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diff --git a/31335.txt b/31335.txt new file mode 100644 index 0000000..1c81427 --- /dev/null +++ b/31335.txt @@ -0,0 +1,5178 @@ +The Project Gutenberg EBook of History of the Constitutions of Iowa, by +Benjamin F. Shambaugh + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: History of the Constitutions of Iowa + +Author: Benjamin F. Shambaugh + +Release Date: February 21, 2010 [EBook #31335] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK HISTORY OF CONSTITUTIONS OF IOWA *** + + + + +Produced by Don Kostuch, from files obtained from The Internet Archive. + + + + +[Transcribers notes] + This text is derived from a raw txt file in the Internet Archive. + + Obvious misspellings have been corrected but quotations and contemporary + spellings are unchanged. + + The St. Peters river is mentioned as a proposed northern border for + the new state of Iowa. It is now named the Minnesota river; it runs + from western Minnesota (about 120 miles north of the final Iowa + border at 43.5 degrees North) southeast to Mankato (about 45 miles + north of the Iowa border), then to the Twin Cities (about 120 miles + north of the Iowa border). Had the St. Peters been adopted about + 15,000 square miles of what is now Minnesota would have been Iowa. + Another proposal to extend the border to the 45th parallel would + have put most of the Twin Cities in Iowa. +[End Transcriber's note] + + + HISTORY OF THE CONSTITUTIONS OF IOWA + + BY + + BENJAMIN F. SHAMBAUGH, PH. D. + + PROFESSOR OF POLITICAL SCIENCE IN THE UNIVERSITY OF IOWA + + PUBLISHED BY + THE HISTORICAL DEPARTMENT OF IOWA + DES MOINES, IOWA + 1902 + + + TO HIS FRIEND + CHARLES ALDRICH + FOUNDER AND CURATOR OF + THE HISTORICAL DEPARTMENT OF IOWA + THIS VOLUME IS GRATEFULLY DEDICATED + BY THE AUTHOR + + + +PREFACE + +To recur occasionally to the history and ideals of our pioneer +forefathers will give us a more generous appreciation of the worth of +our Commonwealth and a firmer faith in our own provincial character. It +is believed that a more intimate knowledge of the political history of +our own Commonwealth will not only inspire local patriotism, but give us +a better perspective of the political life of the Nation. + +This little volume was written for publication by the Historical +Department of Iowa upon the request of Mr. Charles Aldrich. Since the +work is intended as a narrative essay, it has been thought best to omit +all foot-note citations to authorities. For the original sources +upon which the essay is largely based the reader is referred to the +author's collections of documentary materials which have been published +by the Iowa State Historical Society. Quotations used in the body of the +text have been reprinted _literatim_ without editing. + +The Convention of 1857 and the Constitution of 1857 have been little +more than noticed in chapters XIX and XX. An adequate discussion of +these subjects would have transcended the limits set for this volume by +several hundred pages. + +The author wishes to express his obligations to his friend and +colleague, Professor W. C. Wilcox, of the University of Iowa, who has +carefully read the proof-sheets of the whole volume. + + BENJ. F. SHAMBAUGH. + UNIVERSITY OF IOWA + JULY, 1902 + + + +CONTENTS + + I. INTRODUCTION + II. A DEFINITION + III. THE CONSTITUTION MAKERS + IV. SQUATTER CONSTITUTIONS + V. THE TERRITORY OF WISCONSIN + VI. THE TERRITORY OF IOWA + VII. THE CONSTITUTION OF THE TERRITORY + VIII. THE CONSTITUTION OF THE TERRITORY AMENDED + XI. AGITATION FOR A STATE CONSTITUTION + X. THE CONVENTION OF 1844 + XI. THE CONSTITUTION OF 1844 + XII. THE CONSTITUTION OF 1844 SUBMITTED TO CONGRESS + XIII. THE CONSTITUTION OF 1844 + DEBATED AND DEFEATED BY THE PEOPLE + XIV. THE CONSTITUTION OF 1844 REJECTED A SECOND TIME + XV. THE CONVENTION OF 1846 + XVI. THE CONSTITUTION OF 1846 + XVII. THE NEW BOUNDARIES + XVIII. THE ADMISSION OF IOWA INTO THE UNION + XIX. THE CONVENTION OF 1857 + XX. THE CONSTITUTION OF 1857 + + + +_AN HISTORICAL ESSAY_ + + + + +I + +INTRODUCTION + + +Three score years and ten after the declaration went forth from +Independence Hall that "all men are created equal," and fifteen years +before the great struggle that was to test whether a nation dedicated to +that proposition can long endure, Iowa, "the only free child of the +Missouri Compromise," was admitted into the Union on an equal footing +with the original States. + +Profoundly significant in our political evolution are events such as +these. They are milestones in the progressive history of American +Democracy. + +To search out the origin, to note the progress, to point to the causes, +and to declare the results of this marvelous popular political +development in the New World has been the ambition of our historians. +Nay more, the "American experiment" has interested the talent of Europe; +and our political literature is already enriched by De Tocqueville's +"_Democracy in America_," by von Holst's "_Constitutional and Political +History of the United States_," and by Bryce's "_American +Commonwealth_." Ever since its adoption the Constitution of the +"Fathers" has been the most popular text-book of constitution drafters +the world over. + +At the same time it is strangely true that the real meaning, the +philosophical import, of this interesting political drama has +scarcely anywhere been more than suggested. A closer view reveals the +fact that all of the documents themselves have not yet been edited, nor +the narrative fully told. At present there is not a chapter of our +history that is wholly written, though the manuscript is worn with +erasures. + +To be sure, Bancroft has written exhaustively of the Colonies; Fiske has +illuminated the Revolution and portrayed the "Critical Period;" +Frothingham has narrated the "Rise of the Republic;" Parkman has vividly +pictured events in the Northwest; McMaster has depicted the life of the +people; von Holst has emphasized the importance of slavery; Rhodes has +outlined more recent events; and a host of others have added paragraphs, +chapters, monographs, and volumes to the fascinating story of the +birth and development of a Democratic Nation. But where are the classics +of our local history? Who are the historians of the Commonwealths? + +These questions reveal great gaps in our historical literature on the +side of the Commonwealths. Nor have the omissions passed unnoticed. +Bryce likens the history of the Commonwealths to "a primeval forest, +where the vegetation is rank and through which scarcely a trail has been +cut." And yet it is clearly evident that before the real import of +American Democracy can be divined the forest must be explored and the +underbrush cleared away. + +This is not a plea for localism or particularism. On the contrary, it +suggests the possibility of a broader view of our National life. It +points to the source of our political ideals. For nothing is more +misleading than the inference that the life of our people is summed up +in the Census Reports, the Journals of Congress, and the Archives of the +Departments at Washington. + +The real life of the American Nation spreads throughout forty-five +Commonwealths. It is lived in the commonplaces of the shop, the factory, +the office, the mine, and the farm. Through the Commonwealths the spirit +of the Nation is expressed. Every American community, however humble, +participates in the formation and expression of that spirit. + +Thus the real significance of the Commonwealth in any philosophical +consideration depends not so much upon its own peculiar local color as +upon the place which it occupies in the life and development of the +larger National whole. + +It is so with Iowa. Here within the memory of men still living a new +Commonwealth has grown to maturity, has been admitted into the Union, +and now by common consent occupies a commanding position in National +Politics. It is, moreover, from the view-point of these larger relations +that the political and constitutional history of Iowa will ultimately be +interpreted. No amount of interest in merely local incident or narration +of personal episode will suffice to indicate the import of Iowa's +political existence. He who essays to write the history of this +Commonwealth must ascend to loftier heights. + +To narrate briefly the history of the Constitutions of Iowa, and therein +to suggest, perhaps, somewhat of the political ideals of the people +and the place which this Commonwealth occupies politically in the +progressive history of the larger Commonwealth of America, is the +purpose of these pages. + + + + +II + +A DEFINITION + + +Definition is always difficult; it may be tiresome. But when a term has +come to have many different meanings, then no one who seriously desires +to be understood can use it in the title of a text without at least +attempting a definition. This is true of the word "Constitution," which +in the literature of Political Science alone has at least three distinct +meanings corresponding to the three points of view, that is, the +philosophical, the historical, and the legal. + +From the view-point of Political Philosophy the word "Constitution," +stands for the fundamental principles of government. It is the sum +(1) of the general and basic principles of all political organization by +which the form, competence, and limitations of governmental authorities +are fixed and determined, and (2) of the general and basic principles of +liberty, in accordance with which the rights of men living in a social +state are ascertained and guaranteed. In short, it is the sum of the +ultimate principles of government. + +But from the view-point of Historical Politics this word has a different +connotation. Consider, for example, the political literature that +appears under such headlines as "Constitutional History" or the "History +of Constitutional Government." Here Constitution means not abstract +philosophic principles of Government, but concrete political phenomena, +that is, political facts. Our constitutional historians do not as a +rule deal directly with the ultimate principles of government; but they +are concerned rather with their progressive phenomenal manifestations in +the assembly, the court, the office, the caucus, the convention, the +platform, the election, and the like. Thus Constitutional History is +simply a record of concrete political facts. + +It is, however, in the literature of Jurisprudence that the term +"Constitution" is used in accordance with an exact definition. +Constitutional Law, or the Law of the Constitution, means a very +definite thing to the Jurist. It stands (at least in America) for a +written instrument which is looked upon "as the absolute rule of action +and decision for all departments and officers of government . . . and in +opposition to which any act or regulation of any such department or +officer, or even of the people themselves, will be altogether void." In +this sense a Constitution is a code of that which is fundamental in the +Law. To be sure, this code or text, as everybody knows, does not provide +for all that is fundamental in government. It usually contains much that +is temporary and unimportant. But to the American Jurist all that finds +expression in the written document labeled "Constitution" is +Constitutional Law. Accordingly, he defines the Constitution as the +written or codified body of fundamental law in accordance with which +government is instituted and administered. + +It is as a code or text of fundamental law that the word "Constitution" +is used in the title of these pages. This is not a philosophical +discussion of the ultimate principles of our government, nor an outline +of our constitutional history, but simply a narrative touching the +written texts or codes that have served the people of Iowa as +fundamental law during the past sixty years. + + + + +III + +THE CONSTITUTION MAKERS + + +Constitutions are not made; they grow. This thought has become a +commonplace in current political literature. And yet the growth of which +men speak with such assurance is directed, that is, determined by the +ideals of the people. Members of constituent assemblies and +constitutional conventions neither manufacture nor grow +Constitutions--they simply formulate current political morality. It is +in the social mind back of the convention, back of the government, and +back of the Law that the ideals of human right and justice are +conceived, born, and evolved. A Constitution is a social product. +It is the embodiment of popular ideals. + +And so the real makers of the Constitutions of Iowa were not the men who +first in 1844, then in 1846, and then again in 1857 assembled in the Old +Stone Capitol on the banks of the Iowa River. The true "Fathers" were +the people who, in those early times from 1830 to 1860, took possession +of the fields and forests and founded a new Commonwealth. They were the +pioneers, the frontiersmen, the squatters--the pathfinders in our +political history. Aye, they were the real makers of our fundamental +law. + +The first of the Iowa pioneers crossed the Mississippi in the early +thirties. They were preceded by the bold explorer and the intrepid +fur-trader, who in their day dared much, endured much, and through +the wildernesses lighted the way for a westward-moving civilization. +Scarcely had their camp-fires gone out when the pioneer appeared with ax +and ox and plow. He came to cultivate the soil and establish a home--he +came to stay. + +The rapidity with which the pioneer population of Iowa increased after +the Black-Hawk war was phenomenal. It grew literally by leaps and +bounds. Men came in from all parts of the Union--from the North-west, +from the East, from the South, and from the South-east. They came from +Maine and Massachusetts, from New York and Pennsylvania, from Virginia +and the Carolinas, from Georgia, Kentucky and Tennessee, and from the +newer States of Ohio and Indiana. It is said that whole +neighborhoods came over from Illinois. + +In 1835 Lieutenant Albert Lea thought that the population had reached at +least sixteen thousand souls. But the census reports give a more modest +number--ten thousand five hundred. When the Territory of Iowa was +established in 1838 there were within its limits twenty-two thousand +eight hundred and fifty-nine people. Eight years later, when the +Commonwealth was admitted into the Union, this number had increased to +one hundred and two thousand three hundred and eighty-eight. + +Thus in less than a score of years the pioneers had founded a new Empire +west of the Mississippi. And such an Empire! A land of inexhaustible +fertility! A hundred thousand pioneers with energy, courage, and +perseverance scarcely less exhaustible than the soil they cultivated! + +In the location of a home the pioneer was usually discriminating. His +was not a chance "squatting" here or there on the prairie or among the +trees. The necessities--water and fuel--led him as a rule to settle near +a stream or river, and never far from timber. The pioneers settled in +groups. One, two, three, or more families constituted the original +nucleus of such groups. The groups were known as "communities" or +"neighborhoods." They were the original social and political units out +of the integration of which the Commonwealth was later formed. + +But the vital facts touching the pioneers of Iowa are not of migration +and settlement. In political and constitutional evolution the +emphasis rests rather upon the facts of character. What the pioneers +were is vastly more important than where they came from, or when and +where and how they settled; for all law and government rests upon the +character of the people, Constitutions being simply the formulated +expressions of political Ethics. It is in this broad catholic sense that +the ideals of pioneer character became the determining factors in Iowa's +political evolution and the pioneers themselves the real makers of our +fundamental law. + +Two opinions have been expressed respecting the early settlers of Iowa. +Calhoun stated on the floor of Congress that he had been informed that +"the Iowa country had been seized upon by a lawless body of armed men." +Clay had received information of the same nature. And about the +same time Senator Ewing (from Ohio) declared that he would not object to +giving each rascal who crossed the Mississippi one thousand dollars in +order to get rid of him. + +Nor was the view expressed by these statesmen uncommon in that day. It +was entertained by a very considerable number of men throughout the East +and South, who looked upon the pioneers in general as renegades and +vagabonds forming a "lawless rabble" on the outskirts of civilization. +To them the first settlers were "lawless intruders" on the public +domain, "land robbers," "fugitives from justice," and "idle and +profligate characters." Squatters, they held, were those "who had gone +beyond the settlement and were wholly reckless of the laws either +of God or man." Nay more, they were "non-consumers of the country, +performing no duties either civil or military." In short, gentlemen who +had never even visited the Iowa frontier talked glibly about frontier +lawlessness, anarchy, and crime. + +Such wholesale defamation when applied to the early settlers of Iowa +ought not to be dismissed with a shrug. The men who made these harsh +charges were doubtless honest and sincere. But were they mistaken? All +testimony based upon direct personal observation is overwhelmingly +against the opinions they expressed. + +Lieutenant Albert Lea who had spent several years in the Iowa District +writes in 1836 that "the character of this population is such as is +rarely to be found in our newly acquired territories. With very few +exceptions there is not a more orderly, industrious, active, painstaking +population, west of the Alleghanies, than is this of the Iowa District. +Those who have used the name 'squatters' with the idea of idleness and +recklessness, would be quite surprised to see the systematic manner in +which everything is here conducted . . . . It is a matter of surprise that +about the Mining Region there should be so little of the recklessness +that is usual in that sort of life." + +In 1838 Peter H. Engle, writing from Dubuque, says: "The people are all +squatters; but he who supposes that settlers . . . . who are now +building upon, fencing and cultivating the lands of the government are +lawless depredators, devoid of the sense of moral honesty, or that they +are not in every sense as estimable citizens, with as much +intelligence, regard for law and social order, for public justice and +private rights . . . . as the farmers and yeomen of New York and +Pennsylvania, . . . . has been led astray by vague and unfounded +notions, or by positively false information." + +The statements of Lea and Engle fairly represent the views of those who +from actual personal contact were familiar with the life and character +of the pioneers. + +We may then rest assured that the squatters of Iowa were as a class +neither idle, nor ignorant, nor vicious. They were representative +pioneers of their day, than whom, Benton declared, "there was not a +better population on the face of the earth." They were of the best blood +and ranked as the best sons of the whole country. They were young, +strong, and energetic men--hardy, courageous, and adventurous. Caring +little for the dangers of the frontier, they extended civilization and +reclaimed for the industry of the world vast prairies and forests and +deserts. They made roads, built bridges and mills, cleared the forests, +broke the prairies, erected houses and barns, and defended the settled +country against hostile Indians. They were distinguished especially for +their general intelligence, their hospitality, their independence and +bold enterprise. They had schools and schoolhouses, erected churches, +and observed the sabbath. + +A law abiding people, the pioneers made laws and obeyed them. They were +loyal American citizens and strongly attached to the National +government. + +The pioneers were religious, but not ecclesiastical. They lived in the +open and looked upon the relations of man to nature with an open mind. +To be sure their thoughts were more on "getting along" in this world +than upon the "immortal crown" of the Puritan. And yet in the silent +forest, in the broad prairie, in the deep blue sky, in the sentinels +of the night, in the sunshine and in the storm, in the rosy dawn, in +the golden sunset, and in the daily trials and battles of frontier +life, they too must have seen and felt the Infinite. + +Nor is it a matter of surprise that the pioneers of Iowa possessed the +elements of character above attributed to them. In the first place, only +strong and independent souls ventured to the frontier. A weaker class +could not have hoped to endure the toils, the labors, the pains, +and withal the loneliness of pioneer life; for the hardest and at the +same time the most significant battles of the 19th century were fought +with axes and plows in the winning of the West. The frontier called for +men with large capacity for adaptation--men with flexible and dynamic +natures. Especially did it require men who could break with the past, +forget traditions, and easily discard inherited political and social +ideas. The key to the character of the pioneer is the law of the +adaptation of life to environment. The pioneers of Iowa were what they +were largely because the conditions of frontier life made them such. +They were sincere because their environment called for an honest +attitude. Having left the comforts of their old homes, traveled +hundreds and thousands of miles, entered the wilderness, and endured the +privations of the frontier, they were serious-minded. They came for a +purpose and, therefore, were always _about_, doing something. Even to this +day, their ideals of thrift and "push" and frugality pervade the +Commonwealth. + +And so the strong external factors of the West brought into American +civilization elements distinctively American--liberal ideas and +democratic ideals. The broad rich prairies of Iowa and Illinois seem to +have broadened men's views and fertilized their ideas. Said Stephen A. +Douglas: "I found my mind liberalized and my opinions enlarged when I +got out on these broad prairies, with only the heavens to bound my +vision, instead of having them circumscribed by the narrow ridges +that surrounded the valley [in Vermont] where I was born." + +Speaking to an Iowa audience, Governor Kirkwood once said: "We are +rearing the typical Americans, the Western Yankee if you choose to call +him so, the man of grit, the man of nerve, the man of broad and liberal +views, the man of tolerance of opinion, the man of energy, the man who +will some day dominate this empire of ours." How prophetic! + +Nowhere did the West exert a more marked influence than in the domain of +Politics. It freed men from traditions. It gave them a new and a more +progressive view of political life. Henceforth they turned with +impatience from historical arguments and legal theories to a +philosophy of expediency. Government, they concluded, was after all a +relative affair. + +"Claim Rights" were more important to the pioneer of Iowa than "States +Rights." The Nation was endeared to him; and he freely gave his first +allegiance to the government that sold him land for $1.25 an acre. He +was always _for the Union_, so that in after years men said of the +Commonwealth he founded: "Her affections, like the rivers of her +borders, flow to an inseparable Union." + +But above all the frontier was a great leveler. The conditions of life +there were such as to make men plain, common, unpretentious--genuine. +The frontier fostered the sympathetic attitude. It made men really +democratic and in matters political led to the three-fold ideal of +Equality which constitutes the essence of American Democracy in the +19th century, namely: + + Equality before the Law, + Equality in the Law, + Equality in making the Law. + +The pioneer of the West may not have originated these ideals. The first, +Equality before the Law, is claimed emphatically as the contribution of +the Puritan. But the vitalizing of these ideals--this came from the +frontier, as the great contribution of the pioneer. + + + + +IV + +SQUATTER CONSTITUTIONS + + +It may seem strange to class the customs of the pioneers among the early +laws of Iowa. But to refer to the "Resolutions" and "By-Laws" of the +squatters as political Constitutions is more than strange; it is +unorthodox. At the same time History teaches that in the evolution of +political institutions, customs precede statutes; written laws follow +unwritten conventions; the legal is the outgrowth of the extra-legal; +and constitutional government is developed out of extra-constitutional +government. One need not search the records of antiquity nor decipher +the monuments for illustrations of these truths; for in the early +political history of Iowa there is a recurrence of the process of +institutional evolution including the stage of customary law. Here in +our own annals one may read plainly writ the extra-legal origin of laws +and constitutional government. + +Absence of legislative statutes and administrative ordinances on the +frontier did not mean anarchy and disorder. The early settlers of Iowa +were literally, and in that good old Anglo-Saxon sense, "lawful men of +the neighborhood," who from the beginning observed the usages and +customs of the community. Well and truly did they observe the customs +relative to the making and holding of claims. And as occasion demanded +they codified these customs and usages into "Constitutions," +"Resolutions," and "By-Laws." Crude, fragmentary, and extra-legal as +were their codes, they nevertheless stand as the first written +Constitutions in the history of the Commonwealth. They were the +fundamental laws of the pioneers, or, better still, they were Squatter +Constitutions. + +The Squatter Constitutions of Iowa, since they were a distinctive +product of frontier life, are understood and their significance +appreciated only when interpreted through the conditions of Western life +and character. + +It was through cession and purchase that the United States came into +possession of the vast public domain of which the fertile farming fields +of Iowa formed a part. Title to the land vested absolutely in the +Government of the United States. But the right of the Indians to occupy +the country was not disputed. Until such right had been extinguished by +formal agreement, entered into between the United States and the +Indians, no white citizen was competent to make legal settlement +therein. + +As early as 1785 Congress provided that no settlement should be made on +any part of the public domain until the Indian title thereto had been +extinguished and the land surveyed. Again, in 1807, Congress provided: +"That if any person or persons shall, after the passing of this act, +take possession of, or make a settlement on any lands ceded or secured +to the United States by any treaty made with a foreign nation, or by a +cession of any State to the United States, which lands shall not +have been previously sold, ceded, or leased by the United States, or the +claim to which lands, by such person or persons, shall not have been +previously recognized and confirmed by the United States; or if any +person or persons shall cause such lands to be thus occupied, taken +possession of, or settled; or shall survey, or attempt to survey, or +cause to be surveyed, any such lands; or designate any boundaries +thereon, by marking trees, or otherwise, until thereto duly authorized +by law; such offender or offenders shall forfeit all his or their right, +title, and claim, if any he hath, or they have, of whatsoever nature or +kind the same shall or may be to the lands aforesaid, which he or they +shall have taken possession of, or settled, or caused to be occupied, +taken possession of, or settled, or which he or they shall have +surveyed, or attempt to survey, or the boundaries thereof he or they +shall have designated, or cause to be designated, by marking trees or +otherwise. And it shall moreover be lawful for the President of the +United States to direct the marshal, or the officer acting as marshal, +in the manner hereinafter directed, and also to take such other +measures, and to employ such military force as he may judge necessary +and proper, to remove from land ceded, or secured to the United States, +by treaty, or cession, as aforesaid, any person or persons who shall +hereafter take possession of the same, or make, or attempt to make a +settlement thereon, until thereunto authorized by law. And every right, +title, or claim forfeited under this act shall be taken and deemed +to be vested in the United States, without any other or further +proceedings." + +In March, 1833, the act of 1807 was revived with special reference to +the Iowa country to which the Indian title was, in accordance with the +Black-Hawk treaty of 1832, to be extinguished in June. It was made +"lawful for the President of the United States to direct the Indian +agents at Prairie du Chien and Rock Island, or either of them, when +offenses against the said act shall be committed on lands recently +acquired by treaty from the Sac and Fox Indians, to execute and perform +all the duties required by the said act to be performed by the marshals +in such mode as to give full effect to the said act, in and over the +lands acquired as aforesaid." Thus it is plain that the early +settlers of Iowa had no legal right to advance beyond the surveyed +country, mark off claims, and occupy and cultivate lands which had not +been surveyed and to which the United States had not issued a warrant, +patent, or certificate of purchase. + +But the pioneers on their way to the trans-Mississippi prairies did not +pause to read the United States Statutes at Large. They outran the +public surveyors. They ignored the act of 1807. And it is doubtful if +they ever heard of the act of March 2, 1833. Some were bold enough to +cross the Mississippi and put in crops even before the Indian title had +expired; some squatted on unsurveyed lands; and others, late comers, +settled on surveyed territory. The Government made some successful +effort to keep them off Indian soil. But whenever and wherever the +Indian title had been extinguished, there the hardy pioneers of Iowa +pressed forward determining for themselves and in their own way the +bounds and limits of the frontier. + +Hundreds and thousands of claims were thus located! Hundreds and +thousands of farms were thus formed! Hundreds and thousands of +homesteads were thus established! Hundreds and thousands of improvements +were thus begun! Hundreds and thousands of settlers from all parts of +the Union thus "squatted" on the National commons! All without the least +vestige of legal right or title! In 1836, when the surveys were first +begun, over 10,000 of these squatters had settled in the Iowa country. +It was not until 1838 that the first of the public land sales were +held at Dubuque and Burlington. + +These marginal or frontier settlers (squatters, as they were called) +were beyond the pale of constitutional government. No statute of +Congress protected them in their rights to the claims they had staked +out and the improvements they had made. In _law_ they were trespassers; in +_fact_ they were honest farmers. + +Now, it was to meet the peculiar conditions of frontier life, and +especially to secure themselves in what they were pleased to call their +rights in making and holding claims, that the pioneers of Iowa +established land clubs or claim associations. Nearly every community in +early Iowa had its local club or association. It is impossible to give +definite figures, but it is safe to say that over one hundred of +these extra-legal organizations existed in Territorial Iowa. Some, like +the Claim Club of Fort Dodge, were organized and flourished after the +Commonwealth had been admitted into the Union. + + +In the "Recollections" and "Reminiscences" of pioneers many references +are made to these early land clubs or claim associations, and +Constitutions, By-laws, or Resolutions are sometimes reproduced +therewith in whole or in part. But _complete and adequate manuscript +records_ of but two Iowa organizations have thus far come to light. The +"Constitution and Records of the Claim Association of Johnson County," +preserved by the Iowa State Historical Society, were published in full +in 1894. The materials of this now famous manuscript, which are +clear and complete, were arranged as follows: I. Constitution and Laws; +II. Minutes of Meetings; III. Recorded Claims; IV. Recorded Quit Claim +Deeds. + +The Constitution of the Johnson County Association is perhaps the most +elaborate Squatter Constitution in the annals of early Iowa. It was +adopted March 9th, 1839, and consists of three articles, twenty-three +sections, and over twenty-five hundred words. + +Article I. fixes the name of the Association, and declares that "the +officers of this association shall be one President, one Vice +President, One Clerk or Recorder of claims, deeds or transfers of +Claims, seven Judges or adjusters of claims or boundary . . . and two +Marshalls." All of the officers were elected annually. + + + +Article II. relates to "sallerys." It provides that "the Clerk or +Recorder shall receive Twenty-five cents for recording each and everry +claim, and fifty cents for everry deed or conveyance . . . . and Twelve +& a half cents for the privalege of examining his Books." The Judges and +Marshals were allowed one dollar and fifty cents each for every day +spent in the discharge of the duties of their respective offices. + +Article III. contains ten sections bearing upon a variety of subjects. +Section 1 indicates in detail how claims are to be made and recorded and +the boundaries thereof designated. No person was allowed to hold more +than four hundred and eighty acres. Section 2 provides that "any white +male person over the age of eighteen can become a member of this +association by signing the laws rules and regulations governing the +association," that "actual citizens of the County over the age of +seventeen who are acting for themselves and dependent on their own +exertions, and labour, for a lively hood, and whose parents doe not +reside within the limits of the Territory can become members of this +association and entitled to all the privalages of members," but that "no +member of the association shall have the privalege of voting on a +question to change any article of the constitution or laws of the +association unless he is a resident citizen of the county and a +claimholder, nor shall any member be entitled to vote for officers of +this association unless they are claim holders." + +The same section provides that "any law or article of the constitution +of this association may be altered at the semianual meetings and at +no other meetings provided, however, that three fifths of the members +presant who are resident citizens of the county and actual claim holders +shall be in favour of such change or amendment, _except that section +fixing the quantity of land that everry member is entitled to hold by +claim and that section shall remain unaltered_." + +By the same article semi-annual meetings of the Association are provided +for in section 3. Section 5 declares that "all persons who have resided +within the limits of the County for Two months, shall be recognized and +considered as citizens of the County." Another section stipulates that +"members of the association who are not citizens of the County shall be +required in making claims to expend in improvements on each claim +he or they may have made or may make the amount of fifty Dollars within +six months of the date of making such claim or claims and fifty Dollars +every six months there after until such person or persons becomes +citizens of the county or forfeit the same." The 10th section relates to +the procedure of the Claim Court. Finally, in section 11 the members +pledge their "honours" for the "faithful observance and mantanance" of +the Constitution by subscribing their names to the written document. + +In addition to the Constitution, Resolutions were, from time to time, +adopted with the force of laws. It is here that the real spirit and +purpose of the pioneer squatters is best expressed. With characteristic + frankness they resolved to "discountenance any attempts on the part +of any and every person to intrude in any way upon the rightful claims +of another," since "the presumption is that a person thus attempting to +take away a portion of the hard earnings of the enterprising and +industrious setler is dishonest & no Gentlemen." + +That they insisted upon equity rather than upon refined technicalities +in the administration of their law is seen in the following: "Resolved +that to avoid difficulty growing out of the circumstance of persons +extending their improvements accidentaly on the claims of others before +the Lines were run thereby giving the first setlr an opportunity or +advantage of Preemption over the rightful owner that any person who hold +such advantages shall immediately relinquish all claim thereto to +the proper owner and any one refusing so to do shall forfeit all claim +to the right of protection of the association." + +For the speculator who sometimes attended the land sales the squatters +had little respect; so they "Resolved that for the purpose of garding +our rights against the speculator we hereby pledge ourselves to stand by +each other and to remain on the ground until all sales are over if it +becomes necessary in order that each and every setler may be secured in +the claim or claims to which he is justly entitled by the Laws of this +association." And remarkable as it may seem, the same protection which +was pledged "before the sale" was guaranteed to "all such members as may +be unable to enter their claims at the sale after such sale and +until the same may be entered by them." + +The following are typical records of claims as recorded in the claim +book of the Johnson County Association: + + "The following is a decription of my claim made about the 15 of + January 1838, that I wish recorded. Situated on Rapid Creek About Two + Miles above Felkners & Myers mill Johnson County Iowa Territory + Commencing about 20 Rods South of Rapid Creek at a double white Oak + Tree Blazed & 3 notches on one side and 4 on the other and then + running West three fourths of a mile to a double white Oak on the east + side of a small branch Blazed and marked as before described then + running North about three fourths of a mile to a white Oak tree Blazed + and marked as before then running East about three fourths of a + mile to a small Bur Oak tree on the west side of Rapid Creek marked + and blazed as before mentioned then running South crossing Rapid Creek + to the place of beginning + March 20th 1839. GRIFFITH SHRECK" + + "The following claim I purchased of John Kight in February 1839, & I + wish it registered to me as a claim made as I have not got his deed + with me the same being the S W qr of S 14, & that part of the S 1/2 of + S 15, that Lyes East of the Iowa River--T 79 N. R. 6 W. July 3rd 1840 + handed in July 3, 1840 ROBERT LUCAS" + +An illustrative quitclaim deed from the +same records reads as follows: + + "This bargen made and entered into by the following parties Viz this + day I James Williams has bargened and sold to Philo Costly a + certain claim lying on the E side of Rapid Creek boundrys of said + claim as follows commencing at a white Oak tree standing about 80 Rods + below the upper forks of Rapid Creek thence running south 1/2 mile + thence E 1 mile to a stake standing on the Prairie near 2 Trees. + thence N 1/2 mile to a stake thence W. 1 mile to the starting place--I + the said Williams agree and bind myself to defend all rights & claims + excepting the claim of the general Government and also singular all + rights claims & Interests to said claim for and in concideration of + the sum of one hundred Dollars the receipt thereof I here in + acknowledge said Williams agrees to put up a House and finish Except + putting up the Chimney & dobing and also said Williams is to Haul + out Eight or Ten hundred rails all included for the receipt above + mentioned. Receipt. Johnson County. I. T. + January 25, 1841 + JAMES WILLIAMS [SEAL] + + Witness + CORNELIUS HENYAN + Handed in Februrary 3rd 1841" + + +The manuscript records of the Claim Club of Fort Dodge, discovered +several years ago among the papers of Governor Carpenter, are now +carefully preserved by the Historical Department at Des Moines. From +these records it appears that the first meeting of the Claim Club of +Fort Dodge was held on the 22d day of July, 1854. At this meeting a +committee was chosen to draft a "code of laws," and the following +motions were passed: + + "First. That 320 Acres shall constitute a claim. + + 2d. A claim may be held one month by sticking stakes and after that 10 + dollars monthly improvements is necessary in order to hold a claim. + Also that a cabin 16 x 16 feet shingled and enclosed so as to live in + is valued at $30.00." + +Of the same date are the following By-laws or Resolutions: + + "Whereas the land in this vicinity is not in market and may not be + soon, We, the undersigned claimants deem it necessary in order to + secure our lands to form ourselves into a Club for the purpose of + assisting each other in holding claims, do, hereby form and adopt the + following byelaws: + + _Resolved_ 1st. That every person that is an Actual claimant is + entitled to hold 320 Acres of land until such time as it comes into + market. + + _Resolved_ 2d. That any person who lives on their claim or is + continually improving the same is an actual Claimant. + + _Resolved_ 3d. That stakeing out a claim and entering the same on our + Claim Book shall hold for one month. + + _Resolved_ 4th. That $10, Monthly shall hold a claim thereafter. + + _Resolved_ 5th. That no mans claim is valid unless he is an actual + settler here, or, has a family and has gone after them, in which case + he can have one month to go and back. + + _Resolved_ 6th. That any person not living up to the requirements of + these laws shall forfeit their claim, and, any Actual Settler who + has no claim may settle on the same. + + _Resolved_ 7th. That any person going on anothers claim that is valid, + shall be visited by a Com. of 3 from our club and informed of the + facts & and if such person persist in their pursuits regardless of the + Com or claimant they shall be put off the Claim by this Club. + + _Resolved_ 8th. That the boundaries of these laws shall be 12 miles + each way from this place. + + _Resolved_ 9th. That this club shall hold its meetings at least once + in each month. + + _Resolved_ 10th. That the officers of this club shall consist of a + Chairman & Secty. + + _Resolved_ 11th. That the duty of the Chairman is to call to order, + put all questions, give the casting vote when there is a tie, &c. + &c. + + _Resolved_ 12th. That the duty of the sec. is to keep the minutes of + the meetings and read the same at the opening of each meeting and + have the book and papers in his charge. + + _Resolved_ 13th. That any or all of the bye laws may be altered or + abolished by a majority vote at a regular meeting." + +On the offense of "claim-jumping" the records of the Fort Dodge Club +contain this suggestive entry: "On Motion of Wm. R. Miller that if any +member of this Club finds his or any of his friends Clames has been +Jumpt that they inform this Club of the fact and that this Club +forthwith put them off of said clame without trobling the Sivel Law." + +In the _Iowa News_ of March 28, 1838, was printed "The Constitution of +the Citizens of the North Fork of the Maquoketa, made and adopted this +17th day of February, A. D. 1838." It is a typical Squatter Constitution +of the Territorial period. + + "Whereas, conflicting claims have arisen between some of the settlers + residing upon Government Lands, and whereas many individuals have much + larger claims than are necessary for common farming purposes, + Therefore, we, the subscribers, to preserve order, peace and harmony, + deem it expedient to form an association, and adopt some certain + rules, by which those difficulties may be settled, and others + prevented. Therefore, we do covenant, and agree to adopt and support + the following articles. + + Art. 1. This association shall be called the North Fork of Maquoketa + Association, for the mutual protection of settlers' claims on + Government Lands. + + Art. 2. That there shall be elected by the subscribers, a President, + whose duty it shall be to call meetings to order, and preside as + Chairman, and to receive complaint and to appoint a Committee of three + from the Great Committee, to settle all difficulties that arise from + conflicting claims, and also to fill vacancies. + + Art. 3. There shall be a Vice President elected, whose duty it shall + be to fill the office of President in his absence. + + Art. 4. There shall be chosen a Secretary, whose duty it shall be to + keep a correct Journal of the acts and proceedings of each and every + meeting, and register all claims in a book kept by him for that + purpose, who shall receive the sum of 25 cents for the registering of + each and every claim. + + Art. 5. There shall be elected a committee of nine men, to be called + the Grand Committee. + + Art. 6. No settler shall be entitled to hold more than three quarter + sections of land. Each settler shall give in the numbers of the + quarter sections that he may claim. Each and every settler shall make + an improvement on his, her, or their claim, sufficient to show that + the same is claimed, previous to having the same recorded. + + Art. 7. All minors under sixteen shall not be considered as holding + claims, either by themselves, parents, or otherwise. + + Art. 8. The Secretary, at the request of eight subscribers, shall call + a meeting of the settlers, by advertising the same in three + different places, not less than ten days previous to the meeting. + + Art. 9. No person shall have any attention paid to his, her, or their + complaint until they first subscribe to this Constitution. + + Art. 10. All committees that shall sit or act under this constitution, + shall determine in their decision and declare which party shall pay + the costs, and each declaration shall be binding and be collected + according to the laws of this Territory. + + Art. 11. When complaints shall be made to the President, he shall + immediately notify the sitting committee of three to meet at some + convenient place. Then if said committee be satisfied that the + opposing party has been timely notified, shall then proceed to + investigate and try the case in dispute, receive evidence, and give + their decision according to justice and equity, which decision shall + be final: Provided, always, That either party considering injustice + has been done, shall have a right to appeal to the Grand Committee, + together with the President, who shall investigate the same, and shall + give their decision in writing, from which there shall be no appeal. + All appeals shall be made within ten days, or forever excluded. + + Art. 12. There shall be held an annual meeting on the 1st Monday of + November for the election of officers and committees. + + Art. 13. The fees of each committee man with the President, shall not + exceed one dollar per day. + + Art. 14. This constitution may be altered and amended by a vote + of two thirds of the members. + + Art. 15. All committees made under this constitution shall be the + judges of its meaning and spirit, and the resolutions of its meeting + shall be governed according to their decisions. + + Art. 16. All persons not settlers, having claims not settled before + the 1st of May, 1838, shall be forfeited." + +A hundred pages could easily be devoted to this interesting phase of our +political history, but the details already given will suffice to +indicate the nature, scope, and purpose of the Squatter Constitutions of +Iowa. Their influence is clearly seen in a fourfold direction. + +First, they made it possible and practicable for the settlers to go +upon the public domain (surveyed or unsurveyed) and establish homes +without the immediate inconvenience of paying for the land. + +Secondly, they secured to the bona fide settlers the right to make +improvements on the public lands and to dispose of the same for a +reasonable consideration, or to purchase their improved land from the +Government at the minimum price of $1.25 an acre. + +Thirdly, they afforded bona fide settlers adequate protection in the +peaceable possession and enjoyment of their homes without fear of being +molested or ousted, either by the Government, or the newcomer, or the +land speculator, until the land was offered for sale, or opened for +entry, or until they were able to enter or purchase the same for +themselves and their families. + + + +Fourthly, they fostered natural Justice, Equality, and Democracy on +the frontier (_a_) by establishing order under a Government founded +upon the wishes of the people and in harmony with the peculiar +conditions, social and economic, of the community, (_b_) by giving +security alike to all bona fide settlers, (_c_) by limiting the amount +of land any one settler could rightfully hold, (_d_) by requiring all +disputes to be settled in regularly constituted courts, and (_e_) by +conducting all public affairs in and through mass meetings, with the +full knowledge and consent of all the people. + +In their Constitutions and Resolutions the squatters suggested, and in a +measure definitely determined, the manner of disposing of the public +lands. The principles of the most important legislation of Congress +relative to the public domain came from the frontier. A comparison of +the customs of the squatters with the provisions of the pre-emption and +homestead acts reveals the truth that the latter are largely +compilations of the former. These American principles of agrarian polity +are products of frontier experience. + +One is even justified in suggesting that herein we have, perhaps, come +across the origin of the American principle of homestead exemptions. Is +it not reasonable to suggest that the emphasis which frontier life and +customs placed upon the importance and value of the homestead gave birth +to the laws that are "based upon the idea that as a matter of public +policy for the promotion of the property of the State and to render +independent and above want each citizen of the Government, it is +proper he should have a home--a homestead--where his family may be +sheltered and live beyond the reach of financial misfortune?" + +The Squatter Constitutions stand for the beginnings of local political +institutions in Iowa. They were the fundamental law of the first +governments of the pioneers. They were the fullest embodiment of the +theory of "Squatter Sovereignty." They were, indeed, fountains of that +spirit of Western Democracy which permeated the social and political +life of America during the 19th century. But above all they expressed +and, in places and under conditions where temptations to recklessness +and lawlessness were greatest, they effectively upheld the foremost +civilizing principle of Anglo-Saxon polity--the Rule of Law. + + + + +V + +THE TERRITORY OF WISCONSIN + + +The year one thousand eight hundred and thirty-six is memorable in the +constitutional annals of Iowa, since it marks the beginning of the +Territorial epoch and the advent of our first general code or text of +fundamental law. + +To be sure, the Iowa country had had a certain constitutional status +ever since the acquisition of the Province of Louisiana in 1803. In +1804, it formed a part of the District of Louisiana, which was placed. +under the jurisdiction of the Governor and Judges of the Territory of +Indiana; in 1805, it remained a part of that district known +henceforth as the Territory of Louisiana; in 1812, it was included +within the newly created Territory of Missouri; in 1821, it was reserved +for freedom by the Missouri Compromise; and finally, after being without +a local constitutional status for more than thirteen years, it was +"attached to, and made a part of, the territory of Michigan" for "the +purpose of temporary government." Nevertheless, it would be sheer +antiquarianism to catalogue the treaty and conventions of 1803 and the +several acts of Congress establishing the District of Louisiana, the +Territory of Louisiana, the Territory of Missouri, and the Territory of +Michigan as Constitutions of Iowa. + +Furthermore, a Constitution is the fundamental law of a _people_, not of +a _geographical area_; and since the Iowa country was practically +uninhabited prior to 1830, the earlier Territorial governments, which +have been mentioned, had for Iowa only a nominal political significance. +This is not to deny that Iowa has a history prior to 1830: it simply +points out that this earlier history is largely a record of changes in +subordinate jurisdiction over a geographical area, and in no sense the +annals of a political society. + +Even after the permanent settlement of the Iowa country in the early +thirties and its union with the Territory of Michigan in 1834, +constitutional government west of the Mississippi continued to be more +nominal than real. This is true notwithstanding the fact that the +archives of the Territory of Michigan show that the Governor and +the Legislative Council made a serious attempt to provide for and put +into operation local constitutional government. In his message of +September 1, 1834, addressed to the Legislative Council, Governor Mason +referred to the inhabitants as "an intelligent, industrious and +enterprising people," who, being "without the limits of any regularly +organized government, depend alone upon their own virtue, intelligence +and good sense as a guaranty of their mutual and individual rights and +interests." He suggested and urged "the immediate organization for them +of one or two counties with one or more townships in each county." + +The suggestions of the Governor were referred to the committee on the +Judiciary, and incorporated into "An Act to lay off and organize +counties west of the Mississippi River." This act, which was approved +September 6th, to go into effect October 1st, organized the Iowa country +to which the Indian title had been extinguished in June, 1833, into the +counties of Dubuque and Demoine. It also provided that each county +should constitute a township, and that the first election for township +officers should take place on the first Monday of November, 1834. The +laws operative in the county of Iowa, and not locally inapplicable, were +to have full force in the country west of the Mississippi. + +Furthermore, the archives show that the offices of the newly created +counties were duly filled by the Governor of the Territory of Michigan +"by and with the consent of the Legislative Council." Letters and +petitions addressed to the Governor are evidence that the people did not +hesitate to recommend candidates or ask for removals. In Dubuque County +they forced the resignation of the Chief Justice of the County Court and +secured the appointment of a candidate of their own choice. And when a +vacancy occurred in the office of Sheriff, the inhabitants of the same +County, thinking that "the best method of recommending a suitable person +for that office was to elect one at their annual township meeting," +voted for Mr. David Gillilan as their choice. The Clerk of the County +Court, who was authorized to notify the Governor of the results of the +election, expressed the "hope that a commission will be prepared and +sent as early as practicable." The records show that Mr. Gillilan was + subsequently appointed by the Governor. So much for the public +archives of the Territory of Michigan respecting the political status of +the Iowa country. + +In a memorial to Congress drawn up and adopted by a delegate convention +of of the people west of the Mississippi assembled at Burlington in +November, 1837, this statement is made in reference to the two years +from 1834 to 1836: "During the whole of this time the whole country, +sufficient of itself for a respectable State, was included in the +counties Dubuque and Demoine. In each of these two counties there were +holden, during the said term of two years, two terms of a county court, +as the only source of judicial relief up to the passage of the act of +Congress creating the Territory of Wisconsin." + + + +The Legislative Council of the Michigan Territory, in a memorial which +bears the date of March 1, 1836, went on record to this effect: +"According to the decision of our Federal Court, the population west of +the Mississippi are not within its jurisdiction, a decision which is +presumed to be in accordance with the delegated power of the court and +the acknowledged laws of the land; but that ten or twelve thousand +free-men, citizens of the United States, living in its territory, should +be unprotected in their lives and property, by its courts of civil and +criminal jurisdiction, is an anomaly unparalleled in the annals of +republican legislation. The immediate attention of Congress to this +subject is of vital importance to the people west of the Mississippi." + +On the floor of Congress, Mr. Patton of Virginia "adverted to the +peculiar situation of the inhabitants of that Territory [the Territory +which was soon afterwards organized as Wisconsin] they being without +government and without laws." This was in April, 1836. On the same day +Mr. George W. Jones, the delegate from Michigan, declared that the +people of western Wisconsin "are now, and have ever been, without the +pale of judicial tribunals." He "stated that he did not know of a single +set of the laws of the United States within the bounds of the +contemplated Territory." + +The position of the Iowa country for several months immediately +preceding the organization of the Territory of Wisconsin was indeed +peculiar. In the eastern part of what had been the Territory of Michigan + the people had framed and adopted a State Constitution. As early as +October, 1835, they elected State officers. But on account of a dispute +with Ohio over boundary lines, Congress was in no hurry to recognize the +new State. Then for a time there were two governments--the Government of +the State of Michigan and the Government of the Territory of +Michigan--each claiming to be the only rightful and legitimate +authority. It was not until January, 1837, that the existence of +Michigan as a State was recognized at Washington. + +Lieutenant Albert M. Lea, a United States army officer, who had spent +some time in the country west of the Mississippi did not fail to observe +the anomalous condition of the people. Writing early in 1836, he said: +"It is a matter of some doubt, in fact, whether there be any law at +all among these people; but this question will soon be put to rest by +the organization of the Territory of Wisconsin within which the Iowa +District is by law included." + +But a general conclusion concerning the actual political status of the +Iowa country prior to the organization of the Territory of Wisconsin is +no longer doubtful when to these documentary evidences are added the +sweeping testimony of the early squatters who declare that the only +government and laws they knew or cared anything about in those days were +the organization and rules of the claim club. It is substantially +correct to say; (1) that the Territorial epoch in our history dates from +the fourth day of July, 1836, when Wisconsin was constituted "a separate +Territory," for the purposes of temporary government, and (2) that +our first code or text of fundamental law, that is to say, the first +Constitution of Iowa was "An Act establishing the Territorial Government +of Wisconsin." + +As regards this conclusion two criticisms are anticipated. First, it +will be said that since the Territory of Iowa was organized in 1838, the +Territorial epoch in our history could not have begun in 1836. Secondly, +it will be said that an act of Congress providing for and establishing a +Territory is not a Constitution. + +The answer to the first criticism lies in the fact that the Iowa country +was not an outlying district attached to the Territory of Wisconsin, but +really formed a constituent part thereof. The area of Wisconsin +Territory west of the Mississippi was far more extensive than the +area of the same Territory east of the river. In population the two +areas were nearly equal; but the west tended to increase more rapidly +than the east. The importance of the west is further evidenced by the +removal of the Capital after the first session of the Legislative +Assembly from Belmont in eastern Wisconsin to Burlington in western +Wisconsin. The constitutional history of Wisconsin up to the division of +the Territory in 1838 is, therefore, clearly a part of the Territorial +history of Iowa. The assignment of the old name "Wisconsin" to the +country east of the Mississippi and of the new name "Iowa" to the +country west of that river in 1838, when the Territory of Wisconsin was +divided, did _not give rise_ to Territorial government among our people. +The act of Congress of June 12, 1838, provided for the division of +an existing Territory and the _continuation_ of Territorial government +in the western part thereof under the name Iowa. + +When, however, all this is conceded, the propriety of referring to the +Organic Act of a Territory as a Constitution is questioned. It is true +that the act establishing the Territorial government of Wisconsin was +not drawn up by the people of the Territory. It was not even submitted +to them for ratification. Handed down to them by Congress, in the form +of an ordinary statute, it was a pure product of legislation. It did not +even have the label "Constitution," or "Fundamental Compact," or +"Organic Law." Nevertheless, this instrument was a veritable +Constitution, since it was a written body of fundamental law in +accordance with which the government of the Territory was instituted and +administered. It was supreme, serving as the absolute rule of action for +all departments and officers of the Territorial government. The courts +always took this view of the Organic Act, and refused to enforce acts +which were clearly in opposition to its provisions. + + + + +VI + +THE TERRITORY OF IOWA + + +In the year 1836 there was printed and published at Philadelphia a small +book bearing on its title-page these words: + + NOTES ON + WISCONSIN TERRITORY, + WITH A MAP. + + BY + LIEUTENANT ALBERT M. LEA, + UNITED STATES DRAGOONS. + + PHILADELPHIA. + HENRY S. TANNER--SHAKESPEAR BUILDING. + 1836. + +The significance of this little volume lies in the fact that through it +the country destined to give birth to "the only free child of the +Missouri Compromise" was christened IOWA. Lieutenant Lea was familiar +with the country described in his "Notes." He had traveled through it, +had seen its beautiful prairies, had met its inhabitants face to face, +and had enjoyed their frontier hospitality. He must have been deeply +impressed by the Iowa river and its name. Referring to the country west +of the Mississippi river he says: "The District under review has been +often called 'Scott's Purchase,' and it is sometimes called the +'Black-Hawk Purchase'; but from the extent and beauty of the Iowa river +which runs centrally through the District, and gives character to most +of it, the name of that stream, being both euphonous and appropriate, +has been given to the District itself." + + + +The Iowa District was likely to become a separate Territory at an early +day, since all indications pointed in the direction of a division of the +Territory of Wisconsin. First, the geographical area of the Territory as +designated in the Organic Act was sufficient for three or four ordinary +Commonwealths. Secondly, this area did not possess geographical unity. +Thirdly, historical traditions and considerations favored the +establishment of a separate Territory east of the Mississippi, which at +the proper time should be admitted as the fifth State born of the +Ordinance of 1787 within the limits of the old Territory of the +Northwest. Fourthly, the population of the Territory, which was +increasing with unparalleled rapidity, was so widely scattered as to +make it practically impossible to give equal force to the laws and +equal efficiency to the administration of government in all of the +frontier communities. That the "Father of Waters" should serve as the +natural line of division was generally conceded. + +Scarcely had the act organizing the Territory of Wisconsin gone into +effect, when the agitation for division was launched. By the fall of +1837 it had captured the public mind. The burden of the movement was +taken up with enthusiasm by the inhabitants of the Iowa District. They +realized that the proposition to remove the seat of the Territorial +government from Burlington to some point east of the Mississippi was +likely to rob them of much political influence and some distinction. +They felt that a Territorial government located somewhere "in the +vicinity of the Four Lakes" could not successfully administer +constitutional government in the Iowa District. + +The people of Des Moines county were among the first to take formal +action on what may well be called the first vital question in the +history of the Constitutions of Iowa. At a meeting held in the town of +Burlington on Saturday, September 16, 1837, they resolved "That while we +have the utmost confidence in the ability, integrity and patriotism of +those who control the destinies of our present Territorial Government, +and of our delegate in the Congress of the U. States, we do, +nevertheless, look to a division of the Territory, and the organization +of a separate Territorial Government, by Congress, west of the +Mississippi river, as the only means of immediately and fully securing +to the citizens thereof, the benefits and immunities of a government of +laws." In another resolution they "respectfully and earnestly recommend +to the people of the Territory west of the Mississippi river, +immediately to hold county meetings in their respective counties, and +appoint three delegates from each county, to meet in Convention at this +place, on the first Monday in November next." + +Pursuant to this call of the people of the county of Des Moines for an +Iowa District convention, delegates from seven organized counties west +of the Mississippi met at the Capitol in Burlington on Monday, November +6, 1837, and organized themselves into a "Territorial Convention." +As such they continued in session for three successive days. On the +second day a resolution was adopted inviting the Governor, members of +the Legislative Council, Judges, and members of the bar of Burlington +"to take seats within the bar." Committees were then appointed to +prepare memorials on the several subjects before the delegates for +consideration. On the third day three separate memorials to Congress +were unanimously adopted. These related to (1) pre-emptions, (2) the +northern boundary line of Missouri, and (3) the division of the +Territory. + +In the memorial relative to the proposed division of the Territory, it +was represented, "That the citizens of that part of the Territory west +of the Mississippi River, taking into consideration their remote and +isolated position, and the vast extent of country included within +the limits of the present Territory, and the utter impracticability of +the same being governed as an entire whole, by the wisest and best +administration of our municipal affairs, in such manner as to fully +secure individual right and the rights of property, as well as to +maintain domestic tranquillity, and the good order of society, have by +their respective Representatives, convened in general convention as +aforesaid, for the purpose of availing themselves of their right of +petition as free citizens, by representing their situation and wishes to +your honorable body, and asking for the organization of a separate +Territorial Government over that part of the Territory west of the +Mississippi River. + +"Without, in the least, designing to question the official conduct of +those in whose hands the fate of our infant Territory has been +confided, and in whose patriotism and wisdom we have the utmost +confidence, your memorialists cannot refrain from the frank expression +of their belief that, taking into consideration the geographical +extent of her country, in connection with the probable population of +western Wisconsin, perhaps no Territory of the United States has been +so much neglected by the parent Government, so illy protected in the +political and individual rights of her citizens . . . . It will appear +that we have existed as a portion of an organized Territory for +sixteen months, with but one term of court. Your memorialists look upon +those evils as growing exclusively out of the immense extent of +country included within the present boundaries of the Territory, and +express their conviction and belief, that nothing would so effectually +remedy the evil as the organization of Western Wisconsin into a +separate territorial Government. To this your memorialists conceive +themselves entitled by principles of moral right, by the sacred +obligation that rests upon the present government to protect them in +the free enjoyment of their rights, until such time as they shall be +permitted to provide protection for themselves; as well as from the +uniform practice and policy of the Government in relation to her other +Territories . . . . Your memorialists therefore pray for the +organization of a separate territorial government over that part of +the Territory of Wisconsin west of the Mississippi river." + +The time and place of the meeting of this remarkable "Territorial +Convention" were certainly most opportune. Meeting in the halls of the +Legislative Assembly at the Capital of the Territory and in the very +presence of the members of the Assembly, the delegates declared it to be +the wish and will of the people that the Territory be divided. The +members of the Assembly were impressed with the fact that the people +west of the Mississippi were in earnest, and, as representatives of the +whole Territory, they too drew up a memorial which was approved by the +Governor within three weeks after the Convention had adjourned. + +In this memorial the Legislative Assembly stated the case as follows: +"That owing to the great extent of country embraced in the limits +of Wisconsin Territory, and that vast extent of Territory being +separated by a natural division, (the Mississippi river,) which renders +the application of the same laws oppressive or unequal to one section or +the other; the true policy of the two sections of the Territory being as +widely different as their locations; and the impracticability of the +officers of the General Government to administer the laws; render it +highly important in the opinion of your memorialists that that portion +of the Territory lying west of the Mississippi river be formed into a +separate Territorial Government. + +"The Territory of Wisconsin now contains fifty thousand inhabitants; +one-half of which, at least, reside on the west side of the Mississippi +river. + +"Without any intention of censuring the official conduct of the +officers in whose hands the administration of our infant Territory has +been intrusted . . . . your memorialists would respectfully represent, +that the western portion of Wisconsin, with a population of +twenty-five thousand souls, reaps but a small portion of the benefits +and advantages of the fostering care and protection of the mother +Government. Your memorialists would further represent, that the +population of Wisconsin is increasing with a rapidity unparalleled in +the history of the settlement of our country; that, by a division of +the Territory, and the formation of a separate Territorial Government +west of the Mississippi river, your honorable body would greatly +advance the political and individual interests of her citizens." + +By January 1, 1838, the people had expressed their views. They had +formulated their convictions into a definite request which called for +immediate division of the Territory. The scene of debate and discussion +now shifts from the prairies to the halls of Congress. Here on February +6, 1838, the Committee on the Territories, to whom had been referred the +memorials of the Territorial Convention and Legislative Assembly along +with petitions from sundry citizens, and who by a resolution of December +14, 1837, had been instructed "to inquire into the expediency of +establishing a separate Territorial Government for that section of the +present Territory of Wisconsin which lies west of the Mississippi river +and north of the State of Missouri," reported a bill to divide the +Territory of Wisconsin, and establish the Territorial government of +Iowa. + +In the report which accompanied this bill the Committee stated that they +had become "satisfied that the present Territory of Wisconsin is +altogether too large and unwieldy for the perfect and prompt +administration of justice or for the convenient administration of the +civil government thereof." They were more specific in saying that "the +judges of the Territory, as it now is, and also the Governor, district +attorney, and marshal, are entirely unable to perform their respective +duties in all parts of the Territory." They also pointed out that of the +fifty thousand inhabitants in the Territory more than half resided west +of the Mississippi river, that the population was rapidly increasing, +that the natural line of division was the Mississippi river, that +the Capital would soon be removed to eastern Wisconsin, and that "so +much of the Territory of Wisconsin as is east of the Mississippi river +must necessarily form one State." + +It was not, however, until early in the month of June that "An act to +divide the Territory of Wisconsin and to establish the Territorial +Government of Iowa" passed both the Senate and the House of +Representatives. On June 12, 1838, it received the approval of President +Van Buren. As the Constitution of the Territory of Iowa it took effect +on the sixty-second anniversary of the Independence of the American +Nation. In the chronology of our Constitutions it stands as the second +code or text of fundamental law. + +But the Territory of Iowa was not established without opposition in +Congress. The discussion in the House of Representatives on the fifth +and sixth days of June, and immediately preceding the passage of the act +dividing the Territory of Wisconsin, brought out something of the +broader significance of the proposition to create a new Territory in the +country west of the Mississippi and north of the State of Missouri. From +the records it appears that the sympathies of the Representatives were +not all with the men on the frontier. + +Mr. Mason of Ohio, who moved to strike out the enacting clause, said +that he desired to obtain information relative to the assertion "that +the people had settled there in a manner contrary to law." + +"Mr. Waddy Thompson opposed the bill and the creation of a +Territorial Government in the Northwest." He went at great length into +"a consideration of the balance of power between the Northern and +Western, and Southern States, as far as related to the questions of +slavery, and the annexation of Texas." He declared that "he would never +consent to the coming in of these Territories or States into the Union, +when the fanatical spirit of the North was pouring into the House +memorials against the annexation of Texas, simply because it was cursed +with the peculiar institution of the South." To preserve the balance of +power between the two sections of the Union, was the substance of Mr. +Thompson's plea. If by the creation of the Territory of Iowa the North +is promised a new State, the demand of the South for the annexation +of Texas should, in accordance with the principle of the balance of +power, be recognized. Thus it was proposed to meet the problem of +admitting States at the time of the formation of new Territories. + +In the course of the debate it was suggested by Mr. Mercer "that Iowa be +organized as a Territory when Wisconsin was admitted as a State." + +It remained for Mr. Shepard of North Carolina to make emphatic +objections all along the line. He opened his speech by intimating that +the bill had been introduced to the end that "a fresh rich field might +be opened to those who speculate in public lands, and a batch of new +offices created for such as seek Executive favor." He had no sympathy +with the squatters. "Who are these that . . . . pray for the +establishment of a new Territory? Individuals who have left their own +homes and seized on the public land . . . . These men pounced on the +choicest spots, cut down the timber, built houses, and cultivated the +soil as if it were their own property . . . . Without the authority of +law and in defiance of the Government, they have taken possession of +what belongs to the whole nation, and appropriated to a private use that +which was intended for the public welfare. These are they who require a +governor and council, judges, and marshals, when every act of their +lives is contrary to justice, and every petition which they make is an +evidence of their guilt and violence. We, who are insulted, whose +authority is trampled under foot, are asked for new favors and +privileges; the guardians of the law are approached by its open +contemners, and begged to erect these modest gentlemen into a dignified +Government . . . . I cannot sanction their conduct; if they would not +move peaceably, they should go at the point of the bayonet; if they +forget what is due to their country and their distant fellow-citizens, +they ought to be punished. The majesty of the laws should be +vindicated." + +The Representative from North Carolina was jealous of the growth and +development of the West, and he objected to the liberal land policy of +the United States since it encouraged the young men to leave their +southern homes. He declared that "if the Territory of Iowa be now +established, it will soon become a State; and if we now cross the +Mississippi, under the beautiful patronage of this Government, the +cupidity and enterprise of our people will carry the system still +further, and ere long the Rocky Mountains will be scaled, and the valley +of the Columbia be embraced in our domain. This then is the time to +pause . . . . + +"If happiness depended entirely on the number of hogs raised, or the +quantity of corn gathered, then the citizens should be dispersed, so as +to occupy the most fertile spots in our whole territory . . . . + +But whatever may be the effect of this land policy on the general +welfare, it has been deeply injurious to the Southern portion of the +Confederacy . . . . If all of the people born in North Carolina had +remained in its limits, our swamps and low grounds would have rivalled +the valley of the Nile in production, and our pine barrens would +have been flourishing with the vine, the olive, and the mulberry. +We have, therefore, reason to complain of the policy of this Government +. . . . Others may act as pleases them, but I will never sustain a +policy so detrimental to the people with whom I am connected . . . . If +these remarks be unavailing, the patriot should fear for the permanence +of the Republic." + + +The spirited debate, which took place in the House of Representatives, +on the question of the establishment of the Territorial government of +Iowa disclosed the fact that the creation of a new Territory at this +time west of the Mississippi and north of Missouri was of more than +local interest; it was, indeed, an event in the larger history of +America. Some few men were beginning to realize that the rapid +settlement of the Iowa country was not an isolated provincial episode +but the surface manifestation of a current that was of National depth. +Far-sighted statesmen whose eyes were neither blinded by the lights of +the moment nor yet always riveted upon that which for the time was most +brilliant, saw that a plain, common-looking pioneer farmer from across +the Mississippi had come upon the stage of National Politics and had +already begun to play a role in the great drama of American Democracy. +But even the prophets did not so much as dream that, within the memory +of men then living, the awkward amateur would take the part of a leading +actor in the play. + + + + +VII + +THE CONSTITUTION OF THE TERRITORY + + +The Territorial epoch in our history began in 1836, when the Territory +of Wisconsin was established; it came to a close in 1846, when the State +of Iowa was organized and admitted into the Union. Two Constitutions +belong to this decade--the Organic Act of the Territory of Wisconsin, +and the Organic Act of the Territory of Iowa. These Constitutions are +very much alike both in form and content. Indeed, the latter was copied +from or modeled upon the former. An outline of either would fairly +indicate the content of the fundamental law for the whole Territorial +epoch. But to avoid unnecessary repetition on the one hand and +confusion on the other, the title of the present chapter will be taken +to mean the Organic Act of 1838. + +The Constitution of the Territory of Iowa is clearly an outgrowth of +American political development. In its provisions is summed up the final +product of that most interesting series of evolutionistic +transformations in Territorial government that took place throughout the +North and West. + +The first in the long line of American Territorial Constitutions, and +the starting point of subsequent development, was the ordinance of the +Congress of the Confederation now familiarly known as "The Ordinance of +1787." Nor was this famous ordinance itself a code of _new_ political + principles. Consciously or unconsciously its framers drew largely +from the principles, forms, and practices of American government prior +to the Revolution. The analogy between the Colonial and Territorial +governments of America is too striking to be dismissed as accidental. +The relation of the United States to the Territories has always been of +a Colonial character. In the history of Territorial government the +Ordinance of 1787 stands as the Magna Charta of the West. But the Great +Ordinance like the Great Charter was in many respects crude, incomplete, +and un-American. Place it by the side of the Constitution of the +Territory of Iowa, and it is plain to see that in the course of fifty +years marked changes had taken place--especially in the direction of +democratization. + + + +The Constitution of the Territory is a written instrument of twenty +sections or articles, containing in all about four thousand words. It +has no preamble, but is simply introduced by the enacting clause. As a +pure product of Congressional legislation it was promulgated upon the +legislative authority of Congress with the approval of the President of +the United States. In its origin, therefore, it resembles the Royal +Charters of Europe more than the written Constitutions of America. The +Constitution of the Territory was literally handed down to the people +who were governed under its provisions _without their own consent_ +directly given. + +The first section purports to create a new Territory, by fixing the +boundaries thereof and declaring that from and "after the third +day of July next, all power and authority of the Government of +Wisconsin, in and over the Territory hereby constituted shall cease." On +reading this section one is almost startled by the matter-of-fact way +in which a body of legislators _seem_ to have made a Constitution and +established a new political society. + +In providing for the executive department in the very next section the +logical order of the Constitution of the United States was reversed by +placing the executive "power and authority" before that of the +legislative. This, however, was altogether natural, since the Governor +had been the central figure in Territorial government ever since the +days of the great St. Clair. He was no figure-head, but the real +Government, influencing legislation as well as directing the +administration. Robert Lucas, the first of the Territorial Governors of +Iowa, seems to have fully apprehended this fact, for from the very +outset he made himself the real power in public affairs. The influence +of the Governor was dominant in Territorial government chiefly because, +like his prototype in the Colonies, he represented the majesty and the +supreme authority of the National government. + +"The executive power and authority in and over the said Territory of +Iowa," runs the Organic Act, "shall be vested in a Governor, who shall +hold his office for three years, unless sooner removed by the President +of the United States." The Governor was appointed by the President, but +must reside in the Territory and "shall take care that the laws be +faithfully executed." He was commander-in-chief of the militia and +commissioned all officers appointed under the laws of the Territory. It +was his to grant pardons for offenses against the laws of the Territory +and provisional reprieves for offenses against the laws of the United +States. Besides all this, he was Superintendent of Indian affairs for +the National government. + +In the government of the Territory of Iowa the Governor was something +more than chief of the militia and author of commissions and pardons. +Like the King of England, he was a constituent branch of the law-making +body. Not only did the Organic Act declare "that the legislative power +shall be vested in the Governor and a Legislative Assembly," but it gave +to the Governor the power of an absolute veto over all acts of the +Assembly. Indeed, it was this extraordinary power to participate in +legislation along with the power to appoint all inferior judicial +officers, justices of the peace, sheriffs, militia officers, and county +surveyors that gave our first Governor a real power and prestige not +since enjoyed by any executive--State or Territorial. + +A Secretary of the Territory was provided for in the third section. This +officer stood next to the Governor in importance; and in case of the +death, removal, resignation, or necessary absence from the Territory of +the latter he was authorized and required to execute and perform the +gubernatorial powers and duties. The Secretary was appointed by the +President for a term of four years, but was subject to removal at +any time. His chief duty was to record and preserve the laws, acts, and +proceedings of both the Legislative Assembly and the Governor, and +yearly transmit copies thereof to the President of the United States and +to the Speaker of the House of Representatives. + +The legislative power was, by the fourth section of the Constitution, +"vested in the Governor and a Legislative Assembly." The Assembly was a +representative body organized on the bicameral plan into a "Council" and +a "House of Representatives." The Council consisted of thirteen members, +elected biennially; while the House of Representatives had just double +that number, elected annually. The members of both houses were chosen +directly by the qualified voters of the Territory. They were +elected by districts, and apportioned on the basis of population. The +Assembly was to meet annually; "but no session in any year shall exceed +the term of seventy-five days." + +A lavish delegation of power was granted to the Legislative Assembly by +the sixth section of the Constitution which provided "that the +Legislative power of the Territory shall extend to all rightful subjects +of legislation." Just what is meant by "rightful subjects of +legislation" is nowhere stated. But from the pages of the Territorial +statutes it is manifest that the important subjects of legislation were +in general the establishment of local government, the creation of +business and public corporations, the maintenance of the institution of +private property, the fulfilment of contracts, and the guarantee +of personal security. The sphere of legislation granted to the Territory +was larger than that reserved to the Commonwealth of Iowa. + +It would, however, be a grave mistake to view the powers of the +Legislative Assembly as unlimited, since the Constitution of the +Territory contains (_a_) certain specific prohibitions, (_b_) a +general limitation, and (_c_) a Bill of Rights. The specific +prohibitions are: "no law shall be passed, interfering with the +primary disposal of the soil; no tax shall be imposed upon the +property of the United States; nor shall the lands or other property +of non-residents be taxed higher than the lands or other property of +residents." + +These specific prohibitions are followed in the same section by +the general limitation which reads: "All the laws of the Governor and +Legislative Assembly shall be submitted to, and if disapproved by, the +Congress of the United States, the same shall be null and of no effect." + +The Territorial Bill of Rights as set forth in the Constitution is +exceedingly brief--perhaps the shortest Bill of Rights on record. It +consists of a single sentence and reads as follows: "The inhabitants +of the said Territory shall be entitled to all the rights, privileges +and immunities heretofore granted and secured to the Territory of +Wisconsin and to its inhabitants." On its face this guarantee of the +fundamental rights of man and of the citizen seems vague and +unsatisfactory. But it is, nevertheless, large in implication. If we +turn to the Constitution of the Territory of Wisconsin to see what +rights, privileges, and immunities were therein guaranteed, we find +"that the inhabitants of the said Territory shall be entitled to, and +enjoy, all and singular the rights, privileges, and advantages, +granted and secured to the people of the Territory of the United +States northwest of the river Ohio, by the articles of the compact +contained in the ordinance for the Government of the said Territory, +passed on the thirteenth day of July, one thousand seven hundred and +eighty-seven; and shall be subject to all the conditions and +restrictions and prohibitions in said articles of compact imposed upon +the people of the said Territory." In other words, the provisions of +the Ordinance of 1787 are by implication made a part of the +Constitution of the Territory of Iowa. Thus the people of Iowa +inherited through the Territorial Constitutions of 1836 and 1838 the +political principles of the great Ordinance of 1787 as a Bill of +Rights. + +Great was the legacy. Mark the classical expression of that instrument +in enumerating the immemorial rights, privileges, and principles of +Anglo-Saxon polity. "No person demeaning himself in a peaceable and +orderly manner, shall ever be molested on account of his mode of worship +or religious sentiments . . . . The inhabitants of the said Territory +shall always be entitled to the benefits of the writ of _habeas corpus_, +and of the trial by jury; of a proportionate representation of the +people in the legislature, and of judicial proceedings according +to the course of the common law. All persons shall be bailable, unless +for capital offences, where the proof shall be evident, or the +presumption great. All fines shall be moderate; and no cruel or unusual +punishments shall be inflicted. No man shall be deprived of his liberty +or property, but by the judgment of his peers, or the law of the land, +and should the public exigencies make it necessary, for the common +preservation, to take any person's property, or to demand his particular +services, full compensation shall be made for the same. And in the just +preservation of rights and property, it is understood and declared, that +no law ought ever to be made, or have force in the said territory, that +shall, in any manner whatever, interfere with, or affect private +contracts or engagements, _bona fide_, and without fraud +previously formed." + +These words are more than formal expressions of great principles; they +are ennobling. But to read farther, that religion, morality, and +knowledge are necessary to good government and the happiness of mankind, +and that there shall be neither slavery nor involuntary servitude in the +said Territory, is to inspire reverence. Such, indeed, are the +"liberties we prize" and the "rights we will maintain." + +The judicial power of the Territory was vested by the Constitution in +"a Supreme Court, district courts, probate courts, and in justices of +the peace." The Supreme Court consisted of a Chief Justice and two +associate justices. They were appointed by the President for a period +of four years, and were required to hold a term of court annually at +the seat of government. The Constitution further directed (_a_) that +the Territory be divided into three judicial districts, (_b_) that a +district court or courts be held in each of the three districts by one +of the judges of the Supreme Court, and (_c_) that the said judges +reside in the districts respectively assigned to them. + +The courts of the Territory of Iowa were "legislative courts," that is, +courts created by Congressional legislation. The extent of their +jurisdiction was much greater than that of State courts, since by the +Organic Act they were empowered to exercise the customary jurisdiction +of both State and Federal courts. + +In addition to those already mentioned, the Constitution provided for +two other prominent Territorial officers, namely, a Marshal and an +Attorney. Both were appointed by the President of the United States for +a term of four years. + +At the National Capital the Territory was represented by a Delegate who +was elected by the people for a term of two years. The Delegate was +entitled to a seat in the House of Representatives where he could +participate in debate but was not allowed a vote. + +One of the most significant sections of the Constitution is the fifth. +It provides "that every free white male citizen of the United States, +above the age of twenty-one years, who shall have been an inhabitant of +said Territory at the time of its organization, shall be entitled to +vote at the first election, and shall be eligible to any office +within the said Territory." Thereafter the suffrage qualifications were +to be determined by the Legislative Assembly; "_Provided_, That the +right of suffrage shall be exercised only by citizens of the United +States." + +Although the Organic Act of 1838 was almost a literal copy of the +Organic Act of 1836, the following differences are worthy of +observation: First, the term of the members of the Council was changed +from four years in 1836 to two years in 1838. Secondly, the term of +Representatives was changed from two years in 1836 to one year in 1838. +Thirdly, the term of the judges of the Supreme Court was changed from +"good behavior" in 1836 to four years in 1838. Fourthly, by the Organic +Act of 1838 the judges of the Supreme Court were required to +reside in their respective districts. Fifthly, the salary of the judges +of the Supreme Court was reduced from eighteen hundred dollars in 1836 +to fifteen hundred dollars in 1838. + +Reflection upon the history and provisions of the Constitution of the +Territory leads to a few general conclusions. First, this Constitution +was written i. e. codified. In the second place, it was an act of +Congress. Again, its provisions represent political evolution in +Territorial government up to the year 1838. Furthermore, government in +the Territory, though subordinate, had a wider sphere of activity under +the Organic Act than has ever since been enjoyed by government under a +State Constitution. This is true, since the Legislative Assembly and the +Territorial courts exercised to a considerable extent the +customary functions of both National and State governments. Still +further, the President of the United States was in theory the head of +Territorial administration, since he had the power to appoint and remove +the chief administrative officers in the Territory. Finally, there +existed in the machinery of Territorial government a nice balance +between administration on the one hand and legislation on the other, +that is, between the part which was responsible directly to the +President of the United States and the part which was responsible +directly to the people of the Territory. + + + + +VIII + +THE CONSTITUTION OF THE TERRITORY AMENDED + + +No provision for its amendment is contained in the Organic Act of 1838; +but by inference and implication it is clear that the power to change, +alter, or amend the Constitution of the Territory resided in Congress. +The process of amendment, therefore, was that of ordinary legislation. + +Congress was not long in exercising this extraordinary power. On March +3, 1839, within eight months of the organization of the Territory, the +President approved two acts amending the Constitution. These were: (1) +"An act to alter and amend the organic law of the Territories of +Wisconsin and Iowa;" and (2) "An Act to authorize the election or +appointment of certain officers in the Territory of Iowa, and for other +purposes." + +The first limited the veto power of the Governor by providing that bills +not approved by him might, nevertheless, become laws if passed a second +time by two-thirds of both houses of the Legislative Assembly. + +The second likewise aimed at curtailing the powers of the Governor by +authorizing the Legislative Assembly to "provide by law for the election +or appointment of sheriffs, judges of probate, justices of the peace, +and county surveyors." + +The history of a quarrel between the Governor and the first Legislative +Assembly, which in a great measure occasioned these amendments, is +significant in throwing light upon the political ideas and the +democratic frankness and determination of the people of the Territory. + + +On July 7, 1838, President Van Buren issued a commission to Robert Lucas +of Ohio, appointing him Governor of the new Territory of Iowa. The +position was a difficult one to fill; but the President's selection +promised to be the very best. Lucas was neither young, obscure, nor +inexperienced. Born in Virginia, he had served with distinction in the +War of 1812. He had served in the Legislature of Ohio, and had twice +been elected to the office of Governor by the people of that State. +In 1832 he acted as Chairman of the first National Convention of +the Democratic Party. + +Upon receiving his commission as Governor of Iowa, Robert Lucas repaired +with all possible haste to the West. Venerable with years and political +experience, he arrived at Burlington in August, 1838. Here he found that +Wm. B. Conway, the Secretary of the Territory, "had _assumed_ the +Executive prerogative, had issued a proclamation dividing the Territory +into Judicial Districts, and was about issuing a proclamation +apportioning the Representatives and ordering an election." The conduct +of the Secretary provoked the Governor; and Robert Lucas was not the man +to conceal his feelings or hesitate to express his mind. From that time +to the death of the Secretary in November, 1839, the two men were +enemies. Lucas, in a letter to John Forsyth, Secretary of State, +declared that Conway "has not only done nothing to render me assistance, +but _is generally believed to be the prime mover of the opposition to my +proceedings, and the author_ of the documents forwarded to Washington by +the members of the Legislature." + +The first Legislative Assembly of the Territory of Iowa did not meet +until November 12, 1838. On the first day of the session each house +proceeded to organize _pro tempore_. Then they assembled jointly in the +hall of the House of Representatives to be sworn in by the Governor, and +to receive any communication which his "Excellency" might have to make +to them. + + + +Governor Lucas delivered his first message in person. He took pains to +emphasize the fact that the Organic Act had vested the legislative power +in "the Governor and a Legislative Assembly," which meant that "the +Executive is vested with advisory and restraining powers, and the +Legislative Assembly with deliberative and enacting powers." "In no +place," he declared later in a communication to the Secretary of the +Territory, "is there any power vested in the Legislative Assembly +independent of the Governor." + +Throughout the message, which when printed covered ten pages of the +journal, the Governor freely advised and recommended such measures as he +deemed most expedient. Then near the close he boldly added: "I shall at +all times take pleasure in concurring with you in acts that tend +to advance the general interests of the Territory, and the prosperity of +the people;--but at the same time will be compelled to withhold my +assent to such acts, or proceedings, as I may conscientiously for the +time being believe to be prejudicial to the public good." Robert Lucas +lived up to the spirit and the letter of his declaration. + +In the matter of appointments the Governor's policy was courageously set +forth in these words: "I shall at all times pay a due respect to +recommendations; but cannot conscientiously nominate to office any +individual of _bad moral character_, or, that may be addicted to +_intemperance or gambling_, if known to me. These vices are so +contaminating in their character, that all public officers in my opinion + should be clear of even a suspicion of being addicted to them." +Lucas, writing some years later, was of the opinion that this +declaration was one of the potent causes of opposition to his +administration. + +After the election of permanent officers, which followed the +Governor's speech, the Legislative Assembly proceeded with energy and +enthusiasm to the business of legislation. But not a few of its +measures met with the disapproval of the Governor. It soon became +evident that the relations between the Executive and the Assembly were +not altogether cordial. The situation was made still more embarrassing +by the ill feeling which existed between the Governor and the +Secretary of the Territory. Indeed it is clear that Mr. Conway was +instrumental in stirring up much of the opposition to Governor Lucas +by confiding his private grievances to members of the Assembly, by +deferring to the Assembly to the point of servility, and by affecting +to set up an administrative department distinct and separate from that +of the Governor. On November 14, he submitted to the Council and House +of Representatives the first of a series of communications bearing +directly upon his own position and powers as Secretary and his +relations to the Legislative Assembly, and indirectly upon his +relations to the Governor and the relations of the latter to the +Assembly. + +It was early in the session that the Council and House of +Representatives resolved "That when an act is presented to the Governor +for his approval, he shall, within a reasonable time thereafter, +make known to the House in which said act may have originated of his +approval thereof; or if not approved of, the act shall be returned, with +his objections thereto." For some weeks after its passage, this +resolution seems to have received no attention. Either there was delay +in presenting it to the Governor, or the Governor did not give it his +immediate attention. It was not until January 4, 1839, that the +resolution was returned to the House of Representatives with this +observation from the Governor: "I see no place in the organic law, that +vests the Council and House of Representatives with the right to dictate +to the Executive in the discharge of his official duties." + +In the meantime the Council had taken steps looking toward the +regulation by statute of all official intercourse between the +legislative and executive departments of the government. On December 4, +1838, a committee of two was appointed to confer with the Governor and +report a bill. The committee held the conference and reported a bill on +the day following. After some discussion the bill passed the Council on +December 11, but not without important amendments. On the day following, +the bill as amended passed the House of Representatives. It was +presented to the Governor on the 18th. + +On December 19, Lucas returned the bill to the Council with his veto. He +objected to the changes which had been made in the bill as originally +reported by the committee. At the same time he took occasion to +state, for the information of the Assembly, the course he intended to +pursue in the future. He said: "All bills, resolutions, or memorials, +submitted to me, will be carefully examined, and if approved, will be +signed and deposited in the office of the Secretary of the Territory. If +special objections are found, but not sufficient to induce me to +withhold my assent from the bill, resolution, or memorial, a special +note of explanation will be endorsed with my approval. Bills, +resolutions, or memorials, that may be considered entirely +objectionable, or of doubtful policy, will be _retained under +advisement_ or returned to the Legislative Assembly, with my objections, +at such time, and in such way and manner as I may, for the time being, +deem to be most advisable." + + + +In reply to all this it was "Resolved, By the Council and House of +Representatives of the Territory of Iowa, That his Excellency Gov. +Lucas, is hereby respectfully requested to inform each House of the +Legislative Assembly, of all acts by him approved during the present +session; and that he is further requested hereafter to inform the House +in which a bill originated of his approval thereof immediately after the +same has been given." + +With a brief message, Lucas returned this resolution to the House of +Representatives on January 5, 1839. He would at all times be pleased to +comply with requests from the Assembly, provided it "could be done with +some propriety and conscience; but having neither secretary, clerk, +messenger, assistant or other attendant, in public employ, at the +Executive office, . . . . I must respectfully decline a compliance with +your respectful request, and most respectfully invite your attention to +my communication of the 19th December last." + +Two days later a committee of the House of Representatives headed by +James W. Grimes reported on the Governor's vetoes. They held that the +"various Executive vetoes" were not only uncalled for, but were +unwarranted by the Organic Act of the Territory. The phrase in the +Constitution which reads, "shall approve of all laws," is mandatory and +leaves the Executive without discretion. The committee took the whole +matter very seriously, believing that great principles were at stake. +"As representatives of the people," they declared, "we conceive +that we should be recreant to their rights and true interests, if we +should acquiesce in the 'veto power' as used by the Executive . . . . We +believe the people should be heard through those who represent them and +are responsible to them. That their wishes should be regarded, and not +the wishes of the Federal Government or a federal officer. We believe +the principle claimed by the Governor is a most dangerous and pernicious +principle, and as the representatives of freemen we cannot acquiesce in +it." + +A week later the House "Resolved, That Robert Lucas is unfit to be the +ruler of a free people," and appointed a select committee to prepare a +memorial to the President of the United States praying for his immediate +removal. + + + +The Council committee on Territorial Affairs was no less emphatic in its +condemnation of the "Executive Vetoes." They did not believe that +Congress in framing the Organic Act intended to confer the power of an +absolute veto upon the Governor. In their report of January 22, 1839, +upon the bill regulating the intercourse between the executive and +legislative departments, they exclaimed: "It is time to remonstrate. The +liberty of the people should be dear to their representatives, and he +who DARES not defend their sacred rights, who would not, in the hour of +peril, stand as a sentinel to guard their privileges, is unworthy the +name of a freeman." + +In the meantime the Legislative Assembly had prepared a memorial to +Congress requesting an amendment to the Organic Act which would +limit the Governor's veto power. + +The Governor remained firm and unmoved to the end of the session. +Notwithstanding all the resolutions, reports, and memorials of the +Assembly, he continued to approve some measures, veto others, and +endorse still others with special notes of explanation. + +Nor did the indignation of the members of the Legislative Assembly +subside as the session neared its close. They now hoped to get rid of +the Governor. So they addressed a memorial to "His Excellency Martin Van +Buren, President of the United States," in which they enumerated at +length "the faults of Governor Lucas' administration," and asked for his +immediate removal from the office of Chief Executive. In the House +of Representatives the minority offered a preamble and resolution +praying that they be allowed to forward a counter memorial to the +President, but on the motion of James W. Grimes their preamble and +resolution were rejected. + +This remarkable memorial concerning Robert Lucas reads much like the +arraignment of King George III in the Declaration of Independence. In +the political history of Iowa it stands as the declaration of the +independence of the will of the representatives of the people as over +against the will of the administration. It stands as the protest of +Democracy against the exercise of arbitrary power. Its significance lies +not in any statement or misstatement of historical facts, but in +the spirit of independence, courage, and democracy which pervades its +lines. + +When the Legislative Assembly met in November, 1839, the storm had +passed. The Constitution of the Territory had been amended. Robert Lucas +was still in office. But, reflecting upon the situation, he could +truthfully say in his message: "It is with heartfelt gratitude to +Almighty God . . . . that I am, through His _special Providence_, +permitted again to address the Legislative Assembly." + + + + +IX + +AGITATION FOR A STATE CONSTITUTION + + +The early agitation for the establishment of a State government cannot +justly be interpreted as opposition to the Constitution of the +Territory, or as disaffection with the Territorial government. On the +contrary, it was altogether natural for the people who settled in the +new Territory west of the Mississippi to look forward to the early +establishment of a State government. Never in the history of the United +States had Territories been viewed as permanent. In fact it was +everywhere understood that the Territorial organization was at most a +temporary arrangement which in time would give way to the more +perfect Constitution of the Commonwealth. Then, too, in the case of Iowa +there was such a rapid growth of population that admission into the +Union could not be long delayed under any circumstance. Mr. Shepard was +right when in 1838 he said: "If the Territory of Iowa be now +established, it will soon become a State." + +The movement for the establishment of a State government was inaugurated +by Robert Lucas in his message to the second Legislative Assembly which +met at Burlington on November 4, 1839. The Governor was of the opinion +that in view of the "rapidly increasing population, and advancing +prosperity of the Territory" the Assembly might "with propriety proceed +to measures preparatory to the formation of a Constitution and State +government." He knew that some would object to such measures as +premature, "inasmuch as our expenses are defrayed by the United States," +while the financial burdens of a State government would all have to be +borne by the people. But, argued the Governor, did not prosperity and +improvement within the States of Ohio, Indiana, Illinois, and Michigan +languish during the Territorial period, and then advance "with rapid +strides from the moment of their several admissions into the Union as +independent States?" To his Excellency these historical "facts" were +conclusive. The inference was clear in his mind. Prosperity and +improvement result from the establishment of State government. So he +earnestly recommended to the Legislative Assembly "the early passage of +a memorial to Congress, respectfully asking of that body the +passage of an Act, at their ensuing session, granting to the inhabitants +of Iowa Territory the right to form a Constitution and State Government, +and to provide for their admission into the Union upon an equal footing +with the original States." Furthermore, he recommended "the passage of a +law to provide for the calling of a convention to form a state +constitution, so soon as Congress may grant by law the privilege to do +so." The Governor was seriously in earnest. He even went so far as to +recommend definite boundaries for the proposed Commonwealth. + +Lucas was not alone in these advanced views. The newly elected President +of the Council, Stephen Hempstead, thought that, notwithstanding the +fact that the "Territory is yet in the bloom of infancy," only a +"short period will elapse before Iowa will become a State." "You, +gentlemen," he said, addressing the members of the Council, "are placed +here for the purpose of maintaining her rights as a territory, to enact +salutary laws for her government and to prepare her for an admission +into the Union, under the great principles of civil liberty." + +But the Legislative Assembly was more conservative. At the regular +session of 1839-40 it neither memorialized Congress on admission into +the Union nor passed a law providing for the calling of a Convention to +form a Constitution. In opposition to the recommendations of the +Governor and the views of a minority in the Assembly, it was argued (1) +that the establishment of State Government would increase the +burdens of taxation "which must render the new State government +burdensome as well as odious to the people," (2) that "it could not add +to the prosperity of the agriculturalist, the merchant, the miner, or +the mechanic; nor could it render any more fruitful the sources of +profit which are open to honest industry and application," and (3) that +the people of the Territory enjoy under the acts of Congress ample +liberty and freedom in self-government. The second Legislative Assembly +of the Territory was not willing to assume the responsibility of +measures looking toward so radical a change in the political status of +the people of Iowa. On January 17, 1840, it adjourned only to meet again +in extra session later in the year. + + + +In the meantime the Committee on Territories in the House of +Representatives had reported a bill enabling the people of Iowa to form +a Constitution and State government. This gave Lucas an opportunity of +directing attention again to the matter in which he was so deeply +interested. When the Assembly met in extra session July 13, 1840, he was +prepared with a suggestion that was as reasonable as it was democratic. +He would have the whole question referred to the people for decision. + +Presuming that the bill before Congress would pass, Lucas ventured to +"suggest to the Legislative Assembly the expediency of providing by law +for taking the sense of the people of this Territory on the subject of a +convention at the next ensuing annual election." "It appears to me," he +said, "that there can be no objection to submitting the subject to +the people for their consideration, as an expression of public opinion +through the ballot-box would enable the ensuing Legislative Assembly to +act understandingly, and in accordance with the expressed will of the +people on this important subject." + +Following the suggestion of the Chief Executive the Assembly provided by +law for obtaining the wishes of the people at the annual August +elections. All who favored the calling of a Convention were required to +write "convention" on their ballots; while all who opposed the +proposition were required to write "no convention." The law having been +approved by the Governor on the last day of July, very little time was +left for its consideration by the electorate before the elections. + + + +When the official returns were counted the Governor in a proclamation +declared the result to be 937 votes for and 2,907 votes against a +Convention. The defeat, which was decisive, indicated that the squatters +had not yet paid for their claims. And so the Organic Act of 1838 +continued to serve the people of Iowa as the code of fundamental law. +Robert Lucas was disappointed, but he had to admit that the Territory +went on increasing in population and wealth with phenomenal rapidity, +notwithstanding the "facts" in the history of the Old Northwest. Not +even the "imperfect conditions of Territorial government" seemed to +affect in the slightest degree the economic prosperity and improvement +of this frontier community. + +The overwhelming defeat of the Convention proposition at the polls +checked for a time all agitation in favor of a State Constitution. Even +the Governor, who up to this time had been its most sanguine advocate, +declared in his message of November that since the people had expressed +their preference for Territorial Government, "all further legislation on +the subject at the present session" is precluded. The question now +remained in _statu quo_ for over a year, that is, from August, 1840, to +December, 1841. + +In the meantime Robert Lucas had served out his full term of three +years. There was no chance for his reappointment since the Democrats had +lost the Presidency in the elections of 1840. The new Whig President, +William Henry Harrison, appointed John Chambers, of Kentucky, to +succeed the Ohio statesman. Again Iowa was fortunate in securing as +Governor a man of experience and of National reputation. + +When Governor Chambers sent his first message to the Legislative +Assembly in December, 1841, he thought he had reason to believe that if +the question of a Convention were again submitted to the people there +would be evidenced by them a marked change in sentiment. Why? The answer +was clearly set forth in the message. First, the population of the +Territory had increased phenomenally since August, 1840. Secondly, +Congress had passed the "Distribution Act" which provided (_a_) that +Iowa should participate in the _pro rata_ distribution, along with the +twenty-six States and three Territories, and the District of +Columbia, of the net proceeds of the sales of public lands, and (_b_) +that five hundred thousand acres of land for internal improvements +should be granted to every new State that should be admitted into the +Union. John Chambers thought the liberal provisions of the +Distribution Act would remove the grounds of all objections based upon +the argument that State organization would be followed by burdensome +taxes. In the light of these considerations he recommended that the +question of a Convention be again submitted to the people. + +Following this recommendation, the third Legislative Assembly passed "An +Act to provide for the expression of the opinion of the people of the +Territory of Iowa, upon the subject of the formation of a State +Constitution and Government, and to enable them to form a +Constitution for the State of Iowa," which act was approved February 16, +1842. Its provisions were as elaborate as its title. + +A poll was to be opened at each electoral precinct at the time of the +general election in August. As the qualified electors approached the +polls they were to be asked by the judges of election whether they were +in favor of or against a Convention. Thereupon the electors were to +answer simply, "Convention" or "No Convention." The clerks of election +were charged with keeping a record of these _viva voce_ votes. + +The act provided further, that should a majority of the votes polled be +found to favor a Convention, then eighty-two delegates to such a +Constitutional Convention were to be elected on the second Tuesday +in October next after the election aforesaid. On the first Monday of +November next following their election, the delegates elected were to +meet at Iowa City "and proceed to form a Constitution and State +Government, for the Territory of Iowa." + +Finally it was provided "that when a Constitution and form of State +Government" shall have been adopted by the Convention, the same shall be +published in the newspapers of the Territory and voted upon by the +people at the next general election, which would be held in August, +1843. + +The Governor's message and the measure inspired by it were clear, full, +and to the point. They called up for public consideration the whole +problem of State organization in its several phases of (_a_) the +calling of a Constitutional Convention, (_b_) the formation of a State +Constitution, and (_c_) the admission of the State into the Union. They +opened up a lively political discussion which was to continue for full +five years. + +As to the propriety and wisdom of calling a Constitutional Convention +there was from the beginning a decided difference of opinion. The act of +February 16, 1842, had met with strong opposition in both houses of the +Legislative Assembly. In the press and among the people of the Territory +the question became, naturally enough, the local issue in party +politics. The Democrats who had fathered the measure in the Assembly +were everywhere heartily in favor of State organization, but the Whigs, +who, being in the minority, would neither control the Convention nor + officer the new State government, were vigorous in their +opposition. + +Three days after the approval of the act of the Assembly there appeared +in the _Iowa City Standard_ a remarkable letter. Its author was Francis +Springer, a member of the Council and a Whig of considerable influence. +His letter was in substance "a speech prepared by him to be delivered in +the Council on the bill relating to the Convention, but not delivered +because shut down by the majority." + +From this speech it appears that the bill relative to State +organization, as originally introduced, provided for a vote of the +people on the question of a Constitutional Convention and the election +of delegates at the same time. This was confusing, since the election of +delegates assumed a favorable vote on the question of a +Convention. + +But Mr. Springer was opposed to the bill in any form. He thought that +since the people had not expressed a contrary opinion their adverse vote +in 1840 "ought to settle the question." He intimated that the bill +sought to create places for disappointed politicians. Certain prominent +Democrats--notably Robert Lucas and Judge Williams--had recently lost +their positions. "So offices must be created for them. Hence the +proposition to create a State Government." Furthermore, Mr. Springer +opposed the bill because State organization would greatly increase the +burdens of local taxation. Nor was the recent legislation of Congress a +satisfactory reply; for in his opinion the benefits to be derived +from the Distribution Act would after all be inconsiderable. + +Satisfied with existing conditions, he asked: "Are we slaves? Is our +liberty restricted? Are we deprived of the rights, immunities, and +privileges of American citizens? Is the rod of oppression held over us +by the General Government? Has that Government manifested its care +towards us by sending persons to 'spy out our liberties, misrepresent +our character, prey upon us, and eat out our substance?' It is not +pretended that there is a murmur of the kind. We are in possession of +the most enlarged liberty and the most liberal favors. Then why urge +this measure, uncalled for by the people, unwarranted by the condition +of the Territory?" The newspapers of the Territory were divided on +party lines. The Democratic press favored the calling of a Convention +and urged the immediate organization of a State government; while the +Whig press just as vigorously opposed all such measures from the calling +of a Convention to admission into the Union. + +In favor of a Constitutional Convention it was urged that the admission +of Iowa into the Union would result in a more rapid increase in the +population by immigration, since immigrants as a rule preferred States +to Territories. Again, admission into the Union would give Iowa more +influence at Washington, which would probably mean generous +appropriations by Congress for the improvement of the rapids of the +Mississippi. Politically the change would place the new Commonwealth on +an equal footing with the other States, give the people a voice in +the election of a President in 1844, and secure to them the long desired +privilege of choosing their own Governor. It was even claimed that +Statehood would promote character, foster independence, engender State +pride, and inspire dignity, since "it would secure to us the noblest +privilege of freemen! that of electing our own officers to govern over +us, instead of being subjected to the additional humiliation of having +them sent from abroad for that purpose." Finally, it was suggested that +if Iowa did not hasten to make application for admission into the Union, +Florida, the slave Territory which was then ready to be admitted, would +be paired with Wisconsin. + +These arguments were frequently accompanied by declamation and +exhortation. The Territorial state was declared to be a condition of +"colonial dependence" or "colonial vassalage." And so the question +before the people was set forth as one of "Dependence" or +"Independence." Will they support the proposition to establish a State +government and thus follow in the footsteps of the Fathers of the +Revolution? Or will they oppose the proposition and thereby brand +themselves as Tories? To the advocates of State government the way was +clear. "The freemen of Iowa should rise and strike for independence." + +On the other hand, the opponents of State organization were quite +willing "to let good enough alone." They were satisfied with Territorial +government and saw no good reasons for a change. They were not +unmindful of the fact that under the existing arrangement the expenses +of the Territorial government were paid out of the Treasury of the +United States. Then, too, the Whigs thought that the whole movement in +favor of a State government savored of "jobs" and party aggrandizement. +"It is evident," they said, "that a scheme is maturing with the +Loco-focos of this Territory to involve the people in the support of a +State government" for the "express purpose, as we believe, of +benefitting such men as Ex-Governor Lucas (Lord Pomposity) and Judge +Williams, and a few others of the same stamp." + +Furthermore, some declared that Iowa was too young for Statehood, her +resources were too limited, and the people were hardly prepared for the +adoption of State government. Mr. Lowe argued that the change +would be undesirable because there really were no eminent men in the +Territory fitted for the tasks of State government. This was intimating +that the pioneers of Iowa were incapable of self-government. + +But the vital argument against this or any measure looking toward the +establishment of a State government was the one which appealed directly +to the people as taxpayers. Under the Organic Act of 1838 the United +States generously assumed the burden of supporting the general +government of the Territory, and so the salaries of Governor, Judges, +Secretary, Attorney, and Marshals, the _per diem_ allowance of the +members of the Legislative Assembly, the expense of printing the laws, +the contingent expenses of the Territory, and other incidental +expenses were all paid out of the Treasury of the United States. Public +buildings were erected out of funds drawn from the same source. But a +change from Territorial to State organization meant that in the future +these public expenditures would have to be met by warrants drawn on the +Treasury of the State, the coffers of which must be supplied through +local taxation. The people protested. The men who were industriously +breaking the prairies, clearing the forests, and raising corn preferred +to invest their small earnings in lands and plows and live stock. + +An attempt was made to answer this argument. It was confidently asserted +that the additional expense entailed by a State government would not +exceed thirty thousand dollars annually. Nor would this amount +have to be contributed by the people of Iowa, since it was estimated +that the benefits to be derived from the Distribution Act would more +than meet all additional obligations. Besides the State would receive +five hundred thousand acres of land as a gift; while all the lands +reserved for the support of schools could, under State organization, be +used for such purposes. + +The answer was of little avail. No one could predict with certainty the +operation of the Distribution Act. Under the circumstances a majority of +the voters were not willing to abandon the Territorial organization for +the "dignity" of a Commonwealth government. At the general elections in +August, 1842, every County in the Territory returned a majority +_against_ a Convention. Again the existence of the Organic Act of 1838 +as a code of fundamental law was prolonged by a vote of the people. + +Again the agitation for a State Constitution remained in abeyance for +over a year, that is, from August, 1842, to December, 1843. In the +meantime there were at least some immigrants who did not "prefer States +to Territories." By May, 1844, the population of the Territory numbered +over seventy-five thousand souls. + +When the Legislative Assembly met in December, 1843, Governor Chambers +was confident that the population of Iowa had "attained a numerical +strength" which entitled the people to a participation in the government +of the Union and to the full benefits of local legislation and +local self-government. He therefore recommended in his message that +provision be made for ascertaining the wishes of the people "in relation +to this important matter." At the same time he advised the Assembly to +"apply to Congress to fix and establish, during its present session, a +boundary for the proposed State, and to sanction the calling of a +Convention and to make provision for our reception into the Union as +soon as we shall be prepared to demand it." + +The Governor's reference at this time to a possible boundary dispute is +interesting in the light of subsequent events. He says: "The +establishment of a boundary for us by Congress will prevent the +intervention of any difficulty or delay in our admission into the Union, +which might result from our assuming limits which that body might +not be disposed to concede to us." + +The Legislative Assembly responded promptly to the suggestion that the +people of the Territory be given another opportunity to express an +opinion on what had come to be the most interesting question in local +politics. As early as February 12, 1844, "An Act to provide for the +expression of the opinion of the people of the Territory of Iowa upon +the subject of the formation of a State Constitution for the State of +Iowa" was approved by the Governor. In substance this act was +practically a restatement of the provisions of the act of February 16, +1842. The _viva voce_ vote was to be taken at the Township elections in +April, 1844. + +In many respects the campaign of the spring of 1844 was a +repetition of the campaign of 1842. On the main issue the political +parties were divided as before, that is, the Democrats favored and the +Whigs opposed the calling of a Convention. In the public speeches and in +the utterances of the press there was little that was new or refreshing. +All the old arguments of 1840 and 1842 were dragged out and again +paraded through the editorial columns of the newspapers. Again the +opponents of State organization talked about the certain increase in the +burdens of taxation and intimated that the whole movement was set on +foot for no other purpose than to provide places for Democratic +office-seekers. Again the ardent supporters of State government ignored +the latter charge and replied to the taxation argument by quoting +the provisions of the Distribution Act. Altogether the discussion lacked +freshness, force, and vigor--it was stale and hackneyed. Two years of +growth and reflection had wrought a change in sentiment. The public mind +had evidently settled down in favor of State organization. At the +elections in April the people returned a large majority in favor of +calling a Constitutional Convention. + +This first move in the direction of Statehood having been made by the +people, it now remained to take the several additional steps of (1) the +election of delegates to a Constitutional Convention, (2) the drafting +of a State Constitution, (3) the adoption of such a Constitution by the +people, and (4) the admission of the new State into the Union. + + + + +X + +THE CONVENTION OF 1844 + + +In accordance with the provisions of the act of February 12, 1844, and +the act of June 19 amendatory thereof, seventy-three delegates to a +Constitutional Convention were elected at the general Territorial +elections in August, 1844. These delegates were chosen on partisan +grounds. With the electorate the primary question was not, "Is the +candidate well grounded in the principles of government and +administration?" but "What are his political affiliations?" + +When the votes were counted it was found that the Democrats had won a +great victory. The Whigs had not succeeded in electing one third +of the whole number of delegates. + +Events were making rapidly toward the realization of State government. +On Monday, October 7, 1844, sixty-three of the delegates elected met in +the Old Stone Capitol at Iowa City and organized themselves into a +constituent assembly. + +The meeting was informally called to order by Francis Gehon of Dubuque +County. Ralph P. Lowe was chosen to act as President _pro tem_. After a +temporary organization had been fully effected the Convention of 1844 +was formally opened with prayer. Upon the call of Counties by the +Secretary the delegates presented their credentials and took their +seats. One committee was appointed to examine credentials, and +another to draw up rules of proceeding. The Convention then adjourned +for the day. + +When the Convention met on Tuesday morning the Committee on Credentials +presented the names of all the delegates who had produced certificates +of election. A report from the Committee on Rules was laid on the table. +Mr. Bailey's resolution that "the editors of this Territory be permitted +to take seats within the bar of this House" was adopted. The Convention +then proceeded _viva voce_ to the election of permanent officers, that +is, a President, a Secretary, an Assistant Secretary, a Door-Keeper, and +a Sergeant-at-Arms. + +The honor of the Presidency fell to Shepherd Leffler of Des Moines +County. George S. Hampton and Alexander B. Anderson, who were elected +Secretary and Assistant Secretary respectively, were not members +of the Convention. Warren Dodd was elected Sergeant-at-Arms, and Ephraim +McBride, Door-Keeper. + +Upon being conducted to the chair Mr. Leffler addressed the Convention +in a most earnest manner. He tried to impress upon the members the +serious importance of the work before them. "You meet gentlemen," he +said, "on an occasion of the deepest interest. We are in the progress +of an important change, in the midst of an important revolution, 'old +things are to be done away and all things are to become new.' The +structure and organization of our government are to be changed, +territorial relations with the parent government are soon to cease, +and Iowa must soon take upon herself the duties and the +responsibilities of a sovereign State. But before this important +change can be fully consummated, it is necessary for us to form a +republican constitution, for our domestic government. Upon you, +gentlemen, a confiding people have entrusted this high responsibility. +To your wisdom, to your prudence, to your patriotism, they look for +the formation of that instrument upon which they are to erect the +infant republic--under your auspices the youngest and fairest daughter +of the whole American family is to commence her separate political +existence, to take her rank in the Union of the American States, and +to add her star to the proud flag of our common country. Recollect, +gentlemen, that the labor of your hands, whatever may be its fashion, +will not be the fashion of a day, but permanent, elementary, organic. +It is not yours to gild or to finish the superstructure, but to sound +the bottom, to lay the foundation, to place the corner stone. Unlike +the enactments of mere legislation, passed and sent forth to-day and +recalled to-morrow, your enactments, when ratified by the people are +to be permanent and lasting, sovereign and supreme, governing, +controlling and directing the exercise of all political authority, +executive, legislative and judicial, through all time to come." + +Mr. Leffler hoped that the Convention would frame a Constitution which +would, "in all its essential provisions, be as wise and as good if not +wiser and better than any other instrument which has ever yet been +devised for the government of mankind," so that "Iowa, young, beautiful +and blooming as she now is, endeared to us by every attachment +which can bind us to our country, may at no distant day, for every thing +that is great, noble or renowned, rival if not surpass the proudest +State of the American confederacy." + +On the same day, and after the election of officers, the report of the +Committee on Rules was taken up, slightly amended, and adopted. In the +afternoon Mr. Hall, who came from a back county in which no newspapers +were printed, moved "that each member of the Convention have the +privilege of taking twenty copies weekly of the newspapers published in +this city," and at the expense of the Convention. A lively discussion +followed. Some favored the motion because its object was to provide the +people with information concerning the Convention, others because +they had already promised papers to their constituents. But Mr. Grant +thought that it was both useless and corrupt. The delegates had come to +the Convention with economy on their lips and therefore should resist +such "useless expenditures." The motion was lost. + +On the third day standing committees were announced on the following +subjects: (1) Bill of Rights; (2) Executive Department; (3) Legislative +Department; (4) Judicial Department; (5) Suffrage and Citizenship; (6) +Education and School Lands; (7) Incorporations; (8) State Boundaries; +(9) County Organization; (10) Internal Improvements; and (11) State +Debts. The Convention was now in condition to take up the great task of +drafting a code of fundamental law. On Thursday--the fourth +day--the real work of the Convention began with a report from the +Committee on State Boundaries. + +Of the seventy-two members who labored in the Convention and signed the +Constitution there were twenty-one Whigs and fifty-one Democrats. +Twenty-six of the delegates were born in the South, twenty-three in the +Middle States, ten in the New England States, ten in the States of the +Old Northwest, one in Germany, one in Scotland, and one in Ireland. Of +those born in the United States thirteen were from Pennsylvania, eleven +from Virginia, nine from New York, eight from Kentucky, eight from Ohio, +six from North Carolina, six from Vermont, and one each from +Massachusetts, Connecticut, New Hampshire, Maine, New Jersey, +Tennessee, Indiana, and Illinois. The oldest member was sixty-six, the +youngest twenty-seven; while the average age of all was about forty +years. As to occupation or profession, there were forty-six farmers, +nine lawyers, five physicians, three merchants, two mechanics, two +miners, two mill-wrights, one printer, one miller, and one civil +engineer. + +The Convention lost no time in procrastinating delays. Committees were +prompt in making reports. Parliamentary wranglings were infrequent. +There was no filibustering. The discussions were, as a rule, neither +long, wordy, nor tiresome. Indeed, the proceedings were throughout +conducted in a business-like manner. The Democrats were determined to +frame a Constitution in accordance with what they were pleased to +call "the true principles of Jeffersonian Democracy and Economy." They +had the votes to carry out this determination. + +And yet the proceedings of the Convention were by no means formal and +without enlivening discussion. The fragments of the debates which have +come down to us contain many remarks suggestive of the life, character, +and political ideals of the people of early Iowa. For example, the +discussion concerning newspapers, already referred to, brought out an +expression of the popular ideal of economy and frugality. To be sure, +newspapers containing information concerning the Convention and the +fundamental instrument of government which was in the process of making +would, if circulated widely throughout the Territory, educate and +enlighten the people. But since the proposition involved the expenditure +of several hundreds of dollars it was extravagant. The sacred principle +of "Economy" could not be sacrificed to enlightenment. This pioneer +ideal of thriftiness persisted among the Iowans for more than a +generation. + + +Strict even to parsimoniousness in the matter of public expenditures, +the pioneers of Iowa were not always puritan in observing the forms of +religion. Their liberal attitude and their fearless courage in +expressing views on so delicate a subject were displayed in an +interesting debate in the Convention on a resolution offered by Mr. +Sells to the effect "that the Convention be opened every morning by +prayer to Almighty God." + + + +Mr. Chapman favored the resolution, since "the ministers would gladly +attend and render the services without compensation." + +Mr. Gehon objected on the ground that "it would not be economical, for +the Convention sat at an expense of $200 to $300 per day, and time was +money." + +Mr. Hall moved to amend the resolution so that the exercise of prayer +might "commence at least one half hour before the assembling of the +Convention." But Mr. Chapman thought that such a provision would be an +insult to the Clergy and to "those who believed in the superintendence +of Almighty God." + +Mr. Kirkpatrick said that he too believed in a "superintending +Providence" that "guided and controlled our actions." He was a +firm believer in Christianity, but he "did not wish to enforce prayer +upon the Convention." Prayer, he argued, was a moral precept which could +not be enforced without violating or infringing the "natural right" of +the members to worship God each in his own way. If "we can enforce this +moral obligation, then we have a right . . . . to make every member of +this Convention go upon his knees fifty time a day." Mr. Kirkpatrick +cared nothing for precedent. "This was a day of improvement. Let those +who believed so much in prayer, pray at home." After all "public prayer +was too ostentatious." + +Mr. Sells was shocked, and would "regret to have it said of Iowa that +she had so far travelled out of Christendom as to deny the duty of +prayer." + +Ex-Governor Lucas, who was a member of the Convention, was astonished at +Mr. Hall's amendment. He said that "if ever an assemblage needed the aid +of Almighty Power, it was one to organize a system of Government." +Furthermore, he believed that "it was due to the religious community, +and to our own character" to have prayer. To reject the resolution +would, he thought, "give us a bad name abroad." + +Mr. Hooten reminded Lucas of the story told of Franklin, who, when a +boy, asked his father why he did not say grace over the whole barrel of +pork at once. + +Mr. Hall was "opposed to any attempt on the part of the Convention to +palm themselves off to be better than they really were, and above all +other things, to assume a garb of religion for the purpose of +giving themselves character." He doubted the efficacy of prayers invoked +at political meetings, and cited an instance where a "Reverend +gentleman" fervently prayed for the release of Dorr, the election of +Polk and Dallas, and the triumph of Democratic principles. To believe in +the efficacy of such a prayer implied that "Deity was a Democrat." Now, +"if the Almighty was a Democrat, he would perhaps grant the prayer; if +not a Democrat he would not grant it." Mr. Hall desired to know what was +to be prayed for in the Convention. As for himself, "he would pray as +did the man in New Orleans, that God would 'lay low and keep dark,' and +let us do the business of the Convention." Prayers in the Convention +were, he thought, inappropriate. "There were places where the +Almighty could not be approached in a proper spirit--and this was one." + +Mr. Bailey asked the members who voted against taking papers on the +grounds of economy to be consistent and vote against this resolution +to have prayers. It would save some two or three hundred dollars. +Then, too, he thought that "people were becoming more liberal in +[their religious] sentiment. No man could say that he ever opposed +another on account of religion; he respected men who were sincerely +religious; but he wanted to have his own opinions." Mr. Bailey feared +that members might be compelled, under the resolution, "to hear what +they were opposed to. This was contrary to the inalienable rights of +man. If members did not feel disposed to come, it took away their +happiness, contrary to the Declaration of Independence and the +principle laid down by Thomas Jefferson, the Apostle of Liberty." + +Mr. Cutler said that "he had not lived a great while, but long enough +not to be afraid of meeting such a question openly." He opposed the +resolution and desired the yeas and nays recorded on the motion. + +Mr. Fletcher "regretted the opposition that he saw, and was unwilling +that it should go forth to the world that Iowa refused to acknowledge a +God." + +Mr. Evans did not believe in progression to the exclusion of prayer. He +favored "providing a room for those who did not wish to hear prayers." + +Mr. Hepner opposed the resolution because he thought that it was +inconsistent with the principle of religious freedom as set forth +in the Bill of Rights. + +Mr. Shelleday wished to represent the moral and religious feelings of +his constituents by supporting the resolution. + +Mr. Quinton thought that his constituents were as moral as those of Mr. +Shelleday. But he "did not believe praying would change the purposes of +Deity, nor the views of members of the Convention." "In the name of +Heaven," he exclaimed, "don't force men to hear prayers." + +By a vote of forty-four to twenty-six the resolution was indefinitely +postponed. + +The liberal religious spirit of the pioneers is further evidenced by the +principle of toleration which was incorporated into section four of the +Bill of Rights. As introduced by the Committee the section +provided that "no religious test shall be required as qualification for +any office or public trust, and no person shall be deprived of any of +his rights, privileges, capacities, or disqualified for the performance +of any of his duties, public or private, in consequence of his opinion +on the subject of religion." Mr. Grant thought that the report "was +meant to cover _everything_." But, to make sure that it did not exclude +Atheists from giving testimony in the courts, Mr. Galbraith moved to +insert the words "or be rendered incompetent to give testimony in any +court of law or equity." + +Mr. Lowe, of Muscatine, favored leaving the law on this subject as it +was; that is, he thought that "Atheists should not be admitted to give +testimony" because "there was nothing that such a person could +swear by. An oath called upon Deity to witness the truth of what was +said, and to withdraw his favor from the person if it was untrue. +Atheists consequently could not take an oath." It would be "unsafe" to +permit them to testify. + +Mr. Hempstead wanted to "do away with this inquiring into a man's +religious opinions. He desired to keep it out of the Constitution. It +was the fear of the penalties of perjury that restrained men from +stating what was not true--not future punishment." + +Mr. Kirkpatrick thought that to refuse to allow Atheists to testify +would be an "infringement of the natural rights of man." + +Mr. Grant said that "he hoped this Convention would take high grounds +upon this subject and silence . . . . these inquiries into men's +belief, and exclusions for opinion's sake." + +When the test vote was taken it was found that only ten members of the +Convention were willing to deny to Atheists the right to give testimony +in the courts. + + +An interesting debate on salaries led to the adoption of section +thirty-five, Article IV., of the Constitution which fixed the +compensation of the State officers "for the first ten years after the +organization of the government." The discussion was provoked by a report +from the Committee on State Revenue in which the following salaries were +recommended: For Governor, $1000; for Secretary of State, $500; for +Treasurer, $400; for Auditor, $700; for Superintendent of Public +Instruction, $700; and for Judges of the Supreme Court, $800. Several +motions were made which aimed to increase slightly the sums recommended +by the Committee; but the bent of the Convention was manifestly in favor +of a reduction of salaries all along the line. + +Sums ranging from $600 to $1200 were suggested for the Governor. Mr. +Hooten "thought the salary was about right at $1000. The Governor was +rather than else considered as public property, would have to entertain +a good deal of company, &c., and should have a pretty liberal salary." +Mr. Davidson said that "he came here for low salaries. He did not like +$1000, but $1200 was worse." The Convention finally agreed upon $800 as +a proper salary for the Governor of the State of Iowa. No cut was +made in the sum ($500) reported for the Secretary of State; but the +Treasurer's salary was reduced to $300. The Convention was willing that +the Judges of the Supreme Court should receive the same pay as the +Governor, that is, $800. + +The Auditor's salary received the most attention. The Committee on State +Revenue had recommended $700. "Mr. Grant moved to strike out $700, which +would leave the salary blank." + +Ex-Governor Lucas hoped that the salaries would not be reduced so low +that competent men could not afford to accept them. + +Mr. Chapman "desired to pay a fair price for services rendered, but he +was not willing to pay a single dollar for dignity. He did not +want to have men paid to live as gentlemen, with no services to perform. +. . . . What were the duties of Auditor, that they could not be +performed for a salary of $500 or $600? A farmer toiled from the rising +of the sun to its going down, and at the end of the year had not perhaps +$100;--there were hundreds of men qualified for that office who labored +the whole year for less than half of $700. In this country we are all +poor, and have to do with but little." + +Mr. Strong came to the Convention with a "desire for economy, and felt +disposed to go for as low salaries as any man; but he thought +gentlemen were disposed to reduce them too low." + +Mr. Hempstead thought that the Convention was "running this thing of + economy into the ground." He knew that there were men who would +take the offices at almost any salary; but "they would plunder to make +it up." + +Mr. Quinton declared that the services rendered by the Auditor were +not worth more than $400. He would "continue to advocate economy in +the State offices, whether it was displeasing to some gentlemen or +not." + +Mr. Fletcher supported the recommendation of the Committee on State +Revenue because the object was to secure as Auditor a man of "the best +business talents." + +Mr. Hall observed that the proposition to pay "such large salaries to +our officers was based upon a misunderstanding of the importance of +our little State. We were just commencing to totter, and not to walk." + + + +Mr. Harrison said "we were in a youthful condition, and were poor, and +we could not afford to pay such salaries as the great and wealthy +State of Ohio." Furthermore, "he wanted the officers to share +something of the hardships and privations of the citizens. He would +not have them gentlemen of leisure, walking about the streets, talking +with their friends, &c., with plenty of money in their pockets. An +honest man would perform the duties of Auditor as well for $300 as +$1000. If he was not honest we did not want him." + +Mr. Bissell favored a reduction. "He did not want to support +government officers at high salaries, to ride about in their coaches +and sport gold spectacles. He did not want them paid for giving wine +parties, and electioneering the Legislature. They should walk +from their residences to their offices, as other citizens." + +And so the salary of Auditor was fixed at $500. What wonder that Mr. +Hempstead "felt disposed to make a motion that no gentleman or man of +respectability should be appointed to any office under the Government +of the State of Iowa." + + +From the fragments of the debates which were chronicled in the +newspapers of the Capital, it is clear that the Convention of 1844, in +providing for the exercise of executive power in Iowa, aimed (1) to +make the Chief Magistracy a representative institution and (2) to +limit the influence of the Governor in legislation. + +The Committee on the Executive Department, of which the venerable +Ex-Governor Lucas was the chairman, reported in favor of vesting +the supreme executive power in "a Governor, who shall hold his office +for four years." A Lieutenant Governor "was to be chosen at the same +time and for the same term." Furthermore, section five of the report +provided that "no person shall be eligible to the office of Governor +or Lieutenant Governor more than eight years in any term of twelve." + +Mr. Chapman made a motion to strike out the provisions relative to a +Lieutenant Governor, "which motion he enforced upon the principle of +economy, and the non-necessity of the office." But the Convention +refused to take a step so radical. + +Mr. Langworthy moved to strike out _four_ and insert _two_ "as the +term for which the Governor should hold his office." This was +"to test whether any officer in the State of Iowa was to hold his +office more than two years." Mr. Langworthy "wanted the whole +government to be changed once in two years." His motion prevailed. + +On the motion of Mr. Peck section five of the report, which aimed to +prevent the Governor and Lieutenant Governor from succeeding +themselves in office more than once in twelve years, was stricken out. + +The question of an executive veto on legislation naturally received +considerable attention, since the administration of Lucas was still +fresh in the minds of many members of the Convention. + +The Committee on the Legislative Department had reported a form of +executive veto which was so limited that it could be passed over +by an ordinary majority in the two branches of the General Assembly. +Mr. Peck favored a two-thirds majority of the members present. + +But Mr. Hall moved to strike out the whole section and said that "in +making this Constitution he wished to throw off the trammels of +fashion and precedent. He had so pledged himself to his constituents. +This veto power was a trammel, and an unnecessary restraint on the +freedom of legislation. The law of progress required that it should be +abolished." + +Mr. Bailey "thought the veto power was a valuable one; it was the +people's power . . . . The Governor was more the representative of the +people, than the Representatives themselves. The Representatives were +chosen by sections, and represented local interests, and they +might continue to pass bad laws. But the Governor had no local +feelings." + +Mr. Peck said that "the veto power was a qualified negative to prevent +hasty and ill-advised legislation." He declared that the executive +veto was a wholesome remedy for over-legislation. "It was a Democratic +feature of any Constitution." + +Ex-Governor Lucas took part in the discussion. "We were," he said, +"engaged in making a Constitution to protect the rights of the people. +The veto was one of the instruments that had been used to defend the +people's rights . . . . It might have been exercised imprudently at +times, but that was not a good argument against the power." + +Mr. Hall discussed the question at length. "Gentlemen," he said, +"supposed that the Legislature might be corrupt--he would +suppose on the other hand, that the Governor might he corrupt, and his +supposition was as good as theirs. Some gentlemen were afraid of the +tyranny of the representatives--he would suppose that the Governor +would be the tyrant; or he would suppose that the Governor would +combine with the Legislature, and they would all be corrupt and +tyrannical together. A number of persons were not so liable to +corruption and combination as a single individual;--just as numbers +increased the probability of corruption decreased." He declared that +"there was no need of the power in this Territory." + +The Convention finally agreed upon the form of the limited executive +veto as provided for in the Federal Constitution. + + + +Not even the Judiciary was spared from the influence of Western +Democracy as it rose up and asserted itself in the Convention of 1844. +The day of executive appointment and life tenure of judges had passed +or was passing. The Committee on the Judiciary recommended that "the +Judges of the Supreme Court and District Court shall be elected by the +joint vote of the Senate and House of Representatives and hold their +offices for six years;" but a minority report, introduced by Mr. +Fletcher, proposed that all of the judges be elected by the qualified +voters of the State. + +In discussing this question the Convention desired to follow the +wishes of the people; but it was not known that the people themselves +really desired to elect the Judges. On the other hand there is +no evidence that anyone favored executive appointment. So the question +before the Convention was: Shall the Judges be elected by the people +or shall they be chosen by the General Assembly? + +Mr. Hempstead favored direct election by the people on the assumption +"that in a Republican or Democratic government the people were +sovereign, and all power resided in them." He did not believe that the +influence of politics would be worse in the election of Judges by the +people than in the election of members of the General Assembly. "Joint +ballot," he declared, "was one of the most corrupt methods of election +ever devised." + +Mr. Bailey did not doubt "the capacity of the people to elect their +Judges;" but he thought that "there was real danger in the +Judges becoming corrupt through political influences. They were liable +to form partialities and prejudices in the canvass, that would operate +on the bench." He had "no objection to the people electing the Judges; +but he did not think they desired the election--they had never asked +to have it." + +Ex-Governor Lucas said "the question would seem to be, whether there +was any officer in the government whose duties were so sacred that +they could not be elected by the people. All officers were servants of +the people, from the President down." He repudiated the idea that the +people were not capable of electing their own servants. + +Mr. Quinton supported the proposition to elect the Judges, since +"this was said to be an age of progress." In his opinion "the ends of +Justice would be better served by elections by the people than by the +Legislature." + +Mr. Kirkpatrick declared that the selection of Judges by the General +Assembly was "wrong both in principle and in policy." He was opposed +to "voting by proxy." He believed that "we should choose our Judges +ourselves and bring them often to the ballot box." + +Mr. Fletcher "came pledged to go for the election of Judges by the +people." He believed that "the surest guaranty, which could be had for +the fidelity and good conduct of all public officers, was to make them +directly responsible to the people." + + + +The outcome of the discussion was a compromise. The Judges of the +Supreme Court were to be named by the General Assembly; but the Judges +of the District Court were to be elected by the people. + + +That the pioneers of Iowa, including the members of the Convention of +1844, were Democratic in their ideals is certain. They believed in +Equality. They had faith in Jeffersonianism. They clung to the dogmas +of the Declaration of Independence. They were sure that all men were +born equal, and that government to be just must be instituted by and +with the consent of the governed. Such was their professed philosophy. +Was it universally applicable? Or did the system have limitations? Did +the Declaration of Independence, for example, include negroes? + + + +The attitude of the Convention on this perplexing problem was perhaps +fairly represented in the report of a Select Committee to whom had +been referred "a petition of sundry citizens praying for the admission +of people of color on the same footing as white citizens." This same +Committee had also been instructed to inquire into the propriety of a +Constitutional provision prohibiting persons of color from settling +within the State. + +In the opening paragraph of their remarkable report the Committee +freely admitted (1) "that all men are created equal, and are endowed +by their Creator with inalienable rights," and (2) that these rights +are "as sacred to the black man as the white man, and should be so +regarded." At the same time they looked upon this declaration as +"a mere abstract proposition" which, "although strictly true when +applied to man in a state of nature, . . . . becomes very much +modified when man is considered in the artificial state in which +government and society place him." + +The Committee then argued that "government is an institution or an +association entered into by man, the very constitution of which +changes or modifies to a greater or less extent his natural rights. +Some are surrendered others are modified . . . . In forming or +maintaining a government it is the privilege and duty of those who are +about to associate together for that purpose to modify and limit the +rights or wholly exclude from the association any and every species of +persons who would endanger, lessen or in the least impair the +enjoyment of these rights. We have seen that the application of this +principle limits the rights of our sons, modifies the privileges of +our wives and daughters, and would not be unjust if it excluded the +negro altogether.--'Tis the party to the compact that should complain, +not the stranger. Even hospitality does not sanction complaint under +such circumstances. True, these persons may be unfortunate, but the +government is not unjust." + +Thus the problem of negro citizenship was not one of abstract right, +but must be settled on grounds of expediency. "Would the admission of +the negro as a citizen tend in the least to lessen, endanger or impair +the enjoyment of our governmental institutions?" The answer of the +Committee reads as follows: + + + +"However your committee may commiserate with the degraded condition of +the negro, and feel for his fate, yet they can never consent to open +the doors of our beautiful State and invite him to settle our lands. +The policy of other States would drive the whole black population of +the Union upon us. The ballot box would fall into their hands and a +train of evils would follow that in the opinion of your committee +would be incalculable. The rights of persons would be less secure, and +private property materially impaired. The injustice to the white +population would be beyond computation. There are strong reasons to +induce the belief that the two races could not exist in the same +government upon an equality without discord and violence, that might +eventuate in insurrection, bloodshed and final extermination of +one of the two races. No one can doubt that a degraded prostitution of +moral feeling would ensue, a tendency to amalgamate the two races +would be superinduced, a degraded and reckless population would +follow; idleness, crime and misery would come in their train, and +government itself fall into anarchy or despotism. Having these views +of the subject your committee think it inexpedient to grant the prayer +of the petition." + +Nor was it thought expedient by the Committee to introduce an article +into the Constitution which would exclude altogether persons of color +from the State, notwithstanding the fact that "the people of Iowa did +not want negroes swarming among them." Even Mr. Langworthy, who +had been instructed by his constituents "to get something put into the +Constitution by which negroes might be excluded from the State," felt +that the matter could safely be left with the General Assembly. Mr. +Grant thought that an exclusion clause in the Constitution would +"endanger our admission into the Union." + +Although the report was laid on the table, it nevertheless represented +the dominant opinion then prevalent in Iowa. Our pioneer forefathers +believed that the negroes were men entitled to freedom and civil +liberty. But more than a score of years had yet to elapse before there +was in their minds no longer "a doubt that all men [including the +negroes] are created free and equal." + +When the delegates were elected to the Convention of 1844 the people +of the Territory were still suffering from the effects of +over-speculation, panic, and general economic depression. Many of them +still felt the sting of recent bank failures and the evils of a +depreciated currency. Hence it is not surprising to learn from the +debates that not a few of the delegates came to the Convention +instructed to oppose all propositions which in any way favored +corporations, especially banking corporations. + +The opposition to banks and bank money was not local; it was National. +The bank problem had become a leading party issue. Democrats opposed +and Whigs generally favored the banks. It was so in Iowa, where the +agitation was enlivened by the presence of the "Miners' Bank of +Du Buque." This institution, which was established in 1836 by an act of +Congress, had been the local storm center of the bank question. Prior +to 1844 it had been investigated four times by the Legislative +Assembly of the Territory. + +In the Convention a minority as well as a majority report was +submitted from the Committee on Incorporations. The majority report +provided: (1) that one bank may be established with branches, not to +exceed one for every six counties; (2) that the bill establishing such +bank and branches must be (a) passed by a majority of the members +elected to both houses of the General Assembly, (b) approved by the +Governor, and (c) submitted to the people for their approval or +rejection; (3) that "such bank or branches shall not have power to +issue any bank note or bill of a less denomination than ten dollars;" +(4) that "the stockholders shall be liable respectively, for the debts +of said bank, and branches;" and (5) that "the Legislative Assembly +shall have power to alter, amend, or repeal such charter, whenever in +their opinion the public good may require it." + +The same majority report provided further: (1) that "the assent of +two-thirds of the members elected to each house of the Legislature +shall be requisite to the passage of every law for granting, +continuing, altering, amending or renewing any act of Incorporation;" +(2) that no act of incorporation shall continue in force for more + than twenty years; (3) that the personal and real property of +the individual members of a corporation shall be liable for the debts +of such corporation; and (4) that "the Legislative Assembly shall have +power to repeal all acts of incorporation by them granted." + +The minority report, which was signed by two members of the Committee, +provided that "no bank or banking corporation of discount, or +circulation, shall ever be established in this State." + +In the discussion that followed the introduction of these reports the +Whig members of the Convention were inclined to keep restrictions out +of the Constitution and leave the whole question of establishing banks +to the General Assembly. The Democrats were not united. The more +radical supported the minority report; others favored the +establishment of banks well guarded with restrictions. + +Mr. Hempstead said that he was opposed to all banks as a matter of +principle. He pointed out that there were three kinds of banks--banks +of deposit, banks of discount, and banks of circulation. "To this last +kind he objected. They were founded in wrong, and founded in error." +He declared that such corporations should be excluded altogether from +the State. Indeed, he said that "if the whole concern--banks, officers +and all--could be sent to the penitentiary he would be very glad of +it." + +Mr. Quinton thought that "the whole concern of Banks, from big A down, +were a set of swindling machines, and now was the time for the +people of Iowa to give an eternal quietus to the whole concern." + +Mr. Ripley declared that "Banks had always been a curse to the country +. . . . He believed Banks to be unconstitutional, and oppressive upon +the laboring classes of the community." + +Mr. Bailey was an anti-Bank man; "but he knew many Democrats who were +in favor of Banks under proper restrictions." + +Mr. Hall said that "Banking was a spoiled child; it had been nursed +and petted till it had become corrupt." He objected to banking +"because it conferred privileges upon one class that other classes did +not enjoy." He believed that the people would find that "a bank of +earth is the best bank, and the best share a plough-share." + + + +Mr. Gehon wanted to put his "feet upon the neck of this common enemy +of mankind." + +Ex-Governor Lucas, who represented the conservative Democrats, said +that this was not a party issue but rather a question of expediency. +He was in favor of leaving it to the Legislature and the people. + +Mr. Lowe said that "the truth was, this matter, like all other +questions of internal policy, should be left where all the other +States of the Union have left it, to the sovereign will of a free and +independent people." + +Mr. Hawkins said that "the Whigs were in favor of leaving this matter +to the action of future Legislatures and to the people. When a +proposition was made for a charter, let the details be decided by them +with all the lights before them at that time." + + + +As finally agreed to in the Convention, article nine of the +Constitution, which dealt with corporations, contained the following +provisions. First, no act of incorporation shall continue in force for +more than twenty years without being re-enacted by the General +Assembly. Secondly, the personal and real property of the members of a +corporation shall at all times be liable for the debts of such +corporation. Thirdly, the General Assembly "shall create no bank or +banking institution, or corporation with banking privileges" without +submitting the charter to a vote of the people. Fourthly, the General +Assembly shall have power to repeal all acts of incorporation by them +granted. Fifthly, the property of the inhabitants of the State shall +never be used by any incorporated company without the consent of +the owner. Sixthly, the State shall not become a stockholder in any +bank or other corporation. In this form the question of banks and +corporations was submitted to the people. + + +On Friday morning, November the first, the Constitutional Convention +of 1844 adjourned _sine die_ after a session of just twenty-six days. + + + + +XI + +THE CONSTITUTION OF 1844 + + +The Constitution of 1844 as submitted by the Convention to Congress +and to the people of the Territory of Iowa contained thirteen +articles, one hundred and eight sections, and over six thousand words. + +Article I. on "Preamble and Boundaries" acknowledges dependence upon +"the Supreme Ruler of the Universe" and purports to "establish a free +and independent government" in order "to establish justice, ensure +tranquility, provide for the common defense, promote the general +welfare, secure to ourselves and our posterity, the rights of life, +liberty, and the pursuit of happiness." + +Article II. as the "Bill of Rights" declares that "all men are by +nature free and independent, and have certain unalienable rights, +among which are those of enjoying and defending life and liberty, +acquiring, possessing, and protecting property, and pursuing and +obtaining safety and happiness." All political power is "inherent in +the people;" for their "protection, security, and benefit" government +is instituted; and they, the people, have "the right at all times, to +alter, or reform the same, whenever the public good may require it." + +Following these classic political dogmas of the American Revolution is +a rather exhaustive enumeration of the fundamental rights of the +individual, which at various times and in various ways had found +expression in the state papers and Constitutions of England and +America, and which together constitute the domain of Anglo-Saxon +liberty and freedom. + +Article III. defines the "Right of Suffrage" by limiting the exercise +thereof to white male citizens of the United States, of the age of +twenty-one years, who shall have been residents of the State six +months next preceding the election, and of the county in which they +claim a vote thirty days. + +Article IV. proclaims the theory of the separation of powers in +sweeping terms, and prescribes the constitution of the law-making +department. Herein the legislative authority was vested in a General +Assembly, which was organized on the bicameral plan. The members of +the House of Representatives were to be chosen for two years, +those of the Senate for four years. The regular sessions of the +General Assembly were to be held biennially. + +Article V. on the "Executive Department" provides that the "Supreme +Executive power shall be vested in a Governor, who shall hold his +office for two years; and that a Lieutenant Governor shall be chosen +at the same time and for the same term." The Governor must be a +citizen of the United States and have attained the age of thirty +years. + +Article VI. organizes the "Judicial Department." It provides for a +Supreme Court consisting of "a Chief Justice and two Associates," to +be chosen by the General Assembly for a term of four years. The +District Court was to "consist of a Judge, who shall reside in +the district assigned him by law," and be elected by the people for +the same term as the Judges of the Supreme Court. + +Article VII. provides that the "Militia" shall be composed of "all +able bodied white male persons between the ages of eighteen and +forty-five years," except such persons as are or may be especially +exempted by law. All details relative to organizing, equipping, and +disciplining the militia were left to the General Assembly. + +Article VIII. on "Public Debts and Liabilities" prohibited the General +Assembly from contracting debts and obligations which in the aggregate +would exceed one hundred thousand dollars. + +Article IX. placed restrictions upon banking and other business +corporations. + + + +Article X. deals with "Education and School Lands." It provides for a +"Superintendent of Public Instruction" who shall be chosen by the +General Assembly. It directs the General Assembly to provide for a +system of common schools. It declares also that the General Assembly +"shall encourage, by all suitable means, the promotion of +intellectual, scientific, moral and agricultural improvement." + +Article XI. outlines a system of local government which includes both +the county and the township organization. The details are left to the +General Assembly. + +Article XII. provides for "Amendments to the Constitution." In the +case of partial revision of the Constitution, the specific amendment +must be passed by two successive General Assemblies and ratified by +the people. When it is desired to have a total revision of the +fundamental law, the General Assembly submits the question of a +Constitutional Convention to a direct vote of the people. + +Article XIII. provides a "Schedule" for the transition from the +Territorial to the State organization. + + +From the view-point of subsequent events the most significant +provision of the Constitution of 1844 was the one which defined the +boundaries of the future State. There is, however, no evidence that +the members of the Convention foresaw the probability of a dispute +with Congress on this point, although Governor Chambers in his message +of December, 1843, had pointed out its possibility should the people +of Iowa assume to give boundaries to the State without first +making application to Congress for definite limits. It was on the +question of boundaries that the Constitution of 1844 was wrecked. + +In the Convention the regular standing Committee on State Boundaries +reported in favor of certain lines which were in substance the +boundaries recommended by Governor Lucas in his message of November, +1839. Indeed, it is altogether probable that the recommendations of +Robert Lucas were made the basis of the Committee's report. This +inference is strengthened by the fact that the illustrious Ex-Governor +was a member of the Committee. It will be convenient to refer to the +boundaries recommended by the Committee as the _Lucas boundaries_. + + + +The Lucas boundaries were based upon the topography of the country as +determined by rivers. On the East was the great Mississippi, on the +West the Missouri, and on the North the St. Peters. These natural +boundaries were to be connected and made continuous by the artificial +lines of the surveyor. As to the proposed Eastern boundary there could +be no difference of opinion; and it was generally felt that the +Missouri river should determine the Western limit. + +On the South the boundary must necessarily be the Northern line of the +State of Missouri. But the exact location of this line had not been +authoritatively determined. During the administration of Lucas it was +the subject of a heated controversy between Missouri and Iowa which at +one time bordered on armed hostility. The purpose of the +Convention in 1844 was not to settle the dispute but to refer to the +line in a way which would neither prejudice nor compromise the claims +of Iowa. + +The discussion of the Northern boundary was, in the light of +subsequent events, more significant. As proposed by the Committee the +line was perhaps a little vague and indefinite since the exact +location of certain rivers named was not positively known. Some +thought that the boundary proposed would make the State too large. +Others thought that it would make the State too small. Mr. Hall +proposed the parallel of forty-two and one-half degrees of North +latitude. Mr. Peck suggested the parallel of forty-four. Mr. +Langworthy, of Dubuque, asked that forty-five degrees be made +the Northern limit. + +Mr. Langworthy's proposition met with considerable favor among the +people living in the Northern part of the Territory who desired to +increase the size of the State by including a considerable tract North +of the St. Peters. Mr. Chapman suggests the existence of sectional +feeling in the matter of boundaries when he says, in reply to Mr. +Langworthy's argument, that "it was a kind of creeping up on the North +which was not good faith to the South." + +On October 14 the report of the regular Committee on State Boundaries +was referred to a Select Committee consisting of representatives from +the twelve electoral districts. But this Committee made no changes in +the original report except to make the Northern boundary a +little more definite. + +As finally adopted by the Convention and incorporated into the +Constitution of 1844, the boundaries of the State were as follows: +"Beginning in the middle of the main channel of the Mississippi river +opposite the mouth of the Des Moines river; thence up the said river +Des Moines, in the middle of the main channel thereof, to a point +where it is intersected by the Old Indian Boundary line, or line run +by John C. Sullivan in the year 1816; thence westwardly along said +line to the 'Old Northwest corner of Missouri;' thence due west to the +middle of the main channel of the Missouri river; thence up in the +middle of the main channel of the river last mentioned to the mouth of +the Sioux or Calumet river; thence in a direct line to the +middle of the main channel of the St. Peters river, where the Watonwan +river (according to Nicollet's map) enters the same; thence down the +middle of the main channel of said river to the middle of the main +channel of the Mississippi river; thence down the middle of the main +channel of said river to the place of beginning." + +In accordance with the act of the Legislative Assembly of February 12, +1844, and section six of the "Schedule" it was provided that the new +Constitution, "together with whatever conditions may be made to the +same by Congress, shall be ratified or rejected by a vote of the +qualified electors of this Territory at the Township elections in +April next." And the General Assembly of the State was authorized to +"ratify or reject any conditions Congress may make to this +Constitution after the first Monday in April next." + +At the same time it was made the duty of the President of the +Convention to transmit a copy of the Constitution, along with other +documents thereto pertaining, to the Iowa Delegate at Washington, to +be by him presented to Congress as a request for the admission of Iowa +into the Union. For such admission at an early day the Convention, as +memorialists for the people of the Territory, confidently relied upon +"the guarantee in the third article of the treaty between the United +States and France" of the year 1803. + +It now remained for Congress and the people of the Territory to pass +judgment upon the Constitution of 1844. + + + + +XII + +THE CONSTITUTION OF 1844 SUBMITTED TO CONGRESS + + +The second session of the Twenty-Eighth Congress opened on Monday, +December 2, 1844. On December 9, Senator Tappan presented to the +Senate the Constitution which had been framed by the Iowa Convention +of 1844. It was referred at once to the Committee on the Judiciary. +Three days later Augustus C. Dodge, Delegate from the Territory of +Iowa, laid before the House of Representatives a copy of the same +instrument together with an ordinance and a memorial from the Iowa +Convention. Here the documents were referred to the Committee on +Territories. + + + +On January 7, 1845, through Mr. Aaron V. Brown, the Committee on +Territories reported a bill for the admission of Iowa and Florida into +the Union. This bill was read twice and referred to the Committee of +the Whole House on the State of the Union, wherein it was considered +on the three days of February 10, 11, and 13. It passed the House of +Representatives on February 13, 1844, by a vote of one hundred and +forty-four to forty-eight. + +The day after its passage in the House of Representatives the bill was +reported to the Senate. Here it was referred to the Committee on the +Judiciary, from which it was reported back to the Senate without +amendment on February 24. The Senate considered the measure on March +1, and passed the same without alteration by a vote of thirty-six to +nine. On March 3, 1845, the act received the signature of President +Tyler. + +The debate on the bill for the admission of Iowa under the +Constitution of 1844 is of more than local interest since it involved +a consideration of the great question of National Politics in its +relation to the growth of the West and the admission of new States. + +When Iowa applied for State organization in 1844, Florida had been +waiting and pleading for admission ever since the year 1838. The +reason for this delay was very generally understood and openly avowed. +States should be admitted not singly but in pairs. Florida was waiting +for a companion. And so in 1844 it fell to Iowa to be paired with the +peninsula. The principle involved was not new; but never before +had two States been coupled in the same act of admission. The object +sought was plainly the maintenance of a _balance of power_ between the +North and the South. + +But back of the principle of the balance of power, and for the +preservation of which that principle was invoked, stood Slavery. The +institution of free labor in the North must be balanced by the +institution of slave labor in the South, since both must be preserved. +And so the admission of Iowa and Florida had to be determined in +reference to this all-devouring question of National Politics. + +Upon examination it was found that the proposed Constitution of +Florida not only sanctioned the institution of Slavery, but it +positively guaranteed its perpetuation by restraining the +General Assembly from ever passing laws under which slaves might be +emancipated. On the other hand the Constitution of Iowa, although it +did not extend the privilege of suffrage to persons of color, provided +that "neither slavery nor involuntary servitude, unless for the +punishment of crimes, shall ever be tolerated in this State." + +Now it so happened that the opposing forces of slave labor and free +labor, of "State Rights" and "Union," came to an issue over the +boundaries of the proposed State of Iowa. In the bill for admission, +as reported by the House Committee on Territories, the boundaries +asked for by the Iowa Convention in the Constitution submitted by them +were retained without alteration. But Mr. Duncan, of Ohio, had +other limits to propose. He would have the new State of Iowa "bounded +by the Mississippi on the East, by a parallel of latitude passing +through the mouth of the Mankato, or Blue Earth river, on the North, +by a meridian line running equidistant from the seventeenth and +eighteenth degrees of longitude West from Washington on the West, and +by the Northern boundary of the Missouri on the South." Mr. Duncan +pointed out that these were the boundaries proposed by Nicollet in the +report which accompanied the publication in January, 1845, of his map +of the basin of the upper Mississippi. He preferred the _Nicollet +boundaries_ because (1) they were "the boundaries of nature" and (2) at +the same time they left sufficient territory for the formation of two +other States in that Western country. + +On the other hand, Mr. Brown, Chairman of the Committee on +Territories, said that the question of boundaries had been carefully +investigated by his Committee, "and the conclusion to which they had +come was to adhere to the boundary asked for by the people of Iowa, +who were there, who had settled the country, and whose voice should be +listened to in the matter." + +Mr. Belser, of Alabama, was opposed to the Duncan amendment since it +"aimed to admit as a State only a portion of Iowa at this time. This +he would have no objection to, provided Florida is treated in the same +way. He was for receiving both into the Confederacy, with like terms +and restrictions. If Iowa is to come in without dismemberment, then +let Florida enter in like manner; but if Iowa is divided, then let +Florida be divided also." + +Mr. Vinton, of Ohio, was the most vigorous champion of the Duncan +amendment. He stood out firmly for a reduction of the boundaries +proposed by the Iowa Convention because the country to the North and +West of the new State, "from which two other States ought to be +formed," would be left in a very inconvenient shape, and because the +formation of such large States would deprive the West of "its due +share of power in the Senate of the United States." + +Mr. Vinton was "particularly anxious that a State of unsuitable extent +should not be made in that part of the Western country, in consequence +of the unwise and mistaken policy towards that section of the Union +which has hitherto prevailed in forming Western States, by which the +great valley of the Mississippi has been deprived, and irrevocably so, +of its due share in the legislation of the country." As an equitable +compensation to the West for this injustice he would make "a series of +small States" on the West bank of the Mississippi. + +Furthermore, Mr. Vinton did not think it politic to curtail the power +of the West in the Senate of the United States by the establishment of +large States, since in his opinion "the power of controlling this +government in all its departments may be more safely intrusted to the +West than in any other hands." The commercial interests of the people +of the West were such as to make them desirous of protecting the +capital and labor both of the North and the South. + +Again, he declared that if disunion should ever be attempted "the West +must and will rally to a man under the flag of the Union." "To +preserve this Union, to make its existence immortal, is the high +destiny assigned by Providence itself to this great central power." + +The arguments for restriction prevailed, and the Duncan amendment, +which proposed to substitute the _Nicollet boundaries_ for the _Lucas +boundaries_, passed the House of Representatives by a vote of +ninety-one to forty. + +In the Senate the bill as reported from the House was hurried through +without much debate. Here the question of boundaries seems to have +received no consideration whatever. There were, however, strong +objections in some quarters to coupling Iowa with Florida in the +matter of admission. + +Senator Choate, of Massachusetts, called attention to the fact that +this was the first instance in the history of the admission of States +where it was proposed to admit two States by the same act. Under the +circumstances he could welcome Iowa into the Union, but he could not +give his hand to Florida. It could not be argued that Florida must be +admitted to balance Iowa, since the admission of Texas was already +more than a balance for the northern State. However appropriate it +might have been at an earlier day to pair Florida with Iowa, it ought +not to be thought of at this time. For, since the introduction of the +bill, "we have admitted a territory on the southwest much larger than +Iowa and Florida together--a territory that may be cut up into +forty States larger than our small States, or five or six States as +large as our largest States. Where and how is the balance to be found +by the North and East for Texas? Where is it to be found but in the +steadfast part of America? If not there, it can be found nowhere else. +God grant it may be there! Everything has been changed. An empire in +one region of the country has been added to the Union. Look east, +west, or north, and you can find no balance for that." + +Senator Evans touched upon the great issue when he proposed an +amendment which provided that so far as Florida was concerned the bill +should not take effect until the people had removed from their +Constitution certain restrictions on the General Assembly relative to +the emancipation of slaves and the emigration and immigration of free +negroes or other persons of color. He was opposed to discriminations +against free persons of color. Why, then, retorted a Senator from the +South, do you not direct your artillery against the Constitution of +Iowa which does not allow a colored person to vote? + + +No good reason had been urged showing why Iowa should not be admitted +into the Union. All of the essential qualifications for statehood were +present--a large and homogeneous population, wealth, _morale_, and +republican political institutions. Congress did not pass an adverse +judgment on the Constitution of 1844, since that instrument provided +for a government which was Republican in form and satisfactory +in minor details. Only one change was demanded, and that was in +relation to the proposed boundaries. Here Congress insisted upon the +_Nicollet boundaries_ as incorporated in the act of admission of March +3rd, 1845, in opposition to the _Lucas boundaries_ as provided for in +the Constitution of 1844. + + + + +XIII + +THE CONSTITUTION OF 1844 DEBATED +AND DEFEATED BY THE PEOPLE + + +While Congress was discussing the boundaries of Iowa and carefully +considering the effect which the admission of the new State might +possibly have upon matters of National concern, the Constitution of +1844 was being subjected to analysis and criticism throughout the +Territory. Moreover, it is interesting to note that the only provision +of the Constitution which was held up and debated in Congress was the +very one which was generally accepted by the people of the Territory +without comment. Whigs and Democrats alike were satisfied with the +_Lucas boundaries_. Nor did the people of Iowa at this time +think or care anything about the preservation of the "balance of +power." Their adoption of, and adherence to, the _Lucas boundaries_ +was founded upon local pride and commercial considerations. + +Opposition to the Constitution of 1844 was at the outset largely a +matter of partisan feeling. The Whigs very naturally opposed the +ratification of a code of fundamental law which had been formulated by +a Democratic majority. Then, too, they could not hope for many of the +Federal and State offices which would be opened to Iowans after the +establishment of Commonwealth organization. And so with genuine +partisan zeal they attacked the instrument from Preamble to Schedule. +Nothing escaped their ridicule and sarcasm. By the Democratic +press they were charged with "an intent to keep Iowa out of the Union, +so that her two Senators shall not ensure the vote of the United +States Senate to Mr. Polk at the next session." + +But the Whigs were not altogether alone in their opposition to the +proposed Constitution, not even during the early weeks of the +campaign. There was some disaffection among the Democrats themselves, +that is, among the radicals who thought that the new code was not +sufficiently Jeffersonian. The editor of the _Dubuque Express_, for +example, was severe in his criticisms, but he intimated that he would +vote for the Constitution in the interests of party discipline. The +_Bloomington Herald_, on the other hand, although a strong organ +of the Democracy, emphatically declared through its editorial columns +that "admission under the Constitution would be a curse to us as a +people." + +As a party, however, the Democrats favored the Constitution of 1844, +defended its provisions, and urged its adoption by the people. They +held that as a code of fundamental law it was all that could be +expected or desired, and with a zeal that equaled in every way the +partisan efforts of the Whigs they labored for its ratification at the +polls. + +An examination of the arguments as set forth in the Territorial press +reveals two classes of citizens who opposed ratification. First, there +were those who were hostile to the Constitution because they did not +want State government. Secondly, there were others who could not +subscribe to the provisions and principles of the instrument itself. + +The out-and-out opponents of State government continued to reiterate +the old argument of "Economy." They would vote against the +Constitution in order to prevent an increase in the burdens of +taxation. This argument of itself could not possibly have defeated +ratification, since there was at this time an overwhelming majority +who desired admission into the Union. And yet the plea of economy +(which always appealed strongly to the pioneers) undoubtedly +contributed somewhat to the defeat and rejection of the Constitution +of 1844. + +Prior to the first of March, 1845, opposition to ratification was +expressed chiefly in objections to the proposed Constitution. As +a whole that instrument was characterized as "deficient in style, +manner, and matter, and far behind the spirit of this enlightened +age." It could not even be called a code of fundamental law, since it +contained legislative as well as Constitutional provisions. It +confounded statute law with Constitutional law. + +In its detailed provisions and clauses the Constitution of 1844 was +still less satisfactory to the opponents of ratification. They seemed +to see everywhere running through the whole instrument erroneous +principles, inexpedient provisions, and confused, inconsistent, and +bungling language. They declared that the legislative, executive, and +judicial departments of the government were not sufficiently separate +and distinct. The principle of the separation of powers was +clearly violated (1) by giving to the Executive the power of veto, and +(2) by allowing the Lieutenant Governor to participate in the debates +of the Senate. Nor were the popular powers--namely, the powers of +sovereignty--always differentiated from the delegated powers--or, the +powers of government. + +The Constitution was roundly abused because it provided for the +election of the Judges of the inferior courts by the people. To the +minds of the critics the office of Judge was too sacred to be dragged +into partisan politics and through corrupting campaigns. Judges ought +not to be responsible to the people, but solely to their own +consciences and to God. Likewise, it was contrary to the principles of +efficient and harmonious administration to provide for the +popular election of the Secretary of State, Auditor of Public +Accounts, and Treasurer. Such positions should be filled by executive +appointment. + +Again, the Constitution was attacked because it provided for biennial +instead of annual elections. The salaries fixed for State officers +were "niggardly and insufficient." The method prescribed for amending +the Constitution was altogether too tedious and too uncertain. The +provisions relative to corporations were too narrow, since they +restrained the General Assembly from providing for internal +improvements. By requiring all charters of banks and banking +institutions to be submitted to a direct vote of the people, the +Constitution practically prevented the organization and establishment +of such institutions. + + + +Finally, objections were made to that section of the Bill of Rights +which provided that no evidence in any court of law or equity should +be excluded in consequence of the religious opinions of the witness. +To some it was horrifying to think of admitting the testimony of +non-believers and Atheists. + +Such were the arguments against ratification which were advanced by +the opponents of the Constitution of 1844. However, that instrument +was not so defective as pictured, since back of all objections and all +opposition was the mainspring of partisan politics. The Whigs were +bent on frustrating the program of the Democrats. Were they able to +defeat the Constitution on the issue of its imperfections? No, not +even with the assistance of the radical Democrats! But fortunately for +the cause of the opposition a new and powerful objection to +ratification appeared in the closing weeks of the campaign. The news +that Congress had, by the act of March 3, 1844, rejected the +boundaries prescribed by the Iowa Convention reached the Territory +just in time to determine the fate of the Constitution of 1844. + +A close examination of this act of Congress revealed the fact that the +fourth section thereof conditioned the admission of Iowa upon the +acceptance of the _Nicollet boundaries_ "by a majority of the +qualified electors at their township elections, in the manner and at +the time prescribed in the sixth section of the thirteenth article of +the constitution adopted at Iowa City the first day of November, anno +Domini eighteen hundred and forty-four, or by the Legislature of +said State." Moreover, it was found that the provisions of the +Constitution of 1844 just quoted read as follows: "This constitution, +together with whatever conditions may be made to the same by Congress, +shall be ratified or rejected by a vote of the qualified electors of +this Territory at the township elections in April next, in the manner +prescribed by the act of the Legislative Assembly providing for the +holding of this Convention: _Provided, however_, that the General +Assembly of this State may ratify or reject any conditions Congress +may make to this Constitution after the first Monday of April next." + +In the light of these provisions it appeared to the people of Iowa +that a vote cast for the Constitution would be a vote for the +Constitution as modified by the act of Congress. This view was +altogether plausible since no provision had been made for a separate +ballot on the conditions imposed by Congress. And so it was thought +that a ratification of the Constitution would carry with it an +acceptance of the _Nicollet boundaries_, while a rejection of the +Constitution would imply a decided stand in favor of the _Lucas +boundaries_. + +Those who during the fall and winter had opposed ratification now +renewed their opposition with augmented zeal. The Whigs turned from +their petty attacks upon the provisions of the Constitution to +denounce the conditions imposed by Congress. They declared that the +Constitution must be defeated in order to reject the undesirable +_Nicollet boundaries_. + + + +The boundary question now led a considerable number of the more +moderate Democrats to oppose ratification. Prominent leaders of the +party took the stump and declared that it would be better to reject +the Constitution altogether than to accept the limited boundaries +proposed by Congress. They declared that the "natural boundaries" as +prescribed by the Constitution should not be curtailed, and called +upon all good Democrats to vote down their own Constitution. Many, +however, continued to support ratification, believing that the +boundaries imposed by the act of Congress were the best that could be +obtained under the existing conditions. Augustus Dodge, the Iowa +Delegate in Congress, took this stand. + +When the Constitution of 1844 was before Congress Mr. Dodge had +stood firmly for the boundaries as proposed in that instrument. But on +the day after the act of March 3, 1845, had been signed by the +President, he addressed a letter to his constituents in Iowa advising +them to ratify the Constitution and accept the _Nicollet boundaries_ +as prescribed by Congress. Mr. Dodge thought that the State would +still be large enough. He knew that the country along the Missouri +river was fertile, but "the dividing ridge of the waters running into +the Mississippi and Missouri rivers, called the 'Hills of the +Prairie,' and which has been excluded from our new State, is barren +and sterile." He called attention to the fact that the boundaries +prescribed by Congress were those suggested by Mr. Nicollet, a United +States Geologist, "who had accurately and scientifically +examined the whole country lying between the Mississippi and Missouri +rivers." Then he pointed out the influences which operated in reducing +the boundaries, and concluded by saying: "Forming my opinion from +extensive inquiry and observation, I must in all candor inform you +that, whatever your decision on the first Monday in April next may be, +we will not be able hereafter under any circumstances to obtain _one +square mile more_ for our new State than is contained within the +boundaries adopted by the act of Congress admitting Iowa into the +Union." + +From the returns of the election it was evident that Mr. Dodge's +constituents either did not take him seriously or were sure that he +was mistaken in his conclusions. The Constitution of 1844 was +rejected by a majority of 996 votes. + +The result of the election was such as to "astound the friends of the +Constitution and to surprise everybody, both friend and foe." Those +who had labored for ratification throughout the campaign abused the +Whigs for opposing so perfect an instrument, censured the Convention +for submitting the Constitution to Congress before it had been +ratified by the people, and preferred general charges of +misrepresentation. The friends of the Constitution clamored loudly for +a resubmission of the code of fundamental law as it had come from the +Convention, so that the people might have an opportunity to pass upon +it free from conditions and without misrepresentation. Within a few +weeks the seventh Legislative Assembly of the Territory was to +meet in regular session. The members would be asked to give the +Constitution of 1844 another chance. + + + + +XIV + +THE CONSTITUTION OF 1844 REJECTED A SECOND TIME + + +On Monday the fifth day of May, 1845, the Legislative Assembly of the +Territory met in regular session. Three days later a message from +Governor Chambers was presented and read to the members, whereby they +were informed that the vote in April had certainly resulted in the +rejection of the Constitution. "And," continued the Governor, "there +is reason to believe that the boundary offered us by Congress had much +influence in producing that result." + +Believing that the rejection of the Constitution by the people called +for some action on the part of the Assembly, Governor Chambers +proposed and recommended "that the question be again submitted to the +people, whether or not they will at this time have a Convention." But +a majority of the Assembly were in favor of re-submitting the +Constitution of 1844 as it had come from the hands of the Convention. +A bill to re-submit was accordingly introduced and hurried through to +its final passage. + +A formal and solemn protest from the minority, signed by nine members +and entered on the journal of the House of Representatives, set forth +the leading objections to re-submission. 1. The Assembly had no +delegated power to pass such a measure. 2. The act was designed to +control rather than ascertain public sentiment. 3. The Constitution of +1844 had been _deliberately_ rejected by the people. 4. No memorial +indicating a change of opinion had been sent up by the people since +the election. 5. In the April election the people had not been misled; +they voted intelligently; and their ballots were cast against the +Constitution itself. The conditions imposed by Congress "doubtless had +influence in different sections of the Territory, both for and against +it. What was lost on the North and South by the change, was +practically made up by the vote of the center where the Congressional +boundaries are more acceptable than those defined in the +Constitution." 6. The question of territory being a "minor +consideration," the Constitution was rejected principally on account +of its inherent defects. 7. Under no consideration should the +Constitution of 1844 be again submitted to the people since it +embodied so many objectionable provisions. + +Although the bill for re-submission had passed both branches of the +Assembly by a safe majority, Governor Chambers did not hesitate to +withhold his assent. On June 6 he returned it to the Council. But it +is difficult to ascertain the precise grounds upon which the Governor +withheld his approval, since his message deals with conditions rather +than objections. In the first place he reviewed the conditions under +which the Constitution of 1844 had at the same time been submitted to +Congress and to the people of the Territory. Then he pointed out that, +whereas a poll was taken on the Constitution according to law, +no provision had been made for a separate poll on the conditions +imposed by Congress. This, he thought, produced such confusion in the +public mind as to cause the defeat of the Constitution. To be sure, he +had proposed and was still in favor of submitting the question of a +Convention to the people. But he would not now insist on such a +policy. He freely admitted that the Legislative Assembly had the power +to pass the measure before him. At the same time it seemed to him +that, should the Constitution of 1844 be re-submitted to the people, +it would simply give rise to confusion in attempts to reconcile and +harmonize the various provisions of the statutes of the Territory, the +act of Congress, and the Constitution. + +In the face of the Governor's veto the bill to re-submit the +Constitution passed both branches of the Assembly by the requisite +two-thirds majority, and on June 10, 1845, was declared by the +Secretary of the Territory to be a law. It provided "that the +Constitution as it came from the hands of the late Convention" be once +more submitted to the people for their ratification or rejection. It +directed that a poll be opened for that purpose at the general +election to be held on the first Monday of August, 1845. The votes of +the electors were to be given _viva voce_. Furthermore, it was +expressly provided that the ratification of the Constitution "shall +not be construed as an acceptance of the boundaries fixed by Congress +in the late act of admission, and the admission shall not be deemed +complete until whatever condition may be imposed by Congress, +shall be ratified by the people." + +Thus the people were again asked to pass upon the Constitution of +1844. The campaign of the summer of 1845 was very much like the +campaign of the spring. All of the leading arguments both for and +against the Constitution were repeated in the press and on the stump. +The parties divided on the same lines as before, except that the Whigs +in their opposition had the assistance of a much larger Democratic +contingent. + +One is surprised to find, in connection with the boundary question, +little or no mention of "slavery," the "balance of power," or the +"small State policy." Indeed the people of Iowa seemed wholly +indifferent to these larger problems of National Politics. It is +perhaps the most remarkable fact in the fascinating history of the +Constitution of 1844 that, in the dispute over boundaries, the parties +did not join issue on common grounds. Congress, on the one hand, +desired to curtail the boundaries of Iowa for the purpose of creating +a greater number of Northern States to balance the slave States of the +South; whereas the people of Iowa protested against such curtailment +not because of any balance-of-power considerations, but simply because +they wanted a large State which would embrace the fertile regions of +the Missouri on the West and of the St. Peters on the North. + +Augustus C. Dodge naturally received a good deal of criticism and +abuse about this time on account of his March letter advising +the acceptance of the boundaries proposed by Congress. By the Whigs he +was set down as "a deserter of the people's cause." Even the +Legislative Assembly, which was Democratic, resolved "that the +Delegate in Congress be instructed to insist unconditionally on the +Convention boundaries, and in no case to accept anything short of the +St. Peters on the North, and the Missouri on the West, as the Northern +and Western limits of the future State of Iowa." Mr. Dodge was not the +man to oppose the known wishes of his constituents; and so, after June +10, 1845, he was found earnestly advocating the larger boundaries. + +One of the most interesting phases of the campaign was a surprising +revelation in regard to the attitude and ambitions of the people +living in the Northern part of the Territory--particularly the +inhabitants of the city and county of Dubuque. In 1844 the people of +this region had been in favor of extending the boundary as far North +as the St. Peters; and in the Constitutional Convention of that year +Mr. Langworthy, of Dubuque, had gone so far as to advocate the +forty-fifth parallel of latitude as a line of division. But on April +26, 1845, the _Bloomington Herald_ declared that a proposition had +gone out from Dubuque to divide the Territory on the North by a line +running due West from the Mississippi between the counties of Jackson +and Clinton and townships eighty-three and eighty-four. Later it was +said that the _Dubuque Transcript_ was altogether serious in reference +to this proposed division. + + + +These charges were not without foundation; for the records of Congress +show that in May, 1846, the Speaker of the House of Representatives +"presented a memorial of the citizens of the Territory of Iowa north +of the forty-second degree of north latitude, praying for the +establishment of a new territorial government, extending from the +Mississippi river between the parallel of forty-two degrees and the +northern boundary line of the United States. Also a memorial of Thomas +McKnight and others, citizens of Dubuque county, in said Territory of +like import." + +The official returns of the August election showed that the +Constitution of 1844 had been rejected a second time. But the majority +against its ratification had been cut down by at least one half. Angry + with disappointment the editor of the _Iowa Capital Reporter_ +declared that its defeat was due to "the pertinacious and wilful +misrepresentation of the Whig press relative to the boundaries." + + + + +XV + +THE CONVENTION OF 1846 + + +When the members of the eighth Legislative Assembly of the Territory +of Iowa met in the Capitol on the first Monday of December, 1845, they +found that, as a result of the rejection of the Constitution of 1844, +they were face to face with the question which for six years had +confronted the pioneer law-makers of Iowa as the greatest political +issue of the Territorial period. They found that the whole problem of +State organization was before them for reconsideration. + +It was found also that Politics had worked some changes in the +government of the Territory. John Chambers, who upon the completion of +his first term as Governor had been promptly reappointed in 1844 by +President Tyler, was as cheerfully removed by President Polk in 1845. +And the Democracy of Iowa rejoiced over this manifestation of +Jacksonianism. They believed that they would now have a Governor after +their own heart--a Democrat who would have confidence in the people +and respect the acts of their representatives. To be sure, the first +Governor of the Territory of Iowa was a Democrat; but Robert Lucas had +been altogether too independent. He had presumed to point out and +correct the errors and blunders of the Assembly; whereas a true +Democratic Governor was one who did not lead, but always followed the +wisdom of the masses. + +James Clarke, the new Governor, was a citizen of Burlington and editor +of the _Territorial Gazette_. During his residence in the Territory he +had always taken an active part in Politics. In 1844 he served as a +Delegate in the Constitutional Convention. Before this he had acted as +Territorial Librarian; and for a short time he filled the office of +Secretary of the Territory. + +Governor Clarke regretted the fate of the Constitution which he had +helped to frame. In his message of December 3, 1845, he said: "Since +your adjournment in June last, a most important question has been +decided by the people, the effect of which is to throw us back where +we originally commenced in our efforts to effect a change in the form +of government under which we at present live.--I allude to the +rejection of the Constitution at the August election. This result, +however brought about, in my judgment, is one greatly to be +deplored.--That misrepresentation and mystification had much to do in +effecting it, there can be no doubt; still it stands as the recorded +judgment of the people; and to that judgment until the people +themselves reverse the decree, it is our duty to submit." + +As to recommendations in reference to this problem the Governor was +cautious. He favored State organization, because he thought that "the +prosperity of Iowa would be greatly advanced by her speedy +incorporation into the Union as a State." But he did not presume to +recommend a particular course of action; he simply assured the +Assembly of his hearty co-operation in any measure which might be +enacted looking toward the accomplishment of the desired end, that is, +the early admission of Iowa into the Union. + +Confident that the people of Iowa really desired State organization +and were anxious for its immediate establishment, the Legislative +Assembly passed a bill providing for the election of delegates to a +Constitutional Convention. This act, which was approved January 17, +1846, called for the election by the people of thirty-two delegates at +the township elections in April. The delegates were directed to meet +at Iowa City on the first Monday of May, 1846, "and proceed to form a +Constitution and State Government for the future State of Iowa." When +completed the draft of the code of fundamental law was to be +submitted to the people for ratification or rejection at the first +general election thereafter. If ratified by the people it was then to +be submitted to Congress with the request that Iowa be admitted into +the Union "upon an equal footing with the original States." Thus the +Legislative Assembly forestalled the possibility of a repetition of +the blunder of submitting to Congress a Constitution before it had +been passed upon by the people. There was no serious opposition to the +course outlined by the Assembly, for a large majority of the people +were now anxious to see the matter of State organization carried to a +successful conclusion. + +Owing to the absence of vital issues, the canvass preceding the +election of delegates was not what would be called an enthusiastic +campaign. There was of course a party struggle between the Whigs and +the Democrats for the seats in the Convention. But the Whigs, "aware +of their hopeless minority," advocated a "non-partisan election." They +clamored for a "no-party Constitution,"--one free from party +principles--for they did not want to see the Constitution of the State +of Iowa made the reservoir of party creeds. They contended, therefore, +that the delegates to the Convention should be chosen without +reference to party affiliations. + +The Democrats, however, were not misled by the seductive cry of the +Whigs. They proceeded to capture as many seats as possible. Everywhere +they instructed their candidates to vote against banks. When the +returns were all in it was found that they had elected more than +two-thirds of the whole number of delegates. + +Of the thirty-two delegates who were elected to seats in the +Convention of 1846, ten were Whigs and twenty-two were Democrats. +Fifteen of the members were born in the South, eight in the New +England States, four in the Middle States, and five in Ohio. Of those +born in the South six were from Kentucky, four from Virginia, three +from North Carolina, one from Alabama, and one from Maryland. The +eight members born in New England were four from Vermont and four from +Connecticut. The oldest member of the Convention was sixty-seven, the +youngest twenty three; while the average age of all was about +thirty-seven years. As to occupation, there were thirteen farmers, +seven lawyers, four merchants, four physicians, one mechanic, one +plasterer, one smelter, and one trader. + +It was on the morning of May 4, 1846, that the second Constitutional +Convention met in the rooms of the Old Stone Capitol at Iowa City. +Thirty names were entered on the roll. James Grant, a delegate from +Scott county who had served in the first Convention, called the +members to order. William Thompson (not a member) was appointed +Secretary _pro tem_. Such was the temporary organization. It lasted +but a few minutes; for, immediately after the roll had been called, +Enos Lowe, of Des Moines county, was chosen, _viva voce_, President of +the Convention. Mr. Thompson was retained as permanent Secretary, Wm. +A. Skinner was named as the Sergeant-at-Arms. At this point "the Rev. +Mr. Smith invoked a blessing from the Deity upon the future labors of +the Convention." This was the only prayer offered during the entire +session. Some time was saved by the immediate adoption of the rules of +the Convention of 1844. + +In the afternoon it was agreed to have six regular standing +Committees. These were: (1) On Boundaries and Bill of Rights; (2) On +Executive Department; (3) On Legislative Department, Suffrage, +Citizenship, Education, and School Lands; (4) On Judicial Department; +(5) On Incorporations, Internal Improvements, and State Debts; and (6) +On Schedule. + +It is unfortunate that only the barest fragments have been +preserved of what was said in the Convention of 1846. The official +journal and a few speeches are all that have come down to us. The +debates could not have been very long, however, since the entire +session of the Convention did not cover more than fifteen days. The +discussion for the most part was confined to those subjects upon which +there had been a marked difference of opinion in the earlier +Convention or which had received attention in the campaigns of 1845. +Indeed, the fact that Boundaries, Incorporations, Banks, Salaries, +Suffrage, Executive Veto, Elective Judiciary, and Individual Rights +were among the important topics of debate is evidence of a desire on +the part of the Convention to formulate a code of fundamental law that +would not meet with the criticisms which were so lavishly heaped +upon the Constitution of 1844. + +The Convention of 1846 was certainly in earnest in its desire to draft +a Constitution which would be approved by the people. Enos Lowe, the +President, had at the outset informed the members that they were +elected "to form a _new_ Constitution." But the attitude of the +Convention is nowhere better expressed than in the following action +which was taken on the eleventh day of May: "Whereas, In the opinion +of this Convention, it is all important that the Constitution formed +here at this time, be so framed as to meet with the approbation of a +majority of the electors of this Territory, therefore, + + "_Resolved_, That a committee of three be added to the Supervisory + Committee, whose duty shall be to enquire into the sectional + feelings on the different parts of a Constitution, and to report + such alterations as to them appears most likely to obviate the + various objections that may operate against the adoption of this + Constitution." + +By the nineteenth of May the Convention of 1846 had completed its +labors. In comparison with the Convention of 1844 its history may be +summed up in the one word, "Economy." The Convention of 1846 contained +thirty-two members; that of 1844, seventy-two. The former continued in +session fifteen days; the latter twenty-six days. The expenditures of +the second Convention did not exceed $2,844.07; while the total cost +of the first Convention was $7,850.20. Here then was economy in +men, economy in time, and economy in expenditures. The thrifty +pioneers were proud of the record. + + + + +XVI + +THE CONSTITUTION OF 1846 + + +The Constitution of 1846 was modeled upon the Constitution of 1844, +although it was by no means a servile copy of that twice rejected +instrument. Both codes were drawn up according to the same general +plan, and were composed of the same number of articles, dealing +substantially with the same subjects. The Constitution of 1846, +however, was not so long as the Constitution of 1844 and was +throughout more carefully edited. + +Article I. on "Preamble and Boundaries" does not contain the quotation +from the preamble of the Federal Constitution which was made a +part of the corresponding article in the Constitution of 1844. As to +boundary specifications, the only material difference is found in the +shifting of the line on the North from the St. Peters to the parallel +of forty-three and one half degrees of North latitude. This new +boundary was a compromise between the boundaries suggested by Lucas +and those proposed by Nicollet. + +The "Bill of Rights," which constitutes Article II., contained one +additional section, which aimed to disqualify all citizens who should +participate in dueling from holding any office under the Constitution +and laws of the State. + +Article III. on the "Right of Suffrage" reads the same as in the +Constitution of 1844, although in the Convention of 1846 a +strong effort had been made to extend this political right to resident +foreigners who had declared their intention of becoming citizens. + +Article IV. on the composition, organization, and powers of the +General Assembly contained four items which differed materially from +the provisions of the Constitution of 1844. First, it was provided +that the sessions of the General Assembly should commence on the first +Monday of January instead of on the first Monday of December. +Secondly, the Senate was to choose its own presiding officer. Thirdly, +all bills for revenue must originate in the House of Representatives. +Fourthly, the salaries for ten years were fixed as follows: for +Governor $1,000; for Secretary of State $500; for Treasurer $400; for +Auditor $600; and for Judges of the Supreme Court and District +Courts $1,000. + +Article V. on "Executive Department" differs from the corresponding +article in the Constitution of 1844 in that the office of Lieutenant +Governor is omitted, while the term of the Governor is made four years +instead of two. + +Article VI., which provides for the Judiciary, limits the term of the +Judges of the Supreme Court and District Courts to four years. + +Articles VII. and VIII. on "Militia" and "State Debts" respectively +are the same as in the earlier Constitution. + +Article IX. on "Incorporations" is a radical departure from the +provisions of the old Constitution. The General Assembly is empowered +to provide general laws with reference to corporations, but is +restrained from creating such institutions by special laws. At the +same time the article provides that "no corporate body shall hereafter +be created, renewed, or extended, with the privilege of making, +issuing, or putting in circulation, any bill, check, ticket, +certificate, promissory note, or other paper, or the paper of any +bank, to circulate as money. The General Assembly of this State shall +prohibit, by law, any person or persons, association, company or +corporation, from exercising the privileges of banking, or creating +paper to circulate as money." + +Article X. on "Education and School Lands" directs the General +Assembly to "provide for the election, by the people, of a +Superintendent of Public Instruction" and to "encourage by all +suitable means, the promotion of intellectual, scientific, moral and +agricultural improvement." + +Article XI. on "Amendments of the Constitution" provided but one +method of effecting changes in the fundamental law. The General +Assembly was empowered to provide at any time for a vote of the people +on the question of a Convention to "revise or amend this +Constitution." If a majority of the people favored a Convention, then +the General Assembly was to provide for the election of delegates. + +Article XII. contains three "miscellaneous" items relative to (_a_) +the jurisdiction of Justices of the Peace, (_b_) the size of new +counties, and (_c_) the location of lands granted to the State. + +Article XIII. on "Schedule" provided, among other things, that +the Governor should by proclamation appoint the time for holding the +first general election under the Constitution; but such election must +be held within three months of the adoption of the Constitution. +Likewise, the Governor was empowered to fix the day of the first +meeting of the General Assembly of the State, which day, however, must +be within four months of the ratification of the Constitution by the +people. + +It is, moreover, interesting to note that while the Constitution of +1844 prescribed in general outline a system of county and township +government, the Constitution of 1846 left the whole matter of local +government to future legislation. + + + + +XVII + +THE NEW BOUNDARIES + + +While the people of the Territory of Iowa were preparing for and +holding a second Constitutional Convention, and while they were +debating the provisions of the new Constitution of 1846, Congress was +reconsidering the boundaries of the proposed State. The matter had +been called up early in the session by the Iowa Delegate. + +Mr. Dodge, having been re-elected, returned to Washington with the +determination of carrying out his instructions so far as the boundary +question was concerned. And so, on December 19, 1845, he asked leave +to introduce "A Bill to define the boundaries of the State of +Iowa, and to repeal so much of the act of the 3rd of March, 1845, as +relates to the boundaries of Iowa." The original copy of this bill, +which has been preserved in the office of the Clerk of the House of +Representatives, bears testimony to Mr. Dodge's fidelity to promises +made to the people; for the description of boundaries therein is a +clipping from the Preamble of the printed pamphlet edition of the +Constitution of 1844. In discussing the question later in the session +he referred to his pledges as follows: "I know, Mr. Chairman, what are +the wishes and sentiments of the people of Iowa upon this subject. It +is but lately, sir, that I have undergone the popular ordeal upon this +question; and I tell you, in all candor and sincerity, that I +would not be in this Hall to-day if I had not made them the most +solemn assurances that all my energies and whatever influence I +possessed would be exerted to procure for them the fifty-seven +thousand square miles included within the limits designated in their +original constitution. It was in conformity with pledges that I had +given them personally, with instructions which I knew I had received +from them at the ballot-box, that I introduced, at an early day of the +present session, the bill imbodying the boundaries of their choice." + +It was not, however, until March 27, 1846, that Mr. Stephen A. +Douglas, from the Committee on the Territories to whom Mr. Dodge's +bill had been referred, reported an "amendatory bill." This +bill, which was introduced to take the place of the original bill, +rejected the boundaries of the Constitution of 1844 and proposed the +parallel of forty-three degrees and thirty minutes as the Northern +boundary line of the new State. It was committed to the Committee of +the Whole House on the State of the Union, wherein it was discussed on +the eighth of June and reported back to the House. On the ninth of +June the amendatory bill was taken up by the House and passed. It was +reported to the Senate without delay, but was not passed by that body +until the first day of August. On the fourth day of August the act +received the approval of President Polk. + +The most important discussion of the bill was in the House of +Representatives on the eighth day of June. An attempt was made +to reduce the State on the North. Mr. Rockwell, of Massachusetts, +moved to amend by striking out the words "forty-three and thirty +minutes" where they occur and inserting in lieu thereof "forty-two +degrees." He understood from a memorial which had been presented to +the House that the people in the Northern part of the Territory did +not wish to be included within the proposed boundaries. + +Mr. Douglas said that he was now in favor of the new boundaries as +proposed by the Committee on the Territories. He declared that the +boundaries of the act of March 3, 1845, "would be the worst that could +be agreed upon; the most unnatural; the most inconvenient for the +State itself, and leaving the balance of the territory in the +worst shape for the formation of other new States." As to the memorial +from Dubuque recommending the parallel of forty-two degrees, Mr. +Douglas said that he was aware of the influences which produced it. +The people of Dubuque "wished either for such an arrangement as should +cause Dubuque to be the largest town in a little State, or else to +make it the central town of a large State." + +Mr. Rathburn, of New York, was opposed to the lines laid down in the +bill. He favored less extensive boundaries because he desired to +preserve "the balance of power" in the Union by the creation of small +States in the West. He "was against making Empires; he preferred that +we should have States in this Union." + +Mr. Vinton, of Ohio, said that in the last session of Congress +"no question except that of Texas had excited more interest in the +House." He did not think that the people of the Territory should +decide the question of boundaries; and he asserted that "if Congress +was willing to let the people of Iowa cut and carve for themselves, he +did not doubt that they would have their State extend to the mouth of +the Columbia." + +The strongest speech, perhaps, in the whole debate was that of the +Iowa Delegate. Mr. Dodge reviewed the history of the boundary dispute +and pointed out that both he and the people of Iowa had pursued a firm +and honorable course. He showed that many of the States were as large +as or even larger than the proposed State of Iowa. Referring to the +boundary proposed in the act of March 3, 1845, he said: "It will +never be accepted by the people of Iowa." But he produced letters to +show that the Iowa Convention of 1846 were willing to accept the +compromise boundary proposed in the bill under discussion. "Thus, sir, +it is now apparent that, if the House will pass the bill reported by +the Committee on Territories, it will put an end to this question. +The convention of Iowa have met the advances of the Committee on +Territories of this House." + +Mr. Vinton then "moved an amendment, fixing the 43d parallel as the +northern boundary." This was a tempting proposition. But Mr. Dodge +stood firmly for the parallel of forty-three degrees _and thirty +minutes_, and closed his remarks with these words: "I admonish the +majority of this House that if the amendment of the gentleman from +Ohio is to prevail, they might as well pass an act for our perpetual +exclusion from the Union. Sir, the people of Iowa will never acquiesce +in it." + + +From the Journal of the Iowa Convention of 1846, it appears that when +the Committee on Preamble and Boundaries made their report on the +morning of the second day of the Convention they recommended the +compromise boundaries which had already been proposed by the Committee +on the Territories in the National House of Representatives. But when +the report was taken up for consideration several days later an +amendment was offered which proposed to substitute the boundaries as +described in the Constitution of 1844. On a test ballot the vote of +the Convention stood twenty-two to eight in favor of the amendment. +This was on the eighth of May. Six days later a resolution instructing +the Committee on Revision to amend the article on boundaries so as to +read as follows was adopted by a vote of eighteen to thirteen: + +"Beginning in the middle of the main channel of the Mississippi river, +at a point due east of the middle of the mouth of the main channel of +the Des Moines river; thence up the middle of the main channel of the +said Des Moines river, to a point on said river where the northern +boundary line of the State of Missouri, as established by the +Constitution of that State, adopted June 12th, 1820, crosses the said +middle of the main channel of the said Des Moines river; thence +westwardly, along the said northern boundary line of the State of +Missouri, as established at the time aforesaid, until, an extension of +said line intersects the middle of the main channel of the Missouri +river; thence, up the middle of the main channel of the said Missouri +river, to a point opposite the middle of the main channel of the Big +Sioux river, according to Nicollet's map; thence up the main channel +of the said Big Sioux river, according to said map, until it is +intersected by the parallel of forty-three degrees and thirty minutes +north latitude; thence east, along said parallel of forty-three +degrees and thirty minutes, until said parallel intersects the middle +of the main channel of the Mississippi river; thence down the +middle of the main channel of said Mississippi river to the place of +beginning." + +These were in substance the compromise boundaries which were first +proposed in Congress by the Committee on the Territories on March 27, +1846. Their precise description, however, was the work of the Iowa +Convention. Congress promptly adopted this description in the Act of +August 4, 1846, by striking out the words of the bill then pending and +inserting the language of the Iowa Convention as used in the Preamble +to their Constitution. + + + + +XVIII + +THE ADMISSION OF IOWA INTO THE UNION + + +When submitted to the people the Constitution of 1846 was vigorously +opposed by the Whigs who insisted that it was a party instrument. +Their attitude and arguments are nowhere better set forth than in the +address of Wm. Penn Clarke to the electors of the counties of +Muscatine, Johnson, and Iowa. Mr. Clarke had come to the conclusion, +after reading the proposed code of fundamental law, that its +ratification would "prove greatly detrimental, if not entirely ruinous +to the nearest and dearest interests of the people, by retarding the +growth of the proposed State, in population, commerce, wealth +and prosperity." This conviction led him to oppose the adoption of the +Constitution of 1846. + +First, he objected to the Constitution "because it entirely prohibits +the establishing of banking institutions,"--institutions which are +absolutely essential to the economic welfare and industrial +development of the State. He contended that this "inhibition of banks +is not an inhibition of bank paper as a circulating medium. . . . . +The question is narrowed down to the single point, _whether we will +have banks of our own, and a currency of our own creation, and under +our own control_, or whether we will become dependent on other States +for such a circulating medium . . . . By prohibiting the creation of +banks, we but disable ourselves, and _substitute_ a foreign +currency for a home currency. The effect of the article on +Incorporations will be to make Iowa the _plunder ground_ of all banks +in the Union." + +Secondly, Mr. Clarke opposed the adoption of the Constitution of 1846 +because of the provisions in the eighth and ninth articles. He +maintained that the article on State Debts was "tantamount to an +inhibition" of the construction of Internal Improvements by the State +government; while the article on Incorporations aimed to prohibit the +people from making such improvements. + +Thirdly, he protested against the "experiment" of an elective judicial +system, since the election of the judges "is calculated to disrobe our +Courts of Justice of their sacred character." Mr. Clarke would +not "deny the right or the competency of the people to elect their +judicial officers;" but he pointed out that the effect would be "to +place upon the bench _political partisans_," and "to elevate to the +judiciary second or third rate men in point of talents and legal +acquirements." + +Fourthly, the Constitution should be rejected because it contains no +provision securing to the people the right to elect their township and +county officers. Furthermore, it is "entirely silent with reference to +county and township organization." + +Fifthly, Mr. Clarke argued against the adoption of the Constitution +because "not a single letter can be stricken from it without calling a +Convention." He declared that the Democrats, after incorporating into +the Constitution "partizan dogmas," so formulated the article on +Amendments as to make their creed permanent. + +In the closing paragraphs of this remarkable arraignment of the +proposed Constitution, Mr. Clarke referred to local interests in +connection with the location of the State Capital. Iowa City, he said, +had been founded "with a view to its being the permanent Capital of +the State." But the new boundaries, proposed by the Committee on the +Territories, would, if adopted, threaten the permanency of the Iowa +City location. Indeed, Mr. Clarke went so far as to intimate that the +relocation of the Capital was a part of Mr. Dodge's program in +connection with the solution of the boundary problem. Curtailing the +State on the North and extending it at the same time to the Missouri +on the West meant the ultimate shifting of the Capital to the +Raccoon Forks. Mr. Clarke concluded the prophecy by saying that "to +quiet the center, we shall probably be promised a State University, or +something of that character, and then be cheated in the end." + +Such were the leading objections to the ratification of the +Constitution of 1846 as urged by the Whigs in the press and on the +stump. They were supported by the more conservative Democrats who +protested against the article on Incorporations and the article on +Amendments. A large majority of the people, however, were impatient +for the establishment of State organization. For the time they were +even willing to overlook the defects of the proposed Constitution. +Many voted for the instrument with the hope of remedying its +imperfections after admission into the Union had once been effected. + +The Constitution of 1846 narrowly escaped defeat. At the polls on +August 3, 1846, its supporters, according to the Governor's +proclamation, were able to command a majority of only four hundred and +fifty-six out of a total of eighteen thousand five hundred and +twenty-eight votes. + +On September 9, 1846, Governor Clarke, as directed by the Territorial +statute of January 17, 1846, issued a formal proclamation declaring +the ratification and adoption of the Constitution. In the same +proclamation, and in accordance with the provisions of the new +Constitution, the Governor designated "Monday, The 26th Day of October +Next" as the time for holding the first general election for +State officers. The returns of this election showed that the Democrats +had succeeded in electing Ansel Briggs, their candidate for Governor, +by a majority of one hundred and sixty-one votes. The same party also +captured a majority of the seats in the first General Assembly. + +Following the directions of the Schedule in the new Constitution, +Governor Clarke issued a proclamation on November fifth in which he +named Monday, November 30, 1846, as the day for the first meeting of +the General Assembly. On December second the Territorial Governor +transmitted his last message to the Legislature. + +It was on Thursday morning, December 3, 1846, that the Senators and +Representatives assembled together in the hall of the House of +Representatives in the Old Stone Capitol to witness the inauguration +of the new Governor. Here in the presence of the General Assembly +Judge Charles Mason, Chief Justice of the Supreme Court of the +Territory, administered the oath of office to the first Governor of +the State of Iowa. + +Twelve days after the inauguration of the State Governor at Iowa City, +Mr. Dodge presented to the House of Representatives at Washington a +copy of the Constitution of Iowa. The document was at once referred to +the Committee on the Territories, from which a bill for the admission +of Iowa into the Union was reported through Mr. Stephen A. Douglas on +December seventeenth. It was made a special order of the day for +Monday, December twenty-first, when it was debated and passed. +Reported to the Senate on the twenty-second, it was there referred to +the Committee on the Judiciary. This Committee reported the bill back +to the Senate without amendment. After some consideration it passed +the Senate on December twenty-fourth. Four days later it received the +approval of President Polk. The existence of Iowa as one of the +Commonwealths of the United States of America dates, therefore, from +the TWENTY-EIGHTH DAY OF DECEMBER, ONE THOUSAND EIGHT HUNDRED AND +FORTY-SIX. + +The act of admission declares that Iowa is "admitted into the Union on +an equal footing with the original States in all respects whatsoever," +and provides that all the provisions of "An Act supplemental to +the Act for the Admission of the States of Iowa and Florida into the +Union" approved March 3, 1845, shall continue in full force "as +applicable to the State of Iowa." The conditions contained in the +provisions of this act, which had been substituted by Congress in lieu +of the provisions of the Ordinance submitted by the Convention of +1844, were finally accepted by the General Assembly of the State in an +act approved January 17, 1849. + + + + +XIX + +THE CONVENTION OF 1857 + + +Throughout Iowa there was a very general feeling of satisfaction with +the new political status which came with the establishment of State +government and admission into the Union. Having outlived the +conditions of Territorial government the pioneers of Iowa now entered +into the new political life without regret. They rejoiced over the +fact that they were recognized as a part of a great Nation. They +appreciated the significance of the change. Nor were the pioneers of +Iowa strangers to National political life. As settlers on the Public +Domain they were in a very special sense children of the Nation. +They had always cherished the inheritances of the "Fathers." But now +the days of dependence were over. Henceforth this people of the +frontier would strengthen the whole country with their own political +ideas and ideals. They would, indeed, help to vitalize the Politics of +the Nation with the provincial spirit of Western Democracy. + +On the other hand, the people of Iowa did not accept their new State +Constitution without reservations. Wm. Penn Clarke's address had been +widely read and his arguments were accepted not alone by the Whigs. In +fact the Constitution of 1846 had not been adopted altogether on its +merits. The people were anxious to get into the Union, and they voted +for the Constitution as the shortest road to admission. They +meant to correct its errors afterwards. + +In 1848 the editor of the _Iowa City Standard_ asserted that the +Constitution of 1846 had been "accepted purely from motives of +expediency, and with a tacit understanding that it was to receive some +slight amendments as soon as they could constitutionally and legally +be made. And but for this it would have been rejected by a very +handsome majority. No well informed citizen can deny this." + +And so the Constitution of 1846 had scarcely been ratified at the +polls before an agitation looking toward its amendment or revision was +begun. As early as August 19, 1846, the _Iowa City Standard_ declared +that "three fourths of the people of Iowa have determined that, cost +what it may, the Ninth Article shall not remain unaltered in the +Constitution." + +During the first session of the General Assembly of the State a bill +providing for an expression of the opinion of the people of Iowa upon +the subject of amendment passed the House of Representatives, but was +indefinitely postponed in the Senate by a vote of ten to eight. This +was in February, 1847. In 1848 the question of Constitutional +amendment was made an issue in the political campaign. The Whigs +advocated amendment or revision; while the Democrats as a rule stood +for the Constitution as ratified in 1846. + +A bill providing for an expression of opinion by the people was again +introduced in the House of Representatives during the second session +of the General Assembly, but was indefinitely postponed after +the second reading. A similar bill was rejected by the House during +the third session. During the fourth regular session petitions +favorable to amendment were received from the people. + +In the meantime Stephen Hempstead was elected to the office of +Governor. He had been opposed to the agitation for Constitutional +revision, and in his first Message of December 7, 1852, he said: "I +cannot avoid a feeling of deep concern at the opinion expressed by +some portion of our fellow citizens in favor of amending the +Constitution of our State in such a manner as to authorize the +establishment of Banks--of special acts of incorporation for pecuniary +profit, and of contracting State debts without limitations of the +General Assembly." In the same document he urged "upon the +General Assembly the propriety of passing a law to prohibit the +circulation of all bank notes of a less denomination than ten +dollars." When he retired from office in December, 1854, he still +declared that he saw no "imperative reason why our Constitution should +be amended." But his successor, Governor Grimes, favored submitting +the question of revision and amendment to the people. + +The necessity for a Convention to revise the Constitution of 1846 had +become imperative. Iowa was flooded with a depreciated paper currency +from other States. Gold and silver money was scarce. The few pieces +which found their way into the State were hoarded either to pay taxes +or to pay for government land. + +Finally, "An Act providing for the revision or amendment of the +Constitution of this State" was passed by the fifth General Assembly +and approved by Governor Grimes, January 24, 1855. In accordance with +its provisions a poll was opened at the general election in August, +1856, "for the purpose of taking a vote of the people for or against a +convention to revise or amend the Constitution." On the tenth day of +September the Governor declared in his official proclamation that a +majority of eighteen thousand six hundred and twenty-eight votes had +been cast in favor of a Convention. + +In November, 1856, thirty-six delegates were elected to the Convention +which met in the Supreme Court room of the Old Stone Capitol at Iowa +City on January 19, 1857. Mr. Gray, of Linn County, called the +Convention to order and moved that John A. Parvin, of Muscatine, be +chosen President _pro tem_. On the following day Francis Springer was +elected President of the Convention. The other permanent officers were +as follows: Thomas J. Saunders, Secretary; Ellsworth N. Bates, +Assistant Secretary; S. C. Trowbridge, Sergeant-at-Arms; Francis +Thompson, Door Keeper; James O. Hawkins, Messenger; and W. Blair Lord, +Reporter. + +Of the thirty-six delegates, six were from the New England States, +eleven from the Middle States, ten from the South, and nine from the +Middle West. As to occupation there were fourteen lawyers, twelve +farmers, two merchants, two dealers in real estate, two bankers, one +book-seller, one mail contractor, one druggist, and one +pork-packer. The youngest member was twenty-six, the oldest fifty-six; +while the average age of all the members was forty years. Twenty-one +of the thirty-six members were Republicans; the other fifteen were +Democrats. + +Early in the session of the Convention of 1857 there appeared to be +considerable dissatisfaction with the accommodations afforded at Iowa +City. The General Assembly had not yet adjourned, and so the +Convention was compelled to meet for a few days in the Supreme Court +room. Some of the members complained of the hotel service, and +declared that they had not been welcomed with proper courtesy and +hospitality by the people of Iowa City. At the same time the +Convention received alluring invitations from Davenport and +Dubuque. A committee of five was appointed to whom these invitations +were referred. The report of this committee provoked a lively debate +which Wm. Penn Clarke desired to have suppressed in the published +reports. The result of the discussion was that the Convention +concluded to remain in Iowa City. + +On the second day the members took an oath to support the Constitution +of the United States. Some desired to include in this oath the +Constitution of the State of Iowa; but the majority did not think it +proper to swear allegiance to a Constitution which the Convention was +called upon to amend, revise, or perhaps reject altogether. + +The act of January 24, 1855, calling for the Convention, +provided for "the revision or amendment of the Constitution." Many +would have been satisfied with a few amendments. The Convention, +however, proceeded to draft a completely revised code of fundamental +law. The two large volumes of printed reports show that the principles +of Constitutional Law were discussed from Preamble to Schedule. + +The most important question before the Convention of 1857 was that of +Corporations in general and of banking Corporations in particular. The +Republican majority was pledged to make provisions for a banking +system of some sort. But the popular mind had not decided whether +there should be a State bank with branches, or a free banking system +under legislative restrictions, or both. Difficult and intricate +as the problem was, the Iowa Convention handled it, nevertheless, with +energy and rare ability. The debates show that the laws and experience +of the other States were carefully studied. Nor were local conditions +and local experience forgotten. The discussions were long, earnest, +and often heated; but at no time did the Iowa Convention lose its +political sanity. That political poise which, in the long run, has +always characterized Iowa Politics was maintained throughout the +session. + +As finally agreed upon in the Convention, the provisions of the new +Constitution relative to banking Corporations were in substance as +follows: (1) The power to make laws relative to Corporations was +conceded to the General Assembly. (2) But acts of the General Assembly +authorizing or creating Corporations with banking powers must be +referred to the people for their approval at a general or special +election. (3) The General Assembly was empowered to establish "a State +Bank with branches." But such a bank, if established, "shall be +founded on an actual specie basis, and the branches shall be mutually +responsible for each others' liabilities upon all notes, bills, and +other issues intended for circulation as money." (4) The General +Assembly may provide by a general law for a free banking system under +certain restrictions. (_a_) Provision shall be made "for the registry +and countersigning, by an officer of State, of all bills, or paper +credit designed to circulate as money," and the law shall "require +security to the full amount thereof, to be deposited with the +State Treasurer, in United States stocks, or in interest-paying stocks +of States in good credit and standing." (_b_) Records shall be kept of +the names of stockholders and of the stock held by each. (_c_) Every +stockholder shall be individually liable for an amount equal to twice +the amount of his stock. (_d_) In cases of insolvency bill-holders +shall have a preference over other creditors. (_e_) The suspension of +specie payments shall never be permitted or sanctioned. (5) By a vote +of two thirds of each branch of the General Assembly all laws for the +organization or creation of Corporations could be amended or repealed. +(6) The State shall not become a stockholder in any Corporation. + +Next in importance to the question of Corporations was the Negro +problem. Shall the public schools of the State be open to +persons of color? Shall the Constitution guarantee to all persons, +irrespective of color, the right to acquire, hold, and transmit +property? Shall the testimony of Negroes be accepted in the courts? +Was the militia to be composed exclusively of "able-bodied white male +citizens?" Shall the right of suffrage be extended to Negroes? It was +in respect to these vital questions of the hour that the Republican +majority in the Convention was compelled to declare and defend its +attitude. + +The fact that the Republican party of Iowa was thus being put on trial +for the first time makes the debates of the Convention of 1857 +memorable in the political annals of the State. But these Iowa +Republicans were at the same time defining and defending the +attitude of their party on National issues; and so the debates of the +Iowa Convention are a source-book also in the broader history of +America. + +No one can read the pages of these debates without feeling that Iowa +was making a decided contribution to National Politics. Nearly four +years before the "Divided House Speech" was delivered at Springfield, +Illinois, Governor Grimes had said in his inaugural address: "It +becomes the State of Iowa--the only free child of the Missouri +Compromise--to let the world know that she values the blessings that +Compromise has secured her, and that she will never consent to become +a party to the nationalization of slavery." And full two years before +Lincoln defined the attitude of his party in the Lincoln-Douglas +debates, it had gone forth from the Iowa Convention, (1) that the +Republican party was not a sectional party; (2) that Abolition was not +a part of the Republican creed; and (3) that, while they would arrest +the further extension of slavery, Republicans had no desire to +interfere with the institution in places where it already existed. + +The question as to whether the Negro should be allowed to vote in Iowa +was referred to the people to be decided by them when the Constitution +itself was submitted for ratification. + +Another question of interest which provoked considerable discussion in +the Convention was the location of the State University and the +re-location of the Capital. This problem had already been solved by + the General Assembly. But to prevent further agitation by making +the compromise permanent the following section was added to the new +Constitution: "The Seat of Government is hereby permanently +established, as now fixed by law, at the city of Des Moines, in the +county of Polk, and the State University at Iowa City, in the county +of Johnson." + +After a session of thirty-nine days the third Constitutional +Convention in the history of Iowa adjourned _sine die_ on Thursday, +March 5, 1857. + + + + +XX + +THE CONSTITUTION OF 1857 + + +The code of fundamental law which was drafted by the Convention of +1857 was modeled upon the Constitution of 1846, as this instrument had +previously been patterned after the Constitution of 1844. Perhaps it +would be better to say that the Constitution of 1857 was simply a +revision of the Constitution of 1846. The later document, however, is +fuller and altogether more complete and more perfect than its +precursors. + +The changes which had been effected in the fundamental law were summed +up by the President of the Convention in his closing remarks as +follows: "We have added some new and important guards for the security +of popular rights, and for the promotion of the best interests of the +social compact. Restrictions existed in the old constitution, which it +is believed have operated to check and retard the energies and +prosperity of the State. These we have removed. We have stricken the +fetters from the limbs of the infant giant, and given free scope to +resources, capable as we believe, of working out the highest results." + +Some important additions were made to the Bill of Rights. Section four +declares that the testimony of any person (including Negroes), not +disqualified on account of interest, may be taken and used in any +judicial proceeding. Section six provides that the "General Assembly +shall not grant to any citizen, or class of citizens, privileges +or immunities, which, upon the same terms, shall not equally belong to +all citizens." To section nine is added the classical declaration that +"no person shall be deprived of life, liberty, or property, without +due process of law." Section twenty-four, which is altogether new, +provides that "no lease or grant of agricultural lands, reserving any +rent, or service of any kind, shall be valid for a longer period than +twenty years." + +In Article III. the date of the regular biennial session of the +General Assembly is changed from the first Monday in December to "the +second Monday in January next ensuing the election of its members." +Section fifteen provides that bills (including those for revenue) may +originate in either House of the General Assembly. But, +according to Section seventeen, "no bill shall be passed unless by the +assent of a majority of all the members elected to each branch of the +General Assembly." Furthermore, the cases in which the General +Assembly is prohibited from passing local or special laws are +specifically enumerated in section thirty. + +The most significant change or addition in the article on the +"Executive Department" is the provision for a Lieutenant Governor. + +The article on the Judicial Department provides for the election of +the Judges of the Supreme Court by the people instead of by the +General Assembly. By the same article provision is made for "the +election of an Attorney General by the people." + + + +The article on "State Debts" is more explicit and more guarded, but +permits the State to contract debts which, however, "shall never +exceed the sum of two hundred and fifty thousand dollars." + +Article VIII. removes the illiberal restrictions which had been placed +by the Constitution upon Corporations--especially banking +Corporations. And Article X. makes the process of amending the +fundamental law altogether more flexible. + +The Board of Education, provided for in Article IX., was an +innovation. As a system of educational control it proved +unsatisfactory and was soon abolished by the General Assembly. + +The new Constitution was submitted to the people for ratification at +the regular annual election which was held on Monday, August 3, +1857. Naturally enough the Democrats, who had been in the minority in +the Convention of 1857, opposed the adoption of this "Republican +code." The Republican party, however, now had the confidence of the +people and were able to secure its ratification by a majority of +sixteen hundred and thirty votes. At the same time the special +amendment which proposed to extend the right of suffrage to Negroes +failed of adoption. + +On September 3, 1857, Governor James W. Grimes declared the "New +Constitution" to be "the supreme law of the State of Iowa." + + + + + + + +End of the Project Gutenberg EBook of History of the Constitutions of Iowa, by +Benjamin F. 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