven off, 
Kennard was now the principal target of the anti-graft fire. His faults, 
though similar to Butler's, were not tempered by the latter's virtue of 
open-handedness and natural leadership. Kennard's alleged acquisitiveness 
would have done credit to the public land grafters of the present day. It 
was recklessly asserted that by virtue of his office of secretary of state 
and capital commissioner, with a salary of $600, his profits on the sale 
of Lincoln lots were half a million dollars. It was charged that Governor 
Furnas falsely denied that he had appointed Kennard state agent, under the 
act of the legislature of February 8, 1873, to recover what might be due 
the state under the provision entitling it to the usual five per centum 
for lands filed upon with military bounty warrants and on account of the 
Indian reserva-

Page 567

tions, and also to have swamp lands given over to the state. It was 
vehemently insisted that Kennard was not fit for the agency and that he 
could not consistently undertake it if, in view of his public record, the 
people were suspicious of him.

   The charge that Furnas had secretly appointed Kennard agent arose from 
the assertions that during the year 1873 he diligently prosecuted the 
claims of the state in Washington while his contract with the state for 
that purpose was not executed until October 15, 1874. Mr. Kennard based 
his contention that under the enabling act the state was entitled to five 
per cent of the aggregate value of all the Indian reservations in the 
state, rated at $1.25 an acre, on similar allowances made under specific 
acts of Congress to the states of Arkansas and Mississippi. The solicitor 
of the Indian department approved the claim, the total percentage 
amounting to about $58,000, but the comptroller of the treasury refused to 
concur in the decision. After the passage of the acts authorizing the sale 
of the Pawnee and the Otoe and Missouri reservations, Kennard again 
presented his claim, this time asking for five per cent of the actual 
proceeds of the sale of the lands. On the 14th of January, 1981, the 
commissioner of the general land office decided to allow the claim as to 
the Pawnee reservation, five per cent of the sales amounting to $43,
807.42, and $27,043.99 was actually paid to the state; but then the 
decision of the land commissioner was questioned, and no more payments 
were made. The first payment on account of the sale of the Pawnee lands, 
amounting to $6,275.47, was made direct to the state, but Governor Nance 
denied Mr. Kennard's application for half that sum according to the terms 
of his contract with the state. A bill appropriating the amount of this 
claim passed both houses of the legislature in 1883, but owing to the 
neglect of the secretary of the senate it was not presented to the proper 
officers of that body for signature. In 1895, the legislature passed a 
resolution permitting Mr. Kennard to sue the state on his contract, and in 
a suit begun in the district court of Lancaster county, May 29, 1897, he 
obtained a judgment for $13,521.99 -- half of the amount the state had 
received on account of the Pawnee sales. But on appeal to the supreme 
court the judgment was reversed on the ground that the reservation was 
public land and therefore it was within the provision of the act of 1873 
authorizing the appointment of the agent which excepted cash sales of 
public lands. The supreme court of the United States refused to assume 
jurisdiction on appeal because no federal question had been pleaded in the 
state court, but it incidentally held, what Mr. Kennard's attorneys 
contended for in the state supreme court in a rehearing, that the 
reservation did not constitute public lands. In support of this 
contention, they showed, conclusively, it would seem, that the reservation 
had been segregated from the public lands when it had been conveyed to the 
tribe in question, and that the United States accounted to the Indians for 
the proceeds of the sale of the lands. By the final decision, then, of the 
land department, concurred in by the dictum of the supreme court of the 
United States, the state was not legally entitled to the money it 
received, but still holds by a characteristic quip of the law. The state 
then unjustly remains the beneficiary of one-half of the $27,043.99, which 
it is not disputed Mr. Kennard procured for it.

   The sixth legislature convened in the fourth regular session, January 
7, 1875. There were only fifteen opposition members -- democrats and 
independents --in both houses, and the officers were chosen without party 
division. Nathan K. Griggs of Gage county was chosen president of the 
senate and Edward S. Towle speaker of the house -- both unanimously. 
Daniel H. Wheeler of Cass county was elected secretary of the senate, 
receiving ten votes against three for Thomas Wolfe of Seward county. 
George L. Brown of Butler county was elected chief clerk of the house, 
receiving 27 votes against 7 for E. S. Chadwick and 4 for F. M. Dorrington.

   The governor's message to the legislature contains an unusual amount of 
information relative to the affairs of the state. Up to this time the 
state's growth and development had been obstructed by the same influence 
which

Page 568

usually causes and extends industrial depressions; namely, lack of public 
confidence. At last, it seemed, the conditions for great agricultural 
prosperity had come to be quite generally recognized. "The crude and 
erroneous idea formerly prevailing as to the adaptability of our entire 
state to profitable cultivation, has been exploded by actual experiment. 
Our population has quite doubled itself within two years past, numbering 
now, without doubt, at least three hundred thousand souls." Thenceforth 
success would fatten upon itself.

   But the financial condition of the state government was bad. Delinquent 
taxes amounted to $599,460.47. "The disbursements designated for the past 
two years were $600,000, while the revenues were but $400,000." The 
trouble was ascribed largely to exemptions and evasions. The total 
valuation for taxable purposes was eighty million dollars, while there was 
"not less than three hundred million dollars worth of property in the 
state which should be made to yield revenue." But the principal cause of 
the excessive taxation complained of was extravagant local expenditure and 
indebtedness. The aggregate local indebtedness, as shown by statements 
from the several counties, was nearly $4,500,000. The governor urged that 
"additional restraining provisions be thrown around the mode and manner of 
voting aid to the various and numerous enterprises so frequently presented 
to the people." Exclusive of the two-mill tax for school purposes the 
state tax levy was four and one-fourth mills, and "a judiciously adjusted 
system of revenue could be made to reduce this one-half to three-fourths 
at least."

   But notwithstanding the inequitable and generally defective system of 
taxation, state warrants were at par, and those registered had all been 
paid. There was no bonded indebtedness; but the permanent investment of 
the common school fund, comprising general fund warrants, $184,119.67, 
"and certificate of state indebtedness for a former investment under 
authority of law, $158,837.67, amounted to $342,957.34, drawing ten per 
cent annual interest." The auditor's report, December 15, 1874, showed 
that there were building fund warrants outstanding in the amount of $43,
812.19, which, with accrued interest, $17,524.84, amounted to $61,337.03. 
The resources with which to meet these warrants were 314 Lincoln lots and 
8,000 acres of saline lands. The governor stated that "these warrants were 
originally issued without authority of law, for expenditures in excess of 
appropriations for the erection of the capitol, insane, and university 
buildings," and that they were subsequently ratified by an act of the 
legislature and ordered paid from the building fund. The only resources of 
this fund remaining were Lincoln city lots, "their entire value not being 
sufficient to meet the interest alone." A bill (H. R. 206) providing for 
the payment of these warrants, was introduced at this session, and a 
committee to investigate the proposition reported that they were issued in 
payment of expenditures on the construction of the State University and 
that they were a valid claim against the state. The committee recommended, 
"that said warrants be paid out of the state general fund, and the state 
be reimbursed from the proceeds of the university lands which should be 
sold for that purpose." But the bill was defeated after the third reading 
by a vote of 14 to 21.

   The message showed that improved industrial conditions were reflected 
in the growth of the public schools. According to the report of the 
superintendent of public instruction for 1873 and 1874 there were 1,345 
school houses in the state valued at $1,300,000, while at the close of the 
fiscal year 1872 there were only 538 school houses valued at $700,000. The 
number of school children at the close of 1872 was 51,123; at the close of 
1874, 72,991. The apportionment of school money for 1871 and 1872 was 
about $370,000; that for 1873 and 1874 showed an increase of nearly $100,
000. The school lands were sold by county authorities and though the notes 
given in consideration were payable to the state, they were held by the 
counties, which undertook the collection of the annual interest. The 
evidences of indebtedness for the sale of these lands amounted to $1,119,
621.44, which, the message complained, "should yield, if promptly 
collected and accounted for, $111,962.14 annually; whereas it has 
returned, under the

Page 569

present management, but $69,309.48, showing a loss to the state in one 
year of $42,652.66.

   The governor pointed out that the law permitting school districts to 
issue bonds almost without restraint had worked disaster. "Some districts 
have recklessly involved themselves beyond ability to pay . . . The 
extravagant disposition to issue bonds has also reduced their value in the 
market to such an extent as to render them almost unsalable at any price."

   The new building for the normal school, "as far as completed, and 
occupied but little over a year," had cost $28,500, and 210 students were 
enrolled. The demand of the state for indemnity school lands in lieu of 
sections 16 and 36 within the Sac and Fox Indian reservation had been 
disallowed by the secretary of the interior; but further prosecution was 
urged, "the claim being a just and equitable one." The policy of leasing 
the labor of convicts "at mere nominal and speculative rates" -- that of 
the state penitentiary for "the meagre sum of 42 cents a day" -- was 
severely condemned.

   The message gave a detailed statement of the disposition of the public 
lands received by the state from the public domain. Of the seventy-two 
sections of saline lands so donated, twenty had been given to the normal 
school at Peru, two for the model farm of the agricultural college, one-
fourth of a section for the hospital for the insane, 17,511.38 acres had 
been sold, 12,744.10 acres were still on hand, and four and one-sixteenth 
sections had not yet been selected. The internal improvement lands had all 
been given to railroads. The twenty sections of public building lands had 
been appropriated toward the construction of the state penitentiary and 
all but 1,676.56 acres of the fifty sections of penitentiary lands had 
been sold for the same purpose. The governor stated that when he assumed 
his office (January, 1873) none of the university and agricultural college 
lands had been selected; and he had caused them to be selected and 
confirmed. The expense of doing this having been paid out of the 
university fund, the governor recommended that the state should pay it 
back.

   The city of Lincoln originally comprised 287 blocks, containing 3,447 
lots. Eight blocks had been donated for public squares and as many for 
railroad depots; 155 lots had been given in exchange for the townsite of 
Lancaster which was included in the new city; twelve lots were given to 
the State Historical Society; forty to various church organizations and 
benevolent societies; twelve to the Lincoln Steam Mill Company; 2,913 had 
been sold for the aggregate price of $293,358.75. The 314 lots which had 
not been sold or otherwise appropriated were "principally in the Salt 
Creek bottom and of no considerable value at present."

   The disguised but really defensive tone of the discussion of railroad 
taxation and restrictive legislation in the message shows that this now 
dominant issue or problem had then begun to excite serious public 
consideration and serves as an illustration of the attitude of the place-
holders and leading politicians of the state for the next thirty years. It 
required a far more rugged personality -- both mental and moral -- than 
that of Furnas to resist a lasting impression by this one-sided view, and 
especially since it was framed in the alluring halo of the free pass of 
which he, in common with his compeers, was the lifelong beneficiary. While 
some lapses from the standard of public virtue with which readers have 
already been made acquainted destroyed the governor's availability for the 
usual second nomination and for important elective office thereafter, yet 
his innate practical interest in public affairs and, more particularly, 
his devotion to matters affecting the agricultural development of the 
state -- virtually its only resource -- almost raised him out of his 
otherwise native commonplaceness and kept him in the public eye and also 
in public office, as president or secretary of the state agricultural 
society, to the end of a lengthy life. The fact that Governor Furnas 
nearly always held political, military, or other public office and in the 
brief intervals was a candidate for office, was owing to a mixture of 
weakness with strong qualities in his character. Governor Furnas states in 
his message significantly that he is "convinced as to the great 
impropriety of vesting this high power [of pardon] in any

Page 570

one individual." The severe castigation he had recently received on 
account of his pardon of Weber doubtless had something to do with this 
conviction. Public disapproval of the abuse of the pardoning power by 
Governor John H. Mickey during his second term of office revived a demand 
for a distinct "pardoning board or council" which Governor Furnas 
recommended.

   It is learned from the message that "during the month of May, 1873, 
severe storms so damaged the capitol and insane hospital buildings as to 
render their occupancy impossible, and, in fact, their permanency 
seriously jeopardized." The governor, who was then the legal custodian of 
public buildings, expended $5,897 in repairing the capitol and $1,307.28 
in repairing the hospital. "While the senate and representative halls were 
in a dilapidated condition, and undergoing repairs," the message recites, 
"it was thought advisable to take out the gallery over the speaker's stand 
and to put up railings in both halls to separate bystanders from members' 
seats."

   Since the last session of the legislature papers had been issued for 
the organization of eight new counties -- Furnas, Hitchcock, Holt, Keith, 
Phelps, Red Willow, Sherman, and Valley. Organization had been perfected 
in all of these counties except Holt, in whose case it appeared that the 
pretended application of forty-three persons claiming residence in the 
county, on which documents were issued April 4, 1973, and returns formally 
made to the secretary of state of an election said to have been held in 
conformity with the law, was fictitious; in short, "the whole proceedings 
on the part of the individuals seeking organization was a fraud." The 
message discussed at length the grasshopper devastation and means of 
aiding the sufferers. On the whole it is an unusually interesting and 
useful document and reflects the governor's intimate acquaintance with the 
affairs of the commonwealth, acquired through active citizenship during 
nearly all of its life. But the excellence is marred by slovenly and 
incorrect verbal construction.

   Two special features or episodes -- choosing a United States senator 
and attempted removal of the capital attracted more public attention than 
any other incident or measure of the session. Senator Tipton, at least one 
of the brightest debaters among the members of Congress yet credited to 
Nebraska, had by common consent forfeited the succession by his 
independent progressiveness which at that period of party fetichism was an 
unpardonable sin. Mr. Tipton lacked the plasticity and flexibility which 
were essential to adapt himself to the rigid mold in which the republican 
party of that day was confined. Allegiance to the party during his second 
term required him to be an apologist of the corruption which was called 
Grantism and to sustain the coercive policy or method of reconstructing 
the rebel states which was soon afterwards abandoned by the Hayes 
administration as impracticable and inexpedient. Mr. Tipton, like his 
after associates in the anti-machine revolt, Schurz and Sumner, was 
temperamentally a remonstrant. Though, as we have seen, many of the ablest 
republicans of Nebraska joined him in the support of Greeley against the 
regular republican candidate for the presidency in 1872, yet according to 
party usage this rebellious act barred him from reëlection.

   Though wiser statesmanship would have foreseen and avoided the probable 
effect of his insurgent protest against evil practices and policies, yet 
he deserves credit for unusual courage and perhaps disinterestedness. He 
anticipated by thirty years inevitable general revolt against conditions 
and tendencies which under Roosevelt revolutionized the republican party, 
if it has not ended the two-party system. Senator Van Wyck subsequently 
took a like advanced position. Samples of Tipton's parliamentary oratory 
which he himself selected for his political memoirs, are characterized by 
piquancy and aggressive alertness rather than depth. While his sallies won 
attention in a body which contained many able men and gained him 
notoriety, at least, in the country at large, yet his penchant for sarcasm 
and wit, not always of a high order, detracted from such strength as his 
speeches otherwise possessed. This is indeed the usual effect of such a 
course in important deliberative bodies. Yet, on the whole, Tipton must be 
ranked dis-

Page 571

tinctly above the average senator from Nebraska. If Tipton's son-in-law, 
Henry M. Atkinson, could have shared with him his own excess of political 
astuteness, the senator would have been a more successful politician and 
perhaps a more useful statesman; he would have won another election and 
the country the benefit of his salutary insurgency.

   The senatorial situation was a counterpart of that of 1871, inasmuch as 
the republican members were in a large majority in the joint assembly of 
the two houses but could not unite a majority for either of the 
candidates; so that the opposition members -- democrats and 
independents -- dictated the choice. In 1871 Phineas W. Hitchcock, Alvin 
Saunders, and John M. Thayer were the three principal candidates. Thayer's 
chief, though strong claim, lay in his title to regularity; he knew no 
impulse and recognized no obligation outside the bounds of party 
conformity, and his first term was fractional -- only four years. But 
these considerations were not sacred to democrats, and they threw the 
balance of the ballots to Hitchcock. In 1875, Thayer, Elmer S. Dundy, 
Algernon S. Paddock, and Oliver P. Mason were the principal candidates. 
But there was more independence in the political atmosphere than there had 
been in 1871, and the democratic members, unappreciative of Thayer's chief 
claims -- poetical justice and regularity -- irreverently chose Paddock, 
the low man among republican candidates.

   On the first joint ballot, cast January 20th, Thayer received 18 votes, 
Dundy 14, Paddock 8, Mason 6. Of the fourteen opposition votes -- 
Alexander Bear was absent on sick leave -- five went to candidates of 
their own kind -- two to Henry C. Lett, and one each to Church Howe, J. 
Sterling Morton, and J. N. H. Patrick. The remaining eight were divided 
equally between Mason and Paddock. Dundy and Thayer were the regular 
candidates and so ineligible to democratic accretion. The second ballot 
stood, Thayer 17, Dundy 14, Paddock 8, Mason 6. Barnes, one of Dundy's 
supporters, voted this time for Turner M. Marquett. The third ballot 
stood, Dundy 15, Thayer 14, Paddock 9, Mason 6.

   The fourth ballot was cast the next day, Thayer receiving 21 votes, 
Dundy 19, Paddock 6, Mason 3. On the 22d the fifth and decisive ballot was 
cast as follows: Paddock 38, Thayer 11. Baker voted for Morton and 
Crawford for Patrick, and Bear was still absent; all the rest of the 
democrats and independents went to Paddock, who unexpectedly was the 
beneficiary of Dundy's withdrawal. Most of the democrats and independents 
from the first gave their support to Mason and Paddock, presumably because 
both of the latter had shown decided symptoms of democracy. They were 
progressive enough to recognize the need of reforms and independent enough 
to stand for the interests of their own section of the country against the 
increasing encroachments of their party which was dominated by eastern 
power and animated by eastern interests.

   Though Paddock's election, which involved the defeat of Thayer, who 
never broke with the Lincoln -- or any other ring, meant cleaner state 
politics, yet the statement that Thayer "was killed by an overdose of 
Stout and Kennard administered by Drs. Balcombe and Rosewater," and that 
the defeat was in effect "a complete slaughter of the Stout and Kennard 
brand," was extravagant; for the corrupt and corrupting Stout influence 
lasted many years more. The just complaint that the dominant senatorial 
aspirants were barnacles and the hopes for a new deal were rewarded in the 
new choice -- or rather in the defeats it involved. Dundy and Thayer were 
done for, and the defeat of the Hitchcock-Cunningham combination, coupled 
with the demand made at the time by the Republican and the Bee for an 
investigation of the charges that bribery had been used in Hitchcock's 
election, foreshadowed his defeat in the next contest. While the election 
of Paddock was scarcely a democratic victory it was a republican defeat; 
but the democrats ascribed too much importance to it. The ephemerally 
named mouthpiece of the party at the capital professed to regard this mere 
temporary check as a permanent disability. "Victory has perched on the 
democratic banner in Nebraska in the election of Governor A. S. Paddock as 
senator. The backbone of the republican party has been

Page 572

broken, the rotten rings of corruption have received their death blow. . . 
The fight was a. hard one but right has triumphed." As a consequence, 
Nebraska was soon to be numbered among democratic states.

   The influence or training of the Civil war had given the republican 
party a military aggressiveness and discipline and an audacious 
opportunism, and had so strongly fortified it, withal, by popular passion 
and prejudice and the reactionary condition of bounding industrial 
prosperity that, however glaring its faults, it was not seriously 
vulnerable. It seemed to possess the unnatural quality of Milton's angel 
(Satan) which

"Vital in every part
Cannot but by annihilating die."

   Even though overwhelmed by popular condemnation at the national 
election of the following year, it yet held the field and the spoils of 
partisan victory. In Nebraska this condition was emphasized. The state had 
but one resource -- agriculture. Its growth was absolutely dependent upon, 
could only follow the extension of railroads. It followed, therefore, that 
the politicians of the dominant party and the railroads pooled their 
interests. This close partnership had an economic basis and, however 
pernicious on the one hand, was for a time not without material advantage 
to the state. At any rate, the dependent people were either too worldly-
wise or too morally timid to entertain any moral scruples against this 
arrangement which might have knocked at the closed doors of their 
consciences. This natural, if not defensible, acquiescence developed into 
a persistent habit which brought on injustice, oppression, and great 
public corruption. Not until 1908 was there a convulsive and noisy 
reaction against these long encouraged evils which wise management on the 
part of the people might have largely avoided. So the hopes of the 
democrats were destined to be dashed. Their own leaders, moreover, led in 
a like direction.

   Mr. Paddock continued his long-time liberal inclination in the 
senate -- manifested in his opposition to the coercive republican policy 
in the reconstruction of the rebellious states, and to the radical 
protectionist policy. But his attempt to serve two masters, though with 
some vigor in behalf of his democratic allies or makers, was necessarily 
unsatisfactory to the latter, who criticised him with overdue severity. 
The personally ambitious democratic leaders were averse to helping 
republicans into place and power because they had democracy -- a policy 
which rank and file were inclined to, partly because it gave them pleasure 
to displace a wholehearted with a half-hearted republican and partially 
from the public-spirited motive of advancing in some degree western 
interests and progressive principles. The Herald, accordingly, discouraged 
democratic support of Paddock, alleging that "he turns too many corners in 
politics"; that he ought to have stayed with Johnson but instead "now 
reposes in the bosom of Grant"; and though when the election had taken 
place that journal assumed credit for it as "a triumph of the democrats 
and conservatives" which had been won by their votes, yet after a few 
months of trial it disowned and denounced him for recreancy. "Elected by 
democratic votes as a conservative and declaring himself 'in accord with 
the democratic party on the main issues of the day and time,' he secured 
their votes, without which he knows, and we know, his election would have 
been impossible." His last words to Dr. Miller (editor of the Herald) 
before he left for Washington were, "I am a republican; you understand 
that: but no caucus will control my action. You know my views."

   Notwithstanding his obligations and promises Senator Paddock became a 
caucus republican. But many stronger politicians and statesmen than 
Paddock have thus sacrificed obligation and profession on the altar of our 
tyrannous two-party system. Under the freedom of the modern logical group 
system there would have been an effective alliance of all those who stood 
for the imminent and vital questions of western and southern interests. As 
it was, the member of Congress who could not get under one or the other of 
the blanket mortgages which covered respectively the republican and the 
democratic party was a

Page 573

pariah. Paddock, therefore, naturally elected slavery to his old party and 
therefore cut himself off from effective service of his section and the 
constituents which had created him their representative.

   Immediately after the senatorial election Thayer was appointed governor 
of Wyoming, chiefly for the purpose of removing him as far away as 
possible from further interference with the senatorial succession; but in 
part, also, in recognition of his fixed aversion to doing anything else 
but hold public office. Henry M. Atkinson was propitiated with the 
important office of commissioner of pensions. Judge Dundy continued until 
his death to covet the senatorship. The routine and drudgery of his 
judicial place became irksome to his temperament; but, though desiring an 
active political career, he was too shrewd to risk the comfortable life 
tenure of the judgeship by a resignation in advance. In this campaign 
democratic leaders resumed their attack upon his character, and Atkinson 
shared with Dundy this marked but not pleasurable distinction.

   This second defeat of Thayer ended his importance as a political 
figure. He was taken up for the governorship ten years later when his over-
ripeness, physical and mental, which increased his normal habit of 
conformity, made him useful to the dominating political influences. While 
Tipton, his colleague in the senate, was so independent that he was all 
but erratic and could not be confined to the party rut, it was Thayer's 
natural habitat, and he never got out of it. He was mentally rather dull 
and his abilities in general were not of a high order, and though an 
imposing physical appearance of the military style and some supplemental 
martial gifts made him successful as a subordinate military commander; he 
lacked the alertness, breadth of view, plasticity, and independence 
essential to statesmanship. Very luckily for himself he lived just at that 
time when military deportment and ambition passed for the most and, joined 
with the soldier's disposition not to reason why as a part of the rigid 
political machine, was an open sesame, also, to high civil office. Still, 
his military stiffness in time made him unpopular with politicians who 
called him "peacocky." Popular sympathy for General Thayer on account of 
his rather forlorn old age, shrewdly manipulated by the selfish "system," 
resurrected him for the governorship in 1885. After serving the customary 
two terms in that office, he was awarded a pension of $100 a month which 
kept him comfortable in his extreme old age. This closing incident of his 
career illustrates his utter dependence upon the bounty of public place. 
While no one opposed or begrudged this gratuity, and it was bestowed under 
President Cleveland's administration, characteristically hostile to 
special pensions of this sort, yet it was a favor due largely to political 
conditions. The career of General Amasa Cobb, for example, was in the main 
a counterpart of General Thayer's, except that at the close of the war and 
his long service in Congress he went to work in private business and 
continued at it to the end of his long life, saving only his term as 
justice of the supreme court. Thus, through wholesome activity, he 
achieved and deserved independence and competence -- the chief comfort if 
not the main merit of a life.

   There was a culmination of the long gathering capital removal sentiment 
in this legislature, and a clear majority of its members came to Lincoln 
with the intention and expectation of carrying out that project. Even the 
southeastern counties were fiercely and explicitly hostile to Lincoln. 
Otoe county, which had led in the struggle for removing the capital to 
Lincoln, now led in the attempt to get it away again. This hostility was 
due in part, no doubt, to displeasure or disgust with the Lincoln 
political junta, but chiefly to the ripened realization of the original 
economic mistake of erecting a barrier to the growth of Nebraska City 
which it was now apparent Lincoln was destined to be.

   Before the session began it was asserted that it was very well settled 
that the present legislature would remove it to some point in the western 
part of the state. Removal would cause no loss in public buildings because 
"the university will fall down next year anyhow; the capital should be 
donated to Lincoln -- the lower part for a livery stable, the upper as a

Page 574

block-house -- the upper windows would be good port-holes. The 
penitentiary, after Boss Stout takes out the windows, will make a first 
class ruin." The new lunatic asylum, it was conceded, was a good building. 
The Tecumseh Chieftain favored removal for the ostensible reason that a 
location nearer the center of the state was desirable and that the 
building would have to be remodeled. The Nemaha Journal and the Kearney 
Times asserted that when the last ballot for the election of a United 
States senator was taken, Mr. Griggs, president of the senate, requested 
occupants of the chamber, the hall of the house of representatives, to 
refrain from stamping for fear the building would collapse.

   The history of 1873, when the Kearney ring and the Columbus ring killed 
each other, was repeated in 1875. The divided rival aspirants blocked one 
another while the alert Lincoln partisans, Napoleon like, whipped them in 
detail -- with argument and other influences less legitimate but perhaps 
more effective. The removalist cause was roughly, though not unjustly, 
summed up thus: "For no good to the state is the removal advocated. The 
reasons for removal are that a lot of land-sharks, dead-beats and carpet-
baggers, having the example of the former Lincoln before their eyes, want 
a new deal."

   Though some members required and received direct payment in lawful 
money as the consideration of waiving their patriotic and dutiful 
intention to remove the capital to a more nearly central site, many were 
satisfied with reciprocal sops in the shape of enactments favorably 
affecting their pockets but in a less direct way. Moudy was at least 
partially appeased by the grant of a state road from Kearney junction on 
the Union Pacific railroad southward to the Kansas line, to be laid out 
without expense to his own county of Kearney which it would centrally 
intersect. A gift of the unappropriated saline lands -- about twelve 
thousand acres -- to the Midland Pacific railway company, "for the purpose 
of building and extending its lines of railway from Nebraska City to 
Omaha, and from Brownsville to a connection at St. Joseph, Missouri, with 
other railroads so as to form a continuous line of railway from Omaha to 
the south line of the state and thence to St. Joseph," contributed 
powerfully toward smothering the cry for removal, loudest in the populous 
eastern border counties which were the expectant beneficiaries of the 
grant. An appropriation of $10,000 for establishing an asylum for the 
blind at Nebraska City tended directly to soften the harsh aggressiveness 
of members from that particularly disappointed quarter. The partisans of 
Lincoln naturally held a good hand of palliative cards, and they were 
played off with skilful finesse so as to take the most advantage of the 
internal rivalry of the disunited removalist forces. This was the last 
direct attempt at removal until 1911. The law providing for a 
constitutional convention and the provisions for relief for sufferers from 
the depredations of grasshoppers were most important enactments of the 
session. The convention was to be composed of sixty-nine members and to be 
held at the capitol on the second Tuesday -- the 11th -- of May, 1875. The 
western counties fared better in the apportionment for the convention than 
in the membership of the legislature. The legislature authorized the issue 
of state bonds to the amount of $50,000, to run ten years and bear ten per 
cent interest payable semi-annually, for the purpose of buying "seed grain 
for distribution among the citizens of this state made destitute by the 
ravages of grasshoppers in the year 1874." The act authorized a tax of one-
tenth of a mill on the grand assessment roll annually for the payment of 
the principal and interest of the bonds.

   The homestead exemption was amended so as to restrict it to the value 
of $2,000. This provision has continual to the present time. The property 
rights of women were enlarged by adding to the continual separate holding 
of all that they owned at the time of marriage or might afterwards acquire 
by descent or gift, all "which she shall acquire by purchase or 
otherwise." But the school suffrage of women was restricted by an 
amendment which confined it to unmarried women who had reached the age of 
twenty- one years and owned property subject to taxation; whereas,

Page 575

before the change, "every inhabitant" of a district -- which included all 
women of the age of twenty-one could vote at the district meetings.

   By an amendment to the act of 1869 which provided for organizing the 
university, the chancellor was left off the board of regents which 
thereafter was composed of three members from each of the three judicial 
districts with the governor and state superintendent of public instruction 
as ex officio members. The office of treasurer was abolished and the state 
treasurer was constituted the custodian of the university funds. This act 
comprised a Draconian provision that the regents might, "by discharging 
professors and otherwise reducing the expenses of the university, apply 
the amount so saved or reduced from the expenses of 1874, in building a 
dormitory." An act granting block 29 of Lincoln to that city for "market 
purposes" some time afterward aroused severe though unjust criticism. The 
block was originally devoted to the use of a state historical society but 
because no society competent to receive the grant had been organized, it 
would have been included in the remainder of unsold lots which another act 
of this legislature authorized the governor, auditor, and secretary of 
state to appraise and sell at public auction, the proceeds of the sale to 
be turned into the public treasury, which, owing to the pinching poverty 
of that grasshopper period, particularly needed replenishment. The city 
had given up its original "market square" to the public use as a site for 
the postoffice, and since the commissioners named in the bill to sell all 
unappropriated lots were determined to include this historical block, the 
members from Lancaster county properly thought that it would be wise and 
just to retain this block for public use as a market place in lieu of the 
block they had relinquished for another public purpose. This action was 
additionally justified by the consideration that at forced sale in that 
period of depression the block would yield very little to the public 
treasury. The supreme court of the state decided that the intended grant 
to a historical society had lapsed by nonuser and that the state might 
dispose of the property at its will.

   A joint resolution prayed for the passage of a bill which had been 
introduced by Senator Hitchcock, authorizing the sale of the Fort Kearney 
military reservation, the proceeds to be used for the erection of an 
asylum for the blind; but the act of Congress of July 24, 1876, provided 
for the offer of "said land to actual settlers only at a minimum price, 
under and in accordance with the provisions of the homestead laws."

   Another memorial to Congress was the John the Baptist of the present 
general demand for the election of United States senators directly by the 
people. "Your memorialists, the legislature of Nebraska, would 
respectfully represent that they express the will of the people of this 
state in asking for an amendment to the constitution of the United States 
which shall provide for the election of United States senators by the 
whole people, and not by delegated authority." During the last decade the 
federal house of representatives many times expressed by formal resolution 
the demand of the people of the whole country for an amendment of the 
constitution providing for the reform, but the senate itself persistently 
ignored this positive popular demand until the special session of Congress 
in the year 1911. This remarkable lack of political efficiency is owing 
largely to a lethargic constitutional habit. Our political confinement for 
more than a century within a rigid constitution which it is very 
difficult, indeed virtually impracticable, to amend, is in turn 
responsible for this unfortunate condition which has inculcated a 
pernicious popular habit of relying upon a forced construction of the 
constitution by our politically as well as judicially habited supreme 
court for the little progression in polity we have been able to achieve. 
The people of the several states are now quite generally recognizing and 
avoiding this denial of direct, concerted action, though without authority 
of the constitution and in violation of its spirit, by dictating to the 
state legislature their choice for senators.

   The only important effect of a joint resolution which informed the 
president and the Congress that the legislature heartily endorsed the 
president and General Sheridan for assuming responsibility for the action 
of General

Page 576

De Trobriand in driving out of the capitol certain democrats who claimed 
seats in the Louisiana legislature, but had been denied certificates by 
the returning board, was to disclose the identity of the fifteen anti-
republican members whom it drew together in opposition to the resolution. 
The passage by both houses of the bill which placed railroad property in a 
class by itself and specified a maximum rate of taxation for it, indicates 
the nearly complete control of the state government by railroad 
corporations which had now been established and which continued almost 
uncontested until the republican revolt of 1907. An amendment by the house 
of the senate revenue bill providing "that no railroad shall be assessed 
at a greater amount than $10,000 per mile," was referred to a conference 
committee which comprised Barton, Hoyt, and Chapman of the senate, and 
Thurston, Crawford, and Howe of the house. The committee recommended "that 
the senate concur in said amendment," Chapman alone dissenting. But, 
remarkably and inexplicably, Governor Garber proved to be a missing link 
of the otherwise complete chain of procedure. He vetoed the bill, not only 
on account of some technical irregularity but because in his opinion it 
was class legislation "and repugnant alike to the letter and spirit of our 
laws . . . Laying aside the legal and technical objections that may be 
urged against this measure, it does not appear to me to be expedient. It 
would reduce the grand assessment roll of the state a million and a half 
to three million dollars. It would relieve the railroad companies of at 
least $75,000 in taxes and place the burden upon the people." The governor 
very pertinently reminded the subservient legislative body that the people 
had been persuaded to vote large subsidies to the railroads largely by the 
argument or promise that they would be repaid by the resulting great 
increase of taxable property.

   The relentless determination or policy of the white masters of the 
commonwealth to dispossess the Indians even of the small remnant of their 
original domain which they held as reservations was manifested in two 
memorials to the federal Congress. The first urged the passage of the 
bill, already introduced, providing for the sale of the Otoe and the 
Pawnee reservations. The second memorial was a very insistent- almost 
truculent -- protest against the action of the federal government in 
assuming the authority in the treaty of 1868 to grant the Sioux the 
privilege of hunting in that part of the state lying north of the North 
Platte river and recognizing it as unceded territory. The same memorial 
protested also against the removal of the Red Cloud and Spotted Tail 
agencies from Dakota to a location within the northwestern borders of 
Nebraska.

   Investigation of official malfeasance still continued to be an 
important duty or diversion of the legislature. Because it was "reported 
that divers sundry abuses are practiced in the penitentiary" and 
"barbarous and unknown punishments inflicted upon convicts confined in 
said penitentiary and that the management of the same is inefficient," and 
also because "a serious revolt has recently occurred in said prison," a 
committe of the house, consisting of Enyart, Folda, Baumer, Fisher, and 
Lucas, made an extended investigation of the affairs of the prison. The 
majority report of the investigating committee found that cruel and 
unusual punishment had been inflicted upon prisoners and barbarous and 
Inhuman practices had been resorted to in the management. The report 
recommended "a thorough and complete reformation in the treatment of the 
convicts"; that the stocks and the bull-ring should be abolished; that 
"the prisoners should not be confined on seats in one position during the 
Sabbath day"; and that Noboes, deputy warden, and three of the guards "be 
discharged for cruel, inhuman, and barbarous conduct." Folda and Lucas 
made separate reports, the former recommending the removal of the warden, 
Woodhurst, who had held the office since December 6, 1873. Lucas minimized 
the abuses which the other members of the committee acknowledged and 
condemned. Senator Perky testified that the attempt of the senate 
committee to investigate the prison was stifled and that Senator Burr -- 
of Lancaster county -- was an obstructionist.

Page 577

   A joint committee of the two houses for investigating the charge that 
the plans and specifications had been changed after their adoption and 
that they were not filed with the proper state officer applied a rather 
dull coat of whitewash. The committee found that the plans were changed in 
1873 but to the public advantage. The reputation of the alleged offender, 
W. H. B. Stout, suggests a presumption of the truth of the charges which 
the diluted whitewash of the committee scarcely overshadows.