Title: History of the Constitutions of Iowa
Author: Shambaugh, Benjamin F.
Language: English
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*** Start of this LibraryBlog Digital Book "History of the Constitutions of Iowa" ***


[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."





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