[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

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."