Letter/IconHE sixty-nine members of the constitutional convention were elected Tuesday, April 6, 1875. While party distinctions were not strictly observed in their selection, the statement that "in every district of the state party has been ignored in selecting candidates for delegates to the convention" was not sustained by results. It was not difficult for the two leading counties -- Douglas and Otoe -- to agree upon an equal division of their representation, since they were politically doubtful at elections. The Omaha Herald approved the Bee's proposal that seven members from Douglas county should comprise three democrats, three republicans, and Judge Lake, who at that time could not be accurately classified. The conventions of the several parties accepted the plan, but the democratic convention recommended Clinton Briggs instead of Judge Lake for the odd member and the republicans adopted the recommendation. Two republicans and two democrats were chosen for Otoe county, and a like division was made of the two members for Dodge. Richardson county conceded one member -- Franklin Martin -- of her four to the democrats, and Cass did likewise in the person of her distinctively democratic war horse, Jacob Vallery, Sr. On the other hand, the safely democratic counties of Cuming, Platte, and Sarpy chose members of their political complexion.
   The election of Beach I. Hinman, democrat, of Lincoln county, was a concession to fitness, while that of a democratic member for Dixon, and also for Seward, was probably due to the chance of politics in those uncertain counties. York chose an independent because it was then so inclined. All the rest of the members were chosen by and of republicans because they had full power so to choose. The convention comprised fifty republicans, sixteen democrats, and three independents. Of the rather small number of democrats, Brown, Boyd, Calhoun, Hinman, Martin, Munger, and Stevenson were well equipped for effective and corrective work. Abbott, Boyd, Grenell, Hinman, Kirkpatrick, Manderson, and Maxwell assisted in a very important degree in doing the preparatory work of this convention by virtue of their service in the convention of 1871. The Omaha Bee advocated the election of the delegates by the legislature on the ground that stronger men would be chosen by this method than by popular election; but the Herald properly opposed that plan. The people no doubt chose a convention more nearly representative of their spirit and wishes than the legislature would have chosen, and that was more important than the mere question of ability. No representative newspaper would now suggest delegating a function of that nature to a legislature, because in the interim there has been a great increase of self-confidence among the people and a great decrease of popular confidence in legislative bodies.
   The convention met on the 11th of May in the hall of the house of representatives at Lincoln and was called to order at three o'clock in the afternoon by Bruno Tszchuck, secretary of state. Alexander H. Conner of Buffalo county was temporary president and Guy A. Brown of Lancaster, temporary secretary. The committee on credentials was composed of twelve members, one from each senatorial district. John L. Webster of Douglas county was chosen for permanent president; Guy A. Brown of Lancaster, secretary; Cassius L.



Mather of Webster, assistant secretary; Phelps Paine of Seward, sergeant-at-arms; J. W. McCabe, doorkeeper and postmaster; and Edward Bragg, Richard Miller, and R. C. Talbot, pages. Abbott, Connor, Gere, Sterns, and Robertson were the committee on rules. A committee of twelve members -- one from each senatorial district-- was appointed to report the best practical mode of procedure. On the second day a committee of five on rules reported in favor of adopting the rules of the convention of 1871 with slight alterations. A committee was appointed to hear evidence in the case of the contest for membership from Franklin, Gosper, and Phelps counties. Pastors of the city were invited to act as chaplain in regular turn without compensation.
   Though a sensible public sentiment and the election as delegates of a goodly number of democrats of ability prevented domineering partisanship, yet a republican faction organized the convention. Charles F. Manderson had a long distance eye on the seat in the United States Senate occupied by Mr. Hitchcock, and with the alert purpose of precluding prominence of his local rival the senator put forward John L. Webster to contest against Manderson for the presidency of the convention. While Webster easily won on the general vote, it was ominous for Hitchcock that his representative did not get a single vote from Douglas county where all three of these ambitious men resided. Reaction of Manderson's defeat probably promoted somewhat his subsequent elevation to two terms of the senatorship, while his victorious indirect opponent was put off with but one.
   The convention considered three plans of procedure. The first was to take the old constitution as a model and through the aid of a small number of the committee make such alterations and additions as seemed desirable; the second was to work upon the rejected constitution of 1871 in the same way; the third to proceed de novo without any specific model. By the first two methods most of the work would have been done in committee of the whole. The last plan was adopted, chiefly because the larger number of committees it involved humored the natural ambition of the members to take a conspicuous part in the procedure. The report of the committee of twelve on procedure was therefore rejected and that of the committee of five on rules proposing thirty-two committees, which should proceed to construct a new constitution, was adopted. The reasonable brevity of both the convention and the constitution indicate that the difference between the two plans of procedure was not of great importance.
   The work of the convention was concluded on the 12th of June and the constitution was adopted by the great preponderance of 30,202 votes against 5,474 on the second Tuesday the 12th -- of October, which was also the day of the general election under the old constitution. The new constitution provided that executive officers should be chosen at the general election of the following year -- 1876. Those who were elected in 1874 -- governor, secretary of state, auditor, and treasurer, filled out their regular terms, and their successors were chosen at the same time as the new officers -- lieutenant-governor, superintendent of public instruction, attorney-general, and commissioner of public lands and buildings. By provision of the constitution the six regents of the university, judges of the supreme, district, and county courts, and elective county and precinct officers were chosen at the first general election -- October 12th. A district attorney for each of the three new judicial districts was also elected at this time, but the tenure lasted only until the expiration of the regular term of the three who had been elected under the old constitution in 1874. The nine regents of the university, elected by the legislature under the old constitution, were legislated out of office by the new, but four of them, William Adair, Charles A. Holmes, E. M. Hungerford, and Samuel J. Tuttle, were elected on the republican ticket at the first ensuing election. Republican legislatures had chosen two democrats -- Alexander Bear and James W. Savage -- as members of the preceding board; but under the popular election system there was no such wholesome principle, and every board was solidly partisan until the republicans lost control of the state in 1894.

   The new constitution was about two and



one-half times as long as that which it succeeded; but it varied but little in substance or length, from the rejected constitution of 1871. Judged by the original conception of American constitutions -- that they should be merely the fundamental basis of the government and of such statutory law as might be required in the course of time -- the constitution of 1866 was long enough. But the popular distrust of representative bodies which has been increasing since that time, as evidenced by the increasing length of later state constitutions, by the general adoption of direct primary elections, and the growing use of the initiative and referendum, was responsible for the incorporation in the new constitution of many provisions which otherwise would have been left to legislative enactment. The latest state constitution -- that of Oklahoma -- illustrates the constantly growing tendency. It is as much longer than the Nebraska constitution of 1875 as the latter is longer than its predecessor of 1866.
   There is no reason for thinking that any mandate or advice of the constitution touching the regulation of railroad business has had any appreciable effect upon the legislature which has responded only to the mandate of public sentiment. The legislature ought to have passed an apportionment bill at the session which just preceded the convention, thus saving that body from a distinctively partisan task and the constitution from its incongruous and unnecessary bulk. The legislation in the constitution is mainly comprised in those two measures. The excess in its length over the constitution of 1866, outside those two subjects, is in the much greater detail of the provisions for the executive, the judiciary, education, and the schedule. This minute attention to detail is, however, due to the same motive and spirit which are manifested in the legislative features. The only other important new principle incorporated into the new constitution was that forbidding special legislation in a long list of specified cases and "in all other cases where a general law can be made applicable." The section containing this prohibition, with the exception of the provision relating to the bonding of municipalities, which is added, was copied from the constitution of 1871. The constitution of 1866 merely prohibited the passage of special acts conferring corporate powers and provided that "corporations may be formed under general laws."
   After all the lands available for such a purpose had been bestowed upon railroad companies, the new constitution provided that "lands under control of the state shall never be donated to railroad companies, private corporations, or individuals." While this was chiefly a response to a subjective reaction, perhaps there was expectation that the swamp lands scheme would be productive.
   The important incidental changes consisted in the enlargement of the legislative, executive, and judicial departments and an increase in compensation of members and officers. The offices of lieutenant-governor, state superintendent of public instruction, attorney-general, and commissioner of public lands and buildings were added to the executive department. The salaries of the four executive officers under the constitution of 1866 were as follows: Governor, $1,000; secretary of state, $600; treasurer, $400; auditor, $800. Under the new constitution the salary of the governor, auditor, and treasurer is $2,500; all the rest of the executive officers receive $2,000, except the lieutenant-governor, whose compensation is twice that of a senator. Under the old constitution these officers were not prohibited from receiving fees or other perquisites, and it was expected that the treasurer's meager allowance would be swelled by interest on loans of the funds in his custody. The new constitution prohibits all state officers from appropriating any fees or perquisites to their own use. Long continued and wanton disregard of this inhibition demoralized the civil service and caused great losses of the public funds.
   The number of judicial districts was increased from three to six, with a judge for each, and an independent supreme court with three judges was established -- an increase over the old régime of three districts and six judges. The legislature was authorized to increase the number of judicial districts once every four years, after 1880, by a vote of two-thirds of its members. The length of the term



of the judges of the supreme court remains the same as under the old constitution. The salary of judges was increased from $2,000 to $2,500. There was no provision for county judges in the old constitution.
   Under the constitution of 1866 the upper house of the legislature consisted of thirteen members and the lower of thirty-nine; but after ten years from the adoption of the constitution -- that is, in 1876 --the legislature might increase the senate to twenty-five and the house to seventy-five members. The new constitution limited the membership of the senate to thirty and of the house to eighty-four until 1880, when that of the former might be increased to thirty-three and of the latter to one hundred. The legislature raised the number of both bodies to the maximum at the first opportunity -- in 1881. The provision for compensation of members in the new constitution was copied from its predecessor, but at the general election of 1886 an amendment was adopted which increased the per diem from three dollars to five dollars and the number of days for which compensation might be received in any one session from forty days to sixty days. The amendment also limits the number of days for which members may be paid during their entire term of office to one hundred.
   The State University was organized and, until 1875, governed without any constitutional paternalism; but a provision for its government was legislated into the new constitution. This unfortunately involves an elective board of regents. Members of this important body should have special qualifications. Under the convention system these offices were often tossed as a salve to some disappointed county or individual without due regard to fitness. It is not likely that under the present direct primary system the choice will be more discriminating.
   The new constitution designated certain state officers to constitute a board of public lands and buildings and another set of such officers for a board of education. Under the old constitution the same end was reached by legislative enactment.
   The constitution of 1871 hit a juster range of salaries than that of 1875. The members of the legislature were to receive four dollars a day, without limitation of the number of days; the governor three thousand dollars a year and all the remainder of the state officers two thousand dollars, except that the allowance for the lieutenant-governor is the same in both constitutions. It would be difficult at least to overthrow the assumption that in 1871 the superior dignity of the governor made his services worth a thousand dollars a year more than those of the other state officers; but there seems to be no good reason for rating the governor, auditor, and treasurer five hundred dollars higher than the other state officers in 1875. The attorney-general, for example, is probably the hardest worked, and ought to be the ablest, of them all. But the convention of 1871 was palpably wiser than its successor in allowing a salary of thirty-five hundred dollars instead of twenty-five hundred for judges of the supreme court. The salaries of district judges were the same under both constitutions, but the convention of 1871 conceded that the legislature might well be entrusted with authority to readjust these salaries by providing that they should stand as specified in the constitution "only until otherwise provided by law," while in the constitution of 1875 all salaries are rigidly fixed.

   The convention of 1875 followed that of 1871 by incorporating in the constitution that barren formalism which confines the power of introducing appropriation bills to the house of representatives. This distinction is a mere echo of a constitutional principle which was recognized in England as early as the fourteenth century. It was an acknowledgment by the crown, grounded in expediency, of the growing self-assertion and power of the commons represented in the lower house of parliament. The chief and sufficient reason for the rule was that the lords, by virtue of their life tenure, were not responsible or responsive to public opinion and therefore could not justIy be entrusted with power of taking public money. The distinction was then logical and vital, whereas in our state legislature, whose members are elected at the same time in the same manner and for the same term and from



the same class, it is an innocuous memory. Indeed, it may well be doubted whether the increased expense and clogging of business which flows from the mere arbitrary and artificial division of this homogeneous body into two segments is offset by its assumed advantages of greater scrutiny and deliberation. This dual system is also a projection from a time when class distinctions were universally recognized in political organization and other social relations.
   The only allusion to the location of the capital in the constitution of 1866 is a provision that the first state legislature should meet at Omaha. The constitution of 1871 provided that the capital should remain at Lincoln until 1880, "and until otherwise provided by law designating some other place therefor, which shall be submitted to and approved by a majority of the electors voting thereon." The present constitution provides that the seat of government shall not be removed or relocated without the assent of a majority of the electors of the state voting thereupon at a general election or elections, under such rules and regulations as to the number of elections and manner of voting and places to be voted for as may be prescribed by law. Of these two provisions the former was probably the safer for Lincoln. It would have been difficult for the legislature to settle upon a specific new location and in turn still more difficult to procure the assent of a majority; whereas, under the present constitution, the legislature might adopt a plan fairer in appearance by which all aspirants would be voted upon together at as many successive elections as would be necessary to eliminate those having the low vote, thus reaching a final contest for a majority between the two highest, but only after every other had had a fair chance.
   While the preamble of the constitution of 1866 is not as fine in form as that of the federal constitution, yet it is concise and dignified and superior to that of the constitution of 1875, which, though commendably brief, is clumsy in construction, and that of the constitution of 1871 is verbose sermonizing. Probably the worst verbal blemish in the constitution of 1875 is the utterly indefensible substitution of "persons" and "people" for "men" in a clause adopted from a noble passage of the Declaration of Independence. For example: "All persons are by nature free and independent;" "to secure these rights . . . governments are instituted among people"
   Mr. Hascall attempted to perpetuate this vandalism in the convention of 1871 but was successfully opposed by some of the ablest members. The committee on the bill of rights reported it in this bad form, and it appears to have passed without protest. Manderson gave much attention to the verbal form of this part of the constitution, and as he was a champion of the cause of suffrage for women the use of words of common, instead of masculine gender no doubt suited his purpose.
   The attempt to improve upon the style of the federal constitution in the preamble was no less unfortunate than that of improving the style of the Declaration of Independence. Section 24 of the bill of rights, which provides that "the right to be heard in all civil cases in the court of last resort, by appeal, error, or otherwise, shall not be denied," was a characteristic innovation of Maxwell, and it has caused no little expense and delay in obtaining justice, without compensating advantage.
   The first democratic convention of 1876 was held at Lincoln, April 19th. Miles Zentmeyer of Colfax county was temporary chairman and Stephen H. Calhoun of Otoe was permanent president. George W. Ambrose of Douglas was chairman of the committee on resolutions which demanded the prosecution of plunderers of the coffers of the nation; declared that gold and silver were the true basis of sound money; demanded return to specie payment "as soon as call be done without detriment to the commercial and industrial interests of the country"; and called on all political committees and candidates in the state to abstain from using money in state elections except in payment for printing. The use of money in political campaigns, they declared, was a great source of corruption in state and nation. This was a prelude to the corrupt practice acts which continuing conditions in question have been calling into existence in recent years. Dr. George L. Miller of Douglas county, Dr. Alexander Bear of Madison, Gilbert B. Scofield of Otoe, Tobias Castor of Saline, V. A.



Barman of Franklin, and Charles McDonald of Lincoln, were chosen for delegates to the national convention. A motion instructing them to support Samuel J. Tilden as a candidate for the presidency was laid upon the table, though under the leadership of Dr. Miller such instruments were unnecessary. A majority of the democrats of the state favored the nomination of Tilden, though there was a strong minority in opposition.

   The republican convention for choosing delegates to the national convention was held at Fremont, May 23, 1876. The spirit of progress -- or rebellion, for social progress involves rebellion -- which in 1872 broke out in open revolt, was active in this convention. It was manifested in the election of Charles H. Van Wyck as temporary chairman over Amasa Cobb, the candidate of the conservatives or reactionists, by a vote of 87 to 77. Mr. Van Wyck's address to the convention on assuming the chair was a mild beginning of his subsequent career of chronic insurgency. "We know well," he said, "the influences that have been at work during the last few years to the detriment of the republican party; and we today witness an uprising of the people declaring that they have decided to take the power into their own hands. This feeling is . . . beginning to raise us into the atmosphere of political and financial honesty. The republican party must save the nation again. . ." Precisely the "insurgent" song of the present hour. The persistent inclination of this aggressive local leader to profess reform within the old party was an excuse, if not a justification, for the bitter assaults which the leaders of the alliance movement made upon him many years later. But in the meantime this insurgent note, artfully and persistently repeated, sang him into the United States Senate five years later.
   Two sets of delegates sought admission from Douglas county. One of them represented the interests of Senator Hitchcock and included Thomas M. Kimball, William A. Gwyer, and Isaac S. Hascall; the other represented the field of rivals and aspirants for Hitchcock's office, led by Charles V. Manderson, Alvin Saunders, Clinton Briggs, and John M. Thurston. Three of these eventually realized their ambition, and the other -- Briggs -- was an unsuccessful candidate in the next struggle in which Saunders was chosen to succeed Hitchcock. Thurston's leadership, which became more dominant than that of either of the others of the group, was then just budding; but Manderson alone was able to command a second term. The convention had no mind to engage in the factional fight over the senatorship and so excluded both sets of Douglas county claimants. The powerful and pugnacious opposition to Hitchcock in his own county and the preponderant strength against him in the convention foretold his defeat at the next session of the legislature. It was little more or less than a rush of the outs to oust the ins in common political parlance, "dog eat dog." The organ at Lincoln denounced the disturbance, which was hurting the party, with an unwonted temerity. It was "the Omaha delegation nuisance." In a friendly leaning to the incumbent it observed that the Hitchcock delegates were "untitled gentlemen," while the hostiles were "a galaxy of judges, including the chief justice himself [Lake], an ex-governor [Saunders], and an ex-general [Manderson], with a private or two thrown in." No opposition to James G. Blaine was manifested, and a resolution instructing the delegates to the national convention to use all honorable means to procure his nomination for president was adopted unanimously.

   The democratic state convention was held at Creighton Hall, Omaha, September 6, 1876. W. P. Connor of Fillmore was temporary chairman and F. J. Mead of Saunders, permanent president. S. B. Miles of Richardson county and Milton Montgomery of Lancaster were vice presidents and Stephen H. Calhoun of Otoe was chairman of the committee on resolutions. Endorsement of the St. Louis national platform was the main feature of the resolutions. They denounced the republican party for arming the Indians to take the lives of taxpaying white men and for protecting Indians while leaving our white frontier without protection from them. The convention nominated for governor, Paren England of Lan-



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Private secretary Governor Butler



caster county; lieutenant-governor, Miles Zentmeyer of Colfax; secretary of state, Joseph Ritchie of Madison; treasurer, Samuel Waugh of Saline; auditor, G. P. Thomas of Burt; attorney general, D. C. Ashby of Franklin; superintendent of public instruction, J. M. Jones of Washington; commissioner of public lands and buildings, Henry Grebe of Douglas; for presidential electors, S. H. Calhoun of Otoe, St. John Goodrich of Douglas, M. C. Keith of Lincoln.
   The greenback party held a convention, composed of delegates from fifteen of the sixty counties, at Lincoln on the 26th of September. L. 0. Barker was chairman and W. H. Morris of Saline county, Allen Root of Douglas, J. F. Gardner of Richardson, A. G. Wilson of Cass, Marvin Warren of Jefferson, were the members of the committee on resolutions, and J. F. Gardner was nominated for governor.
   The republican state convention met at Lincoln, September 26th. Its procedure hinged mainly on the senatorial succession, and the anti-Hitchcock faction elected Turner M. Marquett temporary chairman over Charles H. Gere -- who, being editor of a typical party organ of the period was therefore ostensibly the friend of the incumbent -- by a vote of 144 1/2 to 141 1/2. There was a long wrangle over the temporary organization, two sets of delegates from four of the counties contesting for seats; so that the nomination of candidates did not begin until the third day. After the composition of the convention had been determined, Mr. Gere was chosen permanent chairman by acclamation. Up to the opening day of the convention Crounse was looked upon as the principal candidate for the nomination for member of Congress to succeed himself; but he kept out of the contest with the purpose of striving for the senatorship. There was a large field of competitors, the first ballot yielding 88 votes for Frank Welch of Madison county, 74 for John C. Cowin of Douglas, 36 for Charles A. Holmes of Johnson, 26 for Guy C. Barton of Lincoln, 24 for Leander Gerrard of Platte, 15 for Champion S. Chase of Douglas. The nomination of Welch on the fourth ballot was another anti-Hitchcock incident. The withdrawal of Crounse was a misfortune for the state and for himself, because he was far more capable than his successor in the House and missed promotion to the Senate.
   Claiming that the population of the state was entitled to an additional member of the House, Thomas J. Majors of Nemaha county, was nominated as a contingent representative. By the census taken in the spring of 1876 the population was 257,749, which, though too far below the lawful ratio to win another seat in the House, was near enough to inspire ambitious politicians with hope that it might do so, and Majors was renominated for the contingent honor over William H. Ashby, who suffered the then great disadvantage of having worn the losing colors in the sectional war while the race of his competitor was expedited by the fact that his colors had triumphed. The incumbent executive officers were renominated. The nominations for the offices created by the new constitution were, Othman A. Abbott of Hall county, for lieutenant-governor; Professor S. R. Thompson, then principal of the normal school at Peru, for superintendent of public instruction; F. M. Davis of Clay county, for commissioner of public lands and buildings; George H. Roberts of Harlan county, for attorney-general. The platform demanded that the Union Pacific railroad company should make pro rata charges on the basis of its own through tariff on all business originating on connecting lines in Nebraska and without discrimination as to those lines; and it asked the national House of Representatives to admit an additional member from Nebraska on account of the "great increase of population since 1870." The convention was very stormy and very long, lasting five days.
   The election was merely perfunctory, the republicans winning with unhealthy ease -- as they continued to do with increasing unhealthy effect upon the body politic until the populist revolution, of 1890. Welch, republican candidate for Congress, received 30,900 votes; Hollman, democrat, 17,206; Warren, greenback, 3,580; for contingent member, Majors, 31,467, Dech, 2,832. The greenback



party, though small, and its monetary theory unsound, yet represented the protesting and progressive element and was the forerunner or nucleus of the later triumphant populist uprising. The free silver propaganda was close kin to the greenback, and it is a curious fact that after the silver leaders at last were obliged to abandon their theory because it died on their hands, they took up the green back principle. The national democratic platform of 1908 illustrates instinctively this "return of the native."

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