Friends of the Free State Militia, Part Three

Martin F. Conway

Martin F. Conway

Free State Militias: parts 1, 2, 3, 45, 6, 7

Francis and the Regulators: parts 1, 2, 3, 4, 5, 6, 7

Friends of the Free State Militia: part 1, 2

Martin F. Conway told the Howard Committee that two secret societies operated in and about Lawrence in 1855. The first, the Kansas Legion, tried to expand across Kansas and failed. It probably didn’t help that Patrick Laughlin exposed them. The second, the Kansas Regulators, endured longer. Both groups aimed to defend free soil Kansans and their political activities, which they fairly construed as self-defense given the belligerency of the proslavery forces. Conway told the committee that his group did not propose to subvert the territorial government and gave a plausible explanation of how they managed the feat: Other states had wildcat governments that the Congress accepted, so why not Kansas?

In his testimony, Conway also gives the committee a sense of the Regulators’ size and level of activity:

I attended meetings of the society during the month of September [1855]. There were a great many initiated every night, ten, fifteen, twenty, and thirty at a time, many of whom would be strangers to me. […] Our meetings were weekly.

Assuming four weeks to the month, which fits that September almost exactly, Conway saw a minimum of forty and as many as 120 men sworn in. The town of Lawrence had under 1,645 people in the 1860 census, so a fair portion of the male population signed up. Andrew Francis’ reference to every man on the street wearing a Regulators ribbon seems relatively credible in light of that.

Conway found a different point to disagree with Francis, though. While he could not recall every word of the oath administered to him, and believed that the exact form varied from time to time, he remembered the general thrust of it. Francis had it that Regulators swore commercial non-intercourse with proslavery men, that they should keep ready at all times to bear arms for the free State even to subverting the government, oppose the legislature in all its acts, and that if someone had forgotten to swear them to some part of the oath it still applied. Conway did not remember, or chose to forget

any obligation required of any member to transact all the business he had, so far as he was able with free State men. I am positive I never heard any obligation required that, under all circumstances and at all times, members should hold themselves in readiness to take up arms in defence of free State principles, even though it should subvert the government, I do not remember any obligation requiring members to oppose to the utmost of their powers the laws of the so-called Kansas legislature. I do not remember of any such obligation as: “If any part of any obligation is at this time omitted, I will consider the same as binding when legally informed of it.” I do not remember any portion of the obligation requiring members to commit it to memory.

James Henry Lane

James Henry Lane

The things Martin Conway did not remember constituted the majority of the oath Francis claimed to swear. I find Francis’ account more credible than Conway’s, but they could both be right. Conway could have lied to the committee; he certainly pushed close to it in declaring the Regulators not subversive. He might have chosen to own up to his obvious involvement while denying the Regulators’ more radical practices. He might also have sworn a different oath which left out those provisions. James Lane could have exceeded his authority in swearing Francis to extra duties, or chosen to do so because as an outsider to Lawrence he felt Francis not as trustworthy as Conway or others. Lane doesn’t appear to have testified on the issue, so he can’t tell us himself if he did any such thing.



Friends of the Free State Militia, Part Two

Martin F. Conway

Martin F. Conway

Free State Militias: parts 1, 2, 3, 45, 6, 7

Francis and the Regulators: parts 1, 2, 3, 4, 5, 6, 7

Friends of the Free State Militia: part 1

G.P. Lowery told the Howard Committee that he had joined the Kansas Regulators, but that Andrew Francis and Patrick Laughlin had the gravely exaggerated the organization’s activities and ambitions. They existed only to defend free soil Kansans against attack by proslavery Kansans and Missourians who meant them harm. They did not extend across all Kansas, but confined themselves to the Lawrence area. They had no intention of subverting the territorial government. He might have meant the last point, but doing so would have required a very fine distinction between the physical protection of members of the free state movement and the same movement’s political aims.

Martin F. Conway, who we met resigning his seat in the legislature, added more to the record. He admitted to joining the Kansas Legion to

protect the rights of the people against the encroachments of the people of Missouri. It was formed in consequence the invasion at the previous March election, and the recent outrages in Leavenworth.

Conway puts the date of founding at the middle of June, which makes sense for a reaction to Missourian election stealing back in March, as well as the special election stolen in Leavenworth in late May. Given he refers to outrages in the plural and the date fits, he probably also had in mind the lynching of William Phillips. Conway identified the group as the one that Patrick Laughlin exposed in the fall. In stating that its activities aimed to protect the rights of Kansans, Conway casts it as an explicitly political group. That group boasted a written constitution and divisions all around Kansas. That would conflict with Lowery’s story, but Conway went on to explain

it was found to be cumbersome and unwieldy, and it fell into disuse, and I do not know as it ever accomplished anything.


Another secret society was afterwards formed, the proceedings of which were intended to be secret, but the existence of which was intended should be known to the public. It was instituted about the middle of September, 1855. The object of this society was to protect the movement of the people of Kansas for a free State organization against those attempts which it was expected the Missourians would make to defeat the movement.

This second group included Andrew Francis. It remained a political group, even if Conway couched its mission in terms of self-defense. The Kansas Regulators would defend the persons of free state Kansans, but Conway explicitly includes their political activities under its aegis:

In proceeding to accomplish the object we had in view it was necessary for us to have meetings, conventions, elections, and various other gatherings of the people, and knowing ourselves liable at such times to be attacked by pro-slavery men in the Territory, as well as by invaders from Missouri, we resolved upon this secret organization as a means of defence of ourselves and resistance to them.

John Stringfellow, Speaker of the House of Kansas

John Stringfellow, Speaker of the House of Kansas

So they organized into regiments with appointed officers. Did they plan to subvert the government? G.P. Lowery said they did not. Martin Conway insisted that the Regulators operated “purely” defensively. But then he went on to say

the position we took in forming this secret society and in perfecting a State organization was, that as soon as the State government should be put in operation it would supersede the Territorial government, and the laws made under that territorial government, not by any violent method, but in the regular order of things as had been the case in other territories; that even if the Territorial laws had been valid and of full force, they would have been superseded by the State government as soon as Congress should recognize us as a State.

They would not subvert the territorial government, but rather supplant it. Other states had gone and declared themselves, then asked for admission to the Union. Kansas could do the same and have precedents to support its case. I don’t know that any of those efforts came in open defiance of the legally established territorial government, though. Conway envisions the State movement as “preliminary” and thus not technically subversive. They didn’t call themselves a state, but rather a movement organizing to make one.

The territorial government could, one supposes, see all of this and congratulate them on their fine civic spirit. John Stringfellow, Robert Kelley, and all the rest might line up to praise the free state men for their initiative. They might also sprout wings and fly.

When is it over?

Now and then I encounter a person who objects to any discussion of racial injustice on the grounds that we settled all of that years ago. We don’t keep slaves, so why bring it up? We got rid of segregation and so have no reason for further discussion. A black president means we have achieved racial equality. One who raises such issues despite all that, we must assume, wishes to distract from some other and more important concern. Maybe the speaker just has it in for white people. Maybe the speaker doesn’t understand just how deep the moral rot runs in black America. I wish I had to invent these examples, but any time an outbreak of white supremacy hits the news people bring them down from the attic.

The desire to close the book on past injustices requires little explanation. They shock our consciences and cause us distress. Who wants more of that? Thus we don’t want to see the same things happen again and again. But we feel our own pain most intimately and intensely. That doesn’t make us horrible people, but can distract us from the greater suffering of the victims. The sins of the American past thus become largely objects of discomfort for white Americans, a species of impoliteness rather than often grievous wrongs done to others.

Wishing things ended does not end them. Every divisive issue has its partisans. Every resolution of the same will have its share of losers. As unimportant issues rarely become divisive, one cannot reasonably expect that the side which lost one round will just go home. Instead they come back and try to reverse their past loss outright or achieving their preferred ends by other means. White southerners rushed to reinstate slavery after the Civil War. They didn’t succeed perfectly, but through Jim Crow, terrorism, and the criminal justice system they managed to reverse almost all of the gains that black Americans made during the war and Reconstruction. When the law turned against Jim Crow, American whites all over the nation answered the challenge by segregating their neighborhoods. The Supreme Court eventually decided, in a case brought by my native Michigan, that so long as local ordinances didn’t say “whites only” in a large font at the top of each page, then segregation could remain.

So it has. This has, by design, many obvious effects. White Americans fled from neighborhoods that had integrated or looked poised to. They took their greater wealth with them, leaving behind a shrinking tax base on which other Americans had to rely to educate their children. They abandoned, or privatized public spaces so they could control what race of people gained access. Across the South this involved closing down entire public school districts rather than integrate. Public pools closed down or turned private:

As African Americans fought for desegregation in the 1950s, public pools became frequent battlefields. In Marshall, Texas, for example, in 1957, a young man backed by the NAACP sued to force the integration of a brand-new swimming pool. When the judge made it clear the city would lose, citizens voted 1,758-89 to have the city sell all of its recreational facilities rather than integrate them. The pool was sold to a local Lions’ Club, which was able to operate it as a whites-only private facility.

The decisions of other communities were rarely so transparent, but the trend was unmistakable. Before 1950, Americans went swimming as often as they went to the movies, but they did so in public pools. There were relatively few club pools, and private pools were markers of extraordinary wealth. Over the next half-century, though, the number of private in-ground pools increased from roughly 2,500 to more than four million. The declining cost of pool construction, improved technology, and suburbanization all played important roles. But then, so did desegregation.

Did that end segregation? It might in an extremely constrained, legal sense do so. A private group could segregate and white Americans demanded that they did. Jim Crow ended, so far as whites cared. Black Americans, by design, had a different experience. Some things have changed, but others have not. Take the case of McKinney, Texas, which produced the article quoted previously:

In 2009, McKinney was forced to settle a lawsuit alleging that it was blocking the development of affordable housing suitable for tenants with Section 8 vouchers in the more affluent western portion of the city. East of Highway 75, according to the lawsuit, McKinney is 49 percent white; to its west, McKinney is 86 percent white. The plaintiffs alleged that the city and its housing authority were “willing to negotiate for and provide low-income housing units in east McKinney, but not west McKinney, which amounts to illegal racial steering.”

We have conquered segregation. No more do we have men throw acid into pools to demonstrate what sort of welcome black swimmers deserve. Now we have the police respond to the peril of the black swimmer as though a riot erupted:

They had gone to a private pool, after all. They had it coming even if some of their parents helped pay for that pool’s upkeep and others came as guests. Their skin marked them as outsiders.

We have come a long way. Bull Connor used attack dogs and fire hoses. His police department arrested more than nine hundred children. Now we have traded down to simply drawing guns on children. For this and the elimination of the legal form of Jim Crow, we deserve all the accolades we choose to award ourselves. As we should concern ourselves with racial injustice only so far as doing so demonstrates white virtue, like good nineteenth century Americans, we have done all that we can ask ourselves. Should that leave the reality of segregation in place, in some ways more present now than in decades past, so what? We cleared our consciences and so done our job.

If one gets right down to it, none of us actually endorse the rough edges of the system. Mistakes happen. People get hurt. But we don’t set out to hurt them, except by denying them the kinds of lives we prefer. When an injustice like the police riot at McKinney hits the news today, we all contemplate our navels and feel very sorry. Or do we?

Signs appeared thanking the McKinney Police. The wrong color of people had gotten into the pool despite all their efforts to prevent it. What could they have thought? That they deserved to be treated like whites? A fourth grade teacher weighed in on the matter:

“I’m going to just go ahead and say it … the blacks are the ones causing the problems and this ‘racial tension,’” Fitzgibbons said. “I guess that’s what happens when you flunk out of school and have no education. I’m sure their parents are just as guilty for not knowing what their kids were doing; or knew it and didn’t care.”


“I’m almost to the point of wanting them all segregated on one side of town so they can hurt each other and leave the innocent people alone,” Fitzgibbons said. “Maybe the 50s and 60s were really on to something. Now, let the bashing of my true and honest opinion begin….GO!”

Posted with the hash tag #notracist. Literally. I don’t know what it would take for her to call someone a racist. Would participating in a lynching be enough or would she demand to know that the lynch mob had no “good reason”. The victim could have smiled at a white woman.

We can keep telling ourselves that we whipped racism or we could actually do so. That would mean an end to all the advantages that white Americans have over black Americans, which we stole fair and square just as we stole the land from the Indians. It would mean an America where we could look at, among other things, economic statistics and see no difference between black and white Americans.

Yet we almost always take the easier route, defining racism in narrow and antiseptic terms that have precious little to do with its actual operation. No law of nature makes us do so, but we have little trouble inventing some. Black people just behave a certain way; “everybody” knows it. This doesn’t count as racist. Where one lives can’t come from any racist sentiment. We declared as much and that settles things. We beat racism in 1865 or 1954 or 1965 or 2008. Any year will do, so long as we put it in the past and don’t trouble ourselves with more than the most superficial examination of events.

The past tense means things happened before. At least implicitly, they don’t reach up into the ever-moving present. They don’t implicate us; we remain virtuous. We take pains not to know how other Americans live and when reminded of it blame them for disturbing our tranquility. I submit that this is as racist as shooting an unarmed black man or storming a pool party as though it were an insurrection. Racism lacks a dress code: one not wear a sheet, a brown shirt, or wave a Confederate flag to join in. The callous indifference, however cloaked in lectures about character, fatherhood, or whatever trope one prefers, produces the horrors. They come not despite white America’s indifference, to say nothing of tolerance and support, but because and as natural outgrowths of it. If we really want to put racial injustice into the past, we have it in us to make the change. We still segregate. We still terrorize. The means of white supremacy have changed but largely not the practice or substance. We replace slavery with Jim Crow and convict leasing. We replaced Jim Crow with privatized space and mass incarceration. We could devote that creative energy to doing the opposite instead of proclaiming each incremental, contested, and often reversed gain as the end of it all.

Why don’t we, unless we have not closed the book on racism but rather want it kept alive? We may not close that book tomorrow, next year, or next decade. It may outlive all reading this. Few chastened for their support of white supremacy will change their minds. They will take their defeats and find in them the seeds of new victories. But that doesn’t mean that we do all we can any more than it means we should give up. They only win forever if they go unopposed. That choice falls on us. Do we want more McKinneys, Trayvon Martins, Eric Garners, and Emmett Tills or do we want something else? When can we honestly call it over and done with?

Friends of the Free State Militia, Part One

Wilson Shannon

Wilson Shannon

Free State Militias: parts 1, 2, 3, 45, 6, 7

Francis and the Regulators: parts 1, 2, 3, 4, 5, 6, 7

So far, we’ve heard from informants critical of the Kansas Legion/Regulators. Irishman Patrick Laughlin would have nothing to do with a secret society that reminded him of the Know-Nothings. Andrew Francis only involved himself under the mistaken impression that Wilson Shannon signed off on for the free state election and ultimately liked neither the deception that got him to that point nor the politics of resistance that the free state movement had endorsed. G.P. Lowery, who helped initiate Laughlin, had rather different things to say about the business. While admitting that he belonged to the same group as Francis, and so also admitting that Laughlin’s Legion and Francis’ Regulators differed in name only, he insisted that

the reason for its organization was that for a long time free State men in Lawrence had been subject to insult and personal attack made upon them singly, in and out of the town, in the neighborhood, by persons who were in the habit of taking every opportunity to harass and browbeat free State men when they found them unarmed and away from assistance. The society was organized expressly to make free State men acquainted with each other, and give them a common interest in defending each other.

All of that fits the narrative that George Brown published. Free State men feared for their safety in light of violent attacks upon themselves and so bound together in self-defense. That makes it all sound downright apolitical, or at least that while the politics drew hostility to the free soilers they banded together in the Legion on the rather less political grounds of their allergy to bullets. If they made Kansas a free state along the way, so much the better. However, Lowery went on,

The society was purely a local one, and never, to my knowledge, has been organized elsewhere than in Lawrence. Very shortly after its organization it produced its desired effect, and then went out of use and ceased to exist.

George W. Brown

George W. Brown

Laughlin and Francis both received charges to go forth and found, or facilitate the founding of, new branches of the Legion. Lowery might have just not known about that. Laughlin names him (as “Lowrie”) as a member but doesn’t place him in the leadership. However, he does appear in a prominent enough role later on in the winter of 1855 to suggest that he amounted to more than a random free soiler. It seems unlikely either way that Lowery could have missed all the people coming to Lawrence and going as members of his group. Indeed, he admits later that he heard talk of expanding the Legion to Leavenworth.

Lowery further insists that he attended no meetings after his initiation and could not recall the full details of his oath, but

Doctor Francis testifies to matters as being in the oath which were not contained in it. The oath required us to keep fire arms and ammunition; to use all lawful and honorable means to make Kansas a free State; to wear at all times on our persons a weapon of death; and, I think, to go to the assistance of a brother when the probability of saving his life was greater than of losing our own. I do not recollect anything in the oath which required us to deal with free State in preference to pro-slavery men, or to wear upon the person at all times the insignia of the order, or to obey at all times the orders of superior officers even unto death. It was not a part of the oath to be in readiness to take up arms in defence of free State principles, even though it should subvert the government.

Lowery really loses credibility there. They would stop short of subverting the government, even if the broader movement of which they formed a part and which brought them together in self-defense had declared for just that? One suspects Lowery had in mind more forestalling retaliation or legal consequences for his activity, as well as preserving the reputation of the free State movement outside Kansas (He gave his testimony in New York.) and testified accordingly.

Andrew Francis and the Kansas Regulators, Part Seven

Charles Lawrence Robinson

Charles Lawrence Robinson

Free State Militias: parts 1, 2, 3, 45, 6, 7

Francis and the Regulators: parts 1, 2, 3, 4, 5, 6

Andrew Francis did not hurry about realizing his plan to expose James Lane, Charles Robinson, George Brown, and the rest of the Kansas Regulators to the world. Lane thought him still trustworthy enough in the winter of 1855-6 to send him an officer’s commission. Francis found the Regulators acceptable enough to knowingly accept arms from them, though not enough so to put his name down as among their number to to use Lane’s commission. Francis did not, by his own admission, do all that much in that time to expose the secret society. In private, he told a probate judge that the Regulators existed and what they stood for just days after, but he testified that he hardly counted it “a disclosure” on those grounds. Given George Brown had printed that free state men had a mutual protection understanding in the pages of the Herald of Freedom and people walked around Lawrence wearing conspicuous black ribbons, I expect this didn’t come as much of a shock.

But at the end of March or start of April, Francis came before a grand jury:

I had been summoned before the grand jury to testify with regard to other things, and they asked me with regard to that, and had no hesitancy in testifying about it. I think I had been admitted at the time I gave that evidence.

Francis doesn’t go into details, but he does count that testimony as a disclosure. Thus it seems most probable that he told essentially the same story that he told to the Howard Committee. He avowed that his summons did not arise from any involvement in armed strife itself. He steered clear of the battles the preceding winter. Only when the Committee subpoenaed him did Francis come to testify explicitly about the Regulators. Repeatedly he emphasized that after his initiation he had nothing to do with free state militias, eventually declaring he

supposed that the military organization was to shoot down law-abiding men if they should attempt to enforce the laws. That was my supposition from the time I was initiated, and has always been my supposition.

Francis insisted, however, that having himself fallen for the lie that Wilson Shannon signed off on the free state election, he believed

as good, and honest, and loyal men as ever lived have been deceived and led to counsel resistance to the laws from these inflammatory publications and these seditious speeches I have spoken of, and but for them, they would not have taken that position.

The Howard Committee

The Howard Committee

Francis believed, and avowed throughout his testimony, that this deception included the notion that Missourians had come into Kansas and stolen the territory’s elections. I don’t know about Francis’ neighbors, but his fellow Kansans often disagreed for better reasons than what they read in the papers. Given the choice between believing him and believing their lying eyes, present to see what he missed, they found themselves more credible. Nothing in his testimony indicates even much curiosity about past election fraud. He admits to hearing the stories, but seems to have classed them as ordinary expressions of political partisanship and never inquired further.

This in itself says something. People of every age can exaggerate and invent in the service of their politics but Francis’ lack of inquiry suggests that he found the stories flatly absurd on their face. He made that determination before he knew that free state men had misled him about Shannon’s opinion of the election, so their reduced credibility thereafter can’t factor into the judgment. What the border ruffians actually did must have sounded as wild to Francis as the notion that the British Royalty and various political leaders appear human in public but at home reveal themselves as shapeshifting reptilians does to us.

Andrew Francis and the Kansas Regulators, Part Six

James Henry Lane

James Henry Lane

Free State Militias: parts 1, 2, 3, 45, 6, 7

Francis and the Regulators: parts 1, 2, 3, 4, 5

Andrew Francis must have had a thoroughly strange few days in October of 1856. He came to Lawrence to give over returns for the free state congressional delegate election and James Lane tried to recruit him into a secret society, the Kansas Regulators. In the course of swearing him in, he found out that they had antislavery politics rather more extreme than his own and that their oath contradicted one he had given as a member of the bar to uphold the laws of Kansas. He also found out that Wilson Shannon, who he knew from their time in Ohio, had not in fact signed off on the election wherein he served as a clerk. Someone had lied to him about the governor. When Francis told Lane that he had the wrong man, they argued and Lane told him that he might not make it out of Lawrence alive. From that, one might expect that Francis immediately ran to tell all who would hear him just what had happened. One could understand even a more committed antislavery man going over to the other side after such treatment, let alone someone like Francis with more qualified beliefs.

According to Francis, he planned something on those lines:

At the time I took this obligation [to the Kansas Regulators]. I formed the determination to disclose it, as I thought it my duty as a citizen and a law-abiding man to do so. That design was formed during the time the obligation was being administered to me. I told Colonel Lane of my design after I had taken the obligation.

This did not start the argument with Lane that ended with threats. Instead

Lane gave me authority to institute other councils, and proclaimed me a Kansas regulator. I think he told me that both before and after I had told him I would make the disclosure.

Lane’s curious choice to keep trusting a man who declared that he planned to betray the Regulators seems perverse in the extreme, but Francis adds that Lane expected then that Lawrence would soon face an attack. He might have understood Francis as an acceptable risk since the loyal and disloyal would soon sort themselves into lines of battle. Faced with an actual Missourian invasion in front of him, something Francis admitted he did not then believe in, his mind might change. In the event of an attack, the free state men would need all the people they could get. If Lane truly expected an attack in the near future, then that might have overridden other concerns.

Either way, Francis did not immediately run and tell his tale. Instead he waited through the winter. In that time he received an officer’s commission from Lane, which he did not use but did keep on hand. In March, 1856, others in his area signed up, making a list of men and setting off to Lawrence for guns. Francis refused to sign on. The ringleader, a Mr. Bainter, told Francis that if he did not sign then Bainter would include him “willing or not,” so that Francis could have his share of the guns. Francis

asked him then what arms were to be drawn, and he replied a Sharp’s rifle and a brace of revolvers. I made the remark that I should like very much to have them.

Francis might have wanted the guns for any number of reasons. The tumultuous winter might have changed his mind somewhat. He might have just heard that he could have free guns. Either way, he clearly knew where the rifles came from. Though Bainter didn’t say as much, and didn’t come to him wearing the customary black ribbion of a Regulator,

Col. Lane had told me, when I was in Lawrence, that several thousand Sharp’s rifles were coming on from the east. Mr. Bainter said that there were several thousand Sharp’s rifles at Lawrence.

Lane said that thousands of the rifles would come to Lawrence. Later on, Bainter said that they had several thousand of the same rifles in the same place. Francis could do the math.

Andrew Francis makes for a very interesting case study. From our remove, we can easily imagine that people lined up in neat ranks in Kansas. Whatever one’s qualms, one signed on either proslavery and with the border ruffians or antislavery and with the free state movement. But he and others carved out a space for themselves somewhere between. Lane’s behavior in sending the commission along, and persisting in treating Francis as a Regulator despite his objections to the party program, suggest that he recognized as much. His own past moderation probably informed that judgment. He could also hardly have missed that, Francis’ protests aside, the doctor and minister hardly high-tailed it to Missouri or wrote to a Stringfellow to tell the world the moment he got clear of Lawrence.


Andrew Francis and the Kansas Regulators, Part Five

Charles Lawrence Robinson

Charles Lawrence Robinson

Free State Militias: parts 1, 2, 3, 45, 6, 7

Francis and the Regulators: parts 1, 2, 3, 4

James Lane and Charles Robinson had the wrong man in Andrew Francis. They thought they had someone on board with the general free state strategy of making their own government and striking for statehood in defiance of the legal territorial government. Francis, though he did prefer a free Kansas to an enslaved one, did not sign up for any such plan. He had sworn oaths that prevented him from honorably and honestly joining with the free state men in general, to say nothing of their notionally secret paramilitary, the Kansas Legion/Kansas Regulators. Neither his masonic fellowship with Lane, nor Robinson’s “beautiful sash […] looking like a blue and gold one joined together, trimmed with gold lace” could convince Francis otherwise. He found Lane’s death threats equally unpersuasive.

How, then, did Francis come to serve as a clerk in the free soil delegate election? It transpired that Francis

came from Belmont county, Ohio. I have lived in Pease township, Smith township, and Richland township, in that county. I was born in Belmont county, and practiced medicine there a part of the time, and part of the time worked at the printing business in the “Gazette” office. […] I have practiced medicine now for about five years. I practiced medicine in Scotland county, Missouri. I never made law a regular study. When I was a boy I was going to school in St. Clairsville; I was constantly using Governor Shannon’s books, and in that way got a preliminary knowledge of law. I have known Governor Shannon ever since I can recollect; was born in the same town where he lived, and lived close by him.

Wilson Shannon

Wilson Shannon

Andrew Francis and Wilson Shannon went way back. At the time, one got a knowledge of law mostly by borrowing books from practicing lawyers and studying under them rather than at university. However preliminary Francis considered his legal education, it sufficed to admit him to the bar in Kansas. That entailed swearing to uphold the laws of Kansas. He could not break that oath to uphold his later oath to the Kansas Regulators. The relationship with Shannon got him to the polls when Andrew Reeder ran for delegate to Congress:

Our election of the 9th of October was held under the authority of the Big Springs convention. I took part in that election, because I had been told by men that I thought reliable that Governor Shannon had said that election would be regarded as lawful. Subsequently I found that statement was not correct, and therefore I dissolved my connexion with the party. I would not have acted in that election but for the representations made to me in relation to Governor Shannon.

But Francis knew who ran the election. He had to have understood what they intended when he went and worked at the polls, right? Apparently so:

I had carefully read the proceedings of the Big Springs convention before the election. When I acted as clerk I did not credit the allegations made in the resolutions of that convention, as to armed invasions of Missourians, &c., but regarded that as the usual statements of partisans, a little too highly colored. […] I have never regarded that there had been sufficient illegal voting at the polls to control either branch of the legislature. I acted at that election because I regarded it a legal one upon the representation made to me as to Governor Shannon’s view of it.

David Rice Atchison (D-MO)

David Rice Atchison (D-MO)

With hindsight, all of this makes Francis sound a bit thick. However, he did not have the Howard Report on hand. He testifies elsewhere that he had not noticed any secret societies operating in Missouri. That left me scratching my head until I checked a map. Francis lived in Scotland County, in far northeastern Missouri, before he moved to Kansas. The Atchison and Stringfellow election stealing consortium operated on the other end of the state. He also came into Kansas in May of 1855, thus missing the stolen elections entirely. Given that, one can easily imagine that he understood persistent griping about Missourian invasions as so much sour grapes from a set of two-time partisan losers.

Francis did, however, grant that even if the free soil men told the truth about the election stealing, then

if they were not legally elected the people had better submit to them, as a matter of policy, until they could elect a legislature legally, upon the principle that honest men need not law, and rogues and disunionists need it to the utmost extremity.

To Francis’ eyes, the rogues and disunionists came from the free state movement. They had, after all, misled him about the election. Then they tried to involve him an insurrection. When he declined, James Lane threatened his life. Small wonder he thought little of them thereafter.

Some bonus Madison

James Madison

James Madison

Today’s post ran very long, but it began life as very broad study of the idea of secession in the antebellum republic and then shrank when I realized that I had written mostly about the founders. In light of both the length and the focus, I opted to leave this piece of evidence out. I present it here as a coda to the rest:

James Madison lived into the 1830s, long enough to follow the events of the Nullification Crisis and offer his opinion on the matter. He put them to paper in a letter to Nicholas Trist, of later Mexico negotiation fame, on December 23, 1852:

It is remarkable how closely the nullifiers, who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes & lips, whenever his authority is ever so clearly & emphatically agst. them. You have noticed what he says in his letters to Monroe & Carrington ps. 43 & 202. Vol 2d with respect to the power of the old Congs. to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover his remark that it was not necessary to find a right to coerce, in the Federal Articles; that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.

We can’t know what a remarkably long-lived Madison would have said about Lincoln’s call for troops to suppress the slaveholder insurrection in 1861. Living through those extra decades, his opinions informed by every development between his letter and then, he might have thought rather differently. But the Madison, and his memory of Jefferson, of the Jackson years considered the coercion of delinquent state entirely appropriate and, indeed, inherent in the Union’s nature. In calling nullification a “colossal heresy” he wounds like an adherent to the strict and permanent Union that a certain sort, unburdened by an obligation to facts, insist that Abraham Lincoln invented. I know Lincoln held a patent, but don’t recall it involving time machines.

What did the founders think of secession?

James Madison

James Madison

The conventional story goes something like this: The founders donned their powdered wigs, put their knee breeches on, and cheered as George Washington applied the requisite amount of boot leather to the necessary number of British posteriors. Thirteen colonies turned into thirteen free and independent states. They did not constitute, in any meaningful sense, a nation. The founders shared with the people of the several nations an abiding suspicion of central authority. Only the Revolution had united them and with it done they could all go back to those nations and have nothing more to do with one another. They never intended to create a consolidated republic and always imagined association between their states as strictly voluntary and subject to unilateral termination, secession in a word, at any time. To the degree the former colonies associated, they associated like you might associate with someone you met once at a party. Having a good time together did not make them married. This vision persisted through the Antebellum until the Tyrant Abraham I, the Hammer of Dixie, enslaved us all. Thus they said “the United States are” before the war and “the United States is” after, or even if they didn’t then they held sentiments largely along those lines. Shelby Foote said so.

I cannot improve on Andy Hall’s demolition of the argument from phrasing. Americans did not primarily or exclusively say “the United States are” until the Civil War and take up the singular verb after. The transition happened decades earlier. But that still leaves the meat of the story. Did antebellum Americans, most especially the founders whom the secessionists claimed as their own, consistently understand the Union as inherently voluntary, with states free to depart at will or, failing that, when they felt things sufficiently dire to justify an extreme step? In short: no.

By that I don’t mean to say that secession never crossed the minds of anybody prior to the late antebellum, nor that talk of disunion only arose late in the age. Threats of it go back to the Constitutional Convention. But those threats did not necessarily indicate general approval of the concept. Rather the convention, twelve of thirteen states strong, came together to curb state sovereignty. The Articles of Confederation had proved insufficient to the task of governing the nation because the states had much greater power than the national government, even if that government constituted a permanent union. One needn’t interpret the text to drive that conclusion, incidentally, the Articles call themselves perpetual:

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

A perpetual union hardly incorporates in itself any right to secession. Finding the power of the central state insufficient, must we think that the founders got together in Philadelphia to remedy that and then undermined their own work so comprehensively as to nullify it at the whim of any given state? The requirement that all states agree on legislation proved a critical weakness in the Articles, so would they really write it back into the Constitution? People in the past can do things that seem to us perverse and understand themselves instead as consistent with sound principles, but that suggestion would not have made any sense at the time.

The Philadelphia debates bear this out. Just a few days ago I noticed that Robert Middlekauf’s The Glorious Cause the Oxford History of the United States volume on the revolutionary era, sold by Amazon as an ebook for all of three dollars. I have not taken much interest in revolutionary history due to all the patriotic myth making. I know that historians do good work there, but the flag waving enthusiasm put me off long ago. All the same, I wanted to check something I’d heard in Mike Duncan’s wonderful Revolutions podcast. So I winced at the title and got my file. I have only read the chapters on the Constitutional Convention and ratification, but they proved a gold mine of information about what the founders thought on the issue. As much of the Philadelphia deliberations concerned representation in the Congress, they naturally dwell upon what states deserve in the way of power. It also made for a really good read. I intend to go back and finish the rest at some point.

I already knew that James Madison came to Philadelphia with a plan to grant the national government a sweeping veto over any state legislation, but the account I got back in high school painted the advocates for equality of the states in the Congress and those who argued for apportionment by population as roughly equal. In fact, only New Jersey and New York favored the former’s equal representation plan when it came down to voting. If a broad consensus existed in Independence Hall, it did not view the states in themselves as the principal components of the new nation. Otherwise one would expect much stronger votes in favor of state equality. What does this have to do with secession? A weak government could hardly prevent it. A strong one could coerce recalcitrant states and wake them from any dreams they had of disunion and nullification alike.

The advocates for state equality touched on the connection themselves. As Middlekauf has it:

Ellsworth, Sherman, and Johnson, all from Connecticut, made the heart of the case for equality of representation with minor, though longwinded, aid from Luther Martin. The essential weakness in the argument for proportional representation, they insisted, was that it rested on a misunderstanding of the Confederacy. The states in reality were joined together by an agreement much like a treaty; they were free and sovereign. Now they were asked to give up their equal voices in the Union, in effect to be consolidated out of existence

James Wilson

James Wilson

Ellsworth further insisted that every confederacy in history had equality among its members, a point of history more convenient than correct. Madison and his fellow Virginian James Wilson would have none of this. Middlekauf continues:

Both rejected the small-state contention that a treaty bound the Confederation together. Far from a union of equals, the Confederation possessed some-but not enough-authority over the states. […] Wilson agreed and rejected the Connecticut proposal for a compromise -the lower house to be apportioned according to population, the upper according to state equality-and cited statistics which purported to show that such an arrangement would permit the minority to control the majority. Seven states, Wilson noted, might control six; seven with one-third of the country’s population would control six with two-thirds of the population. “Can we forget,” he asked, “for whom we are forming a Government? Is it for men, or for the imaginary beings called States?”

That argument sounds downright twentieth century. Earl Warren’s Supreme Court rejected malapportionment of state legislatures in the 1960s on the grounds that “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” I have heard that decision, which articulated the “one person, one vote” standard, damned as a grievous offense against state sovereignty. This sovereignty forms a necessary prerequisite for unilateral secession as practiced by the Confederates and admired by their various descendant movements today. Madison, back when the states had a far better claim to sovereignty in matters save for secession,

denied flatly the states were sovereign-“in fact they are only political societies. There is a graduation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty. These were always vested in Congress.” The states, Madison argued, “are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general consideration. The states ought to be placed under the control of the general government-at least as much as they formerly were under the King and British Parliament.” And from these propositions about the character of the states-devoid of sovereignty, mere corporations, properly under the thumb of the national government-it followed that since America was a republic, representation must be based on the people.

A state which does not have final sovereignty, which constitutes a mere corporation and with laws that hold only as by-laws of its particular interests rather than paramount legislation, could hardly secede on its own initiative alone.

Madison further opined, implicitly, on the nature of state governments in The Federalist, Number 10:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

A state government must, by definition, constitute a smaller society than the general government. A local government would constitute one still smaller. Madison considered the smaller a far greater risk to the rights of others, a position often born out in twentieth century Supreme Court cases. One could also reach further back and look at the sort of oppression and outright persecution that the slave states indulged in to protect slavery. If one counts up state-level emancipations and exempts states built out of territories which had nationally imposed bans on slavery in their bounds prior to statehood, we have to stop counting states that ended slavery on their own and without war forcing matters at the Mason-Dixon Line and Pennsylvania-Ohio border. This gives us only Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania.

From these nine we could subtract Maine as it had a Massachusetts-imposed slavery ban before it became a state, and Vermont, where slavery had never been practiced and so eliminating it took little exertion. This leaves us with seven states to live up to the laboratory of democracy reputation. Against them, we could count both the fifteen slave states of 1860 and the two slave territories of Utah and New Mexico. I would not say that states necessarily and always take the low road, and some have gotten out in front of the national government often enough, but the overall example does not give much encouragement when concerns go beyond simple things like traffic laws and into questions of minority rights.

Alexander Hamilton

Alexander Hamilton

We know how the dispute worked out in Madison’s day, just as we know how it did in the case of Lee v. Grant. Adherents to other theories of national composition certainly existed. They had enough strength, when the advocates of state equality made it into a make-or-break issue, to force compromises. But the notion that the founders acted with one mind, however always borderline absurd, and that this mind fixed on the sovereignty of states simply doesn’t have a leg to stand on. National supremacy flowed not from Lincoln in Washington, but from the convention Washington chaired in Philadelphia.

But, the conventional story then goes, whatever happened at Philadelphia ratification came contingent upon various undertakings. Most famously, the states only ratified with the promise that the Congress would pass a Bill of Rights and with some kind of tacit understanding that if this did not work out, the states could quit the union and resume their independent sovereignties.

This point came lately to my attention via a video Al Mackey posted over at Student of the Civil War. It begins with Akhil Reed Amar, a constitutional law scholar who teaches at Yale, discussing the legality of secession. The secession discussion only consumes the first portion of the run time, but in it Amar makes some important points.

Madison did not get his global veto of state enactments for the Congress, but he did get the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney

By definition, sovereignty rests with whoever has the final say. The Constitution did not grant that power to the states, nor hazily delegate it to them by not granting it to the nation. It instead strips them of any such power to make laws, even state constitutions, contrary to the laws of the United States. Note that the provision does not limit itself to the national Constitution or treaties, but reaches to any federal legislation whatsoever. Even if the states had sovereignty before ratification, they ceded it then. This leaves no room for nullification either of one law or, in its ultimate form, the nullification of all federal laws by secession. A state could pass a law nullifying the tariff or the Fugitive Slave Act, as respectively South Carolina and Wisconsin did, but such laws existed only on paper and until a federal court declared them void at the latest. Roger Taney’s Supreme Court agreed on the second point when it tossed Wisconsin’s act of nullification, to the thunderous silence of most of the usual states rights enthusiasts. What part of this did South Carolina miss? Presumably the part where its nullification must meet with general approval as such a nullification would strengthen and preserve slavery whereas Wisconsin’s would not.

Amar further argues that if the founders intended the Constitution to come with a free trial period and sovereignty-back guarantee, then they did not act it. During the ratification debates in New York, with the vote very close and Alexander Hamilton not sure he had the votes, the anti-federalists suggested that they would give way for the promise of a Bill of Rights. Failing delivery on that front, New York would secede. Hamilton asked Madison for his opinion of such a deal. Even at this critical juncture when New York’s refusal would bisect the Union, possibly fatally, Madison declined to endorse compromise:

I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification.


This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection

If Madison would have broken principle in the name of pragmatism, one must imagine he would have done it then. The Constitution already had the nine states it needed to go into effect, plus an extra, but the loss of New York would have meant a great blow. Unlike Delaware, South Carolina, or other states which desperately needed a union to sustain themselves, New York with its great port and generous hinterland might have been able to go it alone. Its bad example would weaken the new union from the start, hence his, Hamilton’s, and Jay’s writing of The Federalist to begin with.

John C. Calhoun

John C. Calhoun

Lest one think Madison and Wilson alone, or necessarily extreme, in looking into the future and cursing the names of John C. Calhoun and his unruly brood of nullifiers and disunionists, despite the votes at the convention and final Constitution arguing very much otherwise, Hamilton himself got into the act in The Federalist, Number 11:

Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!

Strict and indissoluble, not loose and easily broken.

The framers did not envision anything like what Lincoln called the dreams of the Confederates:

In their view, the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free-love arrangement,—[laughter,]—to be maintained on what that sect calls passionate attraction. [Continued laughter.]

I don’t know how the founders chose to organize their private time save for the evidence given by their progeny, acknowledged and otherwise. In their political acts they present a clear record favoring not states, with the national government as a kind of necessary evil, but rather saw it as a necessary and positive good and, moreover, as a clear way to suppress contrary movements in the states. That doesn’t mean we would necessarily find all their motives for doing so appealing or in line with those who favor a stronger national state today, but they did what they did and wrote what they wrote.

This myth, like the myth of the antislavery Lee, will endure this and many other blog posts. It will survive the scorn of historians. The supposed advocates of original intent will read it, as they do all other inconvenient facts, as irrelevant rather than persuasive. They and their more radical compatriots, latter-day secessionists who ask us to believe that just this once the rhetoric they employ lacks the white supremacy which has so consistently informed it in the past, must wrap themselves in a pretend history of original intent. The real one doesn’t have much to offer them.

The framers envisioned the possibility of unilateral secession, as attempted in 1860-1, and nullification as attempted by South Carolina and Wisconsin alike, and foreclosed each in Philadelphia and at ratification. Antebellum Americans knew as much and needn’t live in the cold heart of Yankeedom or on the Illinois prairie to notice it. The Confederates at the time understood their movement as revolutionary, only deciding that they really did have a clear legal right after losing the war. Why should we pretend otherwise, unless we aspire to rehabilitate the some of the same politics that they did? Secession for what? States rights for what? If one can get a straight answer from the Confederacy’s latter-day partisans, in itself a major achievement, and they have cleverness enough to not simply say “slavery” with one of the usual codes, then I usually hear preserving the founders’ vision of the Union. It didn’t take a deep look into the founding era to find out what that vision entailed. One can and should note that it included slavery for at least the foreseeable future. But it did not include secession or nullification at all.

Andrew Francis and the Kansas Regulators, Part Four

James Henry Lane

James Henry Lane

Free State Militias: parts 1, 2, 3, 45, 6, 7

Francis and the Regulators: parts 1, 2, 3

James Lane swore Andrew Francis to numerous duties, including risking his life and defying the law. Those oaths made him a Kansas Regulator. Among them, Francis swore himself to secrecy about everything he had disclosed in his testimony to the Howard Committee. What became of that oath? Had he, like Patrick Laughlin, decided that the group did not suit him? He lacked Laughlin’s personal reason to object to secret societies. By his own admission, he did not come into the Legion planning to expose it all. Did the prestige of a congressional committee strike him as sufficient to overrule his obligations?

No. Francis informed the committee that Lane had not proceeded to vet potential recruits with sufficient care. When he emphasized that the Kansas Legion and free state party came together to reject the legislature and its acts, Lane discovered that he had the wrong man for the strategy:

I remarked to the colonel, that I was sworn to support those laws in taking my oath as a lawyer, and that I considered that that oath was administered by a higher power than he exercised, and hence I should not keep the obligations he had given to me, and that under no circumstances would I consent to do anything to subvert the institutions of the country, or place myself in opposition to the laws, and he might depend upon it I would expose it in the first convenient opportunity. I also told him I could not consistently keep both obligations that had been imposed upon me.

Francis further told Lane that as a minister, he felt Lane’s oath conflicted with his “Christian duties”.

I can’t imagine quite what went through Lane’s mind in trying to get Francis into the Kansas Legion. Did he just go out and proposition everybody, then swear them before finding out if they would keep their word? This seems a novel way to operate a secret society, though I suppose we should thank him for his poor judgment. Had he chosen only tight-lipped, dependable men we might not have any sources.

Lane did not gracefully take no for an answer:

He stated then to me that if that was my determination, and I did express myself so publicly, I would hardly get away from the city with my life. I replied to him that I should express myself so under all circumstances, both in public and in private; that I was opposed to the thing, and was also bitterly opposed to the formation of a constitution.

The Howard Committee

The Howard Committee

Lane managed to recruit into and expose his organization to a man who, however much he agreed with making Kansas a free white state, disagreed with essentially the entire strategy that the free state movement had adopted. That might have made Francis unrealistic, considering all that had happened, but the real answer probably lays further back. Francis’ own party explicitly preferred no black Americans in Kansas, but failing that to have them in as slaves. Thus the legislature’s enactments, however obnoxious, did not necessarily conflict with Francis’ principles. If he had to swear to uphold the right to slavery in Kansas, what of it? Francis told the committee when he began his testimony that he

took the position that slavery was just and legal, but, as a matter of expediency, I would prefer to have Kansas a free State, provided there were no negroes allowed to live in the Territory. If they were to be here, I preferred that they should be under masters.

Thus Francis had no particular reason to want to undermine the infrastructure of slavery, but rather a keen interest in at least leaving it be should the calamity of black Kansas residents ensue. Depending on how likely he saw that fate, he might have even read the circumstances as requiring him to uphold and bolster the legislature’s interlocking network of proslavery law.