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Kansas Historical Quarterly - Early Kansas Impeachments

by Cortez A. M. Ewing

August 1932 (Vol. 1, No. 4), pages 307 to 325
Transcribed by lhn; HTML editing by Tod Roberts
digitized with permission of the Kansas Historical Society.

THE first Kansas impeachments occurred in 1862. Kansas was admitted to statehood in January, 1861, under the Wyandotte constitution, the fourth constitution that had been framed in anticipation of admission. [1] It is not my purpose here to enter into a discussion of the struggle over slavery that dominated the politics of that territory following the passage of the fateful Kansas-Nebraska act. The archives of Kansas history are indeed rich in memoirs and personal accounts of survivors of those bitter days. In addition, historians were quick to perceive that there along the Kaw and the Missouri the Civil War, from point of fact, was waged in miniature, but in no diminished degree of violence, long before the actual firing on Sumter.

The story of "bleeding" Kansas is one of a clash of conflicting political ideas, of different social mores, and of personal aspirations of politicians, scrupulous and otherwise. The histories of the American frontier have -failed to stress sufficiently the dependence placed upon political action and ballot solution of problems by those sparsely settled communities. The bitter character of Kansas politics did not vanish when the proslavery supporters became hopelessly outnumbered. The preponderant antislavery majority developed schisms scarcely less acrid than the controversy over slavery. For instance, though the Republican party came to encompass most of the voters of the territory, there appeared two strong factions which struggled for control and leadership of the party. Charles Robinson and James H. Lane were the leaders of these factions; and the rivalry between these leaders, more than anything else, produced the three impeachment trials of 1862.

Charles Robinson was a product of Puritan New England, having been born in Massachusetts in 1818. [2] According to the standards of his time, Robinson received a good education. He attended both the academy and the college at Amherst and, as a matter of fact,

(307)

308 THE KANSAS HISTORICAL QUARTERLY

he taught three terms of secondary school before he began the study of medicine. After studying under some of the famous New England doctors, he started his career as a general practitioner in Belchertown, Massachusetts, in 1843. Two years later he moved to Springfield and, in the year following, to Fitchburg, where he built up a large general practice-too large, in fact, for his health failed and he was forced to take a vacation. His vacation plans took him to California in 1849. Others were there for decidedly different reasons. In Massachusetts, Robinson had entered actively into church and school work. In California, his political interests broadened and his cultural interests narrowed. There he took up the struggle which the squatter settlers were waging against the large landholders. Politics proved too engrossing and Robinson was never able to return undisturbed to the practice of medicine.

Robinson was a member of the California legislature in 1851, but later in the same year he returned to Massachusetts. There he entered the field of journalism, and in 1854 he became affiliated with the Emigrant Aid Society and was, sent to Kansas to look after the interests of that company. Robinson's part in Kansas politics from 1854 to 1860 have been too well recounted to need recapitulation here. [3] Though always opposing slavery, he consistently advised against the employment of radical offensive measures. His conservatism was not always popular with the rank and file of the antislavery settlers; yet, when state officers were chosen under the Wyandotte constitution in December, 1859, Robinson was elected governor.

James H. Lane was a man of entirely different character. Those who knew him and have written of him are far from agreement. Professor Blackmar describes him as one of those who came to Kansas as politicians. "From the beginning to the end of his career in Kansas," he continues, "political ambition was his ruling passion. It did, indeed, cause him to do many brave and noble things, but it also caused him more than once to swerve from the path of justice and right; and finally, disappointed ambition brought him to an untimely death." [4] On the other hand, there were those who followed Lane's leadership with enthusiasm. He was a born leader of men, even though he may have wavered upon principles. John Speer, one of his biographers, proudly quotes Colonel Veale's ap-

EWING: EARLY KANSAS IMPEACHMENTS 309

preciation of him: "Jim Lane loved his state and his country, and was as true a patriot as ever lived." [5] One of his supporters referred to him as the "Cicero of the United States senate."

The most scintillating characterization of Lane came from the pen of Senator J. J. Ingalls, who wrote that "professing religion, he was never accused of hypocrisy, for his followers knew that he partook of the sacrament [sic.] as a political device to secure the support of the church; and that with the same nonchalant alacrity, had he been running for office in Hindostan [sic.], he would have thrown his offspring to the crocodiles of the Ganges or bowed among the Parsecs at the shrine of the sun." [6]

Lane was born at Lawrenceburg, on the Indiana side of the Ohio river, in 1814. His father was the speaker of the first house of representatives of that state. The son's education was, at best, of desultory and unprofitable character. When the Mexican War broke out, he enlisted as a private, but was immediately elected colonel by the regiment. Military advancement was, in those times, unencumbered by seniority or even by the exclusive prerequisite concerning knowledge of the principles of military science. After a triumphant return from the war, he served as lieutenant governor of Indiana and as member of congress. In politics, he was a Democrat. In 1854, he had supported Pierce and Douglas in voting for the Kansas-Nebraska act. He arrived in Kansas in April, 1855. To his surprise, he discovered that the act of 1854 had not solved the slavery issue, and especially not in the territory of Kansas. However, he set to work to organize the Democratic party, relying substantially upon the political apothegms of Jefferson and Jackson to produce reasonableness and constitutional toleration of slave property. This embarrassment in which the northern Democrats found themselves after 1854 irritated greater party leaders than Lane. This infernal intolerance known as abolitionism was destroying traditional political alignment and violating the express provisions of the constitution. Some Democratic leaders, like Pierce, were helpless in their bewilderment, and could only mumble the shibboleths of the sage of Monticello. Others, like Lane, passed through the "black law" way station and finally landed, in a somewhat travel-worn condition, in the headquarters of the new Republican party.

Lane soon revealed consummate cleverness as a politician. Without the assistance of powerful allies, such as Robinson had in the

310 THE KANSAS HISTORICAL QUARTERLY

Emigrant Aid Society, Lane became one of the leaders of the hosts for freedom. There existed little love and much jealousy between Robinson and Lane; and, although they were thrown together by political exigencies, theirs was little more than a personal truce pending the successful conclusion of the vital questions at hand. Robinson was naturally cautious; Lane caught and reflected the least evidence of political readjustment. When the propitious moment arrived, Lane broke with his rival and led the parade-directly to the United States senate. [7] "On the realization of his long-cherished dream," remarks a reliable commentator, "a crazy passion for power seized him-an ambition to absorb the entire civil and military functions of the state." [8] Lane enjoyed the confidence and the patronage of President Lincoln. Armed thusly, he precipitated an unseemly controversy with Governor Robinson over the organization of state troops.9 Concerning this squabble, Spring says: "Lane, inflamed by old grudges and new provocations, by long-nursed hatreds and obstructions that crossed his plans, broke out into violent hostilities against Governor Robinson and his successor." [10]

The election of state officers under the Wyandotte constitution took place in December, 1859. On account of the failure of congress immediately to admit Kansas into the Union, these elected officers did not assume office until February, 1861. The unexpected lapse of time created a constitutional question as to the expiration of the two-year terms for which governor and the chief administrative officers had been elected. Opponents of Robinson contended that an election should be held in November, 1861, to select officers for the biennium from 1862 to 1864. Robinson and his supporters interpreted the constitution to mean that the first state officers should serve two-year terms. An election was held in November, 1861, but Robinson refused to permit the canvassing of the votes for governor and principal administrative positions, and, on a petition for mandamus, the state supreme court upheld the governor. [11]

Aside from the political animosities, the first Kansas impeachments resulted from the issuance of state bonds. The state's financial condition was indeed sorry in 1861, when the legislature au-

EWING. EARLY KANSAS IMPEACHMENTS 311

thorized the band issues. Two issues were voted, one known as the "war bonds," the other as the "seven per cent" bonds. Under act of May 7, 1861, the issuance of war bonds to the sum of twenty thousand dollars was approved. [12] The question arose as to whether the "twenty thousand" limit referred to par or actual value of the issue. Since the bonds would sell for less than half of their par value, the administration interpreted the limit to be against the sum of money that was brought into the state treasury through the sale of the bonds. Under this presumption, bonds to the par value of forty thousand dollars were signed by the governor and countersigned by the other two necessary state administrative officers. Thirty-one thousand dollars' worth of these bonds were sold to Robert S. Stevens at forty per cent par value. Was that portion of the sale over twenty thousand dollars par value in violation of the act of May 7, 1861?

The "seven per cent" bonds were issued under authority of an act of May 1, 1861. [13] Messrs. Clark and Stone were, by the statute, empowered to negotiate the sale of these bonds. This plan of disposal was discarded a month later, when the legislature enacted a supplementary law which provided that the governor, auditor, and secretary of state, or a majority of them, could sell, at not less than seventy per cent of the par value, one hundred thousand dollars of these bonds. The money derived therefrom was to be used in the retirement of the outstanding state scrip with which the state had, up until that time, been paying its obligations. [14]

Attempts to sell the "seven per cent" bonds to eastern financiers failed. Those with money for investment in securities of this nature remembered wholesale state repudiations. United States bonds were looked upon as safer investments. In late 1861, J. W. Robinson (secretary of state) and George S. Hillyer (state auditor) went to Washington in the hope of being able to dispose of the bonds. Their attempts were at first unsuccessful. Finally Stevens, who had bought the "war bonds," appeared on the scene. Through the aid of a mysterious Mr. Corwin, who, incidentally, was a brother-in-law of the Secretary of Interior, Stevens was able to dispose of the bonds to the Department of Interior, which bought them with a fund held in trust for certain Indian tribes.

Originally from upstate New York, Stevens came to Kansas as

312 THE KANSAS HISTORICAL QUARTERLY

an Indian contractor, furnishing supplies for and constructing buildings and improvements on the Indian reservations. Prior to that time he had been employed in the Department of Interior. Senator Lane, in a headhunting mood, maliciously declared that Stevens had been expelled from his Washington position "for fear he would steal the stone steps of the Patent Office." [15] It must be remembered that Stevens was, in Kansas, an associate of Governor Robinson in the banking business and that he was being mentioned as a candidate for United States senator to succeed Lane. Stevens had been elected to the state senate in November, 1861. The bonds were sold in December of that year. So, there were political implications of a vital nature in the disposal of the bonds.

If Stevens had offered his services without expense to the state, the impeachments would probably never have materialized; but such charity could scarcely be expected of professional jobbers. Before he would consent to assist in selling the bonds, he presented J. W. Robinson and Hillyer with a contract, by the terms of which Stevens was to receive, as his share in the transaction, all over sixty cents on the dollar that he was able to sell the bonds for. The two officials were unable to dispose of the securities at any price. Kansas needed money, and badly; and as a last resort they agreed to the Stevens offer. Stevens thereupon sold eighty-seven thousand dollars' (par value) worth of the bonds to the Indian Office at eighty-five cents on the dollar. His profit was a mere twenty-five per cent of that sum.

Despite the consummate business acumen of Stevens, the negotiations threatened to break down when Lane temporarily withheld his approval to the sale. Of vital importance to this whole transaction was the fact that Lane enjoyed the confidence of the President. Therefore Lincoln refused to give final endorsement to the purchase unless Lane would advise it. Stevens knew his way about Washington, and he was not to be thwarted. He was not a man completely motivated by selfishness. He would be glad to compensate others for assistance. So, he engaged Lane's secretary in a very private conversation. Lane's signature was quickly forthcoming. In a formal deposition, Lane's memory suffered temporary paralysis. He couldn't recall having ever read the agreement of sale. Though admitting that his name was signed thereto, he could explain it only upon two grounds that it was a rank forgery or that, as was sometimes the case with him in his busy life in Wash-

EWING: EARLY KANSAS IMPEACHMENTS 313

ington, he signed the paper without reading it. [16] Stevens testified later that he agreed to give Reynolds, the secretary, one thousand dollars if he could induce the "old man" to approve the sale. [17] It seems that Lane did not object so much to the terms of the transaction as to the fact that Stevens would have a considerable amount of money at his disposal with which to popularize his senatorial candidacy with members of the Kansas legislature. [18] That was a vital consideration. No one denies that Lane was thoroughly conversant with the ethics of state legislatures and senatorial elections, and he was obsessed with the desire to be returned to the senate.

The bonds were sold in December; the legislature convened in January; and Lane visited the state. He may have returned to consult his constituents concerning national legislation; and he may not. Anyway, on January 30, the house of representatives adopted a resolution investigating the sale of the bonds. A fortnight later, on February 14, the house passed a resolution formally impeaching Governor Charles Robinson, Secretary of State John W. Robinson, and Auditor George S. Hillyer, for high misdemeanors in office. [19] A house committee of three appeared in the senate on the day following and officially notified that body of the impeachment. Rules for the conduct of the trial were adopted by the senate on February 18. The rules used in the impeachment trial of Judge Jackson by the Missouri senate in 1859 were obviously used as a model.20

In brief, the impeachment articles against J. W. Robinson charged:

1. That J. W. Robinson, being empowered with Governor Robinson and Auditor Hillyer to sell state bonds to the sum of $150,000 at not less than ?0 per cent par value, contracted with one Robert Stevens to act as the agent of the state in selling the said bonds, and that Stevens thereunder sold $87,000 worth of the bonds to the United States Department of Interior for 85 per cent par value, paying the state of Kansas only 60 per cent par value; such sale, approved by Robinson, being in direct violation of the laws of the state; and that the state was thereby defrauded out of its just money with the full knowledge and consent. of the said Robinson; and that the state thereby suffered great pecuniary damage wherein Robinson betrayed the trust reposed in him as an officer of the state of Kansas;

2. That he, knowing that the law specified that such bonds could not be sold for less than 70 per cent face value, did secretly enter into the agreement above set forth, so that the state should receive no more than 60 per cent

314 THE KANSAS HISTORICAL QUARTERLY

face value, even when he knew that Stevens was receiving 85 per cent face value for the bonds;

3. That he permitted Stevens to detach the semiannual interest coupons, payable on January 1, 1862, for the first six months' interest, and presented them to the state treasurer for payment, receiving the amount thereon, for which permission Robinson was guilty of a high misdemeanor in office;

4. That he, in the contract with Stevens, took no security or other guaranty from Stevens when the $87,000 worth of bonds were turned over to him, constituting another high misdemeanor in office;

5. That he and Hillyer, upon going to Washington, knew that the bonds could be sold for 85 per cent par value, but that they made the deceitful contract with Stevens for the purpose of defrauding the state; and that on the bonds they permitted Stevens to keep no less than $14,000; and they also permitted Stevens to collect the first interest coupon payment;

6. That he, in printing the banking law prior to the election of 1861, permitted one Cummings, of Wabaunsee county, to publish the same in a nonexistent newspaper and to collect money from the state for the same; no such newspaper ever existed; and the publication was effected only to procure the money from the state;

7. That he, entrusted with the duty of countersigning bonds to the sum of 120,000 (war bonds), actually countersigned $40,000 worth, thereby committing an high misdemeanor;

8. That he, in conjunction with the auditor and treasurer, were empowered to let the contract for public printing for the year 1861; and they did let such contract to Trask and Lowman, of Lawrence, which successfully low bidder filed the bond as required by law in the office of secretary of state, and that he (J. W. Robinson) later permitted the said company to withdraw its bond and bid, whereby the contract was let to the next lowest bidder, thereby causing the state to suffer great pecuniary damages.

The impeachment articles against Hillyer charged:

1. That Hillyer, with the two Robinsons, contracted with Robert Stevens as alleged in article 1 of the articles against J. W. Robinson, all of which amounted to an high misdemeanor in office;

2. That he knew well that the bonds could not be sold legally for 60 per cent par value, according to state law;

3. That he permitted Stevens to cash the first interest coupons;

4. That he permitted Stevens to take the bonds without giving any sort of security, and thereby failed to protect the interests of the state;

5. That he entered into a conspiracy with J. W. Robinson and Stevens in the illegal sale of the bonds;

6. That he entered into a conspiracy with the above-named persons to cheat the state out of the first interest coupons;

7. That he, by false representations, induced Senator Lane to support the transactions.

The impeachment articles against. Governor Robinson alleged:

1. That Governor Charles Robinson, contrary to the law which authorized the issuance of the $20,000 worth of war bonds, signed and issued such bands to the extent of $40,000;

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2. That he, together with J. W. Robinson and Hillyer, conspired with Robert Stevens in the fraudulent sale of the seven per cent bonds;

3. That he, and the other two state officers, knew that the bonds could be sold for 85 per cent par value;

4. That he consented to the sale for 60 per cent par value, when he knew that such sale was contrary to the laws of the state of Kansas;

5. That he officially approved the said sale, and thereby committed an high misdemeanor in office.

TRIAL OF J. W. ROBINSON.

On February 24 the senate duly resolved itself into a court of impeachment for the trial of J. W. Robinson, and the members were sworn. The secretary of the senate administered the oath to the president and he, in turn, to the members. Counsel for the respondent entered the plea and on the day following the board of managers made replication. [21] The case for the prosecution depended upon the procuring of depositions from persons outside the state, and especially from those in Washington who had participated in the negotiations incident to the disposal of the bonds. Therefore the board of managers, composed of members of the house and the attorney-general of the state, through the latter, moved on February 28 that the impeachment court adjourn until the first Monday of the following June. [22]

The senate court met on June 2, pursuant to the adjournment resolution. The pro-Lane forces proceeded immediately to reorganize the court. On the fourteenth ballot T. A. Osborn was selected as presiding officer. [23] The authority of an impeachment court to select a presiding officer is not questioned, but the court thereupon proceeded to declare seats vacant and to fill those vacancies. From February 28, the time of adjournment of the court, to June 4, when the trial actually began, the pro-Lane members had seated five new members. Three were seated prior to the adjournment of the legislature in March, and I raise no question as to the authority of the senate to do so. That the whole episode was a political trick is admitted by D. W. Wilder, the faithful chronicler of the period. [24] However, when the court met in June, it seated two pro-Lane members. An effort was made to secure the admission of a pro-Robinson member, but the pro-Lane majority were of grave doubt as to

316 THE KANSAS HISTORICAL QUARTERLY

whether a vacancy actually existed in that district. Did anyone know whether Senator Lynde had actually accepted a military commission? An indefinite postponement of the motion to seat Kunkle emphasized the refusal of the pro-Lane leaders to treat so informally this matter of membership in the impeachment court! [25]

The authority of an impeachment court to alter the membership of the senate is of extremely doubtful validity. The court is composed of senators, to be sure, but membership in the impeachment court is only incidental to membership in the senate. If an impeachment court has the authority to qualify and seat new members would the senate be bound to accept those new members at a subsequent legislative session? In most instances, when the impeachment trial is conducted during the legislative session, the problem would not arise. However, in these early Kansas cases, the trials were held in an adjourned session of the impeachment court. The February resolution did not adjourn the senate, the legislative body; it adjourned only the impeachment court. The state constitution expressly provided that each house of the legislature should be the judge of the election and qualifications of its own members. [26] The constitution did not give such authority to any other body. The senate is a legislative body. No political casuistry need be conscripted to define the nature and functions of such a body, for they have long been understood and interpreted by the courts of this country. The concept of the separation of powers clarifies the definition, even though the insistence, as practical means of governmental limitation, on the inclusion of checks and balances produces an opposite result. However, when the senate is trying an impeachment, it ceases to be a legislative body and becomes a judicial one, the highest in the state on offenses of that character. No one would maintain that a law, passed by an impeachment court, had been constitutionally and validly enacted.

By all the rules of logic and legal reasoning, the impeachment court would be forced to accept all members of the senate as members of the court. Otherwise, what would prevent an impeachment court, by a majority vote, from excluding regularly elected senators and replacing them with other persons, who supported the majority viewpoint, in sufficient numbers to effect a two-thirds majority for conviction? If an impeachment court be the sole judge of the election and qualification of its members, what court exists that could

EWING: EARLY KANSAS IMPEACHMENTS 317

nullify a plain infringement of the constitution? Can an impeachment court disqualify a member of the senate from sitting as a member of the court for the trial of an impeachment? No student of American impeachment precedents would answer in the affirmative. Even though members of the impeachment court may be vitally interested personally in the outcome of the trial, their right to participate has been universally upheld. Did not Senator Wade vote to sustain the articles of impeachment against President Johnson, even though Wade would have been elevated to the Presidency if Johnson had been removed? In the same trial, the President's son-in-law was a member of the court and, it should be noted, he voted against each and every article of impeachment.

Even though the Johnson precedents were established subsequent to the Kansas Civil War impeachments, the action of the Kansas impeachment court cannot be justified on any ground. The only explanation is, of course, that the pro-Lane forces needed additional strength. And, to anticipate somewhat the final decisions in the cases, those illegally seated members did not disappoint those who were instrumental in securing their qualification. In case an impeachment court insists upon its right to alter the membership, the defendants, depending upon the good will of the court members for acquittal, find themselves in an embarrassing situation. Are they in a position to challenge a plain violation of the constitution? When the credentials of John Bayless, first of the new members, were presented, Case, counsel for the respondent, objected to his being sworn in. John J. Ingalls, at that time a young man of twenty-seven, threatened to have Case forcibly ejected from the chamber if "he continues his impertinent and unwarrantable interference with our deliberations." [27] Case persisted and was ejected. These early Kansas trials were certainly informal, though effective.

On June 3 the respondent asked permission to file a paper setting forth his objections to the validity of the proceedings. The objections were: (a) the sine die adjournment of the legislature on March 6 formally ended the authority of legislature unless called into legal existence by proclamation of the governor, which had not been done; (b) the power to impeach lies wholly and exclusively in the lower house, and that power cannot be delegated to a board of managers while the house is not in session; (a) there is no constitutional authority for the senate to convene separate and apart from the house

318 THE KANSAS HISTORICAL QUARTERLY

of representatives; (d) the law governing impeachments and their procedure could not apply to this case because it was enacted subsequent to the passage of the impeachment resolution; and (e) the proceedings of this illegally assembled tribunal are unlawful and any decision, either of acquittal or conviction, will be a nullity. [28] During the argument upon these objections, the defense counsel asked permission to file a bill of exceptions that might be used in later quo warranto proceedings in the courts of the state. The court voted eleven to six against filing the paper. Respondent's counsel then remained to "watch the proceedings." [29]

After the opening argument of the managers, the depositions of six persons from without the state were opened and read. These included those of Senators Lane and Pomeroy, Representative Conway, Secretary of Interior Caleb Smith, Indian Commissioner William Dole, and the mysterious Mr. Corwin. Thereafter, fifteen witnesses, including four members of the impeachment court, the secretary pro tem., and Governor Robinson and Auditor Hillyer, gave testimony. Witnesses were not put under the rule, and apparently were free to visit the sessions and listen to the testimony of others. The court experienced some difficulty in maintaining a quorum; on several occasions, the sergeant at arms was dispatched to bring in a sufficient number of members so that the trial might proceed.

One would scarcely characterize this trial as a dignified proceeding. Personalities were frequently flung from counsel to court members and vice versa. Rumors persisted that money and politics, rather than equity, were going to determine the court's decision. It was an ugly rumor, and was reflected in the manner in which court members regarded it. On Saturday afternoon, June 7, just before time for adjournment, J. J. Ingalls made his second attack against N. P. Case, counsel for defense. Ingalls thundered: "I am informed, and am prepared to fortify my statements, by the affidavits of eminently respectable gentlemen, members of the bar in this city, that Mr. Case has publicly declared, on the street corners, in the halls and other places of common resort, both before and during the

EWING: EARLY KANSAS IMPEACHMENTS 319

progress of the trial, that this senate is a jury packed against his client, and that there is but one senator whose verdict cannot be bought with money. No one can be more indifferent than myself to the vulgar assaults of calumny and slander. Personally, I would pass them by as unworthy of the slightest consideration; but this man appears here, in an official capacity, and we are compelled to notice the contempt of which he has been guilty. In insulting us, he insults the great state which we represent . . ." [30] Mr. Case was not present. His colleague expressed great surprise that any shadow of suspicion should have fallen on "this honorable body." When Case appeared at the next session, he suavely withdrew from the case after remarking that "no candid man would be warranted in making assertions of that character in reference to this respectable body." The withdrawal of the attorney did little to stifle the tongue wagging on the streets and in the barrooms of Topeka. It was generally believed that Lane had packed the impeachment court. A week later the court was to take spectacular, though ineffectual, steps to exonerate its members of the public vilification.

The managers tried assiduously to prove conspiracy on the part of the officials to defraud the state. Being a member of the court, Stevens was sworn in his seat before he testified. He related the whole story of the bond transactions and denied that he had given or promised to give any compensation whatever to the impeached officers. In long arguments, the managers, led by the attorney general, emphasized the fact that the state officers had made it possible for Stevens to make a profit of nearly forty thousand dollars on the total bond sales. If they were not corrupt, they were negligent or, worse still, mere boobs. Counsel for defense stressed the state's urgent need for money and the lawful discretion of the officers in making arrangements for the disposal of the bonds. No bad faith had been shown, no actual corruption proved. Everything depended upon the interpretation placed upon the three statutes of May and June, 1861.

Without doubt, the learned counsel might just as well have waived the right to present final argument. I doubt if a single vote was changed by either argument or testimony. On June 13 the court proceeded to vote upon the eight articles. The first article was. sustained by a vote of 17 to 4. On no one of the remaining seven was a majority of the votes cast for conviction, and on each of the last three, the votes were unanimous for acquittal. Table one records

TABLE ONE [31]
Votes in impeachment of J. W. Robinson

MEMBER

I.

II.

III.

IV.

V.

VI.

VII.

VIII.

DISQUALIFICATION

A.

N.

BARNETT

N

N

N

N

N

N

N

N

N

0

8

BAYLESS

A

A

N

A

A

N

N

N

N

4

4

COBB

A

A

A

A

N

N

N

N

N

4

4

CONNELL

A

N

N

A

N

N

N

N

N

2

6

CURTIS

A

A

A

A

A

N

N

N

N

8

3

DENMAN

N

N

N

N

N

N

N

N

N

0

8

ESSICK

A

N

A

N

N

N

N

N

N

2

6

HOLLIDAY

A

N

N

N

N

N

N

N

N

1

7

HUBBARD

A

N

N

N

N

N

N

N

N

1

7

INGALLS

N

N

N

N

N

N

N

N

N

0

8

KEELER

A

N

N

N

N

N

N

N

N

1

8

KNOWLES

A

A

A

N

A

N

N

N

A

4

4

LAMDIN

A

A

A

N

A

N

N

N

N

4

4

LAPPIN

N

N

N

N

N

N

N

N

N

0

8

MCDOWELL

A

A

A

A

A

N

N

N

N

5

3

OSBORN

A

A

N

N

N

N

N

N

N

2

6

RANKIN

A

A

A

N

N

N

N

N

N

3

5

REES

A

N

N

N

N

N

N

N

N

1

7

ROBERTS

A

A

N

N

A

N

N

N

N

3

5

SLEEPER

A

N

N

N

N

N

N

N

N

1

7

SPRIGGS

A

A

A

N

A

N

N

N

N

4

4

STEVENS

--

...

...

...

...

...

...

...

...

...

...

TOTAL "A"S

17

10

8

5

7

0

0

0

1

47

.........

TOTAL "N"S

4

11

13

16

14

21

21

20

20

----

121

EWING: EARLY KANSAS IMPEACHMENTS 321

how each member voted on each of the articles and on the motion to disqualify Robinson from further office holding.

Only four members voted for acquittal on each article. By the constitution, a two-thirds majority of the twenty-five elected members was required for removal. Thus the seventeen votes on the first article represented the minimum number by which the necessary majority might have been secured. The last-minute seating of the two members was, in effect, decisive. Both voted to convict. Senator Stevens asked to be excused from voting and his request was granted, though, like the three absent members, his failure to cast a vote for conviction constituted, in effect, a vote for acquittal. The official proceedings offer no explanation as to why the absentees were not required to attend the trial. If the pro-Lane bloc had mustered but sixteen votes, an interesting constitutional question might have been raised as to whether absentee, and maybe disqualified, members were "elected members" within the meaning of the constitution.

By a vote of twenty to one, the court refused to disqualify Robinson from future office holding. The decisiveness of this decision leaves some doubt as to the true conviction of the court as to whether Robinson had actually proved false to the responsibilities of his office. Robinson was later appointed as surgeon in the Union army. He died at Fort Smith, Ark., in December, 1863. Upon hearing of his death, D. W. Wilder wrote in his chronicle that "no other Kansas politician had died of a broken heart." Lane was later to contribute another exception to the rule.

TRIAL OF GEORGE S. HILLYER

Immediately upon the conviction of J. W. Robinson the impeachment court proceeded with the articles against Hillyer. By agreement of opposing counsel, all evidence offered in the preceding case, except the testimony of Hillyer, was to be considered as legitimate evidence in the case at bar. Only three witnesses were called to the stand, all by the prosecution. Less than three days were required to complete the trial, and most of this time was consumed in an effective investigation of charges concerning the court's integrity.

The rumors regarding the partisan nature of the impeachment proceedings persisted throughout the trials. On June 14 Senator Barnett addressed the court upon the subject of these rumors. It

322 THE KANSAS HISTORICAL QUARTERLY

appeared that a certain senator, in braggadocio, had declared that he could secure the acquittal of J. W. Robinson if given three thousand dollars with which to lubricate the court machinery. The person who had informed the senator (Barnett) had neglected to mention the name of the member who had offered to manipulate the wheels of justice. The judicious members of the court were, of course, duly shocked, especially those who had voted to sustain the articles against Robinson. [32] The charge was a gross insult to the court. The slanderer must be apprehended and exposed: The court thereupon, by resolution, requested Senator Barnett to divulge the name of his informant. He complied. It was Mr. Cummings, the state legislative printer. Mr. Cummings must be taken into custody before he fled the jurisdiction of the court. The sergeant at arms was dispatched post haste under urgent instructions. A short time later, a very wobbly legislative printer was ushered into the presence of the august impeachment court. The average age of its members was thirty-three years. It was youth carrying on, and with all the dignity of nonagenarians.

Mr. Cummings' recollection proved faulty. He was obviously too inebriated to give accurate information, but the court was loath to postpone the inquisition. Mr. Cummings wouldn't name the senator who had started the rumor, but he would say that the senator had admitted that, through the influence of Lane, he could get an office worth two thousand dollars, if he voted to convict J. W. Robinson. The investigation was revealing matters all too important, so Cummings was remanded to the custody of the sergeant at arms. Cummings must be very drunk to give voice to such a base rumor. However, he never sobered up to the calmness necessary for further questioning. At the afternoon session J. J. Ingalls advocated a novel plan for discovering the name of the traitorous court member. Each individual member should be put under oath and asked five very pointed questions relative to his past conversations with Mr. J. F. Cummings. God was conscripted to effect the divulgence of information that had eluded the best efforts of the human inquisitors. Despite these precautions, none of the worthy members admitted the contemptuous attack, and the court, thereby whitewashed of the charges, turned gladly to the testimony of the

EWING: EARLY KANSAS IMPEACHMENTS 323

TABLE TWO [33]
Vote in the impeachment of George S. Hillyer

MEMBER

I,

II.

III.

IV.

V.

VI.

VII.

VIII.

DISQUALIFICATION

A.

N.

BARNETT

N

N

N

N

N

N

N

N

0

8

 

BAYLESS

A

N

N

A

N

N

N

N

2

6

 

COBB

A

A

A

A

N

N

N

N

4

3

 

CONNELL

A

N

N

A

N

N

N

N

2

5

 

CURTIS

A

A

A

A

N

N

N

N

4

3

 

DENMAN

N

N

N

N

N

N

N

N

0

7

 

ESSICK

A

N

N

N

N

N

N

N

1

6

 

HOLLIDAY

A

N

N

N

N

N

N

N

1

6

 

HUBBARD

A

N

N

N

N

N

N

N

1

7

 

INGALLS

N

N

N

N

N

N

N

N

0

8

 

KEELER

A

N

N

N

N

N

N

N

1

6

 

KNOWLES

A

A

N

N

N

A

N

A

3

4

 

LAMDIN

A

A

A

N

N

N

N

N

3

4

 

LAPPIN

N

N

N

N

N

N

N

N

N

0

7

MCDOWELL

A

A

A

A

A

A

N

N

6

1

 

OSBORN

A

A

N

N

N

N

N

N

2

5

 

RANKIN

A

A

A

N

N

N

N

N

3

4

 

REES

A

N

N

N

N

N

N

N

1

6

 

ROBERTS

A

A

N

N

N

A

N

N

3

4

 

SLEEPER

A

N

N

N

N

N

N

N

1

7

 

SPRIGGS

A

A

A

N

A

A

N

N

5

2

 

STEVENS

--

...

...

...

...

...

...

...

...

...

...

TOTAL "A"S

17

9

6

5

2

4

0

1

43

.........

 

TOTAL "N"S

4

12

15

16

19

17

21

20

----

104

 

324 THE KANSAS HISTORICAL QUARTERLY

Hillyer trial. [34] Altogether, this represents one of the least dignified episodes in all United States impeachment history.

At the close of the testimony taking, the managers waived their right to argue their case. A defense attorney spoke very briefly. Hillyer was also convicted on the first article, with each member voting as on the first count against J. W. Robinson. On the remaining six articles the respondent was exonerated by decisive votes. The sustention of article one was logical, since Robinson had been convicted on the same charge. If one were guilty, the other was equally so. Mr. Stevens again was excused from voting. And by another vote of twenty to one the court refused to disqualify the officer from further office holding. Table two records how each Member voted on the articles and the disqualification motion.

TRIAL OF CHARLES ROBINSON.

Hillyer was convicted at the afternoon session of June 16. The case against Governor Robinson was immediately brought up and arrangements concerning the admission of earlier testimony announced. Interest in the case seems to have subsided considerably, for there creeps through the whole proceeding the feeling that the lawyers and the four witnesses were mere marionettes who were scheduled to dance to uninspiring music for a few short hours. The dance was listless, and was completed on the evening of the same day. This remains one of the shortest impeachment trials on record. Counsel for the managers spoke for ten minutes; counsel for Robinson spoke less than half that time. On the balloting, only three votes were cast in favor of conviction. [35] It was a complete and decisive triumph for the governor.

Why was Governor Robinson exonerated by so decisive a margin when the other officers were convicted? There are several factors that should be considered. In the first place, he did not directly participate in the bond sale, but remained in Kansas while J. W. Robinson and Hillyer were peddling the bonds in Washington. His most exhaustive biographer clears him of any collusion in the whole proceeding. [36] In the second place, the reputation of the governor was such, in 1862, as to protect him from even the caprice of politicians. Kansas had known him for eight years, and had followed his leadership during most of that period. In the third place, he had

EWING: EARLY KANSAS IMPEACHMENTS 325

at his immediate disposal superior weapons with which to thwart the removal designs of Lane. He controlled the state patronage and, because of the war, there was an unusually large number of desirable political plums to be distributed. His bitterest critic, W. E. Connelley, charges that he and his two confederates, Stevens and Treasurer Dutton, used J. W. Robinson and Hillyer as cat's paws to rake the chestnuts out of the fire. [37] He also charges the governor with having appointed a number of senators to military office, inferring that he thereby purchased his acquittal.

An investigation of the military appointments of Robinson's administration shows that he appointed only four of the members of the court to later positions. On the other hand, immediately prior to his trial, he placed five senators in important offices. If he had feared conviction he would certainly have deferred appointing these friends until after the impeachment trial. Of course, one cannot conclusively say that his appointments subsequent to his acquittal were not in payment of prior promises, but in the absence of material proof of such trafficking, accusations will be of little weight.

Governor Robinson retired from office in January, 1863. Between that time and his death, in 1894, he served the state in many capacities. The whole impeachment episode remained a brown spot upon his career, and few of his friends and friendly historians have given it much attention. Yet, without seeking to detract from the due respect and reputation that should be accorded Robinson, the trials contribute valuable document upon the almost savage nature of frontier politics. It is an episode well worth studying. It represents or epitomizes politics running amuck. Incidentally, it produced its own antitoxin, for not a single senator who sat as a member of the impeachment court was returned to the senate in the election of five months later.

Notes

1. These constitutions were named after the towns in which the respective conventions were held, and were, in order of origin, the Topeka (1855), Lecompton (1857), Leavenworth (1858), and Wyandotte (1859).
2. The most exhaustive work on Robinson is Prof. F. w. Blackmar's The Life of Charles Robinson. See, also. "Genealogy of Charles Robinson," Kansas Historical Collections, v. IX, p. 377; F. W. Blackmer, "Charles Robinson," ibid., v. VI, pp. 187-202; F. W. Blackmar, A Chapter in the Life of Charles Robinson, the First Governor of Kansas," Annual Report of the American Historical Association, 1894, pp. 213-226.
3. See Sara T. D. Robinson, Kansas: Its Interior and Exterior Life; Chas. Robinson, The Kansas Conflict; L. W. Spring, Kansas; Eli Thayer, A History of the Kansas Crusade; Horace Greeley, The American Conflict; the various volumes of the Kansas Historical Collections are veritable mines of information concerning the history of territorial Kansas.
4. Life of Charles Robinson, p. 18.
5. Life of General James H. Lane, p. 330.
6. John J. Ingalls, "Kansas -- 1541-1891," Harper's, 86:696-713 (April, 1893).
7. Lane was elected in April, 1861, after a sensational struggle in the legislature. On April p 1, thirteen senators, a majority, agreed to expedite the election process. It really represented a campaign pact between Lane and Pomeroy for the senatorships. The bribery period was soon ended, and both were declared elected. For a long time, the election of senators was to be of suspicious character.
8. Spring, Kansas, p. 273.
9. See S. M. Fox, "The Story of the Seventh Kansas," Kansas Historical Collections, v. VIII, p. 14.
10. Spring, op. cit., p. 273.
11. Kansas, ex rel. Crawford, v. Robinson (1862), 1 Kan. 17.
12. Statutes of 1861, pp. 205, 206.
13. Proceedings in the Cases of Impeachment Against Charles Robinson, John W. Robinson, and George S. Hillyer, pp. 317-319. Hereafter, this official record will be cited merely as Robinson Proceedings.
14. Ibid., pp. 319, 320.
15. W. E. Connelley, An Appeal to the Record, p. 47.
21. No demurrers were offered in any of these three trials.
22. Robinson Proceedings, p. 84.
23. Osborn was one of the supporters of Lane in his election campaign before the legislature in early 1881, and he had signed the agreement to terminate the delay and to proceed immediately to the balloting. Three other signers of this pact were members of the Lane bloc in the impeachment court.
24. Annals of Kansas, p. 314.
16. Robinson Proceedings, p. 147.
17. Ibid., p. 201.
18. Ibid., p. 351.
19. Robinson Proceedings, p. 34.
20. Cf. Trial of the Hon. Albert Jackson, pp. 45-48.
25. Robinson Proceedings, pp. 230-234.
26. Article II, sec. 8.
27. Robinson Proceedings, pp. 91, 92.
28. Robinson Proceedings, pp. 107, 108.
29. The validity of the whole proceeding came before the Kansas supreme court in 1863. Following their conviction, J. W. Robinson and Hillyer refused to surrender their offices and quo warranto proceedings were brought against them. The court upheld the validity of the adjournment, saying that the sine die adjournment of the legislature terminated only the legislative business. The impeachment court could meet pursuant to adjournment, and its convening without the lower house's being in simultaneous session did not violate the state constitution. However, the court did not consider the validity of the court's seating of new members. See State of Kansas, ex rel. Daniel M. Adams, v. George S. Hillyer, (1863) 2 Kan. 17.
30. Robinson Proceedings, p. 248.
31. Data compiled from Robinson Proceedings, pp. 344-348. "A" signifies a vote to sustain the article of impeachment; and "N" to acquit the respondent of the charge. The column under "Disqualification" reveals the votes for and against Robinson's disqualification for future office holding; "A" means to disqualify.
32. The solons need not have been so completely demoralized at the report. Memoirs of the period show that bribery and attempted bribery of legislators in the election of United States senators was not an unusual occurrence. See S. J. Crawford Kansas in the Sixties, pp. 346-349 ; E. C. Manning, "The Kansas State Senate of 1865 and 1866," Kansas Historical Collections, v. IX, p. 364.
33. Data compiled from Robinson Proceedings, pp. 392-396. "A" signifies a vote to sustain the article of impeachment; and "N" to acquit the respondent of the charge. The column under Disqualification reveals the votes for and against Hillyer's disqualification for future office holding; A means to disqualify.
34. Robinson Proceedings, pp. 256-376.
35. Curtis and Lambdin voted against him on the first article, and Essick on the fifth.
36. Blackmar, Life of Charles Robinson, p. 287.
37. W. E. Connelley, An Appeal to the Record, p. 41.