A Citizen's Guide to Indiana

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Primary Challenges for Senate Leadership

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Chris Sikich, writing for the Indy Star, has an article about primary challenges faced by Senate President pro tem, David Long and Appropriations Chairman, Luke Kenley. If they lose their challenges, the Senate will be worse for it.

The challenger to Long thinks that what the Senate has accomplished in terms of permitting discrimination against gay people and limiting abortion rights doesn’t go far enough. The challenger to Kenley thinks that the General Assembly’s funding formula doesn’t sufficiently sustain the advantage Hamilton County schools have over, for example, Marion County schools.

I’ve generally been supportive of Sen. Kenley and like what he’s done. I’ve probably been more critical of Sen. Long over the years, but I certainly don’t think replacing him because he hasn’t been socially conservative enough would be a good thing for Indiana. Taxpayers are shelling out enough money to the ACLU and other plaintiffs for unconstitutional legislation as it is.

Indiana Bicentennial 5.1: The National Scene (1867-1881)

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Continuing on with installment number 5 of this bicentennial series. We’ll pick up just after the Civil War. In some ways, it felt like the country and the state had been in a stall for a long time. In Indiana, the State had gone all-in with the Mammoth Internal Improvement Act. This was immediately followed by a grinding recession precipitated by the Panic of 1837. Then the nation seemed perpetually distracted by the slavery question throughout the 1850s. That tension was finally released in the all-consuming Civil War. Coming out the other side of that stretch combined the impact of the Industrial Revolution, Americans were ready to get busy. (In reality, a lot of the action was probably underway — but history tends to focus on top level stuff, and the landscape was dominated by recession, slavery, and war.)

First, as per usual, the National Scene:

Presidents:

Andrew Johnson (1865 – 1869)

Andrew Johnson became President in 1865 after John Wilkes Booth murdered President Lincoln. Johnson had been a Democratic Senator from Tennessee. He was firmly pro-Union and did not resign his seat when members of the Tennessee government declared secession. In fact, back in Tennessee, Johnson campaigned against secession in the face of threats of physical harm. Lincoln picked Johnson as a running mate to signify the continued viability of Union. However, as a Democrat succeeding Lincoln, Johnson did not have a friendly Congress — many of whom were Radical Republicans, not at all in the mood to be conciliatory after sacrificing American lives to suppress the rebellion.

Johnson, therefore, found himself at odds with Congress over the shape of Reconstruction with its questions about whether the newly free blacks would be entitled to vote, what would be required of Southern States before they were entitled to participate in the federal government, and whether and how to punish those who had taken up arms against the United States. Georgia attempted to send Confederate Vice-President, Alexander Stephens, to Congress in December 1865. Johnson appeared to accept such a move in the name of quick conciliation. But most Northerners wanted Southerners to acknowledge their defeat. Some Northerners saw southern whites as proud and insolent. Allowing an unrepentant Southern leader like Stephens to participate in federal government would be intolerable. Congress refused to seat Stephens and established a committee to recommend appropriate reconstruction legislation.

As a Democrat, Johnson appeared to be counting on Southern support for his election prospects and, therefore, wasn’t as quick to condemn the actions of the Southern elite which were designed to, as much as possible, maintain the status quo ante despite their defeat. This alienated the Radical Republicans. Johnson vetoed a bill that would have extended the existence of the Freedman’s Bureau and another that granted citizenship to the freedmen. The veto of the second bill was overridden and Johnson had alienated the moderate Republicans. The Freedman’s Bureau bill was passed again, vetoed again, and this time that veto was overridden as well. The Congress passed the First Reconstruction Act over Johnson’s veto. Among other things, it required ratification of the Fourteenth Amendment as a condition of the end of military occupation and the return of civil government in the rebel states (except for Tennessee which had already passed the Fourteenth Amendment and been readmitted.)

Eventually, the Congressional Republicans impeached Johnson mostly because they were spoiling for a fight with him. They had passed a dubious “Tenure of Office” Act which purported to limit a President’s authority to terminate executive cabinet members once appointed. When Johnson dismissed Secretary of War Stanton without Congressional approval, impeachment hearings were initiated. The House prosecutors  fell just short of the tw0-thirds of the Senators needed to convict, with 35 guilty votes versus 19 not-guilty.

During this period, in 1867, Secretary of State Seward negotiated the purchase of Alaska (a/k/a “Seward’s Folly” and “Seward’s Icebox”) from Russia for $7.2 million (about $122 million today). One of Johnson’s last acts in office was to grant a blanket amnesty that protected Confederates from prosecution for the treason they committed.

Ulysses S. Grant 1869 – 1877

Grant was, of course, the Union General and war hero who defeated his Confederate counterpart, Robert E. Lee, and won the Civil War. Given the significance of his victory and our love of generals, he was an unsurprising choice to run for President.

Notable for Indiana was his choice of Schuyler Colfax as a running mate. Colfax had been a deputy Auditor under his step-father in St. Joseph County, covered politics when he worked at and later owned newspapers in the Region and, in that capacity, became friendly with Horace Greeley, editor of the New York Tribune for which Colfax contributed articles. Colfax had been an active Whig then became a Republican when that party was created. He was also a delegate to the convention that wrote Indiana’s 1851 Constitution. Colfax became a United States Representative in 1855 and was Speaker of the House until 1869 when he became Vice-President under Grant. As Speaker, Colfax was aligned with the Radicals and made sure that, despite the Speaker traditionally not voting on legislation, his name was recorded as voting for the Thirteenth Amendment abolishing slavery. Colfax got caught up in the Credit Mobilier scandal (involving, essentially, bribes related to the construction of the Union Pacific Railroad).

Reconstruction was a major issue during Grant’s Presidency – how the U.S. was going to treat the newly freed slaves and how much or how little it would do to punish the traitors. The Radicals wanted to punish the Confederates severely and/or give black people equal rights. The Democrats were more inclined to let bygones be bygones and go back to business as usual. During the Grant administration, the Department of Justice was created and used to prosecute the white Southern terrorists calling themselves the Ku Klux Klan. Congress also passed the Force Acts of 1870 and 1871 designed to allow federal enforcement of the Fifteenth Amendment and protect the ability of black people to vote in the South in the face of lawless Klansmen. Grant signed into law the Amnesty Act of 1872 which allowed most former Confederates to assume public office again — despite having broken their oaths to uphold the Constitution.

The frontier was coming to a close during this period. On May 10, 1869, Leland Stanford drove the golden spike into the United States’ first transcontinental railroad, joining the Union Pacific and the Central Pacific Railroads. It was now possible to cross the country in six days. Railroads were bringing white people into more and more contact with the Native Americans in the west. Grant implemented what he called a “Peace Policy” which was essentially designed to assimilate the Indians and keep them on reservations until they were willing to be assimilated. Custer’s defeat at Little Big Horn came in 1876, and Grant blamed Custer for the unnecessary loss of life. Rampant corruption in the Department of the Interior did not help anything. Expeditions to survey the upper Yellowstone led to the establishment of the Yellowstone area as the country’s first national park.

Grant’s administration was plagued by scandal. President Grant, himself, does not seem to have been personally involved, but he was unduly loyal to his friends who were not above using the government to enrich themselves. The Panic of 1873 came during his second term, caused by, among other things, speculation in the railroad industry and an overheated economy after eight years of growth following the Civil War.

Rutherford B. Hayes (1877 – 1881) 

Hayes won (or at least became President) after a hotly contested contest against Samuel Tilden. Having lost the popular vote, “Hayes won an intensely disputed electoral college vote after a Congressional commission awarded him twenty contested electoral votes. The result was the Compromise of 1877, in which the Democrats acquiesced to Hayes’s election and Hayes ended all U.S. military involvement in Southern politics.”

My primary experience with Hayes is that my grandparents lived in a house built on property that Hayes and his wife (“Lemonade Lucy”) used to own in Fremont, Ohio. Spiegel Grove which is on the Hayes’ estate and houses the Rutherford B. Hayes Presidential Center is one of my favorite places. Not because I particularly learned much about Hayes there but because that’s where I rode bikes with my Grandpa.

But I digress. Hayes had been a lawyer in Ohio before the Civil War. In the war he was wounded five times and attained the rank of major general. After the war, he served a term as Congressman then went on to be the governor of Ohio. Because of what we’ll kindly call irregularities in how he obtained the necessary electoral votes to become President, Democrats nicknamed him “His Fraudulency” and “Rutherfraud.”

Hayes ended Reconstruction in the South and returned the Confederacy to “home rule” (i.e. depriving black people of their civil rights). Congress was apparently not willing to fund military occupation of the South for much longer anyway, and Republicans were apparently losing their appetite for the task.

In July of 1877, disgruntled railroad workers were unhappy with some of the actions taken by railroad companies (e.g. cutting wages and sometimes simply refusing to pay wages) and began striking. This was in the wake of an economic collapse caused by an overheated economy and, in particular, railroad speculation. President Hayes sent federal troops to suppress the strike in a number of cities (Baltimore, St. Louis, Chicago) and that was instrumental in ending the strike.

In 1873, Congress had passed the Coinage Act which resulted in an end to the U.S. minting coins in silver. This contracted the money supply and contributed to the economic troubles resulting from the Panic of 1873. During Hayes’ term, Congress tried to fix this and passed a bill that resumed the use of silver coins. Hayes felt this was dishonest and inflationary and vetoed the bill. However, Congress was able to override the veto.

In 1868, the U.S. had entered into a treaty with China that allowed unrestricted immigration of Chinese people. When the economy went south in 1873, workers — particularly in the west — blamed their hardship on the Chinese. In response, Congress passed the Chinese Exclusion Act abrogating the treaty. However, Hayes vetoed the act, almost leading to his impeachment. Republicans were able to prevent this by refusing to vote and breaking a quorum. During the Hayes’ administration, the last of the wars with Native Americans were taking place. For example, in 1877, Chief Joseph of the Nez Perce declared, “I am tired; my heart is sick and sad. From where the sun now stands I will fight no more forever.”

Hayes had promised not to seek re-election, and he kept that promise. In his retirement, Hayes came more to recognize the troubles with the growing wealth disparity in the country. He wrote, “ Excessive wealth in the hands of the few means extreme poverty, ignorance, vice, and wretchedness as the lot of the many. . . . We may reach and remove the difficulty by changes in the laws regulating corporations, descents of property, wills, trusts, taxation, and a host of other important interests, not omitting lands and other property.” The country had entered the Gilded Age.

Indiana Bicentennial 4.9: Oliver P. Morton (1861 – 1867) & the Civil War

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Oliver P. Morton (1861 – 1867)

I won’t do Morton or the Civil War any sort of justice with this entry. There is just too much going on. If history were a landscape, most of the time, you’d be looking at plains or maybe a forest. Suddenly you get into something like the Civil War or World War II, and it becomes an incredibly dense jungle. And I don’t have a machete. So, if most of this bicentennial series has been going an inch deep, now we’re down to a quarter inch or something. But, in any event, here is a very cursory overview.

Oliver Hazard Perry Throck Morton probably had the most middle names of any Hoosier governor and was the first who was born in Indiana. He, like me, was born in Wayne County, attended Miami University, and practiced law. But, that’s mostly where the similarities end.

Early on, Morton spent some time as a hatter but then went to Miami and Cincinnati to study law before returning to Wayne County and setting up practice in Centerville. He was a Democrat in a strongly Whig area of the state. However, the Kansas-Nebraska Act, the repeal of the Missouri Compromise, and Jesse Bright’s heavy handed efforts to command loyalty had created that deep rift in the Democratic Party, and Morton became part of the embryonic Republican Party. He went to the Philadelphia Convention in 1856 and became the party’s unsuccessful candidate for governor against Ashbel Willard.

In 1860, Morton was Henry Lane’s running mate and, as mentioned above, had an agreement with Lane that — if the Republicans controlled the General Assembly after the election — Lane would be elected to the U.S. Senate, and Morton would become governor. The Republicans did well in the election of 1860. While expansion of slavery into the territories was unpopular in Indiana, Republican success in the state was more of an embrace of self-determination and dislike of the Southern slave power. There was no great love of black people in the state (as the provision in the 1851 constitution excluding black people from the state demonstrates all too well). The Republicans, therefore, were careful to avoid any hint of abolitionism or assertions that black people were equal to white people. They campaigned on stopping the extension of slavery in the territories (and took advantage of the surprisingly strong anti-temperance movement of the time.) Democrats were deeply divided, and their appeals to racism and attempts to brand Republicans as abolitionists were unsuccessful. Indiana’s electoral votes went to Abraham Lincoln. The state sent seven Republicans to Congress. The state’s four Democratic Congressmen came from the southern areas of the state. Republicans also controlled the General Assembly.

Then, on December 20, 1860, members of the South Carolina government purported to secede from the United States; soon followed by other southerners. Morton became governor on January 16, 1861.  On April 12, 1861, southerners attacked the United States, opening fire on federal property at Fort Sumter. I’ve read that tensions were so high for so long, the onset of war was almost a relief for many.

The beginning of war was met with unity and enthusiasm in Indiana. It was an opportunity for patriotism and all of the pomp and martial grandeur of military activity. Hoosiers backed their leaders and flocked to the cause. Most thought the struggle would be short and relatively bloodless. As we know in retrospect, it turned into a meat grinder. Over the course of the war, something like ? of Indiana’s 300,000 military age men would serve. When Fort Sumter was attacked, Lincoln announced a need for troops. Morton telegraphed him the same day, offering 10,000. Morton had made clear in a November 1860 speech that he regarded secession as lawless, not permitted under the U.S. Constitution and that supporters of the U.S. would be doing a disservice to their birthright if they allowed Southerners to break the law and remove their states from the Union. “If it was worth a bloody struggle to establish this Nation, it is worth one to preserve it, and I trust that we shall not, by surrendering with indecent haste, publish to the world that the inheritance our fathers purchased with their blood we have given up to save ours.”

The state’s initial quota was about 4,600 men; but, within a week, Indiana had 12,000 volunteers. Lew Wallace  was appointed Indiana’s adjutant general and began organizing “Camp Morton” at the Indiana fairgrounds as a mustering spot and training grounds.

In the beginning, Democrats and Republicans were united behind the Union cause. Morton called the legislature into special session in April 1861, and the legislature approved funds for the war effort. However, before long, Morton faced opposition to both sides. Within his own party, George Julian did not feel that Morton went far enough. Julian was a radical Republican and a Quaker, a rigid man who invited comparisons to the Cromwellian Puritans who executed King James I. For example, in the April 1861 session, Morton supported a General Assembly resolution stating that the state’s money and military forces should not be used in any aggression upon slavery. Julian and like-minded Republicans wanted to do just that.

However, Morton’s main opposition would come from Indiana Democrats.  While there were some Democrats who stuck with the war effort and joined with the Morton-Republicans and there were also Democrats who favored ceding the Southern territories to the rebels, for the most part Indiana Democrats supported efforts to preserve the Union but objected strongly to Morton and Lincoln’s tactics — which they saw as, not only exceeding their legitimate powers, but also as self-serving efforts to expand the power of their party. One of Morton’s tactics was to paint all Democrats who opposed him as Confederate-sympathizing Copperheads.

Indiana’s slave-holding Democratic Senator did not fare well during this early period of the war. Most of the Senate Democrats left or were ejected as the Southern states issued articles of secession. He had antagonized the northern, Douglas Democrats. Then, it was discovered that he had written a letter recognizing Jefferson Davis as President of a foreign nation. Even worse, it was a letter of introduction attempting to acquaint Davis with a Texas arms dealer.

The discovery of Bright’s March 1861 letter to the president of the seceding Southern states provoked calls for his expulsion from the United States Senate:

                                                                                Washington, March 1, 1861

MY DEAR SIR:  Allow me to introduce to your acquaintance my friend Thomas B. Lincoln, of Texas.  He visits your capital mainly to dispose of what he regards a great improvement in fire-arms.  I recommend him to your favorable consideration as a gentleman of the first respectability, and reliable in every respect.

        Very truly, yours,                                        JESSE D. BRIGHT

To His Excellency JEFFERSON DAVIS,

           President of the Confederation of States.

 

Bright testified that he didn’t remember writing the letter, and the Senate Judiciary committee recommended that the resolution of expulsion not pass. However, on February 5, 1862, the full Senate voted 32-14 to kick him out. Bright was the only Senator from a non-slave holding state expelled and the Senator in U.S. history to have been expelled.

Back in Indiana, the beginning of the draft intensified Democratic opposition to Morton and the war. As the war ground on, the luster wore off and, beginning in October 1862, conscription would become necessary. This became a major political issue for the 1862 elections. Later in the war, and more in the southern counties, resistance to the draft intensified — in one or two cases even resulting in the death of the local commissioner responsible for administering the draft. (In each county, the local commissioner would create ballots for the abled bodied men in each of the townships, and then a blindfolded person would draw out as many ballots as was required.)

The election of 1862 was a bad one for the Republicans. Hoosiers were nervous about the progress of the war, and the abolitionist trajectory the Republicans were taking. The Democrats regained control of the legislature. They promptly began the process for passing resolutions favoring an armistice and criticizing Lincoln policies concerning emancipation and suspension of habeas corpus. When they attempted to pass a bill that would have reduced Morton’s control over the state militia, rather than acquiesce to the legislative process, the Republicans in the General Assembly bolted and prevented a quorum. Morton had a problem. The General Assembly had not passed an appropriation bill before the Republicans fled the State House. No problem. The governor just charged it. He was able to rely on loans from friendly bankers and financial help from the Lincoln administration. He kept the money in his office safe rather than in the Democratically controlled state treasury. He paid bills as he saw fit, and the legislature was a non-factor for a couple of years. To justify his almost certainly unconstitutional actions, Morton trumped up the threat of Democratic copperheads in the State.

The lack of robust Copperhead activity in the state was illustrated to some extent by the lack of support Morgan’s Raid when the Confederate marauder attacked Hoosier territory in July 1863. He was able to damage Hoosier property and steal supplies, but was unsuccessful in raising any kind of organized support from the supposedly pervasive Copperhead community. That said, in 1864, there were aborted plans by Harrison Dodd to seize the state arsenal and free Confederate prisoners. Dodd fled to Canada before he could be arrested, but several co-conspirators, including Lambdin P. Milligan were arrested. Dodd was convicted by a military tribunal in absentia and sentenced to hang. Milligan was also convicted in December 1864 and sentenced to hang on May 19, 1865. However, in April 1865, the southern rebels had surrendered and President Lincoln was assassinated. President Johnson commuted the execution to life imprisonment. And, in April 1866, the United States Supreme Court handed down its decision in Ex Parte Milligan determining that, because civil courts were in operation, conviction of a civilian in a military tribunal was unconstitutional because the tribunal had no jurisdiction over the individual.

However, in the fall of 1864, ex parte Milligan was still well in the future, and the sensation of a Democratic/Copperhead plan to seize the state armory played into Morton’s hands. Initially, there was a question as to whether Morton could run for Governor because the Constitution of 1851 permitted only one term. However, because he had technically been elected as lieutenant governor he was allowed to run (even though he had been governor for all but two days of the term.) The elections of 1864 went much better for Morton and the Republicans than the 1862 election had gone. Republicans won 8 of the 11 Congressional districts, Morton was re-elected, and the Republicans won majorities in the General Assembly.

By the time the war ended, Morton and the Republicans were ascendent. The troops returned from war, and the Democrats struggled with their legacy as the party of the South and opposition to the war. Republicans would wrap themselves in the bloody shirt for quite some time to come.

In October 1865, after the war, Morton suffered from a stroke. He went to Europe for several months seeking treatment. During that period, Lieutenant Governor Conrad Baker served as acting governor and oversaw the demobilization of Indiana’s military service. Morton returned to office in March of 1866, but was unable to walk without assistance. In 1867, the Indiana General Assembly elected Morton to the U.S. Senate. Morton resigned the governorship, and Baker served the remainder of Morton’s term.

More case law on hospital charges: Parkview v. Frost

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On March 14, 2016, the Indiana Court of Appeals decided the case of Parkview Hospital v. Frost. (Parkview seems to make a lot of case law on the subject of hospital liens.) The question was the proper amount of the hospital lien against the proceeds of an injured party’s personal injury suit. Parkview asserted a lien based on the sticker prices for medical services found in its chargemaster. Frost wanted evidence from Parkview about what it accepted as payment in full for similar procedures from people covered by private insurance or government programs. Parkview declined to provide that information and asked the court to determine that its chargemaster rates were owed as a matter of law. The trial court declined to make that finding. Two members of the Court of Appeals panel agreed and said that Frost should be able to discover information about what other patients paid and introduce that to challenge the lien amounts.

Judge Najam, however, said that — while he agreed this would be a reasonable decision in a vacuum — it ignored the Supreme Court’s ruling in Allen v. Clarian Health Partners. The Supreme Court in that case had overruled an opinion written by Judge Najam. Judge Najam argues that Allen stands for the proposition that patients signing an agreement to pay for medical services are, in fact, agreeing to pay the chargemaster rates regardless of whether those rates are reasonable, rational, or known to the patient. He feels bound by Allen but disagrees with it and urges the Supreme Court to revisit its holding:

Thus, in its operation and effect, Allen places health care consumers, including emergency room patients, at a permanent, take-it-or-leave-it disadvantage. Allen immunizes a hospital’s unilateral pricing scheme from an evaluation or comparison by individual consumers or the marketplace at the front-end and then leaves those same consumers without recourse from a trier of fact at the back-end. Given that there is no price transparency, to insinuate chargemaster rates into an agreement “to pay the account” cannot possibly represent a meeting of the minds between the contracting parties. Chargemaster rates are not per se reasonable when they are, first, confidential and, second, incomprehensible. In sum, there is no discernable or reliable correlation between chargemaster rates and the reasonable value of the health care services provided.

(As is probably evident from my prior blog posts linked above), I tend to agree with Judge Najam. We need more consistency on standards of proof and whether a reasonableness standard applies where there is no prior meeting of the minds as to health care charges. At the moment, there seems to be a lot of variability based on who is paying and not so much based on what services were provided and the reasonable costs/prices of those services.

Indiana Bicentennial 4.8: Abram Hammond (1860-1861) & Henry Lane (Jan 14, 1861 – Jan. 16, 1861)

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Abram Hammond (1860-1861)

Hammond had been Lieutenant Governor under Governor Willard  and served the short remainder of Willard’s term. Hammond, a former lawyer and judge, had been a pro-slavery Whig before the party imploded and became a Democrat thereafter. Part of his selection as Willard’s running mate had to do with hopes that he would draw support of other former Whigs. Hammond served for three months, and his main achievement seems to have been giving an annual address to the General Assembly. Among other things, he was in favor of accommodating Southern demands in order to avoid disunion. On his recommendation, Indiana sent delegates to an unsuccessful peace conference with the goal of preventing war with the South.

Henry Lane (1861)

Lane served as Governor for only two days, from January 14, 1861 – January 16, 1861. He was a prominent early Republican and, when he ran for Governor, his plan was — if the Republicans controlled the General Assembly — to have it appoint him to the U.S. Senate, replacing Graham Fitch (the unprincipled physician from Logansport).

Even though Lane served only two days as governor, his story probably deserves some elaboration. Lane was an anti-slavery Whig and Henry Clay supporter, originally from Kentucky. He became a lawyer and a banker, moving to Crawfordsville in 1832 and worked at the Bank of Indiana. He served in the Indiana Senate and in the state House of Representatives in the late 1830s. He became a U.S. Representative in 1840, and then served with Indiana’s First Regiment and then its Fifth Regiment in the Mexican-American War.

As the Whigs imploded in the 1850s, Lane was part of the Fusion/People’s Party conglomeration that won the House in 1854 which resulted in gridlock when the Democrats refused to caucus and Indiana went without a Senator for a period of time. In 1856, the People’s Party in Indiana, with the cooperation of the American Party, sent a delegation of Hoosiers to the second national Republican convention in Philadelphia. Lane was elected President of the convention where he declared:

“Freedom is national. Freedom is the general rule. Slavery is the exception. It exists by sufferance. Where it does exist under the sanction of the law, we make no war upon it. Does that constitute us Abolitionists, simply because we are opposed to the extension of slavery? If that makes an Abolitionist, write ‘Abolitionist’ all over me.”

 

In 1858, still angry about the procedurally suspect election of Bright and Fitch to the Senate, state Republicans who had taken control of the legislature, elected Lane and William McCarty to the U.S. Senate while Bright and Fitch were still serving terms. The U.S. Senate refused to seat Lane and McCarty. So Bright and Fitch kept their Senate seats.

In 1860, Lane campaigned with Oliver Morton as his running mate. The two had agreed that, should the Republicans control the General Assembly after the election, Lane would go to the Senate, taking Fitch’s seat, and Morton would become Governor. Lane was initially rejected (again) by the Democratically controlled U.S. Senate, but, as the Southern states began to secede, the balance of party power in the Senate shifted to the Republicans, and Lane took his seat in the U.S. Senate with his fellow Senator, Jesse Bright. (With the Southern Democrats leaving and having alienated Stephen Douglas and the Northern Democrats, things must have been fairly lonely for Bright just about then.)  

Lane served just the one term in the Senate. After that, he spent a short time during the Grant administration as an Indian commissioner and then as a commissioner for the improvement of the Mississippi River. He then returned to Crawfordsville where he passed away in 1881.

Indiana Bicentennial 4.7: Sen. Jesse Bright – Indiana’s Slave Owning Senator & Democratic Party Boss

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Senator Jesse Bright, as I mentioned, was a slave owner himself, and the other U.S. Senate seat, vacant from 1855-1857, was filled by Graham Fitch, a physician from Logansport. Bright and Fitch were supporters of the southern Democrats and the Buchanan administration.  Bright engineered Fitch’s election to the Senate by the Indiana General Assembly through some heavy-handed and creative political maneuvering. The Republicans had a slight majority in the Senate while the Democrats had a majority in the House. Bright pushed for a joint session of the House and Senate. Having secured the joint session, when the Senate Republicans bolted in an effort to prevent election of a Democratic Senator, Bright pushed for a rules interpretation that said a quorum determination would be made based on the number of members of both chambers. He had enough extra Democrats in the House to overcome the lack of Republicans from the Senate. Based on that interpretation, the joint session elected Fitch — said by one contemporary to have no principles “He would be an abolitionist if it was profitable.”

In 1857, Bright thought things were going well for him. He had engineered his own re-election and the election of Fitch to the U.S. Senate. He had derailed an appointment by President James Buchanan of former governor James Wright to the cabinet — and instead managed to get Wright appointed as ambassador to Prussia. However, he had developed a reputation as untrustworthy, grasping for power, and a tool of the Slave Power of the South. Furthermore, in 1857, the Buchanan administration made a choice to support the Lecompton Constitution in Kansas — seen as fraudulent, pro-slavery, and contrary to the notion of popular sovereignty. Popular sovereignty was  supported by northern Democrats, and Illinois Senator Stephen Douglas split with the President over the issue. Douglas fought hard and had the support of most of the Northern Democrats in the Senate. Bright was pro-slavery and had a personal dislike for Douglas (who he regarded as a rival for power). Bright was politically savvy and must have known that Lecompton and opposition to popular sovereignty wouldn’t be popular in Indiana. But, he was stubborn, apparently quite devoted to slavery, sympathetic to the South, and strongly disliked Douglas:

Bright, who rarely gave extended remarks on the floor of the Senate and who was especially loath to speak out on controversial issues, cast off his reticence to defend Buchanan. And in defending Buchanan, Bright now finally exposed the depths of his commitment to the white South. In his speech, he repudiated the principle of popular sovereignty and claimed that he had previously supported it only out of expediency. The Senator had “never entertained a doubt” about the power of Congress to legislate for the territories. Bright suggested that with all of the agitation over Lecompton, it was “better” not to refer such a question “to the vote of the people.”

Senator Fitch, Bright’s lackey, backed him up on this issue. The real action on whether to support admission of Kansas under the pro-slavery Lecompton Constitution seems to have been in the House of Representatives where another Hoosier played a major role. After the House rejected the Senate’s version, Indiana Representative William English, who was an ally of Bright but whose district was strongly opposed to Lecompton, offered a compromise that involved sending the proposed state constitution back to Kansas where the choice would either be to accept the pro-slavery state constitution or remain a territory.

Throughout the 1850s, Bright had advanced Southern causes at the expense of the strength of the Indiana Democrats. The party had survived, but Lecompton had been a step too far. Hoosiers — especially Hoosier Democrats — did not care greatly about whether Kansas was slave or free, but really embraced the notion of popular sovereignty. And, given the massive voter fraud that brought forth the Kansas Lecompton Constitution, most Hoosier Democrats could not bring themselves to support it. They felt that it reflected a triumph of a minority slave interest over the majority of Kansans who opposed slavery. Bright’s heavy handed use of patronage in his efforts to maintain party discipline hurt more than it helped.

At the 1858 state Democratic convention, there was a platform dispute concerning Lecompton. Lew Wallace, leading the anti-Lecompton forces negotiated agreed language with Bright’s faction which involved the phrase “now and hereafter” that implied Kansas’ admission to the Union was not supported. However, when the platform was printed up by a publisher connected with Bright, the “now and” was left off, implying that the Lecompton Constitution for Kansas was acceptable. This appears to have been Bright’s work and deepened Democratic rifts. The anger prompted a second convention where anti-Bright Democrats endorsed Stephen Douglas and popular sovereignty. The Congressional elections were disastrous for Bright. Only three of Indiana’s eleven Congressional Districts went to his candidates. The Republicans picked up seven, and one was won by an “anti-Lecompton” Democrat. By 1860, Bright had lost control of the Indiana Democrats to an extent that he was unable to stop an endorsement of Stephen Douglas for President.

—-

Returning to Gov. Willard for a moment – in addition to being the youngest Governor, Willard also had the dubious honor of being the first governor to die in office. Having suffered from tuberculosis for years, Willard would seek out different climates by way of treatment. In 1860, after experiencing hemorrhaging of the lungs following a speech at a state Democratic meeting, he went to  St. Paul, Minnesota with the hope of regaining his health.  After a month in Minnesota, Willard relapsed and died on October 4, 1860.

Indiana Bicentennial 4.6: Ashbel Willard (1857-1860) & His Problematic Brother-in-Law

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Ashbel Willard (1857-1860)

Ashbel Willard was a lawyer and a teacher who had made his way to New Albany. He seems to have been an accomplished speaker and active political campaigner (but something of a drunk) who rose rapidly in the state Democratic Party. In 1852, he was elected as Lieutenant Governor and was nominated by the Democrats as their candidate for Governor in 1856. His opponent in 1856, Oliver Morton was a leader in the People’s/nascent Republican Party and who had been an anti-Nebraska Democrat. A major focus in the election of 1856 were the events in Kansas, where partisans had taken up arms against one another to see whether pro-slave or anti-slave could gain the upper hand in the “popular sovereignty” battle to see whether Kansas would be slave or free when it organized. The dispatches from Kansas — such as those from former Congressman, James Lane — were followed closely in the papers. James Lane left the Congress in 1855 and went to Kansas where he led the Jayhawkers, a group of Free Soilers. (Lane would later become a U.S. Senator from Kansas and a general in the Civil War.)

During the election of 1856,  Morton carried the Whitewater valley and the northern districts, but the People’s Party lost ground from the election of 1854 and, at the age of 36, Willard was elected as Governor. The political scene seems to have been tense but gridlocked with the extension of slavery continuing to dominate the public attention. The General Assembly failed to pass an appropriations bill and Willard called the Indiana General Assembly into its first special session. In the meantime, Willard went ahead and paid interest on the State’s debt despite no appropriation for the payment having been made. He reached what was likely a sensible but legally questionable conclusion that there had been a “perpetual appropriation” of the two cents per hundred dollar tax levy dedicated to public debt payments. Even more questionable, however (though probably still sensible) was his decision to go out and borrow money when it turned out there wasn’t enough in the Treasury to make the debt payments. He drew the line at making payments (despite there being money in the Treasury for the purpose) toward benevolent institutions without an appropriation — in this context, I believe the “benevolent institutions” were places like the Indiana School for the Deaf and the Institute for the Blind, and asylums. Those were forced to shut down until the General Assembly was called into special session and the matter sorted out. (Knowing how these things work out, I wouldn’t be too surprised if his decision to let the benevolent institutions close was calculated to put political pressure on the General Assembly to get its act together — with Willard fearing the wrath of bond holders more than the wrath of the beneficiaries of the benevolent institutions.)

Willard was a supporter of Southern slavery and the Fugitive Slave Act. However, he found himself directly involved on the abolitionist side of John Brown’s raid on Harper’s Ferry. Brown had been an abolitionist fighter in “Bleeding Kansas,” among other things leading the defense of Osawatomie, Kansas when slavers were attacking. The problem with the Kansas-Nebraska idea that self-determination should govern whether a state was free or slave was that the methods of persuasion often got violent. In Osawatomie, the slavers murdered John Brown’s son among others and looted the town. Brown and his forces, for their part, engaged in guerrilla attacks on pro-slavery forces. In October of 1859, Brown took his show on the road and attacked the federal armory at Harper’s Ferry in hopes that the attack would provoke a slave rising that would bring down the slave system.

Brown was something of a messianic figure, and one of his followers was John Cook (described as reckless, impulsive, indiscreet, but genial, generous and brave) who, as luck would have it, was married to Gov. Willard’s sister. The raid on Harper’s Ferry was put down fairly quickly.  “Cook escaped to the mountains of Franklin County, Pennsylvania, where he was hidden by the Underground Railroad. But, after a few days, on October 25, 1859, Cook came to the Hughes Furnace looking for food. Unfortunately, that place was managed by a southerner, Dan Logan, who supplemented his income by capturing runaway slaves and returning them to their Southern masters. Logan immediately recognized Cook who was “under medium size, skin as soft as a woman’s, and his deep blue eyes and wealth of blond hair made it easy to identify him.”” Despite Willard’s support of slavery, he also apparently felt strongly about family and, so, he enlisted Daniel Voorhees to assist Cook. Voorhees was the U.S. Attorney for Indiana and “one of the finest trial lawyers in the Midwest.” It seems that, when they got to Virginia, there wasn’t much of a defense to be had, and Voorhees got Cook to write a confession in hopes of at least saving him from the gallows. Despite implicating some prominent northern financiers and supporters of Brown’s effort, the Virginia Governor deemed the confession insufficient and backed out of the deal he had struck with Voorhees. Voorhees did what he could at the trial, making impassioned pleas on behalf of Cook as a guileless boy under the thumb of the despotic Brown. Voorhees was unsuccessful and Cook was convicted, regarded as a Judas figure by some of Brown’s supporters. Cook died at the gallows on December 16, 1859.

The raid on Harper’s Ferry did not generate the slave rebellion that John Brown hoped for, but it’s often regarded as the real beginning of the Civil War, the spark in the powder keg. It certainly raised tensions in the Democratic Party. Most of Indiana supported the northern Democrats and Sen. Stephen Douglas of Illinois. But, Indiana’s two U.S. Senators did not.

Indiana Bicentennial 4.5: More on Gov. Wright and the Election of 1854

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Governor Wright continued

Returning to Governor Wright’s term: Wright was the first governor elected under the new 1851 Constitution. It expanded the term of office for a Governor from three years to four but provided that the Governor could not serve consecutive terms. There was a brief discussion about whether Wright was eligible, but because his first term was served under the old Constitution, he was permitted to run for a second. In the election of 1852, he beat a Whig and a Free Soiler and won a term from 1853-1857. Wright was a fierce, but ultimately unsuccessful, opponent of the General Assembly’s move to allow the Bank of Indiana to incorporate as a private institution. He raised allegations of fraud in the Bank’s methods for gaining the General Assembly’s support and, while some infractions were found and the process cast in some doubt, no action was ever taken to revoke the charter.

Election of 1854

The Indiana Democrats continued to struggle with the slavery question. By the election of 1854, the state Democratic leader, now Senator Jesse Bright — who owned slaves in Gallatin Kentucky — was steering Indiana’s Democrats to more of an alignment with the Southern Democrats (for example, supporting James Buchanan rather than Stephen Douglas). Bright was using support of the Kansas-Nebraska Act (which would allow further expansion of slavery into the territories) as a litmus test for his supporters and making an effort to drive opponents out of the party. For example, in the convention of 1854, Oliver Morton was expelled when he attempted to use his influence to convince delegates to take a position against Kansas-Nebraska.

There was, during this time, a fractured opposition to the Democrats. The Whigs were in disarray, but still around. The Know-Nothings opposed the papacy and foreigners. (The Democrats were generally supportive of the often Catholic immigrants). The Free Soil Party was in opposition to expansion of slavery. The abolitionists weren’t exactly a party, but they were a political force. And there were many Democrats who opposed expansion of slavery and were disaffected with Bright’s control of the party. These opponents had an opportunity inasmuch as Democratic support of Kansas-Nebraska couldn’t be harmonized with the party’s position from previous years. Part of this mix was initially organized as the People’s Party of Indiana. Shortly thereafter, it would become the Republican Party. In 1854, the Fusion of anti-Democratic forces would win the House of Representatives and hold a substantial minority in the Senate. (The case of John Freeman, the free black man from Georgia accused of being a slave, was noted in one source as being an item of popular concern which helped the Fusion cause). The result was mostly gridlock for the next General Assembly.

As I wrote in an earlier post opposing modern efforts to repeal the 17th Amendment providing for direct election of U.S. Senators, following the election of 1854, the first order of business for the new General Assembly was selecting a United States Senator. However, rather than permitting the choice of a Fusionist, the Democrats refused to caucus. As a consequence, from 1855-1857, Jesse Bright was Indiana’s lone Senator.

Indiana Bicentennial 4.4: School Law of 1852 & the Fugitive Slave Act

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School Law of 1852

The newly adopted state Constitution required the election of a Superintendent of Public Instruction and the creation of a system of Common Schools. In response to those requirements, the General Assembly adopted a school law in 1852. The law created the State Board of Education. The Superintendent of Public Instruction was to be the President of the Board and the only member directly involved in education. The other members were the Governor, the Secretary of State, the Treasurer, and the Auditor. In 1855, the Attorney General was added to the list. “The Board was directed to meet annually for the purpose of promoting education through conferences, interchange of views, introduction of uniform schoolbooks, establishing township libraries and determining questions that might arise in connection with the public schools.” William Larrabee was the first Superintendent. Caleb Mills, so instrumental in creating the position, was the second.

The School Law  also provided that that schools would be supported through state taxation but delegated the responsibilities of erecting school buildings and hiring school teachers to the township trustees. The law declared each civil township a township for school purposes as well.  The old district schools became property of the townships. The quality of these facilities varied wildly, and sometimes there were no buildings available at all.

Many cities and townships raised taxes of their own. However, in 1858, the Supreme Court, in the case of Jenners v. Lafayette, a tax for a township in Lafayette (50 cents on the hundred dollars) was struck down as impermissible. (“This decision deprived the schools of most of their revenue and caused almost a complete shutdown of the schools. This decision was as unpopular as the Dred Scott Decision. “) The Court reasoned that the new Constitution’s prohibition on special laws regarding public education forbade local units of government from taxing themselves to pay for schools.  For several years, this decision ground school progress to a halt. Some cities tried to muddle along with private donations. Others simply gave up. The General Assembly subsequently passed legislation saying this was permissible, but the Supreme Court continued to strike down such measures through the 1850s and 60s. The General Assembly finally wore down the Court and an 1885 decision found one of these measures acceptable.

Fugitive Slave Act

In 1850, as part of the Compromise of 1850, the U.S. Congress adopted the Fugitive Slave Act. This law placed all black people, free and fugitive alike, at risk. The standard of proof for a slave catcher was trivial — he simply had to swear an oath to a justice of the peace and received the legal authority to carry a black person away into bondage. Federal commissioners had the power to deputize private citizens to assist in the capture of fugitives. The commissioners received $10 for each person they returned to bondage.

John Freeman – 1853

In 1853, John Freeman, a wealthy black man who lived in Indianapolis was accused of being a slave. Freeman had come to Indianapolis from Georgia in 1844. By 1853, he had acquired about 4 acres in the vicinity of what’s now Capitol and Michigan Street. He worked as a painter and also owned a restaurant in town. That year, a Methodist minister from St. Louis came to town with an affidavit claiming that Freeman was his slave who had run away 17 years ago. Being the rare black man with the wherewithal and social connections to fight this kind of thing, some of the city’s best legal talent came together to litigate the matter. However, while the charges were pending, the law did not authorize bail. So Freeman was stuck in jail for 9 weeks.

Freeman’s side located witnesses who knew him as a free man in Georgia during the relevant time period and even seem to have located the real runaway slave who was up in Canada (and, for obvious reasons, would not come to Indiana to testify.) However, the minister’s side came up with three people willing to testify that Freeman was the runaway (after Freeman was compelled to let these witnesses view him naked). During the course of these proceedings, local sentiment was aroused against the minister and the marshals enforcing the Slave Act. The minister fled the area before the trial took place.

Even though Freeman’s lawyers did not charge him for their services, he still took a substantial financial hit from the experience. He was forced to pay for his own jailing ($3 per day), and the costs of transporting witnesses from Georgia were substantial.

Freeman attempted to recoup his losses by filing civil suits against the minister and against the federal marshal. The suit against the marshal was dismissed on a technicality (the suit was filed in Marion County but the marshal lived in Rush County.) Freeman obtained a judgment against the minister in the amount of $2,000, but he fled further — selling his house in St. Louis and making himself scarce. Freeman’s finances were decimated, but, comparatively speaking, his was a fortunate outcome. There is no telling how many black northerners were falsely accused and lacked the resources to fight the accusation. (Though, given the immorality of slavery, a truthful accusation doesn’t make the federally-assisted intrusion of the South’s peculiar institution much more palatable.)

Calvin Fairbank – 1851

Of some note, in part because it involved the signing of an arrest warrant by Governor Wright, was the matter of Calvin Fairbank.  He was a Methodist Episcopal minister, educated at Oberlin, who had become an abolitionist after a woman who had been a slave told her story of being separated from her family as a child. Fairbank had been sentenced to jail and released previously for his work helping slaves escape. He was enlisted to help with the escape of a Kentucky slave named Tamar and was in Clark County after having successfully assisted with Tamar’s case. On November 9, 1851, Fairbank was arrested by the Sheriff of Clark County on a warrant signed by Wright, acting on a request from Kentucky’s governor. However, the sheriff allowed Fairbank to be taken by men from Kentucky, apparently in violation of the law on how such extradition was to take place. After that, he was run through a sketchy legal proceeding in Kentucky where he wasn’t allowed to call witnesses on his own behalf, and then subjected to some brutal treatment at the hands of the Kentucky penal system — flogging and overwork being the primary methods of punishing Fairbank. He was said to have sustained over 30,000 lashes in the 12 years he was imprisoned in Kentucky.

West – 1857

There was also the case of a slave named West in 1857. A slave catcher  had taken West in Illinois and was passing through Indianapolis, waiting to catch a train back to Kentucky. (Railroads were growing during this period — by 1853, the Monon Railroad had extended from the Ohio River to Lake Michigan.) Abolitionists in Indiana initiated a trial, accusing the slave catcher of kidnapping a free black man, hoping – if nothing else – to drive up costs for slave owner in an amount that exceeded the value of West to the slaveowner. They hoped that, if the juice wasn’t worth the squeeze, maybe slavers would stop operating in Indiana.

One issue in the case was whether a cause of action could be instituted by a black man, such as West, who had entered Indiana after the new Constitution in contravention of the new Article XIII. Fairly early on in the proceedings, the kidnapping charge was dropped, but then a new proceeding was instituted on whether a warrant under the Fugitive Slave Act was appropriate. Lawyers for West scrutinized every undotted “i” and uncrossed “t.” For example, they challenged the affidavit that spoke of West’s status as a slave in “Kentuck.” Of course – they argued, “Kentuck” is not a state, so the affidavit should be stricken and the cause dismissed.  When the evidence showed pretty clearly that West was, in fact, a runaway slave; his counsel shifted gears and offered up abolitionist sermons designed to arouse the public:

The fugitive act is a godless law, it is an unutterably infernal law and if its provisions are carried out, it will drag God Almighty from his throne, and inaugurate the reign of the devil upon the earth. There is not a doctrine taught by Jesus Christ which is not derided and trampled under foot by the law.

When these appeals to the federal commissioner were unsuccessful, West’s attorneys tried filing for a writ of habeas corpus in the federal court. The federal judge denied the petition because his jurisdiction was concurrent with that of the federal commissioner, and he had no authority to second guess the Fugitive Slave Act or the commissioner’s decision under the circumstances.  After that, there was a brief, failed escape attempt followed by the process of transporting West from Indianapolis to Louisville. The crowds surrounding the train were ugly, and a great deal of security was required. There were at least two attempts to block or derail the train by blocking the tracks. The whole undertaking had cost West’s purported owner a great deal, and angry sentiment had been aroused in the people of Indianapolis.

If you read the Southern articles of secession, when the individuals purporting to secede from the United States are not talking about how they are seceding to preserve slavery; very often, they are talking about their dissatisfaction with northern compliance with the federal Fugitive Slave law. I mention this, not because it’s so important to Indiana history, but because modern revisionists seeking to slap some lipstick on the pig of Southern motivations at the time, offer up nonsense about how secession was really about a deep commitment to state’s rights and federalism. Their commitment to the Fugitive Slave Act exposes this as nonsense. In any event, it’s clear that sectional tension over the issue of slavery was a festering wound in the country during the 1850s.

Next time: More on Governor Wright and the Election of 1854.

Indiana Bicentennial 4.3: Joseph Wright (1849 – 1857) & the Constitution of 1851

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Joseph Wright (1849-1857)

Wright was the son of a bricklayer who moved his family from Pennsylvania to Bloomington and helped build the first halls of Indiana University. Wright himself worked his way through IU and eventually became a lawyer and found his way into politics. In 1849, with the support of Governor Whitcomb, Wright was the Democratic nominee. Slavery was the dominant question of the election, and Wright had a record of opposing slavery when he was in Congress, and that seemed to have helped his cause; defeating Whig John Matson.

During Wright’s term, the State adopted a new constitution, the State Board of Education was created, and the Department of Agriculture was founded. (One of its first initiatives was the Indiana State Fair which first took place in 1852.) Throughout his term, he wrestled with Jesse Bright — largely without success — for control of the Democratic Party. (Bright was an unlikable bully who was skilled at working committees, rewarding friends, and punishing enemies. More on him later.)

Constitution of 1851

Through the 1840s, there had been a push for a new Constitution. In part, this was a sign of the times — a commitment to progress and reform. A number of other states in the Old Northwest went through constitutional re-writes at this time. In part, it was a reaction to the failed Mammoth Improvement Act. There was a concern that the General Assembly did not operate efficiently — wasting money by meeting every year and considering a great deal of specific, local legislation. In 1850, the General Assembly adopted legislation facilitating the Constitutional convention. Ultimately, the districting for electing the 150 delegates was very similar to the districts in place for electing the 150 senators and representatives. A couple of tweaks were made: Boone and Tipton counties were in a senatorial district with Hamilton County. But, for the constitutional convention, only Hamilton County voters got to vote for that particular convention delegate. Also, Daviess and Martin counties jointly elected a representative and a senator. Instead of jointly electing those two convention delegates, each county got to elect its own convention delegate. The delegates were to meet in the Capitol Building in Indianapolis (efforts to retain the Masonic Hall apparently having failed), and the General Assembly appropriated $40,000 for the convention.

Most of the delegates were farmers, lawyers, and physicians. Very few of the delegates were native Hoosiers. About half were born in the South. Democrats were dominant at the time and made up 2/3 of the delegates. The rest were Whigs.

Much of the underlying structure of the Constitution of 1816 was retained, however there were some major new features. Under the Constitution of 1851, the General Assembly would meet only once every two years for sessions lasting 61 days. The new constitution was also somewhat more forceful on the subject of education than the 1816 version had been. As you might recall, the 1816 version had some good language about education but gave the government a loophole by saying it should be implemented “as soon as circumstances will permit.” Thanks to the agitation of Caleb Mills and the education reformers, the Framers of the 1851 deemed that the circumstances were ripe, stating that the General Assembly was “to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.” This led promptly to the School Law of 1852 (which was blocked by the Supreme Court a couple of times before it was allowed to take effect in the 1860s).

Immigrants (male and white) were allowed to  vote if they had been in the country a year, in the state for 6 months, and expressed an intent to become citizens. (Irish and German immigrants were regarded as more likely to vote for Democrats). This expansive attitude toward the vote did not, of course, extend to women and blacks. Black people were singled out for particular abuse by this new constitution. A new Article XIII was added:

Section 1. No negro or mulatto shall come into or settle in the State, after the adoption of this Constitution.

Section 2. All contracts made with any Negro or Mulatto coming into the State, contrary to the provisions of the foregoing section, shall be void; and any person who shall employ such Negro or Mulatto, or otherwise encourage him to remain in the State, shall be fined in any sum not less than ten dollars, nor more than five hundred dollars.

Section 3. All fines which may be collected for a violation of the provisions of this article, or of any law which ay hereafter be passed for the purpose of carrying the same into execution, shall be set apart and appropriated for the colonization of such Negroes and Mulattoes, and their descendants, as may be in the State at the adoption of this Constitution, and may be willing to emigrate.

Adding insult to injury, this Article was the subject of an independent vote and was more popular with Hoosiers (passing 113,828 to 21,873) than the rest of the constitution. Fortunately, this article was declared invalid by the Supreme Court in 1863.

Next time: The Fugitive Slave Act & the School Law of 1852