Opinion: History offers new perspective

September 18, 2013


In most of the columns that I write for the Journal-World, I try to focus on contemporary issues of interest to readers. On occasion, though, I find something in my research into legal history that I think is worth sharing. Over the past year I have been doing research into the history of law in the Kansas Territory (from 1854 to 1861). This was an exceedingly important period in the development of Kansas law and politics, and there are rich sources to be found in the state archives at the Kansas State Historical Society in Topeka. Recently I came across some material that I think is both fascinating and important in understanding Kansas and American law and history.

Lawyers came to Kansas as emigrants from the very earliest days of the state. Kansas territorial government had an elaborate and sophisticated legal system including a judiciary. Among the various procedures established by the territorial court was the requirement that lawyers swear an oath before the court in order to be admitted to practice law. Recently, I have been looking through the forms that this oath took in the territorial courts. What I have found really attracted my attention.

One form of the oath that was used widely throughout the Territory not only required lawyers to “support the Constitution of the United States” but also “to support and sustain the provisions of an Act commonly known as the Fugitive Slave Law…” This law, of course, passed by Congress in 1850, permitted Southern slave owners to capture runaway slaves, even in states that had abolished slavery.

It was absolutely anathema to abolitionists and others who opposed slavery. Of course, the Kansas Territory was filled both by those opposed to slavery and those who favored the institution. Indeed, one of the most prominent territorial judges, Samuel Dexter Lecompte, was pro-slavery during most of his judicial tenure. Obviously, would-be lawyers who opposed slavery would have had a very difficult time swearing this oath and being licensed to practice in the territorial courts that used this form of oath.

More interesting, I think, is another form of oath required of attorneys by the territorial court in Leavenworth in 1855. This oath did not require the candidate to swear to uphold the Fugitive Slave Law, but it did require the attorney to swear “I believe in the divinity of the Christian religion.”

This is particularly interesting in light of modern debates about what the boundaries are between church and state in the United States and what the doctrine of “church-state” separation meant in the early republic. Clearly, whoever imposed this oath on lawyer candidates in Kansas Territory in 1855 had a very different idea about the U.S. Constitution from Thomas Jefferson!

— Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World.


weeslicket 4 years, 8 months ago

now, i see what you did there mr. hoeflich

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