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Claims for Loss in Territorial Kansas

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Claims for Loss in Territorial Kansas Claims for Loss in Territorial Kansas M.H. Hoeflich* & William Skepnek** I. BLEEDING KANSAS The creation of Kansas Territory in 1854 sparked a period of political unrest and violence that foreshadowed the Civil War to come half a dozen years later. Kansas Territory was created pursuant to the Kansas-Nebraska Act of 1854. This Act repealed the Missouri Compromise of 1820. Under the Missouri Compromise, Congress had agreed to admit new states in pairs, one pro-slavery state and one free state. Under the Kansas-Nebraska Act of 1854, Congress abandoned its resolve to admit balanced pairs of states and decided that each Territory would enter the Union either as a free or slave state depending upon a popular vote by all of the citizens of the Territory. The decision as to whether Kansas would enter the Union as a state that permitted or prohibited slavery was to be determined by a popular vote. At this time, however, the definition of a “citizen” in terms of state citizenship was vague to the point of meaninglessness and, thus, any person who was actually present in the Territory at the time a vote was taken could vote. This so-called rule of “popular sovereignty” for determining whether a new state would be free or slave meant that both pro- and antislavery forces decided to flood the territory with their supporters. Antislavery forces in several northeastern states, particularly New York and Massachusetts, established “emigrant aid companies” that offered to pay relocation and travel expenses for Northerners who would move to Kansas. Pro-slavery forces urged Missourians, in many cases just a few miles east of the Kansas-Missouri border, to flood into Kansas and vote in every significant election. To complicate matters even more, the territorial government officials were appointed by two pro-slavery Presidents, Franklin Pierce and James Buchanan. The result of all of these factors was that Kansas Territory was the site of massive unrest and frequent battles between pro-slavery and antislavery forces from 1854 until 1859 when free state forces were * John H. & John M. Kane Distinguished Professor of Law, University of Kansas School of Law. ** Partner, Skepnek Law Firm, Lawrence, Kansas. 711 712 KANSAS LAW REVIEW Vol. 65 finally victorious and the antislavery Wyandotte Constitution of 1859 was approved by a constitutional convention held at Wyandotte. This five-year period of unrest has come to be called “Bleeding Kansas.” The history of this period has been studied by generations of historians and the consensus among them is that violence, particularly in the form of armed raids by both sides, was commonplace. The result of these frequent clashes—as well as the involvement of federal military forces to quell them—was that many of the residents of the Territory suffered major losses. In particular, Douglas County, of which Lawrence was the county seat, saw massive conflict and the destruction of property during this period. Surrounding counties also saw a great deal of violence and many residents suffered losses. The large scale of the losses suffered by residents of Kansas Territory from the very beginning of its settlement led to a “ʽtreaty,’ executed at Lawrence, Kansas, December 8, 1855, and signed by Governor Wilson Shannon, Charles Robinson, and J.H. Lane.”1 A provision of this “treaty” stated: “And provided further, that Governor Shannon agrees to use his influence to secure to the citizens of Kansas Territory remuneration for any damages suffered in any unlawful depredations, if any such have been committed by the sheriff’s posse in Douglas county.”2 In January 1857, Governor Geary recommended, following the spirit of the 1855 “treaty,” that Congress pass legislation establishing a commission to take testimony as to losses by Kansas residents.3 Congress did not pass such legislation.4 II. THE CLAIMS COMMISSION OF 1857 The response of the Kansas Territorial Government to the widespread violence and looting that had plagued Kansas Territory since its creation, in the absence of federal action from 1855 to 1857, was to establish commissions to travel throughout the counties affected by the violence, hold formal hearings at which residents could present claims of losses, and forward these losses to the Congress in the hopes that 1. G.W. & W. HUTCHINSON & CO. ET AL., LOSSES BY CITIZENS OF KANSAS TERRITORY, H.R. MISC. DOC. NO. 41-7, at 1 (1869). This “treaty,” since it specifically mentioned losses caused by Sheriff Jones’ actions, would have been for the benefit primarily of free-staters, since Jones was a pro-slavery partisan. Id.; see infra text accompanying note 39. 2. H.R. Misc. Doc. No. 41-7, at 1. 3. Id. at 2. 4. Id. 2017 CLAIMS FOR LOSS IN TERRITORIAL KANSAS 713 Congress would authorize payment of the claims. During the territorial period, there were separate claims commissions established in 1857 and 1859. On February 23, 1857, the Territorial Legislature passed bills authorizing the appointment of a “Commissioner for Auditing Claims.”5 H.J. Strickler was appointed as Commissioner pursuant to the legislation. Strickler was a Virginian who moved to Kansas Territory and took a claim in Tecumseh in Douglas County. He was appointed as the Territory’s Adjutant General in 1855 and served in that role for more than a decade. He was an engineer by training, not a lawyer.6 Nevertheless, he conducted the claims hearings in an exceptionally lawyerlike way and, although he had expressed pro-slavery sentiments, did so impartially.7 The process that Strickler adopted for his hearings was straightforward. He heard testimony on two types of claims. “Public claims” were those for “[m]oneys actually and necessarily expended for the purpose of maintaining and carrying into effect the laws of this Territory, or for the purpose of suppressing any rebellion or insurrection, whether in sustaining the militia or any posse of the marshal or any sheriff of any county of the Territory.”8 “Private claims” were: Claims of all persons who may have sustained any loss or damage in consequence of, or growing out of, the difficulties in this Territory, by way of loss of property or consequent expenses at any time since the passage of the Act to Organize this Territory, viz: May 31, 1854.9 Strickler took out advertisements in the Territorial newspapers10 setting out the definition of claims and stating the times and places that he would hold hearings.11 He held hearings at seventeen locations, with most hearings lasting two days.12 Claimants were required to present their claims in the form of a written petition “reciting all the facts and 5. H.J. Strickler, Claims of the Citizens of the Territory of Kansas, H.R. Misc. Doc. No. 35- 43, at 1–3 (1858). 6. See H.J. Strickler, KANSASBOGUSLEGISLATURE.ORG, http://kansasboguslegislature.org/ members/strickler_h_j.html (last visited Mar. 24, 2017). 7. Id. 8. H.R. MISC. DOC. NO. 35-43, at 1. 9. Id. 10. Id. at 1–2; see generally WILLIAM E. CONNELLEY, KAN. STATE HISTORICAL SOC’Y & DEP’T OF ARCHIVES, HISTORY OF KANSAS NEWSPAPERS (1916), https://babel.hathitrust.org/ cgi/pt?id=coo1.ark:/13960/t0gt6t140;view=1up. 11. H.R. Misc. Doc. No. 35-43, at 1–3. 12. Id. at 2. 714 KANSAS LAW REVIEW Vol. 65 circumstances connected therewith.”13 They were required to bring with them “bills of items or other vouchers, all duly authenticated under oath, officially certified by officers, civil or military.”14 Claims had to “be supported by the fullest proof possible to be obtained” and all property had to “be described with reasonable certainty, and the value particularized and stated.”15 Claimants were also informed that they should have two witnesses who could testify under oath as to the truth of the claims.16 The requirements for claimants to meet were as stringent or more stringent than required in normal court proceedings in the Territory at the time. During the course of the proceedings, Commissioner Strickler heard testimony from 357 petitioners and granted relief to 350.17 Not all petitioners received the full amount claimed. In total, petitioners claimed $301,225.11.18 Of this total, Strickler approved as “proven” a total of $254,279.28.19 Of the total claims made, $38,942.90 were “public claims” and $215,311.38 were “private claims.”20 The claims were submitted to Congress on April 7, 1858.21 None of the submitted claims was approved or paid by Congress.22 III. THE CLAIMS COMMISSION OF 1859 The failure of the Strickler Commission to gain any relief for Kansas Claimants did not deter the Territorial Legislature from a second attempt. In January 1859, then-Governor Medary requested that the legislature pass another bill authorizing a second claims commission and another round of testimony from claimants.23 In addition to the fact that the Strickler Commission had failed to gain any compensation, another motive for appointing a second commission may have been the suspicion that Strickler had not been entirely impartial because he was a member of 13. Id. at 2–3. 14. Id. at 3. 15. Id. 16. Id. 17. See id. at 672–78. 18. Id. at 678. 19. Id. 20. Id. 21. See id. at 1. 22. See H.R. Comm. of Claims, Kansas Claims, H.R. Rep. No. 36-104, at 81 (1861). 23. William Hutchinson, Claims for Losses of Kansas Settlers During the Troubles of 1855 and 1856, in 6 TRANSACTIONS OF THE KANSAS STATE HISTORICAL SOCIETY, 1897–1900, 360, 360 (Geo. W. Martin ed., 1900). 2017 CLAIMS FOR LOSS IN TERRITORIAL KANSAS 715 the pro-slavery faction, which by 1859 had been soundly defeated.24 One month after the governor’s request, the legislature passed a bill authorizing the creation of a new claims commission and appointed Edward Hoogland, Henry J.
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