Copyright © 1989, Charles K. Wiggins
The Old Settler
Francis Henry of Olympia served as a delegate to both of Washington's constitutional conventions, the Walla Walla convention of 1878 and the statehood convention of 1889. In both conventions, Henry served on the committee which drafted the declaration of rights.
Henry's poetry may be one of his enduring legacies, especially his poem "The Old Settler," which was set to music and won immediate popularity. More recently, Ivar Hagland popularized Henry's poem by borrowing its final phrase for the name of his Seattle restaurant:
No longer the slave of ambition, I laugh at the world and its shams, As I think of my pleasant condition Surrounded by acres of clams.Henry wrote The Old Settler in 1877, and adapted it to a popular tune, "Rosin the Bow," which in turn was based on a 17th century Irish melody, "The Gentle Maiden." The same tune had been borrowed for campaign songs for Henry Clay and Abraham Lincoln. The poem was a immediate hit, lending its name in the following year to a steamer plying Puget Sound.
The Old Settler was loosely autobiographical, roughly tracing Henry's career:
I'd wondered all over the country, Prospecting and digging for gold-- I'd tunneled, hydraulicked and cradled, And I had been frequently sold.Henry was born on January 17, 1827, the first white child born in Galena, Illinois. He was educated in a log school house, and became a lead miner. At age 19 Henry was commissioned as a lieutenant, and fought in the Mexican War under General Winfield Scott. After the war, Henry studied law in the office of an attorney at Mineral Point, Wisconsin.
Henry returned to mining in 1851, traveling to California by way of Panama and prospecting near Placerville. Henry almost ran out of supplies on one occasion when he was snowbound for two months. The following spring Henry went to Gold Beach, Oregon then started for eastern Washington, but was stopped by the Indian Wars.
Henry took up the practice of law in 1857 in Yam Hill County, Oregon, and soon married Elisa B. Henry. Elisa had traveled the Oregon Trail with her father Anson Henry in 1852. Henry flirted twice more with mining, once in the Cariboo Gold Rush on the Pacific coast and once in Idaho, before joining Elisa's family and settling in Olympia.
Rolling my grub in my blankets, I left all my tools on the ground, And started one morning to shank it For a country they called Puget Sound. Arriving flat broke in mid-winter, I found it enveloped in fog, And covered all over with timber, Thick as hair on the back of a dog.Henry took up surveying, thanks to contracts awarded by his father-in-law, who was surveyor-general of Washington Territory. In 1865 Henry resumed the practice of law, establishing an abstract business which became the oldest in the state. In 1867 Henry completed an abstract of titles for Thurston County, the first ever compiled in Washington.
Henry was a Democrat, and served three terms in the Territorial Legislature. He was elected probate judge in November 1877, serving for 8 years. Henry's other offices included city treasurer, clerk of the supreme court, secretary of the Washington Pioneer Association, and president of the Thurston County Bar Association. Henry was apparently sincere when he wrote:
Any now that I'm used to the climate, I think that if man ever found A spot to live easy and happy, That Eden is on Puget Sound.The Olympia Washington Standard described Henry's appearance at the time of the 1889 constitutional convention: "Tall, spare, of thoughtful carriage and youthful in appearance, yet he is neither handsome, assuming in deportment, or especially attractive on first acquaintance, but the more he is known the better he is liked and appreciated, both as a man and a friend." The Standard predicted that Henry would speak on the convention floor "only when he has something to say and that to the point." The Standard's prediction was correct, for the accounts of the debates include few speeches by Henry.
The Walla Walla Convention
The Walla Walla constitutional convention of 1878 was born in partisan territorial politics, and died in partisan national politics. Beginning in 1863, when Idaho Territory was carved out of Washington Territory, residents of northern Idaho had lobbied to reunify the Idaho panhandle with Washington Territory. The Democrats of Walla Walla vigorously advocated the return of the Democratic panhandle to Washington, hoping to forge a Democratic majority, and by shifting eastward the center of population, to move the capital to Walla Walla. For 10 years the Puget Sound Republicans resisted these efforts. The Walla Walla Democrats abruptly changed tactics in 1875, seeking annexation of Walla Walla and Columbia Counties to the state of Oregon. The western Republicans, alarmed at the prospect of losing southeastern Washington, hurriedly authorized a constitutional convention. The voters approved the convention and elected fifteen delegates--8 lawyers, 2 farmers, a lumberman, a woolen mill owner, a businessman, a fisherman, and a "man of the representative class." The Idaho panhandle sent a 16th delegate, a lawyer-editor.
The close political balance in the convention--8 Republicans and 7 Democrats--was jeopardized when the Democratic candidate from northern Idaho, Alonzo Leland, asked for the right to vote in convention. Leland argued that the people of the Idaho panhandle could not be considered to be represented unless their delegate was allowed the privilege of voting. Francis Henry, also a Democrat, contributed a "philosophical speech" to the lengthy debate:
Beginning with the elementary principles of law, he gradually reached, by fine argument, and good philosophy, the question in issue and his reasoning seemed convincing.
Henry's eloquence fell on deaf ears and Mr. Leland was denied a vote.
The 15 delegates plus the non-voting Mr. Leland divided into three committees to consider and report on various articles for the constitution. Henry was named to the committee which considered preamble, declaration of rights, education, boundaries, distribution of powers, suffrage, and amendments. The synopsis of daily proceedings gives very few details of the debate on the declaration of rights. The title "declaration of rights" was selected instead of "bill of rights," which some delegates claimed "savored too much of Johnnie Bull. Declaration of Rights is purely American, as we ought to be by the right of conquest intensely Americanized, we should retain our own titlehead." The constitution of 1889 similarly begins with a "declaration of rights." Another feature of the 1889 constitution was foreshadowed when the Walla Walla delegates engaged in "quite a spirited argument . . . in which the subject, 'church and state' was thoroughly and very ably discussed."
The Walla Walla delegates wrestled with another issue that arose in 1889, women's rights and women's suffrage. The delegates granted the privilege of the floor to the pioneer Oregon suffragist, Abigail Scott Duniway, who argued persuasively for women's suffrage. Henry voted against extending suffrage to women, and the delegates submitted the issue for a direct vote by the people, who overwhelmingly rejected women's suffrage. The delegates were more progressive in directing the legislature to pass laws defining the personal and property rights of married women, a provision which Henry supported. One of the more remarkable decisions of the delegates was to include equal rights for women in the declaration of rights:
No person, on account of sex, shall be disqualified to enter upon and pursue any of the lawful business avocations or professions of life.
Another unusual provision of the Walla Walla constitution was a section making stockholders of corporations "individually liable for labor performed for such corporation or company." This provision was adopted by a vote of 8 to 6, Henry voting no, and was later one of the focal points of criticism that the Walla Walla constitution was too radical.
The delegates adopted a clause in the corporations article declaring that, " railroads in this state shall be deemed public highways, and shall be free to persons for the transportation of their persons and property, under such regulations as may be prescribed by law. . ." Predictably, this provision sparked considerable opposition and criticism by the railroads, including gloomy prophecies that no further railroads would be built. The delegates also declared that charters and special privileges which had not been fulfilled in good faith were to be invalidated at the time of the adoption of the constitution. This provision was apparently directed at the Northern Pacific Railroad, which had failed to complete its line across the Cascades. Both clauses foreshadow the intense corporate and railroad lobbying in 1889, in which corporate interests successfully defeated clauses they deemed inimical.
The limited synopsis of the proceedings seldom reports Henry's position on the issues debated. The reporter apparently found it more significant that Henry presented the convention with a box of pickled clams sent to him from the Sound, and that the delegates handled the clams in proper parliamentary fashion:
Mr. Larrabee moved that the president take the clams in charge, and report upon the contents of the box to the convention.
Mr. O'Dell moved to amend that the president spread them upon the table.
The amendment to the amendment by Mr. Henry was that the clams be equally divided among the delegates.
A century later, the reader wishes that the reporter had focused more upon the debates and less upon the clams.
The Walla Walla constitution was approved by the people of Washington Territory by a 2-1 margin. Congress was disinclined, however, to admit Washington to statehood. In 1878 Washington returned a Republican delegate to the House of Representatives, and the heavily Democratic congress had no desire to admit another Republican state to the Union. Washington's population was only 52,000, far short of the 124,000 required for a seat in the House of Representatives.
The 1889 Convention
Conditions in 1889 had changed to favor statehood for Washington. The completion of the Northern Pacific, and the railroad's massive marketing campaign to attract settlers to the Northwest, swelled the territory's population to 240,000. Perhaps more significant was the shift in control at the national level from the Democratic party to the Republican party. From 1876 until 1889 the Democrats had controlled either congress or the presidency, and had resisted admission of largely Republican territories such as Washington. The election victory of Benjamin Harrison in 1888 returned both the White House and congress to the Republican party, and in February 1889 the lame duck Cleveland administration and Democratic congress approved the Omnibus Bill admitting Washington, Montana and the Dakotas to statehood.
Henry was appointed to three committees: preamble and declaration of rights; corporations; and state lands. The seven members of the committee on preamble and declaration of rights had lived in Washington as long as any other delegates to the convention. Indeed, the committee included the only delegate born in Washington, Gwin Hicks, the next to the youngest delegate. Hicks had been born on the day of the outbreak of the 1857 Indian War. The newborn infant and his mother were carried by litter in a wagon into Olympia to save them from Indian attack. Two committee members, John Kellogg and Louis Sohns, had arrived at Ft. Vancouver in 1852, and were thus among the first settlers in Washington Territory. Other committee members had lived in Washington 27 years (Henry), 11 years, 10 years and 6 years. Convention president John Hoyt may have considered this committee less important, giving the chairmanship to C. H. Warner, a Democrat. Two Republicans appointed to the committee had openly opposed Hoyt's candidacy for convention presidency, and Hoyt may have "exiled" them to this committee.
Few provisions of the Preamble and Declaration of Rights were debated by the delegates. The free speech clause was modified by the committee, perhaps in response to an article published in the Seattle Times. The committee's initial draft of the free speech clause read:
Every person may fully speak, write and publish on subjects, being responsible for an abuse of that right; in trials for libel, both civil and criminal, the truth when published with good motives and for justifiable ends shall be a sufficient defense.
The first draft closely followed the free speech clause of the Walla Walla constitution, with editorial changes. After the publication of the first draft on July 17, the committee deleted the underlined language and presented the shortened version for consideration by the committee of the whole on July 29. (The entire convention periodically sat as a "committee of the whole" for purposes of re-drafting and extensively debating an entire article.)
Why did the committee strike the defense of truth "with good motives and for justifiable ends"? On July 13 the Seattle Times had published an overly aggressive piece of investigative journalism in which delegate James Z. Moore of Spokane was accused of being a Northern Pacific Railroad lobbyist. The Times' special correspondent had spied an express wagon delivering a large quantity of Kentucky whiskey, variously reported as 15 cases or 2 cases and a barrel, to the Olympia home where Moore stayed during the convention. Upon learning that the Northern Pacific Express had shipped the whiskey, the Times front page headline read, "LOBBY WHISKY. Was it sent by the Northern Pacific Railroad?" The article surmised that Moore was a lobbyist and concluded, "Whisky seems a good purpose as an opener, or mouth opener, so to say, and its liberal use soon lays bare the character and inclinations of a man; these once revealed the knowledge of what men to approach with bribes to betray their trust becomes certain."
On July 16 Moore rose to a point of personal privilege and defended himself. Never, said Moore, had he been charged with corruption, even when he suffered as the victim of "an overwhelming and proscriptive public sentiment," an apparent reference to his brief stint as a Confederate soldier, which ended in surrender when his father was held hostage to prevent Moore's continued service. (Many of the older delegates had fought in the Civil War, but Moore appears to have been the only Confederate veteran in the convention.) Moore protested that the Northern Pacific had opposed his election as a delegate, and produced a bill of sale for the whisky, which he had ordered to share with friends for their past kindnesses. Moore's sense of humor shone through his speech:
As far as the suggestion goes, that this is more than I require, I admit that it is more than I should use in a hundred years, though it would not last the average Kentuckian 100 days. . . And now, Mr. President, since I've had to tell the whole of this ridiculous transaction, my fear is that not a few members of this body, its officers and correspondents, the territorial officials from the genial and sharp-eyed governor down, will make it his business to see that no part of these goods shall ever reach my confiding and suffering constituency.
Even the Times had acknowledged that there was no other evidence that Moore was a lobbyist, and his subsequent voting record strongly supports his denial. The convention minutes and newspaper accounts do not say why the committee dropped the defense of truth with good motives and for justifiable ends, but the whiskey lobby article may provide an explanation.
The Preamble sparked a more intense debate than any clause of the Declaration of Rights. The committee proposed a simple introduction: "We, the people of the state of Washington, to preserve our rights do ordain this constitution." The delegates debated at length whether to invoke God's name in the Preamble. The delegates who opposed any mention of deity criticized the idea as a matter of sentiment which was out of place in a business document, calling it a "second rate advertisement of something." Warner, chairman of the preamble committee, stated that he would yield to no one in reverence for God, but criticized any reference to God in the constitution as similar to the action of the pharisee in scripture. The delegates who supported a reference to God argued that it represented the religious sentiment of most of the citizens of the territory, and that it behooved men to consider that they do not belong at the head of creation. Buchanan of Ritzville invoked the example of George Washington, who had asked for God's blessing in his inaugural address. When other delegates pointed out that the U.S. Constitution did not invoke God's name, Buchanan immediately responded that, "I have always considered that the real preamble to the United States Constitution was a Declaration of Independence which distinctly and repeatedly acknowledged God."
The positions of the delegates did not seem to depend on their own personal religious beliefs as much as a pragmatic opinion whether the people of the territory would be more inclined to accept or reject a constitution which mentioned deity. Eventually the debate sank to attacks on the motives and reasoning of fellow delegates. E. H. Sullivan of Whitman County bluntly declared that, "To put this in or leave it out means absolutely nothing. It is stuff and nonsense and nothing more nor less." Sullivan declared himself against doing anything "for show and buncombe." Declaring that God pays no attention to political gatherings, he hoped that "this convention will presently quit this moonshine." Turner of Spokane, who had proposed that the preamble recite that the people of Washington are "profoundly grateful to almighty God for this inestimable right and invoking his favor and guidance," responded that Sullivan "had been in the habit from the very commencement of lecturing and hectoring this convention in season and out of season," and accused Sullivan of the "coarsest buffonery and bad taste." Fortunately, the delegates recessed for lunch before Sullivan and Turner went much further. Mires of Ellensburg summarized the debate in his diary: "The preamble provoked a great deal of discussion which grew acrimonious. Sullivan of Whitman County and Judge Turner had a tilt which was all out of place."
Following the luncheon recess, Turner's substitute for the preamble was defeated 32 to 32. Minor of Seattle proposed that the preamble express "profound reverence for the supreme ruler of the universe," which was adopted 33 to 32. However, a motion to adopt the preamble as thus amended failed on a tie vote, 33 to 33. The exasperated delegates finally referred the matter back to the committee on preamble and declaration of rights for further consideration. The committee split, five members including Henry adhering to the preamble initially proposed. Two committee members, Sohns of Vancouver and Kellogg of Whidbey, submitted a minority report proposing a preamble reading, "We, the people of Washington, grateful to the supreme ruler of the universe for our liberties, do ordain this constitution." Committee chairman Warner presented both reports to the convention, stating the majority's position: "We have considered it mere sentiment and of no consequence either way, and shall be satisfied whichever way the committee decides, but trust the subject will not be debated." The subject was not debated and the minority report was adopted by a vote of 45 to 22. The newspapers criticized the delegates for spending so much time on this issue, the Post Intelligencer commenting wryly, "It finally ended in the complete route of the heretics and the triumph of the hosts of the Lord." The Walla Walla Weekly Union observed that God got into the constitution under an alias.
The newspaper accounts of the convention include very little debate on the Declaration of Rights. Under contemporary constitutional jurisprudence, the basic civil liberties were natural and inalienable rights independent of any state constitution. The Declaration of Rights was just that--a "declaration" that these rights existed, not a "bill" conferring the rights. The dearth of debate in convention probably reflects the unanimity of the delegates that these civil rights were fundamental and undisputed.
Some provisions of the Declaration of Rights were probably not debated because they were required by the Omnibus Admission Bill. The Omnibus Bill required that the constitution "shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and shall not be repugnant to the constitution of the United States and the Declaration of Independence." The delegates were also directed to provide "by ordinances irrevocable without the consent of the United States and the people of said [state]," for "perfect toleration of religious sentiment" and for public schools "free from sectarian control."
A comparison of the Declaration of Rights of the Walla Walla and 1889 constitutions reveals some interesting differences. For example, the Walla Walla Declaration included both an equal protection clause and an equal privileges and immunities clause while the 1889 Declaration includes only the latter. This difference bears on whether the privileges and immunities clause differs in meaning from the equal protection clause of the fourteenth amendment.
Henry also served on the Corporations Committee and vigorously attacked the most controversial feature of the corporations article: Section 21 established a three member railroad commission to be elected by the public. P. C. Sullivan of Pierce County authored a minority proposal authorizing the legislature to establish a commission. Henry initially signed the majority report, but changed his mind for several reasons: the extraordinary powers conferred on the commission were "discriminatory, arbitrary, and unjust in the extreme, and in violation of the fundamental principles of free government"; creation of the commission violated the separation of powers doctrine by combining the powers to enact regulations, to regulate, and to determine violations; and, the commission would prevent the investment of capital in the state and reduce competition to existing railroads. For a day and a half, Henry and P. C. Sullivan led the debate against Section 21, but the delegates adopted the section by a vote of 39 to 31.
The railroads had not given up, however, and intensely lobbied the delegates over the weekend. When the corporations article came up on August 5 for a second reading, Section 21 was defeated by a vote of 36 to 22. The delegates adopted Sullivan's alternative scheme, authorizing the legislature to decide whether to establish a railroad commission.
EPILOGUE
The legislature proved to be as susceptible to railroad lobbying as the constitutional convention. Not until 1905 did the legislature establish a railroad commission. Francis Henry continued his law practice and abstract business until his death on September 24, 1893 at the age of 66.
Note on Sources
The proceedings of the Walla Walla convention were published by Profs. Meany and Condon in 9 Washington Hist. Quarterly 129, 208, 296 (1918). The constitution itself is at 10 Wash. Hist. Q. 57 (1919). See also W. Airey, A History of the Constitution and Government of Washington Territory (Ph.D. Thesis, 1945, at U. of W. Library). The preamble debate and the biographies of the committee members are described in B. Parkany, "Religious Instruction" In the Washington Constitution (Thesis, 1965, at U. of W. Law School Library). The railroad commission debate is described in J. Fitts, The Washington Constitutional Convention of 1889 (M.A. Thesis, 1951, at U. of W. Library).