Sunflower Justice: A New History of the Kansas Supreme Court

1. The Kingman Court

1. The Kingman Court The Union army placed Thomas Ewing, Jr., in command of the District of the Border to control and to pacify the “Bleeding Kansas” area. The Confederate guerrilla William Clarke Quantrill was ravaging eastern Kansas, and, following his infamous raid on Lawrence in 1863, Ewing issued his renowned Order no. 11, which evicted all southern sympathizers in three counties in western Missouri: Jackson, Cass, Bates, and part of Vernon. Union forces had already imposed loyalty oaths, instituted fines for disloyalty, required passports and trade permits, and suppressed newspapers in the vicinity. Order no. 11 truly brought the war home, as it made refugees of some twenty thousand people. Missouri artist George Caleb Bingham immortalized the order years later with his famous mural of the same name. The southern-sympathizing Truman family was directly affected by this border warfare. The order created so much havoc that it was soon suspended. Just two years earlier General Ewing had resigned as the first chief justice of Kansas to accept the post of commander of the District of the Border.¹ The Judges One authority concludes that the judges elected after statehood handed down decisions that “settled and determined” state law “in admirable fashion.” The new court met in Topeka, designated as the state capital, and consisted of Chief Justice Thomas Ewing, Jr., with Samuel Kingman and Lawrence D. Bailey as the associates. They assembled in a little room in the basement of the capitol on 28 October 1861. Ewing was elected for a six-year term, Kingman for four years, and Bailey Fig. 1. Samuel A. Kingman. Image from the Kansas State Historical Society. The Kingman Court 15 for two. On 21 May 1861 the state legislature set the supreme court jurisdiction as being a court of record and added to the original jurisdiction by giving the court authority to issue writs of error and certiorari in criminal cases. Interestingly, no provision was made for the court to nullify acts of the state in conflict with the constitution. Indeed, the national Constitution is silent on this question, but the court soon assumed this power, as happened on the national level.² The supreme court of the territory ceased to function after the admission of Kansas to the Union. The court’s journal and dockets passed into the hands of the state court with the last journal entry of 11 January 1861. The state supreme court recorded its proceedings “in the unused pages” of the territorial court journal, published as volume 1 of the Reports.³ Thomas Ewing’s overweening ambition was to serve in the US Senate. His first case involved Senator James Lane’s attempt to remove Governor Charles Robinson to make way for Lane’s candidate, George Crawford . When Lincoln issued his call for volunteers to fight the Civil War soon afterward, Ewing responded out of a belief that military service would assist his campaign later for the Senate. He was en route to Arkansas to fight the Confederates when he resigned his post as chief justice . In January 1865 he returned to Kansas to oppose Lane, unsuccessfully , for a Kansas seat in the Senate. Failing in this, he left the state, never to return. He later assisted President Andrew Johnson legally in his impeachment trial.4 Thus Ewing served only one year, writing nine opinions, and then resigned in October 1862 to accept command as a colonel in the Kansas Eleventh during the Civil War. He had a distinguished military career, advancing to brigadier general. Louis Carpenter, reporter for the supreme court, was killed during Quantrill’s attack on Lawrence. He had begun preparation of the first volume of the Reports when this raid “swept away nearly all his labors.” As a result, cases decided prior to August 1863 had to be constructed from materials supplied by justices and attorneys who had participated in them. After the war, Ewing practiced law in the New York City area.5 16 The Kingman Court Samuel Austin Kingman emerged as a significant figure in this early chaotic period of Kansas law. Many labeled him the “John Marshall of Kansas” because he was to the state constitution what John Marshall had been to the national judiciary. He was born in Worthington, Massachusetts , in 1818 and educated in the common schools there before becoming a teacher. At age nineteen he migrated to Kentucky, where he taught school and studied law. He served in...