Duel averted and factions managed, the Topeka Convention put together its constitution. After the customary invocation of “We, the people” and stressing that they “had the right of admission into the Union as one of the United States of America, consistent with the federal Constitution.” This has a bit of an argument to it. They claimed the right to themselves rather than wait on Washington or Washington’s territorial government. By immediately invoking the national Constitution they then emphasize that they reject only the territorial government that stolen elections had imposed upon them.
Further situating themselves in the American tradition, the Topeka Constitution declared in its Bill of Rights:
There shall be no slavery in this State, nor involuntary servitude, unless for the punishment of crime.
The passage Thomas Jefferson wrote into the Northwest Ordinance and David Wilmot proposed applying to the Mexican Cession thus saw its most recent version to date. Not a word of it would please proslavery men, in Congress or elsewhere, but no one could honestly accuse the free state movement of a strange political innovation in the subject.
The convention saw a potential loophole in its prohibition on slavery. A slaveholder could possibly convert his or her human property into an indentured servant. The constitution prohibited slavery and involuntary servitude, but an indenture contracted outside its bounds might slip through. Gradual emancipation laws often included such provisions. No one born after a certain date, usually July 4, became a slave. However, the children of slaves born after that date would serve out indentures to their owners until they reached a certain age. Thus:
No indenture of any negro, or mulatto, made and executed out of the bounds of the State, shall be valid within the State.
James Lane’s black law did not make it into the constitution, despite its popularity with the convention and with the Big Springs Convention before it. Instead the Topeka Convention passed a resolution calling on the first legislature elected under the new constitution to pass a black law and submitted the question to the people of Kansas along with the Constitution, and a provision on banking, for ratification.
This would not entrench the exclusion quite so thoroughly as putting it right in the constitution would have. That document forbade any attempt at a new constitution for five years after its passage. Including the black law would have ensured, barring the very unlikely event of an amendment to repeal it, at least five years of lily-white Kansas. By keeping it down to the level of ordinary legislation, the more egalitarian members of the convention gained the ability to strike the law down by a simple majority vote. Getting a majority to do so might take a great deal of doing, but could also have come about through withholding their support for something else until they gained repeal as a concession. Principle did not win an unqualified victory, but the compromise that Charles Robinson and the other the abolitionists accepted allowed them some cause for hope.
The constitution specified the means of its ratification. Kansans would vote on it, the black law, and the bank. Each one of those came as a separate issue, so one could vote for the constitution but against either or both of the black law and the bank. Elections would take place all over white-settled Kansas on December 15. Kansans could then have their constitution, dare Congress to refuse them in the name of popular sovereignty, and ride off into the sunset. They needed only for the proslavery men of Missouri and Kansas let them proceed.