Acts of the Bogus Legislature, Part Seven

John Stringfellow, Speaker of the House of Kansas

John Stringfellow, Speaker of the House of Kansas

Parts 1, 2, 3, 4, 5, 6. Greeley’s pamphlet

The Bogus Legislature thought things through. They went back and forth across every possible way that one might oppose and undermine slavery. They laid down draconian punishments for the simple act of speaking against slavery, made virtually every step of helping a slave that dared steal back the life rightly owned by another into a grave crime, and bound all the territorial government to their edicts by criminalizing noncompliance by officeholders and requiring them to swear an oath to defend the Fugitive Slave Act. Lest one think that local officials might push back against all this, the Assembly reserved to itself the right to appoint every last one of them.

The Assemblymen even had juries stacked in their favor by excluding antislavery men from hearing cases on violations of the legislature’s laws to protect slavery. But that guarantee extended only to those particular laws. What about a freedom suit? Or a disputed sale? As property, slaves could become subject to lawsuits on many grounds. An antislavery jury could use those disputes to mitigate and undermine slavery, even if they could not abolish it for all Kansans. They might assign disputed slaves to owners who they thought less brutal than others, or free those who made freedom suits as a matter of course. John H. Stringfellow and his friends in the House and Council of Kansas saw the vulnerability and acted to close it. Jurors

in any cause in which the right to hold any person in Slavery is involved, nor in any case in which any injury done to or committed by any slave is in issue

could include

[N]o person who is conscientiously opposed to the holding of slaves, or who doe snot admit the right to hold slaves in this Territory

The judges had to swear an oath to defend the Fugitive Slave Act. So did the jurors. That left only the lawyers working any given case. The Assembly had a provision for them too. Attorneys at law required a license. None but white men could practice law in the territory, but even those paragons of race and sex must receive the approval of one of Kansas courts. To receive their credential, they had to take what appears to be the same oath required of officeholders to support and defend the Fugitive Slave Act. As a great many politicians, then and now, began their careers as lawyers this would help ensure that any home-grown Kansas politicos of decades to come stayed right by slavery.

Horace Greeley

Horace Greeley

Greeley calls these laws test oaths. If you’ve read the Constitution, you might remember this line:

no religious test shall ever be required as a qualification to any office or public trust under the United States.

Back in the day, this meant a great deal. The original Constitution granted very few personal rights, most famously habeus corpus, but the framers saw fit to include this as well. At the time, most colonies and states had such oaths on the books. If you wanted to hold colonial, and then state, office you had to swear obedience to the established church. The precedent runs all the way back to England, where religious tests excluded Catholics from government and the universities at Oxford and Cambridge. Now a new orthodoxy required protection and the proslavery men determined to give it the most thorough protection their unanimity could supply.

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