History of the constitutions of Iowa

S TO 33, IT

OF THE

iflSil

UNIVERSITY OF CALIFORNIA
AT LOS ANGELES

HISTORY

OK THE

CONSTITUTIONS OF IOWA

BENJAMIN F. SHAMBAUGH, PH.D.

PROFESSOR OF POLITICAL SCIENCE IN
THE UNIVERSITY OF IOWA

PUBLISHED BY

THE HISTORICAL DEPARTMENT OK IOWA

DBS MOINES, IOWA

1902

1902,

TO HIS FRIEND

CHARLES ALDRIGH

FOUNDER AND CURATOR OF

*> THE HISTORICAL DEPARTMENT OF IOWA

THIS VOLUME IS GRATEFULLY DEDICATED

BY THE AUTHOR

1.93!:

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 Com-
monwealth 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 pub-
lication 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 authori-

VI PREFACE

ties. For the original sources upon which
the essay is largely based the reader is
referred to the author's collections of docu-
mentary materials which have been pub-
lished 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 Consti-
tution 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 obliga-
tions to his friend and colleague, Professor
W. C. Wilcox, of the University of Iowa,
who has carefully read the proof-sheets of

the whole volume.

BENJ. F. SHAMBAUGH.

UNIVERSITY OF IOWA
JULY, 1902

CONTENTS

I. INTRODUCTION i

II. A DEFINITION 8

III. THE CONSTITUTION MAKERS .... 13

IV. SQUATTER CONSTITUTIONS 30

V. THE TERRITORY OF WISCONSIN . . 66

VI. THE TERRITORY OF IOWA 81

VII. THE CONSTITUTION OF THE TERRITORY 105

VIII. THE CONSTITUTION OF THE TERRITORY

AMENDED 126

IX. AGITATION FOR A STATE CONSTITUTION 145

X. THE CONVENTION OF 1844 175

XI. THE CONSTITUTION OF 1844 .... 228

XII. THE CONSTITUTION OF 1844 SUBMITTED

TO CONGRESS 242

XIII. THE CONSTITUTION OF 1844 DEBATED

AND DEFEATED BY THE PEOPLE . . 256

XIV. THE CONSTITUTION OF 1844 REJECTED

A SECOND TIME 273

XV. THE CONVENTION OF 1846 .... 285

XVI. THE CONSTITUTION OF 1846 299

XVII. THE NEW BOUNDARIES 306

XVIII. THE ADMISSION OF IOWA INTO THE UNION 318

XIX. THE CONVENTION OF 1857 329

XX. THE CONSTITUTION OF 1857 . . . . 347

AN HISTORICAL ESSA Y

I

INTRODUCTION

THREE score years and ten after the decla-
ration went forth from Independence Hall
that "all men are created equal," and fif-
teen 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 Com-
promise," 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.

2 THE CONSTITUTIONS OF IOWA

To search out the origin, to note the
progress, to point to the causes, and to
declare the results of this marvelous popu-
lar 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 Amer-
ica" by von Hoist'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

THE CONSTITUTIONS OF IOWA 6

has scarcely anywhere been more than sug-
gested. 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 exhaust-
ively of the Colonies ; Fiske has illuminated
the Revolution and portrayed the ' ' Critical
Period;" Frothingham has narrated the
"Rise of the Republic;" Parkman has viv-
idly pictured events in the Northwest; Mc-
Master has depicted the life of the people;
von Hoist 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

4 THE CONSTITUTIONS OF IOWA

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 his-
tory 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 De-
mocracy can be divined the forest must be
explored and the underbrush cleared away.

This is not a plea for localism or par-
ticularism. 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 lleports, the Journals of Congress,
and the Archives of the Departments at

^

Washington.

The real life of the American Nation
spreads throughout forty-five Common-
wealths. It is lived in the commonplaces
of the shop, the factory, the office, the
mine, and the farm. Through the Com-
monwealths the spirit of the Nation is
expressed. Every American community,
however humble, participates in the for-
mation and expression of that spirit.

Thus the real significance of the Com-
monwealth in any philosophical considera-
tion depends not so much upon its own
peculiar local color as upon the place which

6 THE CONSTITUTIONS OF IOWA

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 Com-
monwealth has grown to maturity, has
been admitted into the Union, and now by
common consent occupies a commanding
position in National Politics. It is, more-
over, from the view -point of these larger
relations that the political and constitu-
tional history of Iowa will ultimately be
interpreted. No amount of interest in
merely local incident or narration of per-
sonal episode will suffice to indicate the
import of Iowa's political existence. He
who essays to write the history of this Com-
monwealth must ascend to loftier heights.

To narrate briefly the history of the Con-
stitutions of Iowa, and therein to suggest,

THE CONSTITUTIONS OF IOWA 7

perhaps, somewhat of the political ideals
of the people and the place which this
Commonwealth occupies politically in the
progressive history of the larger Common-
wealth 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 liter-
ature of Political Science alone has at least
three distinct meanings corresponding to
the three points of view, that is, the phi-
losophical, the historical, and the legal.

From the view -point of Political Phi-
losophy the word "Constitution," stands for
the fundamental principles of government.

THE CONSTITUTIONS OF IOWA 9

It is the sum (1) of the general and basic
principles of all political organization by
which the form, competence, and limita-
tions 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 prin-
ciples of government.

But from the view-point of Historical
Politics this word has a different connota-
tion. Consider, for example, the political
literature that appears under such head-
lines as "Constitutional History" or the
"History of Constitutional Government."
Here Constitution means not abstract philo-
sophic principles of Government, but con-
crete political phenomena, that is, political

10 THE CONSTITUTIONS OF IOWA

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 con-
vention, 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 Juris-
prudence 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 Amer-
ica) for a written instrument which is look-
ed upon "as the absolute rule of action
and decision for all departments and officers
of government and in opposition to

THE CONSTITUTIONS OF IOWA 11

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 unim-
portant. But to the American Jurist all
that finds expression in the written docu-
ment labeled "Constitution" is Constitu-
tional Law. Accordingly, he defines the
Constitution as the written or codified body
of fundamental law in accordance with
which government is instituted and admin-
istered.

It is as a code or text of fundamental
law that the word "Constitution" is used

12 THE CONSTITUTIONS OF IOWA

in the title of these pages. This is not a
philosophical discussion of the ultimate
principles of our government, nor an out-
line 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.

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 cur-
rent 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 con-
ceived, born, and evolved. A Constitution

14 THE CONSTITUTIONS OF IOWA

is a social product. It is the embodiment
of popular ideals.

And so the real makers of the Constitu-
tions 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 pos-
session 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

THE CONSTITUTIONS OF IOWA 15

dared much, endured much, and through
the wildernesses lighted the way for a west-
ward-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 Vir-
ginia and the Carolinas, from Georgia,
Kentucky and Tennessee, and from the
newer States of Ohio and Indiana. It is

16 THE CONSTITUTIONS OF IOWA

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 Terri-
tory 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,

THE CONSTITUTIONS OF IOWA 17

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 "com-
munities " or "neighborhoods." They
were the original social and political units
out of the integration of which the Com-
monwealth was later formed.

But the vital facts touching the pioneers
of Iowa are not of migration and settle-
ment. In political and constitutional evolu-

18 THE CONSTITUTIONS OF IOWA

tion 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 re-
specting the early settlers of Iowa. Cal-
houn 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

THE CONSTITUTIONS OF IOWA" 19

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 ' ' law-
less rabble" on the outskirts of civilization.
To them the first settlers were ' ' lawless in-
truders" on the public domain, "land rob-
bers," "fugitives from justice," and "idle
and profligate characters." Squatters, they
held, were those "who had gone beyond
the settlement and were wholly reckless of

20 THE CONSTITUTIONS OF IOWA

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 mis-
taken? 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

THE CONSTITUTIONS OF IOWA 21

acquired territories. With very few excep-
tions there is not a more orderly, indus-
trious, 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 every-
thing 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 squat-
ters ; 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

22 THE CONSTITUTIONS OF IOWA

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 posi-
tively 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 squat-
ters of Iowa were as a class neither idle,
nor ignorant, nor vicious. They were rep-
resentative 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

THE CONSTITUTIONS OF IOWA 23

were young, strong, and energetic men —
hardy, courageous, and adventurous. Car-
ing 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 distin-
guished especially for their general intelli-
gence, 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.

24 THE CONSTITUTIONS OF IOWA

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

THE CONSTITUTIONS OF IOWA 25

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 dis-
card inherited political and social ideas.
The key to the character of the pioneer is
the law of the adaptation of life to environ-
ment. 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 hun-

26 THE CONSTITUTIONS OF IOWA

dreds 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 Com-
monwealth.

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

THE CONSTITUTIONS OF IOWA 27

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 philos-

28 THE CONSTITUTIONS OF IOWA

ophy of expediency. Government, they
concluded, was after all a relative affair.

u 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 gov-
ernment that sold him land for $1.25 an
acre. He was always for the Union, so

•/ e/

that in after years men said of the Com-
monwealth 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, un-
pretentious— genuine. The frontier fos-
tered the sympathetic attitude. It made
men really democratic and in matters polit-
ical led to the three -fold ideal of Equality

THE CONSTITUTIONS OF IOWA 29

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 u By-Laws" of the squatters as polit-
ical 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 conven-
tions; 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 mon-

THE CONSTITUTIONS OF IOWA 31

uments for illustrations of these truths;
for in the early political history of Iowa
there is a recurrence of the process of insti-
tutional 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 govern-
ment.

Absence of legislative statutes and ad-
ministrative 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 begin-
ning 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

32 THE CONSTITUTIONS OF IOWA

usages into "Constitutions," "Resolutions,"
and "By -Laws." Crude, fragmentary, and
extra- legal as were their codes, they never-
theless stand as the first written Constitu-
tions 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 sig-
nificance 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

THE CONSTITUTIONS OF IOWA 33

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 pro-
vided : ' 'That if any person or persons shall,
after the passing of this act, take posses-
sion 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,

34 THE CONSTITUTIONS OF IOWA

which lands shall not have been previously
sold, ceded, or leased by the United States,
or the claim to which lands, by such per-
son or persons, shall not have been pre-
viously 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

THE CONSTITUTIONS OF IOWA 35

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

36 THE CONSTITUTIONS OF IOWA

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 re-
cently 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."

THE CONSTITUTIONS OF IOWA 37

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 doubt-
ful 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

19331

38 THE CONSTITUTIONS OF IOWA

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 deter-
mining 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 estab-
lished! Hundreds and thousands of im-
provements 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

THE CONSTITUTIONS OF IOWA 39

first of the public land sales were held at
Dubuque and Burlington.

These marginal or frontier settlers
(squatters, as they were called) were be-
yond 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 condi-
tions 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 associa-
tions. Nearly every community in early
Iowa had its local club or association.
It is impossible to give definite figures, but

40 THE CONSTITUTIONS OF IOWA

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 "Reminis-
cences" 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 CONSTITUTIONS OF IOWA 41

The materials of this now famous manu-
script, which are clear and complete, were
arranged as follows: I. Constitution and
Laws; II. Minutes of Meetings; III. Record-
ed 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 sec-
tions, and over twenty-five hundred words.

Article I. fixes the name of the Associa-
tion, 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 boundrys .... and
two Marshalls." All of the officers were
elected annually.

42 THE CONSTITUTIONS OF IOWA

Article II. relates to "sallerys." It
provides that " tlie 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 indi-
cates 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 CONSTITUTIONS OF IOWA 43

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 be-
come 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 con-
stitution or laws of the association unless
he is a resident citizen of the county and a
claimholder, nor shall any member be en-
titled 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

44 THE CONSTITUTIONS OF IOWA

association may be altered at the semianual
meetings and at no other meetings pro-
vided, 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 un-
altered"

By the same article semi-annual meetings
of the Association are provided for in sec-
tion 3. Section 5 declares that "all per-
sons who have resided within the limits of
the County for Two months, shall be recog-
nized 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

THE CONSTITUTIONS OF IOWA 45

making claims to expend in improvements
on each claim lie 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 per-
son 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 1 1 the members
pledge their "honours" for the "faithful
observance and mantanauce" of the Con-
stitution by subscribing their names to the
written document.

In addition to the Constitution, Resolu-
tions 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

46 THE CONSTITUTIONS OF IOWA

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 pre-
sumption 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 diffi-
culty growing out of the circumstance of
persons extending their improvements acci-
dentaly on the claims of others before the
Lines were run thereby giving the first
setlr an opportunity or advantage of Pre-
emption over the rightful owner that any
person who hold such advantages shall

THE CONSTITUTIONS OF IOWA 47

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 at-
tended 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 remark-
able 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

48 THE CONSTITUTIONS OF IOWA

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 Eapid
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

THE CONSTITUTIONS OF IOWA 49

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 £
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

50 THE CONSTITUTIONS OF IOWA

Costly a certain claim lying on the E side of
Rapid Creek boundrys of said claim as iol-
lows commencing at a white Oak tree stand-
ing about 80 Rods below the upper forks of
Rapid Creek thence running south ^ mile
thence E 1 mile to a stake standing on the
Prairie near 2 Trees, thence N £ 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 Govern-
ment and also singular all rights claims <fe
Interests to said claim for and in concidera-
tion 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

THE CONSTITUTIONS OF IOWA 51

out Eight or Ten hundred rails all included
for the receipt above mentioned.
Receipt. Johnson County. I. T. Jan-
uary 25, 1841

JAMES WILLIAMS [SEAL]
Witness

CORNELIUS KENYAN

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

52 THE CONSTITUTIONS OF IOWA

draft a ' ' code of laws, ' ' and the following
motions were passed:

4 '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:

THE CONSTITUTIONS OF IOWA 53

Resolved 1st. That every person that is
an Actual claimant is entitled to hold 320
Acres of land until such time as it conies
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 liv-
ing up to the requirements of these laws

54 THE CONSTITUTIONS OF IOWA

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 llth. That the duty of the
Chairman is to call to order, put all ques-

THE CONSTITUTIONS OF IOWA 55

tions, give the casting vote when there is a
tie, <fec. <fec.

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 Win.
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
SivelLaw."

56 THE CONSTITUTIONS OF IOWA

In the Iowa News of March 28, 1838,
was printed "The Constitution of the
Citizens of the North Fork of the Maquo-
keta, 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 expedi-
ent 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.

THE CONSTITUTIONS OF IOWA 57

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 pre-
side as Chairman, and to receive complaint
and to appoint a Committee of three from
the Great Committee, to settle all difficul-
ties 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 Secre-
tary, whose duty it shall be to keep a cor-
rect Journal of the acts and proceedings of
each and every meeting, and register all

58 THE CONSTITUTIONS OF IOWA

claims in a book kept by him for that pur-
pose, who shall receive the sum of 25 cents
for the registering of each and every claim.

Art. 5. There shall be elected a com-
mittee 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 num-
bers 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 CONSTITUTIONS OF IOWA 59

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 com-
plaint until they first subscribe to this Con-
stitution.

Art. 10. All committees that shall sit
or act under this constitution, shall deter-
mine in their decision and declare which
party shall pay the costs, and each declara-
tion 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 immedi-
ately 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,

60 THE CONSTITUTIONS OF IOWA

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: Pro-
vided, 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

THE CONSTITUTIONS OF IOWA 61

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, hav-
ing 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 prac<

62 THE CONSTITUTIONS OF IOWA

ticable for the settlers to go upon the pub-
lic 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 pur-
chase their improved land from the Govern-
ment at the minimum price of $1. 25 an acre.

Thirdly, they afforded bona fide settlers
adequate protection in the peaceable posses-
sion and enjoyment of their homes with-
out 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.

THE CONSTITUTIONS OF IOWA 63

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 condi-
tions, social and economic, of the commun-
ity, (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 dis-
posing of the public lands. The principles
of the most important legislation of Con-

64 THE CONSTITUTIONS OF IOWA

gress relative to the public domain came
from the frontier. A comparison of the
customs of the squatters with the pro-
visions of the pre-emption and home-
stead 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 home-
stead exemptions. Is it not reasonable to
suggest that the emphasis which frontier
life and customs placed upon the impor-
tance 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

THE CONSTITUTIONS OF IOWA 65

citizen of the Government, it is proper lie
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 condi-
tions 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 constitu-
tional 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

THE CONSTITUTIONS OF IOWA 67

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
1 'attached to, and made a part of, the ter-
ritory 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 funda-
mental law of a people, not of a geograph-

68 THE CONSTITUTIONS OF IOWA

ical 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 nomi-
nal than real. This is true notwithstand-
ing the fact that the archives of the Terri-
tory of Michigan show that the Governor

THE CONSTITUTIONS OF IOWA 69

and the Legislative Council made a serious
attempt to provide for and put into opera-
tion local constitutional government. In
his message of September 1, 1834, ad-
dressed to the Legislative Council, Gov-
ernor Mason referred to the inhabitants
as "an intelligent, industrious and enter-
prising people," who, being "without the
limits of any regularly organized govern-
ment, 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 Judici-
ary, and incorporated into ' ' An Act to lay

70 THE CONSTITUTIONS OF IOWA

off and organize counties west of the Mis-
sissippi River." This act, which was ap-
proved September 6th, to go into effect
October 1st, organized the Iowa country to
which the Indian title had been extin-
guished in June, 1833, into the counties of
Dubuque and Demoine. It also provided
that each county should constitute a town-
ship, and that the first election for town-
ship 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 Terri-
tory of Michigan uby and with the con-
sent of the Legislative Council." Letters

THE CONSTITUTIONS OF IOWA 71

and petitions addressed to the Governor
are evidence that the people did not hesi-
tate 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 recom-
mending 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, ex-
pressed the ' ' hope that a commission will be
prepared and sent as early as practicable. "
The records show that Mr. Gillilan was

72 THE CONSTITUTIONS OF IOWA

subsequently appointed by the Governor.
So much for the public archives of the
Territory of Michigan respecting the polit-
ical 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 re-
spectable State, was included in the coun-
ties Dubuque and Demoine. In each of
these two counties there were holden, dur-
ing 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 CONSTITUTIONS OF IOWA 73

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 jurisdic-
tion, 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 impor-
tance to the people west of the Mississippi."

On the ^floor of Congress, Mr. Patton of

74 THE CONSTITUTIONS OF IOWA

Virginia "adverted to the peculiar situa-
tion of the inhabitants of that Territory
[the Territory which was soon afterwards
organized as Wisconsin] they being with-
out 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 west-
ern Wisconsin "are now, and have ever
been, without the pale of judicial tribu-
nals." He "stated that he did not know
of a single set of the laws of the United
States within the bounds of the contem-
plated 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 CONSTITUTIONS OF IOWA 75

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 con-
dition of the people. Writing early in
1836, he said: "It is a matter of some

76 THE CONSTITUTIONS OF IOWA

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 squat-
ters 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
ua separate Territory," for the purposes

THE CONSTITUTIONS OF IOWA 77

of temporary government, and (2) that our
first code or text of fundamental law, that
is to say, the first Constitution of Iowa was
1 'An Act establishing the Territorial Gov-
ernment 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 pro-
viding 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 constit-
uent part thereof. The area of Wisconsin
Territory west of the Mississippi was far

78 THE CONSTITUTIONS OF IOWA

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 Legis-
lative Assembly from Belmont in eastern
Wisconsin to Burlington in western Wis-
consin. The constitutional history of Wis-
consin up to the division of the Territory
in 1838 is, therefore, clearly a part of the
Territorial history of Iowa. The assign-
ment 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 CONSTITUTIONS OF IOWA 79

The act of Congress of June 12, 1838,
provided for the division of an existing
Territory and the continuation of Territo-
rial 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 ques-
tioned. 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 ordi-
nary statute, it was a pure product of
legislation. It did not even have the label
"Constitution," or "Fundamental Com-
pact," or "Organic Law." Nevertheless,
this instrument was a veritable Constitu-

80 THE CONSTITUTIONS OF IOWA

tion, since it was a written body of funda-
mental 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 depart-
ments and officers of the Territorial gov-
ernment. The courts always took this
view of the Organic Act, and refused to
enforce acts which were clearly in opposi-
tion 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

82 THE CONSTITUTIONS OF IOWA

child of the Missouri Compromise" was
christened IOWA. Lieutenant Lea was
familiar with the country described in
his l ' 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. Keferring to the country
west of the Mississippi river he says:
' ' The District under review has been often
called 'Scott's Purchase,' and it is some-
times called the 'Black-Hawk Purchase';
but from the extent and beauty of the Iowa
river which runs centrally through the Dis-
trict, 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 CONSTITUTIONS OF IOWA 83

The Iowa District was likely to be-
come a separate Territory at an early day,
since all indications pointed in the direc-
tion of a division of the Territory of Wis-
consin. 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 Ter-
ritory 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 widley scat-
tered as to make it practically impossible

84 THE CONSTITUTIONS OF IOWA

to give equal force to the laws and equal
efficiency to the administration of govern-
ment 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 Ter-
ritory 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 move-
ment 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 Mis-
sissippi was likely to rob them of much
political influence and some distinction.
They felt that a Territorial government

THE CONSTITUTIONS OF IOWA 85

located somewhere "in the vicinity of the
Four Lakes" could not successfully admin-
ister 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, integ-
rity 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, never-
theless, look to a division of the Territory,
and the organization of a separate Terri-
torial Government, by Congress, west of

86 THE CONSTITUTIONS OF IOWA

the Mississippi river, as the only 'means of
immediately and fully securing to the citi-
zens thereof, the benefits and immunities of
a government of laws." In another reso-
lution 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 Mon-
day, November 6, 1837, and organized
themselves into a ' ' Territorial Conven-

THE CONSTITUTIONS OF IOWA 87

tion." 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 Ter-
ritory west of the Mississippi River, taking
into consideration their remote and isolated

88 THE CONSTITUTIONS OF IOWA

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 administra-
tion of our municipal affairs, in such man-
ner as to fully secure individual right and
the rights of property, as well as to main-
tain domestic tranquillity, and the good
order of society, have by their respective
Representatives, convened in general con-
vention as aforesaid, for the purpose of
availing themselves of their right of peti-
tion 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 Missis-
sippi River.

THE CONSTITUTIONS OF IOWA 89

''Without, in the least, designing to ques-
tion 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, tak-
ing into consideration the geographical
extent of her country, in connection with
the probable population of western Wis-
consin, 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 Terri-
for sixteen months, with but one term of
court. Your memoralists look upon those
evils as growing exclusively out of the

90 THE CONSTITUTIONS OF IOWA

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 Gov-
ment. 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 mem-
orialists therefore pray for the organization
of a separate territorial government over
that part of the Territory of Wisconsin
west of the Mississippi river."

THE CONSTITUTIONS OF IOWA 91

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 Gov-
ernor within three weeks after the Conven-
tion had adjourned.

In this memorial the Legislative Assem-
bly stated the case as follows: "That
owing to the great extent of country em-

92 THE CONSTITUTIONS OF IOWA

braced in the limits of Wisconsin Terri-
tory, and that vast extent of Territory
being separated by a natural division, (the
Mississippi river,) which renders the appli-
cation of the same laws oppressive or un-
equal 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 por-
tion of the Territory lying west of the
Mississippi river be formed into a separate
Territorial Government.

"The Territory of Wisconsin now con-
tains fifty thousand inhabitants; one-half of
which, at least, reside on the west side of
the Mississippi river.

THE CONSTITUTIONS OF IOWA 93

"Without any intention of censuring
the official conduct of the officers in whose
hands the administration of our infant Ter-
ritory has been intrusted .... your memori-
alists 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 repre-
sent, that the population of Wisconsin is
increasing with a rapidity unparalleled in
the history of the settlement of our coun-
try; 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 ad-
vance the political and individual interests
of her citizens."

94 THE CONSTITUTIONS OF IOWA

By January 1, 1838, the people had
expressed their views. They had formu-
lated their convictions into a definite request
which called for immediate division of the
Territory. The scene of debate and dis-
cussion 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 sun-
dry citizens, and who by a resolution of
December 14, 1837, had been instructed
uto inquire into the expediency of estab-
lishing a separate Territorial Government
for that section of the present Territory of
Wisconsin which lies west of the Missis-
sippi river and north of the State of
Missouri," reported a bill to divide thp

THE CONSTITUTIONS OF IOWA 95

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 Terri-
tory of Wisconsin is altogether too large
and unwieldy for the perfect and prompt
administration of justice or for the conven-
ient administration of the civil government
thereof." They were more specific in say-
ing 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

96 THE CONSTITUTIONS OF IOWA

natural line of division was the Mississippi
river, that the Capital would soon be re-
moved to eastern Wisconsin, and that ' ' so
much of the Territory of Wisconsin as is
east of the Mississippi river must neces-
sarily 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 Repre-
sentatives. 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 anniver-
sary of the Independence of the American
Nation. In the chronology of our Consti-
tutions it stands as the second code or text
of fundamental law.

THE CONSTITUTIONS OF IOWA 97

But the Territory of Iowa was not estab-
lished without opposition in Congress.
The discussion in the House of Represent-
atives on the fifth and sixth days of June,
and immediately preceding the passage of
the act dividing the Territory of Wiscon-
sin, 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 Mis-
souri. 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

98 THE CONSTITUTIONS OF IOWA

bill and the creation of a Territorial Gov-
ernment 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 com-
ing in of these Territories or States into
the Union, when the fanatical spirit of the
North was pouring into the House me-
morials 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 sub-
stance 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 CONSTITUTIONS OF IOWA 99

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 forma-
tion of new Territories.

In the course of the debate it was sug-
gested by Mr. Mercer "that Iowa be or-
ganized 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 intro-
duced 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.1'
He had no sympathy with the squatters.

100 THE CONSTITUTIONS OF IOWA

' ' Who are these that pray for the

establishment of a new Territory? Indi-
viduals 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 mar-
shals, when every act of their lives is con-
trary 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

THE CONSTITUTIONS OF IOWA 101

for new favors and privileges; the guar-
dians of the law are approached by its
open contemners, and begged to erect these
modest gentlemen into a dignified Govern-
ment. . . .1 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 develop-
ment 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 l 'if
the Territory of Iowa be now established,
it will soon become a State; and if we now

102 THE CONSTITUTIONS OF IOWA

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 por-
tion of the Confederacy .... If all of the
people born in North Carolina had re-
mained in its limits, our swamps and low
grounds would have rivalled the valley of

THE CONSTITUTIONS OF IOWA 103

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 Terri-
torial 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

104 THE CONSTITUTIONS OF IOWA

of America. Some few men were begin
ning to realize that the rapid settlement of
the Iowa country was not an isolated pro-
vincial episode but the surface manifesta-
tion 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 Constitu-
tions 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 funda-
mental law for the whole Territorial epoch.

106 THE CONSTITUTIONS OF IOWA

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 Confed-
eration now familiarly known as "The
Ordinance of 1787." Nor was this famous
ordinance itself a code of new political

THE CONSTITUTIONS OF IOWA 107

principles. Consciously or unconsciously
its framers drew largely from the princi-
ples, forms, and practices of American
government prior to the Revolution. The
analogy between the Colonial and Terri-
torial governments of America is too strik-
ing to be dismissed as accidental. The re-
lation 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 Ordi-
nance like the Great Charter was in many
respects crude, incomplete, and un-Ameri-
can. Place it by the side of the Constitu-
tion of the Territory of Iowa, and it is plain
to see that in the course of fifty years
marked changes had taken place — espe-
cially in the direction of democratization.

108 THE CONSTITUTIONS OF IOWA

The Constitution of the Territory is a
written instrument of twenty sections or
articles, containing in all about four thou-
sand words. It has no preamble, but is
simply introduced by the enacting clause.
As a pure product of Congressional legis-
lation it was promulgated upon the legisla-
tive authority of Congress with the ap-
proval of the President of the United
States. In its origin, therefore, it resem-
bles the Royal Charters of Europe more
than the written Constitutions of America.
The Constitution of the Territory was lit-
erally 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

THE CONSTITUTIONS OF IOWA 109

third day of July next, all power and
authority of the Government of Wisconsin,
in and over the Territory hereby consti-
tuted shall cease." On reading this sec-
tion 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 depart-
ment in the very next section the logical
order of the Constitution of the United
States was reversed by placing the execu-
tive " power and authority" before that of
the legislative. This, however, was alto-
gether natural, since the Governor had
been the central figure in Territorial gov-
ernment ever since the days of the great
St. Clair. He was no figure-head, but the
real Government, influencing legislation as

110 THE CONSTITUTIONS OF IOWA

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 Gov-
ernor was dominant in Territorial govern-
ment 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 Gov-
ernor was appointed by the President, but
must reside in the Territory and ' 'shall take

THE CONSTITUTIONS OF IOWA 111

care that the laws be faithfully executed.
He was coinmander-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

112 THE CONSTITUTIONS OF IOWA

the Governor the power of an absolute
veto over all acts of the Assembly. In-
deed, 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 execu-
tive— State or Territorial.

A Secretary of the Territory was pro-
vided for in the third section. This officer
stood next to the Governor in importance;
and in case of the death, removal, resigna-
tion, or necessary absence from the Terri-
tory of the latter he was authorized and
required to execute and perform the guber-
natorial powers and duties. The Secretary
was appointed by the President for a term

THE CONSTITUTIONS OF IOWA 113

of four years, but was subject to removal
at any time. His chief duty was to record
and preserve the laws, acts, and proceed-
ings 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 Kepresentatives.

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 Representa-
tives." The Council consisted of thirteen
members, elected biennially; while the
House of Representatives had just double
that number, elected annually. The mem-
bers of both houses were chosen directly

114 THE CONSTITUTIONS OF IOWA

by the qualified voters of the Territory.
They were elected by districts, and appor-
tioned 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 legis-
lation. " Just what is meant by ' ' rightful
subjects of legislation" is nowhere stated.
But from the pages of the Territorial stat-
utes it is manifest that the important sub-
jects of legislation were in general the
establishment of local government, the
creation of business and public corpora-
tions, the maintenance of the institution of

THE CONSTITUTIONS OF IOWA 115

private property, the fulfilment of con-
tracts, and the guarantee of personal secu-
rity. 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 As-
sembly as unlimited, since the Constitution
of the Territory contains (a) certain specific
prohibitions, (Z>) a general limitation, and
(c) a Bill of Rights. The specific prohibi-
tions are: "no law shall be passed inter-
fering 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

116 THE CONSTITUTIONS OF IOWA

in the same section by the general limita-
tion 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 here-
tofore 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, never-
theless, large in implication. If we turn

THE CONSTITUTIONS OF IOWA 117

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 prohibi-
tions in said articles of compact imposed
upon the people of the said Territory. "
In other words, the provisions of the Ordi-
nance of 1787 are by implication made a

118 THE CONSTITUTIONS OF IOWA

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 clas-
sical expression of that instrument in
enumerating the immemorial rights, privi-
leges, and principles of Anglo-Saxon pol-
ity. "No person demeaning himself in a
peaceable and orderly manner, shall ever be
molested on account of his mode of wor-
ship or religious sentiments. . . .The inhab-
itants 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 proceed-

THE CONSTITUTIONS OF IOWA 119

ings according to the course of the com-
mon 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 par-
ticular services, full compensation shall be
made for the same. And in the just pres-
ervation of rights and property, it is under-
stood and declared, that no law ought ever
to be made, or have force in the said terri-
tory, that shall, in any manner whatever,
interfere with, or affect private contracts or

120 THE CONSTITUTIONS OF IOWA

engagements, bona fide, and without fraud
previously formed."

These words are more than formal ex-
pressions of great principles; they are en-
nobling. 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 l ' 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,

THE CONSTITUTIONS OF IOWA 121

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 dis-
tricts, (£) that a district court or courts be
held in each of the three districts by one of
the judges of the Supreme Court, and (<?)
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

122 THE CONSTITUTIONS OF IOWA

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 organi-
zation, shall be entitled to vote at the first
election, and shall be eligible to any office

THE CONSTITUTIONS OF IOWA 123

within the said Territory." Thereafter the
suffrage qualifications were to be deter-
mined by the Legislative Assembly; "Pro-
vided, 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 mem-
bers of the Council was changed from four
years in 1836 to two years in 1838. Sec-
ondly, 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

124 THE CONSTITUTIONS OF IOWA

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.

Eeflection upon the history and provi-
sions 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 Con-
gress. Again, its provisions represent pol-
itical evolution in Territorial government
up to the year 1838. Furthermore, gov-
ernment in the Territory, though subordi-
nate, had a wider spliere of activity under
the Organic Act than has ever since been
enjoyed by government under a State Con-
stitution. This is true, since the Legisla-
tive Assembly and the Territorial courts

THE CONSTITUTIONS OF IOWA 125

exercised to a considerable extent the cus-
tomary functions of both National and
State governments. Still further, the Presi-
dent 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 Ter-
ritory. Finally, there existed in the ma-
chinery 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 con-
tained 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

THE CONSTITUTIONS OF IOWA 127

organic law of the Territories of Wiscon-
sin 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 ap-
proved by him might, nevertheless, be-
come 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 Assem-

128 THE CONSTITUTIONS OF IOWA

bly, which in a great measure occasioned
these amendments, is significant in throw-
ing 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 in-
experienced. 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 CONSTITUTIONS OF IOWA 129

the first National Convention of the Dem-
ocratic Party.

Upon receiving his commission as Gov-
ernor 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. Con way, 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 Representa-
tives 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,

130 THE CONSTITUTIONS OF IOWA

the two rnen 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 Legis-
lature."

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 organ-
ize pro tempore. Then they assembled
jointly in the Hall of the House of Repre-
sentatives to be sworn in by the Governor,
and to receive any communication which
his "Excellency" might have to make to
them.

THE CONSTITUTIONS OF IOWA 131

Governor Lucas delivered his first mes-
sage in person. He took pains to empha-
size the fact that the Organic Act had
vested the legislative power in "the Gov-
ernor 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 recom-
mended such measures as he deemed most
expedient. Then near the close he boldly
added : "I shall at all times take pleasure

132 THE CONSTITUTIONS OF IOWA

in concurring with you in acts that tend to
advance the general interests of the Terri-
tory, and the prosperity of the people;—
but at the same time will be compelled to
withhold my assent to such acts, or pro-
ceedings, 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 Gov-
ernor'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

THE CONSTITUTIONS OF IOWA 133

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 meas-
ures met with the disapproval of the Gov-
ernor. It soon became evident that the
relations between the Executive an.d the
Assembly were not altogether cordial.
The situation was made still more embar-
rassing 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

134 THE CONSTITUTIONS OF IOWA

much of the opposition to Governor Lucas
by confiding his private grievances to mem-
bers of the Assembly, by deferring to the
Assembly to the point of servility, and by
affecting to set up an administrative depart-
ment distinct and separate from that of the
Governor. On November 14, he submit-
ted to the Council and House of Repre-
sentatives the first of a series of commu-
nications bearing directly upon his own
position and powers as Secretary and his
relations to the Legislative Assembly, and
indirectly upon his relations to the Gov-
ernor and the relations of the latter to the
Assembly.

It was early in the session that the Coun-
cil and House of Representatives resolved
"That when an act is presented to the
Governor for his approval, he shall, within

THE CONSTITUTIONS OF IOWA 135

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 Representa-
tives with this observation from the Gov-
ernor: "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

136 THE CONSTITUTIONS OF IOWA

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 fol-
lowing, the bill as amended passed the
House of Representatives. It was pre-
sented 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

THE CONSTITUTIONS OF IOWA 137

occasion to state, for the information of the
Assembly, the course he intended to pursue
in the future. He said: "All bills, resolu-
tions, 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 suffi-
cient 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, reso-
lutions, or memorials, that may be con-
sidered entirely objectionable, or of doubt-
ful policy, will be retained under advise-
ment or returned to the Legislative Assem-
bly, with my objections, at such time, and
in such way and manner as I may, for the
time being, deem to be most advisable."

138 THE CONSTITUTIONS OF IOWA

In reply to all this it was "Resolved,
By the Council and House of Represent-
atives of the Territory of Iowa, That his
Excellency Gov. Lucas, is hereby respect-
fully 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 origi-
nated of his approval thereof immediately
after the same has been given. ' '

With a brief message, Lucas returned
this resolution to the House of Representa-
tives 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 attend-

THE CONSTITUTIONS OF IOWA 139

ant, 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 Decem-
ber 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 com-
mittee took the whole matter very seri-
ously, believing that great principles were
at stake. "As representatives of the peo-

140 THE CONSTITUTIONS OF IOWA

pie," 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 danger-
ous and pernicious principle, and as the
representatives of freemen we cannot acqui-
esce 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 CONSTITUTIONS OF IOWA 141

The Council committee on Territorial
Affairs was no less emphatic in its condem-
nation 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 remon-
strate. 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 Assem-
bly had prepared a memorial to Congress
requesting an amendment to the Organic

142 THE CONSTITUTIONS OF IOWA

Act which would limit the Governor's veto
power.

The Governor remained firm and un-
moved to the end of the session. Not-
withstanding all the resolutions, reports,
and memorials of the Assembly, he con-
tinued 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 Assembley subside as
the session neared its close. They now
hoped to get rid of the Governor. So
they addressed a memorial to "His Excel-
lency Martin Van Buren, President of the
United States," in which they enumerated
at length "the faults of Governor Lucas'
administration," and asked for his imme-
diate removal from the office of Chief

THE CONSTITUTIONS OF IOWA 143

Executive. In the House of Representa-
tives the minority offered a preamble and
resolution praying that they be allowed to
forward a counter memorial to the Presi-
dent, but on the motion of James W.
Grimes their preamble and resolution were
rejected.

This remarkable memorial concerning
Robert Lucas reads much like the arraign-
ment of King George III in the Declara-
tion of Independence. In the political
history of Iowa it stands as the declara-
tion 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

144 THE CONSTITUTIONS OF IOWA

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 in-
terpreted 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 es-
tablishment of a State government. Never
in the history of the United States had Ter-
ritories been viewed as permanent. In fact
it was everywhere understood that the Ter-
ritorial organization was at most a tempo-
rary arrangement which in time would give

146 THE CONSTITUTIONS OF IOWA

way to the more perfect Constitution of the
Commonwealth. Then, too, in the case of
Iowa there was such a rapid growth of popu-
lation 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 es-
tablished, 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 Burling-
ton on November 4, 1839. The Governor
was of the opinion that in view of the ' ' rap-
idly increasing population, and advancing
prosperity of the Territory ' ' the Assembly
might ' ' with propriety proceed to measures
preparatory to the formation of a Constitu-
tion and State government. ' ' He knew

THE CONSTITUTIONS OF IOWA 147

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 pros-
perity 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 govern-
ment. So he earnestly recommended to
the Legislative Assembly "the early pass-
age of a memorial to Congress, respectfully

148 THE CONSTITUTIONS OF IOWA

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 Govern-
ment, and to provide for their admission
into the Union upon an equal footing with
the original States." Furthermore, he rec-
ommended "the passage of a law to pro-
vide 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 defi-
nite boundaries for the proposed Common-
wealth.

Lucas was not alone in these advanced
views. The newly elected President of the
Council, Stephen Hempstead, thought that,
notwithstanding the fact that the "Terri-

THE CONSTITUTIONS OF IOWA 149

tory is yet in the bloom of infancy," only a
"short period will elapse before Iowa
will become a State." "You, gentle-
men," he said, addressing the members of
the Council, "are placed here for the pur-
pose of maintaining her rights as a terri-
tory, to enact salutary laws for her govern-
ment 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 Conven-
tion to form a Constitution. In opposition
to the recommendations of the Governor
and the views of a minority in the Assem-
bly, it was argued (1) that the establish-

150 THE CONSTITUTIONS OF IOWA

ment of State Government would increase
the burdens of taxation "which must ren-
der the new State government burthensome
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 sec-
ond 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 adjourn-
ed only to meet again in extra session later
in the year.

THE CONSTITUTIONS OF IOWA 151

In the meantime the Committee on Ter-
ritories in the House of Representatives had
reported a bill enabling the people of Iowa
to form a Constitution and State govern-
ment. 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,

152 THE CONSTITUTIONS OF IOWA

4 1 that there can be no objection to submit-
ting the subject to the people for their con-
sideration, as an expression of public opin-
ion 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 fa-
vored the calling of a Convention were re-
quired to write "convention" on their bal-
lots; while all who opposed the proposition
were required to write ' ' no convention. ' '
The law having been approved by the Gov-
ernor on the last day of July, very little
time was left for its consideration by the
electorate before the elections.

THE CONSTITUTIONS OF IOWA 153

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 disap-
pointed, but he had to admit that the Ter-
ritory went on increasing in population and
wealth with phenomenal rapidity, notwith-
standing the "facts" in the history of the
Old Northwest. Not even the ' ' imperfect
conditions of Territorial government" seem-
ed to affect in the slightest degree the eco-
nomic prosperity and improvement of this
frontier community.

The overwhelming defeat of the Conven-

154 THE CONSTITUTIONS OF IOWA

tion proposition at the polls checked for a
time all agitation in favor of a State Con-
stitution. Even the Governor, who up to
this time had been its most sanguine advo-
cate, 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 ques-
tion now remained in statu quo for over a
year, that is, from August, 1840, to De-
cember, 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, ap-
pointed John Chambers, of Kentucky, to

THE CONSTITUTIONS OF IOWA 155

succeed the Ohio statesman. Again Iowa
was fortunate in securing as Governor a
man of experience and of National reputa-
tion.

"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 Conven-
tion 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 in-
creased phenomenally since August, 1840.
Secondly, Congress had passed the "Dis-
tribution Act" which provided (a) that
Iowa should participate in the pro rata dis-
tribution, along with the twenty -six States
and three Territories, and the District of

156 THE CONSTITUTIONS OF IOWA

Columbia, of the net proceeds of the sales
of public lands, and (#) that five hundred
thousand acres of land for internal improve-
ments should be granted to every new State
that should be admitted into the Union.
John Chambers thought the liberal provis-
ions 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 recommend-
ed 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

THE CONSTITUTIONS OF IOWA 157

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 ap-
proached the polls they were to be asked
by the judges of election whether they were
in favor of or against a Convention. There-
upon the electors were to answer simply,
* ' Convention " or " No Convention. " The
clerks of election were charged with keep-
ing 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 dele-
gates to such a Constitutional Convention
were to be elected on the second Tuesday

158 THE CONSTITUTIONS OF IOWA

in October next after the election aforesaid.
On the first Monday of November next fol-
lowing 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 Govern-
ment" 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 consid-
eration the whole problem of State organi-
zation in its several phases of (a) the call-

THE CONSTITUTIONS OF IOWA 159

ing of a Constitutional Convention, (3) the
formation of a State Constitution, and (<?)
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 call-
ing 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 meas-
ure 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

160 THE CONSTITUTIONS OF IOWA

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
Imoa 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 Con-
vention, 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

THE CONSTITUTIONS OF IOWA 161

favorable vote on the question of a Con-
vention.

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 disap-
pointed 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

162 THE CONSTITUTIONS OF IOWA

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 to-
wards 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', un-
called for by the people, unwarranted by
the condition of the Territory?"

The newspapers of the Territory were

THE CONSTITUTIONS OF IOWA 163

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 meas-
ures 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 rap-
id increase in the population by immigra-
tion, since immigrants as a rule preferred
States to Territories. Again, admission
into the Union would give Iowa more influ-
ence 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

164 THE CONSTITUTIONS OF IOWA

footing with the other States, give the peo-
ple 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 humilia-
tion of having them sent from abroad for
that purpose." Finally, it was suggested
that if Iowa did not hasten to make appli-
cation for admission into the Union, Flori-
da, the slave Territory which was then
ready to be admitted, would be paired with
Wisconsin.

These arguments were frequently accom-

THE CONSTITUTIONS OF IOWA 165

panied 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 sat-
isfied with Territorial government and saw
no good reasons for a change. They were

166 THE CONSTITUTIONS OF IOWA

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 aggrandize-
ment. " 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 bene-
fitting 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 govern-

THE CONSTITUTIONS OF IOWA 167

ment. Mr. Lowe argued that the change
would be undesirable because there really
were no eminent men in the Territory fit-
ted 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 establish-
ment of a State government was the one
which appealed directly to the people as
tax -payers. Under the Organic Act of
1838 the United States generously as-
sumed the burden of supporting the general
government of the Territory, and so the
salaries of Governor, Judges, Secretary,
Attorney, and Marshals, the per diem al-
lowance of the members of the Legislative
Assembly, the expense of printing the
laws, the contingent expenses of the Terri-

168 THE CONSTITUTIONS OF IOWA

tory, 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 organi-
zation 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 sup-
plied through local taxation. The people
protested. The men who were industri-
ously breaking the prairies, clearing the for-
ests, and raising corn preferred to invest
their small earnings in lands and plows and
live stock.

An attempt was made to answer this ar-
gument. It was confidently asserted that
the additional expense entailed by a State
government would not exceed thirty thou-

THE CONSTITUTIONS OF IOWA 169

sand 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 Dis-
tribution 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 re-
served 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 cir-
cumstances a majority of the voters were
not willing to abandon the Territorial or-
ganization for the "dignity" of a Com-
monwealth government. At the general
elections in August, 1842, every County in

170 THE CONSTITUTIONS OF IOWA

the Territory returned a majority against a
Convention. Again the existence of the
Organic Act of 1838 as a code of funda-
mental law was prolonged by a vote of the
people.

Again the agitation for a State Constitu-
tion 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

THE CONSTITUTIONS OF IOWA 171

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 "ap-
ply to Congress to fix and establish, during
its present session, a boundary for the pro-
posed 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 inter-
vention of any difficulty or delay in our ad-
mission into the Union, which might result

172 THE CONSTITUTIONS OF IOWA

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 oppor-
tunity to express an opinion on what had
come to be the most interesting question in
local politics. As early as Febuary 12,
1844, "An Act to provide for the expres-
sion 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 Gov-
ernor. In substance this act was practi-
cally a restatement of the provisions of the
act of February 16, 1842. The viva voce
vote was to be taken at the Township elec-
tions in April, 1844.

In many respects the campaign of the

THE CONSTITUTIONS OF IOWA 173

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 Conven-
tion. In the public speeches and in the
utterances of the press there was little that
was new or refreshing. All the old argu-
ments 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 Demo-
ocratic office-seekers. Again the ardent
supporters of State government ignored the
latter charge and replied to the taxation

174 THE CONSTITUTIONS OF IOWA

argument by quoting the provisions of the
Distribution Act. Altogether the discus-
sion 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 evi-
dently settled down in favor of State or-
ganization. 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 State-
hood 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

o

were elected at the general Territorial elec-
tions 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 administra-
tion?" but "What are his political affilia-
tions?"

When the votes were counted it was
found that the Democrats had won a great

176 THE CONSTITUTIONS OF IOWA

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 Mon-
day, October 7, 1844, sixty-three of the
delegates elected met in the Old Stone Cap-
itol at Iowa City and organized themselves
into a constituent assembly.

The meeting was informally called to or-
der by Francis Gehon of Dubuque County.
Ralph P. Lowe was chosen to act as Presi-
dent pro tern. After a temporary organi-
zation had been fully effected the Conven-
tion of 1844 was formally opened with
prayer. Upon the call of Counties by the
Secretary the delegates presented their cre-
dentials and took their seats. One commit-
tee was appointed to examine credentials,

THE CONSTITUTIONS OF IOWA 177

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 pre-
sented 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 per-
mitted 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

178 THE CONSTITUTIONS OF IOWA

Assistant Secretary respectively, were not
members of the Convention. Warren Dodd
was elected Sergeant-at-Arms, and Eph-
raim 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 gentle-
men, ' ' 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, terri-
torial relations with the parent government
are soon to cease, and Iowa must soon take
upon herself the duties and the responsi-

THE CONSTITUTIONS OF IOWA 179

bilities of a sovereign State. But before
this important change can be fully con-
summated, it is necessary for us to form a
republican constitution, for our domestic
government. Upon you, gentlemen, a con-
fiding 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 politi-
cal 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.
Kecollect, gentlemen, that the labor of your
hands, whatever may be its fashion, will
not be the fashion of a day, but permanent,

180 THE CONSTITUTIONS OF IOWA

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 peo-
ple are to be permanent and lasting, sover-
eign and supreme, governing, controlling
and directing the exercise of all political
authority, executive, legislative and judi-
cial, 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 man-
kind, ' ' so that ' l Iowa, young, beautiful and

THE CONSTITUTIONS OF IOWA 181

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 pro-
vide the people with information concern-

182 THE CONSTITUTIONS OF IOWA

ing the Convention, others because they
had already promised papers to their con-
stituents. But Mr. Grant thought that it
was both useless and corrupt. The dele-
gates 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 Depart-
ment; (3) Legislative Department; (4) Ju-
dicial Department; (5) Suffrage and Citi-
zenship; (6) Education and School Lands;
(7) Incorporations; (8) State Boundaries;
(9) County Organization; (10) Internal Im-
provements; and (11) State Debts. The
Convention was now in condition to take
up the great task of drafting a code of

THE CONSTITUTIONS OF IOWA 183

fundamental law. On Thursday — the
fourth day — the real work of the Con-
vention began with a report from the Com-
mittee on State Boundaries.

Of the seventy-two members who labor-
ed in the Convention and signed the Con-
stitution 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 Ken-
tucky, eight from Ohio, six from North
Carolina, six from Vermont, and one
each from Massachusetts, Connecticut, New

184 THE CONSTITUTIONS OF IOWA

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 profes-
sion, 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 procrasti-
nating delays. Committees were prompt
in making reports. Parliamentary wran-
glings were infrequent. There was no fili-
bustering. 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

THE CONSTITUTIONS OF IOWA 185

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 Conven-
tion 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 infor-
mation concerning the Convention and the
fundamental instrument of government
which was in the process of making would,
if circulated widely throughout the Terri-

186 THE CONSTITUTIONS OF IOWA

tory, 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 lowans for
more than a generation.

Strict even to parsimoniousness in the
matter of public expenditures, the pioneers
of Iowa were not always puritan in observ-
ing the forms of religion. Their liberal
attitude and their fearless courage in ex-
pressing 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 Conven-
tion be opened every morning by prayer
to Almighty God."

THE CONSTITUTIONS OF IOWA 187

Mr. Chapman favored the resolution,
since uthe ministers would gladly attend
and render the services without compen-
sation. ' '

Mr. Gehon objected on the ground that
"it would not be economical, for the Con-
vention 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 ' ' com-
mence 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 superintend-
ence of Almighty God."

Mr. Kirkpatrick said that he too be-
lieved in a "superintending Providence"
that "guided and controlled our actions."

188 THE CONSTITUTIONS OF IOWA

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 en-
forced without violating or infringing the
"natural right" of the members to wor-
ship 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 noth-
ing 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 "re-
gret to have it said of Iowa that she had
so far travelled out of Christendom as to
deny the duty of prayer. ' '

THE CONSTITUTIONS OF IOWA 189

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 com-
munity, 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 giv-

190 THE CONSTITUTIONS OF IOWA

ing 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 busi-
ness of the Convention." Prayers in the
Convention were, he thought, inappropri-
ate. "There were places where the Al-

THE CONSTITUTIONS OF IOWA 191

mighty 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 "peo-
ple 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 sin-
cerely 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 oppos-
ed to. This was contrary to the inalien-
able rights of man. If members did not
feel disposed to come, it took away their

192 THE CONSTITUTIONS OF IOWA

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 progres-
sion to the exclusion of prayer. He fav-
ored "providing a room for those who did
not wish to hear prayers."

Mr. Hepner opposed the resolution be-
cause he thought that it was inconsistent

THE CONSTITUTIONS OF IOWA 193

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 con-
stituents by supporting the resolution.

Mr. Quinton thought that his constitu-
ents were as moral as those of Mr. Shelle-
day. But he "did not believe praying
would change the purposes of Deity, nor
the views of members of the Convention. "
uln 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 pio-
neers 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

194 THE CONSTITUTIONS OF IOWA

provided that "no religious test shall be
required as qualification for any office or
public trust, and no person shall be de-
prived of any of his rights, privileges,
capacities, or disqualified for the perform-
ance of any of his duties, public or private,
in consequence of his opinion on the sub-
ject of religion." Mr. Grant thought that
the report "was meant to cover every-
thing. " 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

THE CONSTITUTIONS OF IOWA 195

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 "in-
fringement of the natural rights of man."

Mr. Grant said that "he hoped this
Convention would take high grounds upon

196 THE CONSTITUTIONS OF IOWA

this subject and silence .... these inquiries
into men's belief, and exclusions for opin-
ion's sake."

When the test vote was taken it was
found that only ten members of the Con-
vention 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 com-
pensation of the State officers l ' for the first
ten years after the organization of the gov-
ernment." 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 Treas-
urer, $400; for Auditor, $700; for Super-

THE CONSTITUTIONS OF IOWA 197

intendent 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,
<fec., and should have a pretty liberal sal-
ary." Mr. Davidson said that "he came
here for low salaries. He did not like
$1000, but $1200 was worse. " The Con-
vention finally agreed upon $800 as a
proper salary for the Governor of the State

198 THE CONSTITUTIONS OF IOWA

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 Ke ve-
nue had recommended $700. "Mr. Grant
moved to strike out $700, which would
leave the salary blank. "

Ex -Governor Lucas hoped that the sal-
aries 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.

THE CONSTITUTIONS OF IOWA 199

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 quali-
fied 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 Con-
vention was "running this thing of econ-

200 THE CONSTITUTIONS OF IOWA

omy 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 gentle-
men or not. ' '

Mr. Fletcher supported the recommen-
dation 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."

THE CONSTITUTIONS OF IOWA 201

Mr. Harrison said "we were in a youth-
ful condition, and were poor, and we could
not afford to pay such salaries as the great
and wealthy State of Ohio. " Further-
more, "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, cfec.,
with plenty of money in their pockets.
An honest man would perform the duties
of Auditor as well for $300 as $1000.
If he was not honest we did not want him."

Mr. Bissell favored a reduction. "He
did not want to support government of-
ficers at high salaries, to ride about in
their coaches and sport gold spectacles . . .
He did not want them paid for giving wine
parties, and electioneering the Legislature.

202 THE CONSTITUTIONS OF IOWA

They should walk from their residences to
their offices, as other citizens."

And so the salary of Auditor was fixed
at $500. What wonder that Mr. Hemp-
stead ' ' felt disposed to make a motion that
no gentleman or man of respectability
should be appointed to any office under
the Government of the State of Iowa."

From the fragments of the debates
which were chronicled in the newspapers
of the Capital, it is clear that the Conven-
tion of 1844, in providing for the exercise
of executive power in Iowa, aimed (1) to
make the Chief Magistracy a representa-
tive institution and (2) to limit the influ-
ence of the Governor in legislation.

The Committee on the Executive Depart-
ment, of which the venerable Ex-Governor

THE CONSTITUTIONS OF IOWA 203

Lucas was the chairman, reported in favor
of vesting the supreme executive power in
"a Governor, who shall hold his office for
four years." A Lieutenant Governor "was
to be chosen at the same time and for the
same term." Furthermore, section five of
the report provided that "no person shall
be eligible to the office of Governor or
Lieutenant Governor more than eight years
in any term of twelve. "

Mr. Chapman made a motion to strike
out the provisions relative to a Lieutenant
Governor, "which motion he enforced
upon the principle of economy, and the
non-necessity of the office." But the Con-
vention refused to take a step so radical.

Mr. Langworthy moved to strike out
four and insert two "as the term for
which the Governor should hold his of-

204 THE CONSTITUTIONS OF IOWA

fice." This was " to test whether any
officer in the State of Iowa was to hold his
office more than two years." Mr. Lang-
worthy "wanted the whole government to
be changed once in two years." His
motion prevailed.

On the motion of Mr. Peck section five
of the report, which aimed to prevent the
Governor and Lieutenant Governor from
succeeding themselves in office more than
once in twelve years, was stricken out.

The question of an executive veto on
legislation naturally received considerable
attention, since the administration of Lucas
was still fresh in the minds of many mem-
bers of the Convention.

The Committee on the Legislative De-
partment had reported a form of executive
veto which was so limited that it could be

THE CONSTITUTIONS OF IOWA 205

passed over by an ordinary majority in the
two branches of the General Assembly.
Mr. Peck favored a two -thirds majority of
the members present.

But Mr. Hall moved to strike out the
whole section and said that "in making
this Constitution he wished to throw off
the trammels of fashion and precedent.
He had so pledged himself to his constitu-
ents. This veto power was a trammel, and
an unncessary restraint on the freedom of
legislation. The law of progress required
that it should be abolished."

Mr. Bailey "thought the veto power
was a valuable one; it was the people's

power The Governor was more the

representative of the people, than the Rep-
resentatives themselves. The Representa-
tives were chosen by sections, and repre-

206 THE CONSTITUTIONS OF IOWA

sented local interests, and they might con-
tinue to pass bad laws. But the Governor
had no local feelings."

Mr. Peck said that ' ' the veto power was
a qualified negative to prevent hasty and
ill-advised legislation." He declared that
the executive veto was a wholesome rem-
edy for over-legislation. ' ' It was a Demo-
cratic feature of any Constitution.1'

Ex -Governor Lucas took part in the dis-
cussion. "We were," he said, "engaged in
making a Constitution to protect the rights
of the people. The veto was one of the in-
struments that had been used to defend the
people's rights ... It might have been exer-
cised imprudently at times, but that was
not a good argument against the power."

Mr. Hall discussed the question at
length. "Gentlemen," he said, "sup-

THE CONSTITUTIONS OF IOWA 207

posed that the Legislature might be cor-
rupt— he would suppose on the other hand,
that the Governor might be corrupt, and
his supposition was as good as theirs.
Some gentlemen were afraid of the tyranny
of the representatives — he would suppose
that the Governor would be the tyrant; or
he would suppose that the Governor would
combine with the Legislature, and they
would all be corrupt and tyrannical to-
gether. A number of persons were not so
liable to corruption and combination as a
single individual; — just as numbers in-
creased the probability of corruption de-
creased." He declared that "there was
no need of the power in this Territory."
The Convention finally agreed upon the
form of the limited executive veto as pro-
vided for in the Federal Constitution.

208 THE CONSTITUTIONS OF IOWA

Not even the Judiciary was spared from
the influence of Western Democracy as it
rose up and asserted itself in the Conven-
tion of 1844. The day of executive ap-
pointment and life tenure of judges had
passed or was passing. The Committee
on the Judiciary recommended that "the
Judges of the Supreme Court and District
Court shall be elected by the joint vote of
the Senate and House of Representatives
and hold their offices for six years;" but
a minority report, introduced by Mr.
Fletcher, proposed that all of the judges
be elected by the qualified voters of the
State.

In discussing this question the Conven-
tion desired to follow the wishes of the
people; but it was not known that the
people themselves really desired to elect

THE CONSTITUTIONS OF IOWA 209

the Judges. On the other hand there is
no evidence that anyone favored executive
appointment. So the question before the
Convention was: Shall the Judges be
elected by the people or shall they be
chosen by the General Assembly?

Mr. Hempstead favored direct election
by the people on the assumption ' ' that in a
Republican or Democratic government the
people were sovereign, and all power re-
sided in them." He did not believe that
the influence of politics would be worse in
the election of Judges by the people than
in the election of members of the General
Assembly. "Joint ballot," he declared,
"was one of the most corrupt methods of
election ever devised."

Mr. Bailey did not doubt "the capacity
of the people to elect their Judges;" but

210 THE CONSTITUTIONS OF IOWA

he thought that ' ' there was real danger in
the Judges becoming corrupt through po-
litical influences. They were liable to
form partialities and prejudices in the can-
vass, that would operate on the bench."
He had "no objection to the people elect-
ing the Judges; but he did not think they
desired the election — they had never
asked to have it."

Ex -Governor Lucas said "the question
would seem to be, whether there was any
officer in the government whose duties
were so sacred that they could not be
elected by the people. All officers were
servants of the people, from the President
down. ' ' He repudiated the idea that the
people were not capable of electing their
own servants. '

Mr. Quinton supported the proposition

THE CONSTITUTIONS OF IOWA 211

to elect the Judges, since "this was said
to be an age of progress." In his opinion
"the ends of Justice would be better
served by elections by the people than
by the Legislature."

Mr. Kirkpatrick declared that the selec-
tion of Judges by the General Assembly
was ' ' wrong both in principle and in
policy." He was opposed to "voting by
proxy. ' ' He believed that ' ' we should
choose our Judges ourselves and bring
them often to the ballot box."

Mr. Fletcher "came pledged to go for
the election of Judges by the people. ' '
He believed that "the surest guaranty,
which could be had for the fidelity and
good conduct of all public officers, was to
make them directly responsible to the
people."

212 THE CONSTITUTIONS OF IOWA

The outcome of the discussion was a
compromise. The Judges of the Supreme
Court were to be named by the General
Assembly; but the Judges of the District
Court were to be elected by the people.

That the pioneers of Iowa, including the
members of the Convention of 1844, were
Democratic in their ideals is certain. They
believed in Equality. They had faith in
Jeffersonianism. They clung to the dogmas
of the Declaration of Independence. They
were sure that all men were born equal,
and that government to be just must be
instituted by and with the consent of the
governed. Such was their professed phil-
osophy. Was it universally applicable?
Or did the system have limitations? Did
the Declaration of Independence, for ex-
ample, include negroes?

THE CONSTITUTIONS OF IOWA 213

The attitude of the Convention on this
perplexing problem was perhaps fairly
represented in the report of a Select Com-
mittee to whom had been referred ' l a peti-
tion of sundry citizens praying for the
admission of people of color on the same
footing as white citizens." This same
Committee had also been instructed to in-
quire into the propriety of a Constitutional
provision prohibiting persons of color from
settling within the State.

In the opening paragraph of their re-
markable report the Committee freely
admitted (1) "that all men are created
equal, and are endowed by their Creator
with inalienable rights," and (2) that these
rights are "as sacred to the black man
as the white man, and should be so re-
garded. " At the same time they looked

214 THE CONSTITUTIONS OF IOWA

upon this declaration as "a mere abstract
proposition" which, "although strictly
true when applied to man in a state of
nature, .... becomes very much modified
when man is considered in the artificial
state in which government and society
place him."

The Committee then argued that "gov-
ernment is an institution or an association
entered into by man, the very constitution
of which changes or modifies to a greater
or less extent his natural rights. Some
are surrendered others are modified .... In
forming or maintaining a government it
is the privilege and duty of those who
are about to associate together for that
purpose to modify and limit the rights or
wholly exclude from the association any
and every species of persons who would

THE CONSTITUTIONS OF IOWA 215

endanger, lessen or in the least impair the
enjoyment of these rights. We have seen
that the application of this principle limits
the rights of our sons, modifies the privi-
leges of our wives and daughters, and
would not be unjust if it excluded the
negro altogether. - - 'Tis the party to the
compact that should complain, not the
stranger. Even hospitality does not sanc-
tion complaint under such circumstances.
True, these persons may be unfortunate,
but the government is not unjust."

Thus the problem of negro citizenship
was not one of abstract right, but must be
settled on grounds of expediency. ' 'Would
the admission of the negro as a citizen
tend in the least to lessen, endanger or
impair the enjoyment of our governmental
institutions?" The answer of the Com-
mittee reads as follows:

216 THE CONSTITUTIONS OF IOWA

" However your committee may com-
miserate with the degraded condition of
the negro, and feel for his fate, yet they
can never consent to open the doors of our
beautiful State and invite him to settle our
lands. The policy of other States would
drive the whole black population of the
Union upon us. The ballot box would
fall into their hands and a train of evils
would follow that in the opinion of your
committee would be incalculable. The
rights of persons would be less secure, and
private property materially impaired. The
injustice to the white population would be
beyond computation. There are strong
reasons to induce the belief that the two
races could not exist in the same govern-
ment upon an equality without discord and
violence, that might eventuate in insurrec-

THE CONSTITUTIONS OF IOWA 217

tion, bloodshed and final extermination of
one of the two races. No one can doubt
that a degraded prostitution of moral feel-
ing would ensue, a tendency to amalgam-
ate the two races would be superinduced,
a degraded and reckless population would
follow; idleness, crime and misery would
come in their train, and government itself
fall into anarchy or despotism. Having
these views of the subject your committee
think it inexpedient to grant the prayer of
the petition."

Nor was it thought expedient by the
Committee to introduce an article into the
Constitution which would exclude alto-
gether persons of color from the State,
notwithstanding the fact that "the people
of Iowa did not want negroes swarming
among them." Even Mr. Langworthy,

218 THE CONSTITUTIONS OF IOWA

who had been instructed by his constitu-
ents "to get something put into the Con-
stitution by which negroes might be ex-
cluded from the State," felt that the mat-
ter could safely be left with the General
Assembly. Mr. Grant thought that an
exclusion clause in the Constitution would
"endanger our admission into the Union."
Although the report was laid on the
table, it nevertheless represented the domi-
nant opinion then prevalent in Iowa. Our
pioneer forefathers believed that the
negroes were men entitled to freedom and
civil liberty. But more than a score of
years had yet to elapse before there was in
their minds no longer "a doubt that all
men [including the negroes] are created
free and equal. ' '

THE CONSTITUTIONS OF IOWA 219

When the delegates were elected to the
Convention of 1844 the people of the
Territory were still suffering from the
effects of over- speculation, panic, and gen-
eral economic depression. Many of them
still felt the sting of recent bank failures
and the evils of a depreciated currency.
Hence it is not surprising to learn from
the debates that not a few of the delegates
came to the Convention instructed to op-
pose all propositions which in any way
favored corporations, especially banking
corporations.

The opposition to banks and bank
money was not local; it was National.
The bank problem had become a leading
party issue. Democrats opposed and
Whigs generally favored the banks. It
was so in Iowa, where the agitation was

220 THE CONSTITUTIONS OF IOWA

enlivened by the presence of the "Miners'
Bank of DuBuque." This institution,
which was established in 1836 by an act
of Congress, had been the local storm
center of the bank question. Prior to
1844 it had been investigated four times
by the Legislative Assembly of the Terri-
tory.

In the Convention a minority as well as
a majority report was submitted from the
Committee on Incorporations. The ma-
jority report provided: (1) that one bank
may be established with branches, not to
exceed one for every six counties; (2)
that the bill establishing such bank and
branches must be (a) passed by a majority
of the members elected to both houses of
the General Assembly, (b) approved by
the Governor, and (c) submitted to the

THE CONSTITUTIONS OF IOWA 221

people for their approval or rejection; (3)
that "such bank or branches shall not
have power to issue any bank note or bill
of a less denomination than ten dollars;"
(4) that "the stockholders shall be liable
respectively, for the debts of said bank,
and branches;" and (5) that "the Leg-
islative Assembly shall have power to
alter, amend, or repeal such charter, when-
ever in their opinion the public good may
require it."

The same majority report provided fur-
ther: (1) that "the assent of two-thirds of
the members elected to each house of the
Legislature shall be requisite to the pas-
sage of every law for granting, continuing,
altering, amending or renewing any act of
Incorporation;" (2) that no act of incor-
poration shall continue in force for more

222 THE CONSTITUTIONS OF IOWA

than twenty years; (3) that the personal
and real property of the individual mem-
bers of a corporation shall be liable for
the debts of such corporation; and (4)
that 1 1 the Legislative Assembly shall have
power to repeal all acts of incorporation
by them granted."

The minority report, which was signed
by two members of the Committee, pro-
vided that "no bank or banking corpora-
tion of discount, or circulation, shall ever
be established in this State."

In the discussion that followed the intro-
duction of these reports the Whig mem-
bers of the Convention were inclined to
keep restrictions out of the Constitution
and leave the whole question of establish-
ing banks to the General Assembly. The
Democrats were not united. The more

THE CONSTITUTIONS OF IOWA 223

radical supported the minority report;
others favored the establishment of banks
well guarded with restrictions.

Mr. Hempstead said that he was op-
posed to all banks as a matter of principle.
He pointed out that there were three kinds
of banks — banks of deposit, banks of dis-
count, and banks of circulation. "To
this last kind he objected. They were
founded in wrong, and founded in error."
He declared that such corporations should
be excluded altogether from the State.
Indeed, he said that ' ' if the whole concern
-banks, officers and all — could be sent
to the penitentiary he would be very glad
of it."

Mr. Quinton thought that ' ' the whole
concern of Banks, from big A down, were
a set of swindling machines, and now was

224 THE CONSTITUTIONS OF IOWA

the time for the people of Iowa to give an
eternal quietus to the whole concern. "

Mr. Kipley declared that "Banks had
always been a curse to the country .... He
believed Banks to be unconstitutional, and
oppressive upon the laboring classes of the
community. "

Mr. Bailey was an anti-Bank man; "but
he knew many Democrats who were in
favor of Banks under proper restrictions."

Mr. Hall said that "Banking was a
spoiled child; it had been nursed and
petted till it had become corrupt. " He
objected to banking "because it conferred
privileges upon one class that other classes
did not enjoy." He believed that the peo-
ple would find that "a bank of earth is
the best bank, and the best share a plough-
share."

THE CONSTITUTIONS OF IOWA 225

Mr. Gehon wanted to put his "feet
upon the neck of this common enemy of
mankind."

Ex-Governor Lucas, who represented
the conservative Democrats, said that this
was not a party issue but rather a ques-
tion of expediency. He was in favor of
leaving it to the Legislature and the people.

Mr. Lowe said that ' ' the truth was, this
matter, like all other questions of internal
policy, should be left where all the other
States of the Union have left it, to the
sovereign will of a free and independent
people."

Mr. Hawkins said that ' ' the Whigs were
in favor of leaving this matter to the action
of future Legislatures and to the people.
When a proposition was made for a char-
ter, let the details be decided by them with
all the lights before them at that time."

226 THE CONSTITUTIONS OF IOWA

As finally agreed to in the Convention,
article nine of the Constitution, which
dealt with corporations, contained the fol-
lowing provisions. First, no act of incor-
poration shall continue in force for more
than twenty years without being re-enacted
by the General Assembly. Secondly, the
personal and real property of the members
of a corporation shall at all times be liable
for the debts of such corporation. Third-
ly, the General Assembly "shall create
no bank or banking institution, or corpo-
ration with banking privileges" without
submitting the charter to a vote of the
people. Fourthly, the General Assembly
shall have power to repeal all acts of in-
corporation by them granted. Fifthly,
the property of the inhabitants of the
State shall never be used by any incorpor-

THE CONSTITUTIONS OF IOWA 227

ated company without the consent of the
owner. Sixthly, the State shall not be-
come a stockholder in any bank or other
corporation. In this form the question of
banks and corporations was submitted to
the people.

On Friday morning, November the first,
the Constitutional Convention of 1844 ad-
journed sine die after a session of just
twenty -six days.

XI

THE CONSTITUTION OF 1844

THE Constitution of 1844 as submitted by
the Convention to Congress and to the
people of the Territory of Iowa contained
thirteen articles, one hundred and eight
sections, and over six thousand words.

Article I. on "Preamble and Bounda-
ries" acknowledges dependence upon "the
Supreme Ruler of the Universe" and pur-
ports to ' ' establish a free and independent
government " in order uto establish justice,
ensure tranquility, provide for the common
defense, promote the general welfare, se-
cure to ourselves and our posterity, the
rights of life, liberty, and the pursuit of
happiness."

THE CONSTITUTIONS OF IOWA 229

Article II. as the "Bill of Rights" de-
clares that "all men are by nature free and
independent, and have certain unalienable
rights, among which are those of enjoying
and defending life and liberty, acquiring,
possessing, and protecting property, and
pursuing and obtaining safety and happi-
ness." All political power is "inherent
in the people;" for their "protection, se-
curity, and benefit" government is insti-
tuted; and they, the people, have "the
right at all times, to alter, or reform the
same, whenever the public good may re-
quire it. ' '

Following these classic political dogmas
of the American Revolution is a rather
exhaustive enumeration of the fundamental
rights of the individual, which at various
times and in various ways had found ex-

230 THE CONSTITUTIONS OF IOWA

pression in the state papers and Constitu-
tions of England and America, and which
together constitute the domain of Anglo-
Saxon liberty and freedom.

Article III. defines the "Right of Suf-
frage" by limiting the exercise thereof
to white male citizens of the United
States, of the age of twenty-one years,
who shall have been residents of the
State six months next preceding the elec-
tion, and of the county in which they
claim a vote thirty days.

Article IV. proclaims the theory of the
separation of powers in sweeping terms,
and prescribes the constitution of the law-
making department. Herein the legisla-
tive authority was vested in a General
Assembly, which was organized on the
bicameral plan. The members of the

THE CONSTITUTIONS OF IOWA 231

House of Representatives were to be chosen
for two years, those of the Senate for four
years. The regular sessions of the Gen-
eral Assembly were to be held biennially.

Article V. on the "Executive Depart-
ment" provides that the "Supreme Execu-
tive power shall be vested in a Governor,
who shall hold his office for two years; and
that a Lieutenant Governor shall be chosen
at the same time and for the same term."
The Governor must be a citizen of the
United States and have attained the age
of thirty years.

Article VI. organizes the "Judicial De-
partment." It provides for a Supreme
Court consisting of "a Chief Justice and
two Associates," to be chosen by the Gen-
eral Assembly for a term of four years.
The District Court was to "consist of a

232 THE CONSTITUTIONS OF IOWA

Judge, who shall reside in the district
assigned him by law," and be elected by
the people for the same term as the Judges
of the Supreme Court.

Article VII. provides that the * ' Militia ' '
shall be composed of "all able bodied
white male persons between the ages of
eighteen and forty-five years," except such
persons as are or may be especially ex-
empted by law. All details relative to
organizing, equipping, and disciplining the
militia were left to the General Assembly.

Article VIII. on ' ' Public Debts and Lia-
bilities" prohibited the General Assembly
from contracting debts and obligations
which in the aggregate would exceed one
hundred thousand dollars.

Article IX. placed restrictions upon
banking and other business corporations.

THE CONSTITUTIONS OF IOWA 233

Article X. deals with "Education and
School Lands." It provides for a "Super-
intendent of Public Instruction" who shall
be chosen by the General Assembly. It
directs the General Assembly to provide
for a system of common schools. It de-
clares also that the General Assembly
"shall encourage, by all suitable means,
the promotion of intellectual, scientific,
moral and agricultural improvement."

Article XI. outlines a system of local
government which includes both the county
and the township organization. The de-
tails are left to the General Assembly.

Article XII. provides for "Amendments
to the Constitution." In the case of partial
revision of the Constitution, the specific
amendment must be passed by two suc-
cessive General Assemblies and ratified by

234 THE CONSTITUTIONS OF IOWA

the people. When it is desired to have a
total revision of the fundamental law, the
General Assembly submits the question of
a Constitutional Convention to a direct
vote of the people.

Article XIII. provides a u Schedule" for
the transition from the Territorial to the
State organization.

From the view-point of subsequent events
the most significant provision of the Con-
stitution of 1844 was the one which defined
the boundaries of the future State. There
is, however, no evidence that the members
of the Convention foresaw the probability
of a dispute with Congress on this point,
although Governor Chambers in his mes-
sage of December, 1843, had pointed out
its possibility should the people of Iowa

THE CONSTITUTIONS OF IOWA 235

assume to give boundaries to the State
without first making application to Con-
gress for definite limits. It was on the
question of boundaries that the Constitu-
tion of 1844 was wrecked.

In the Convention the regular standing
Committee on State Boundaries reported
in favor of certain lines which were in sub-
stance the boundaries recommended by
Governor Lucas in his message of Novem-
ber, 1839. Indeed, it is altogether proba-
ble that the recommendations of Robert
Lucas were made the basis of the Commit-
tee's report. This inference is strength-
ened by the fact that the illustrious Ex-
Governor was a member of the Committee.
It will be convenient to refer to the bound-
aries recommended by the Committee as
the Lucas boundaries.

236 THE CONSTITUTIONS OF IOWA

The Lucas boundaries were based upon
the topography of the country as deter-
mined by rivers. On the East was the
great Mississippi, on the West the Mis-
souri, and on the North the St. Peters.
These natural boundaries were to be con-
nected and made continuous by the arti-
ficial lines of the surveyor. As to the
proposed Eastern boundary there could be
no difference of opinion; and it was gen-
erally felt that the Missouri river should
determine the Western limit.

On the South the boundary must neces-
sarily be the Northern line of the State of
Missouri. But the exact location of this
line had not been authoritatively determin-
ed. During the administration of Lucas
it was the subject of a heated controversy
between Missouri and Iowa which at one

THE CONSTITUTIONS OF IOWA 237

time bordered on armed hostility. The
purpose of the Convention in 1844 was
not to settle the dispute but to refer to the
line in a way which would neither preju-
dice nor compromise the claims of Iowa.
The discussion of the Northern bound-
ary was, in the light of subsequent events,
more significant. As proposed by the
Committee the line was perhaps a little
vague and indefinite since the exact loca-
tion of certain rivers named was not posi-
tively known. Some thought that the
boundary proposed would make the State
too large. Others thought that it would
make the State too small. Mr. Hall pro-
posed the parallel of forty -two and one-
half degrees of North latitude. Mr. Peck

o

suggested the parallel of forty-four. Mr.
Langworthy, of Dubuque, asked that

238 THE CONSTITUTIONS OF IOWA

forty -five degrees be made the Northern
limit.

Mr. Lang worthy's proposition met with
considerable favor among the people living
in the Northern part of the Territory who
desired to increase the size of the State by
including a considerable tract North of the
St. Peters. Mr. Chapman suggests the ex-
istence of sectional feeling in the matter of
boundaries when he says, in reply to Mr.
Lang worthy's argument, that "it was a
kind of creeping up on the North which
was not good faith to the South. "

On October 14 the report of the regu-
lar Committee on State Boundaries was re-
ferred to a Select Committee consisting of
representatives from the twelve electoral
districts. But this Committee made no
changes in the original report except to

THE CONSTITUTIONS OF IOWA 239

make the Northern boundary a little more
definite.

As finally adopted by the Convention
and incorporated into the Constitution of
1844, the boundaries of the State were as
follows : * ' Beginning in the middle of the
main channel of the Mississippi river oppo-
site the mouth of the Des Moines river;
thence up the said river Des Moines, in the
middle of the main channel thereof, to a
point where it is intersected by the Old
Indian Boundary line, or line run by John
C. Sullivan in the year 1816; thence west-
wardly along said line to the 'Old North-
west corner of Missouri;' thence due west
to the middle of the main channel of the
Missouri river; thence up in the middle of
the main channel of the river last mention-
ed to the mouth of the Sioux or Calumet

240 THE CONSTITUTIONS OF IOWA

river; thence in a direct line to the middle
of the main channel of the St. Peters river,
where the Watonwan river (according to
Nicollet's map) enters the same; thence
down the middle of the main channel of
said river to the middle of the main chan-
nel of the Mississippi river; thence down
the middle of the main channel of said
river to the place of beginning."

In accordance with the act of the Legis-
lative Assembly of February 12, 1844, and
section six of the "Schedule" it was pro-
vided that the new Constitution, * ' together
with whatever conditions may be made to
the same by Congress, shall be ratified or
rejected by a vote of the qualified electors
of this Territory at the Township elections
in April next." And the General Assem-
bly of the State was authorized to "ratify

THE CONSTITUTIONS OF IOWA 241

or reject any conditions Congress may
make to this Constitution after the first
Monday in April next. ' '

At the same time it was made the duty
of the President of the Convention to trans-
mit a copy of the Constitution, along with
other documents thereto pertaining, to the
Iowa Delegate at Washington, to be by him
presented to Congress as a request for the
admission of Iowa into the Union. For
such admission at an early day the Conven-
tion, as memorialists for the people of the
Territory, confidently relied upon "the
guarantee in the third article of the treaty
between the United States and France " of
the year 1803.

It now remained for Congress and the
people of the Territory to pass judgment
upon the Constitution of 1844.

XII

THE CONSTITUTION OF 1844 SUBMITTED
TO CONGRESS

THE second session of the Twenty -Eighth
Congress opened on Monday, December 2,
1844. On December 9, Senator Tappan
presented to the Senate the Constitution
which had been framed by the Iowa Con-
vention of 1844. It was referred at once
to the Committee on the Judiciary. Three
days later Augustus C. Dodge, Delegate
from the Territory of Iowa, laid before the
House of Representatives a copy of the
same instrument together with an ordi-
nance and a memorial from the Iowa Con-
vention. Here the documents were refer-
red to the Committee on Territories,

THE CONSTITUTIONS OF IOWA 243

On January 7, 1845, through Mr. Aaron
V. Brown, the Committee on Territories
reported a bill for the admission of Iowa
and Florida into the Union. This bill was
read twice and referred to the Commit-
tee of the Whole House on the State of
the Union, wherein it was considered on
the three days of February 10, 11, and 13.
It passed the House of Representatives on
February 13, 1844, by a vote of one hun-
dred and forty -four to forty -eight.

The day after its passage in the House
of Representatives the bill was reported
to the Senate. Here it was referred to the
Committee on the Judiciary, from which
it was reported back to the Senate without
amendment on February 24. The Senate
considered the measure on March 1, and
passed the same without alteration by a

244 THE CONSTITUTIONS OF IOWA

vote of thirty-six to nine. On March 3,
1845, the act received the signature of
President Tyler.

The debate on the bill for the admission
of Iowa under the Constitution of 1844 is
of more than local interest since it involv-
ed a consideration of the great question
of National Politics in its relation to the
growth of the West and the admission of
new States.

When Iowa applied for State organiza-
tion in 1844, Florida had been waiting and
pleading for admission ever since the year
1838. The reason for this delay was very
generally understood and openly avowed.
States should be admitted not singly but
in pairs. Florida was waiting for a com-
panion. And so in 1844 it fell to Iowa
to be paired with the peninsula. The

THE CONSTITUTIONS OF IOWA 245

principle involved was not new; but never
before had two States been coupled in the
same act of admission. The object sought
was plainly the maintenance of a balance of
power between the North and the South.

But back of the principle of the balance
of power, and for the preservation of which
that principle was invoked, stood Slavery.
The institution of free labor in the North
must be balanced by the institution of
slave labor in the South, since both must
be preserved. And so the admission of
Iowa and Florida had to be determined in
reference to this all -devouring question of
National Politics.

Upon examination it was found that the
proposed Constitution of Florida not only
sanctioned the institution of Slavery, but
it positively guaranteed its perpetuation

246 THE CONSTITUTIONS OF IOWA

by restraining the General Assembly from
ever passing laws under which slaves might
be emancipated. On the other hand the
Constitution of Iowa, although it did not
extend the privilege of suffrage to persons
of color, provided that "neither slavery nor
involuntary servitude, unless for the pun-
ishment of crimes, shall ever be tolerated
in this State."

Now it so happened that the opposing
forces of slave labor and free labor, of
' ' State Rights ' ' and ' ' Union, ' ' came to an
issue over the boundaries of the proposed
State of Iowa. In the bill for admission,
as reported by the House Committee on
Territories, the boundaries asked for by
the Iowa Convention in the Constitution
submitted by them were retained without
alteration. But Mr. Duncan, of Ohio, had

THE CONSTITUTIONS OF IOWA 247

other limits to propose. He would have
the new State of Iowa ''bounded by the
Mississippi on the East, by a parallel of
latitude passing through the mouth of the
Mankato, or Blue Earth river, on the
North, by a meridian line running equi-
distant from the seventeenth and eight-
eenth degrees of longitude West from
Washington on the West, and by the
Northern boundary of the Missouri on the
South." Mr. Duncan pointed out that
these were the boundaries proposed by
Nicollet in the report which accompanied
the publication in January, 1845, of his
map of the basin of the upper Mississippi.
He preferred the Nicollet boundaries be-
cause (1) they were "the boundaries of
nature" and (2) at the same time they left
sufficient territory for the formation of two
other States in that Western country.

248 THE CONSTITUTIONS OF IOWA

On the other hand, Mr. Brown, Chair-
man of the Committee on Territories, said
that the question of boundaries had been
carefully investigated by his Committee,
"and the conclusion to which they had
come was to adhere to the boundary asked
for by the people of Iowa, who were there,
who had settled the country, and whose
voice should be listened to in the matter."

Mr. Belser, of Alabama, was opposed
to the Duncan amendment since it ' l aimed
to admit as a State only a portion of Iowa
at this time. This he would have no ob-
jection to, provided Florida is treated in
the same way. He was for receiving both
into the Confederacy, with like terms and
restrictions. If Iowa is to come in with-
out dismemberment, then let Florida enter
in like manner; but if Iowa is divided,
then let Florida be divided also. "

THE CONSTITUTIONS OF IOWA 249

Mr. Vinton, of Ohio, was the most vig-
orous champion of the Duncan amendment.
He stood out firmly for a reduction of the
boundaries proposed by the Iowa Conven-
tion because the country to the North and
West of the new State, "from which two
other States ought to be formed," would
be left in a very inconvenient shape, and
because the formation of such large States
would deprive the West of ' ' its due share
of power in the Senate of the United
States."

Mr. Vinton was "particularly anxious
that a State of unsuitable extent should
not be made in that part of the Western
country, in consequence of the unwise and
mistaken policy towards that section of
the Union which has hitherto prevailed in
forming Western States, by which the great

250 THE CONSTITUTIONS OF IOWA

valley of the Mississippi has been depriv-
ed, and irrevocably so, of its due share in
the legislation of the country." As an
equitable compensation to the West for
this injustice he would make "a series of
small States" on the West bank of the
Mississippi.

Furthermore, Mr. Vinton did not think
it politic to curtail the power of the West
in the Senate of the United States by the
establishment of large States, since in his
opinion "the power of controlling this
government in all its departments may be
more safely intrusted to the West than in
any other hands." The commercial inter-
ests of the people of the West were such
as to make them desirous of protecting the
capital and labor both of the North and
the South.

THE CONSTITUTIONS OF IOWA 251

Again, he declared that if disunion
should ever be attempted ' ' the West must
and will rally to a man under the nag of
the Union." "To preserve this Union, to
make its existence immortal, is the high
destiny assigned by Providence itself to
this great central power. ' '

The arguments for restriction prevailed,
and the Duncan amendment, which pro-
posed to substitute the Nicollet boundaries
for the Lucas boundaries, passed the House
of Representatives by a vote of ninety -one
to forty.

In the Senate the bill as reported from
the House was hurried through without
much debate. Here the question of bounda-
ries seems to have received no consider-
ation whatever. There were, however,
strong objections in some quarters to

252 THE CONSTITUTIONS OF IOWA

coupling Iowa with Florida in the matter
of admission.

Senator Choate, of Massachusetts, called
attention to the fact that this was the first
instance in the history of the admission of
States where it was proposed to admit two
States by the same act. Under the circum-
stances he could welcome Iowa into the
Union, but he could not give his hand to
Florida. It could not be argued that Flor-
ida must be admitted to balance Iowa,
since the admission of Texas was already
more than a balance for the northern State.
However appropriate it might have been
at an earlier day to pair Florida with Iowa,
it ought not to be thought of at this time.
For, since the introduction of the bill,
"we have admitted a territory on the
southwest much larger than Iowa and

THE CONSTITUTIONS OF IOWA 253

Florida together — a territory that may be
cut up into forty States larger than our
small States, or five or six States as large
as our largest States. Where and how is
the balance to be found by the North and
East for Texas? Where is it to be found
but in the steadfast part of America? If
not there, it can be found nowhere else.
God grant it may be there ! Everything
has been changed. An empire in one re-
gion of the country has been added to the
Union. Look east, west, or north, and
you can find no balance for that. ' '

Senator Evans touched upon the great
issue when he proposed an amendment
which provided that so far as Florida was
concerned the bill should not take effect
until the people had removed from their
Constitution certain restrictions on the

254 THE CONSTITUTIONS OF IOWA

General Assembly relative to the emanci-
pation of slaves and the emigration and im-
migration of free negroes or other persons
of color. He was opposed to discrimina-
tions against free persons of color. Why,
then, retorted a Senator from the South,
do you not direct your artillery against the
Constitution of Iowa which does not allow
a colored person to vote?

No good reason had been urged showing
why Iowa should not be admitted into the
Union. All of the essential qualifications
for statehood were present — a large and
homogeneous population, wealth, morale,
and republican political institutions. Con-
gress did not pass an adverse judgment on
the Constitution of 1844, since that instru-
ment provided for a government which was

THE CONSTITUTIONS OF IOWA 255

Republican in form and satisfactory in

k

minor details. Only one change was de-
manded, and that was in relation to the
proposed boundaries. Here Congress in-
sisted upon the Nicollet boundaries as in-
corporated in the act of admission of
March 3rd, 1845, in opposition to the
Lucas boundaries as provided for in the
Constitution of 1844.

XIII

THE CONSTITUTION OF 1844 DEBATED
AND DEFEATED BY THE PEOPLE

WHILE Congress was discussing the bounda-
ries of Iowa and carefully considering the
effect which the admission of the new
State might possibly have upon matters of
National concern, the Constitution of 1844
was being subjected to analysis and criti-
cism throughout the Territory. Moreover,
it is interesting to note that the only pro-
vision of the Constitution which was held
up and debated in Congress was the very
one which was generally accepted by the
people of the Territory without comment.
Whigs and Democrats alike were satisfied
with the Lucas boundaries. Nor did the

THE CONSTITUTIONS OF IOWA 257

people of Iowa at this time think or care
anything about the preservation of the
"balance of power." Their adoption of,
and adherence to, the Lucas boundaries
was founded upon local pride and com-
mercial considerations.

Opposition to the Constitution of 1844
was at the outset largely a matter of parti-
san feeling. The Whigs very naturally
opposed the ratification of a code of funda-
mental law which had been formulated by
a Democratic majority. Then, too, they
could not hope for many of the Federal
and State offices which would be opened
to lowans after the establishment of Com-
monwealth organization. And so with
genuine partisan zeal they attacked the
instrument from Preamble to Schedule.
Nothing escaped their ridicule and sar-

258 THE CONSTITUTIONS OF IOWA

»

casm. By the Democratic press they were
charged with ' ' an intent to keep Iowa out
of the Union, so that her two Senators
shall not ensure the vote of the United
States Senate to Mr. Polk at the next

session. "

But the Whigs were not altogether alone
in their opposition to the proposed Consti-
tution, not even during the early weeks
of the campaign. There was some dis-
affection among the Democrats themselves,
that is, among the radicals who thought
that the new code was not sufficiently
Jeffersonian. The editor of the Dubuque
Express, for example, was severe in his
criticisms, but he intimated that he would
vote for the Constitution in the interests
of party discipline. The Bloomington Her-
ald, on the other hand, although a strong

THE CONSTITUTIONS OF IOWA 259

organ of the Democracy, emphatically de-
clared through its editorial columns that
"admission under the Constitution would
be a curse to us as a people."

As a party, however, the Democrats
favored the Constitution of 1844, defended
its provisions, and urged its adoption by
the people. They held that as a code of
fundamental law it was all that could be
expected or desired, and with a zeal that
equaled in every way the partisan efforts
of the Whigs they labored for its ratifica-
tion at the polls.

An examination of the arguments as set
forth in the Territorial press reveals two
classes of citizens who opposed ratification.
First, there were those who were hostile to
the Constitution because they did not want
State government. Secondly, there were

260 THE CONSTITUTIONS OF IOWA

others who could not subscribe to the
provisions and principles of the instrument
itself.

The out-and-out opponents of State
government continued to reiterate the old
argument of " Economy." They would
vote against the Constitution in order to
prevent an increase in the burdens of
taxation. This argument of itself could
not possibly have defeated ratification,
since there was at this time an overwhelm-
ing majority who desired admission into
the Union. And yet the plea of economy
(which always appealed strongly to the
pioneers) undoubtedly contributed some-
what to the defeat and rejection of the
Constitution of 1844.

Prior to the first of March, 1845, oppo-
sition to ratification was expressed chiefly

THE CONSTITUTIONS OF IOWA 261

in objections to the proposed Constitution.
As a whole that instrument was character-
ized as "deficient in style, manner, and
matter, and far behind the spirit of this
enlightened age." It could not even be
called a code of fundamental law, since it
contained legislative as well as Constitu-
tional provisions. It confounded statute
law with Constitutional law.

In its detailed provisions and clauses the
Constitution of 1844 was still less satisfac-
tory to the opponents of ratification. They
seemed to see everywhere running through
the whole instrument erroneous principles,
inexpedient provisions, and confused, in-
consistent, and bungling language. They
declared that the legislative, executive, and
judicial departments of the government
were not sufficiently separate and distinct.

262 THE CONSTITUTIONS OF IOWA

The principle of the separation of powers
was clearly violated (1) by giving to the
Executive the power of veto, and (2) by
allowing the Lieutenant Governor to par-
ticipate in the debates of the Senate. Nor
were the popular powers — namely, the
powers of sovereignty — always differ-
entiated from the delegated powers — or,
the powers of government.

The Constitution was roundly abused
because it provided for the election of the
Judges of the inferior courts by the people.
To the minds of the critics the office of
Judge was too sacred to be dragged into
partisan politics and through corrupting
campaigns. Judges ought not to be re-
sponsible to the people, but solely to their
own consciences and to God. Likewise, it
was contrary to the principles of efficient

THE CONSTITUTIONS OF IOWA 263

and harmonious administration to provide
for the popular election of the Secretary of
State, Auditor of Public Accounts, and
Treasurer. Such positions should be filled
by executive appointment.

Again, the Constitution was attacked
because it provided for biennial instead of
annual elections. The salaries fixed for
State officers were "niggardly and insuffi-
cient. ' ' The method prescribed for amend-
ing the Constitution was altogether too
tedious and too uncertain. The provisions
relative to corporations were too narrow,
since they restrained the General Assembly
from providing for internal improvements.
By requiring all charters of banks and
banking institutions to be submitted to a
direct vote of the people, the Constitution
practically prevented the organization and
establishment of such institutions.

264 THE CONSTITUTIONS OF IOWA

Finally, objections were made to that
section of the Bill of Rights which pro-
vided that no evidence in any court of law
or equity should be excluded in conse-
quence of the religious opinions of the wit-
ness. To some it was horrifying to think
of admitting the testimony of non-believers
and Atheists.

Such were the arguments against ratifica-
tion which were advanced by the opponents
of the Constitution of 1844. However,
that instrument was not so defective as
pictured, since back of all objections and
all opposition was the mainspring of par-
tisan politics. The Whigs were bent on
frustrating the program of the Democrats.
Were they able to defeat the Constitution
on the issue of its imperfections ? No, not
even with the assistance of the radical

THE CONSTITUTIONS OF IOWA 265

Democrats ! But fortunately for the cause
of the opposition a new and powerful ob-
jection to ratification appeared in the clos-
ing weeks of the campaign. The news
that Congress had, by the act of March 3,
1844, rejected the boundaries prescribed
by the Iowa Convention reached the Terri-
tory just in time to determine the fate of
the Constitution of 1844.

A close examination of this act of Con-
gress revealed the fact that the fourth
section thereof conditioned the admission
of Iowa upon the acceptance of the Nicollet
boundaries uby a majority of the qualified
electors at their township elections, in the
manner and at the time prescribed in the
sixth section of the thirteenth article of the
constitution adopted at Iowa City the first
day of November, anno Domini eighteen

266 THE CONSTITUTIONS OF IOWA

hundred and forty -four, or by the Legisla-
ture of said State." Moreover, it was
found that the provisions of the Constitu-
tion of 1844 just quoted read as follows:
' ' This constitution, together with what-
ever conditions may be made to the same
by Congress, shall be ratified or rejected
by a vote of the qualified electors of this
Territory at the township elections in April
next, in the manner prescribed by the act
of the Legislative Assembly providing for
the holding of this Convention: Provided,
however, that the General Assembly of this
State may ratify or reject any conditions
Congress may make to this Constitution
after the first Monday of April next."

In the light of these provisions it ap-
peared to the people of Iowa that a vote
cast for the Constitution would be a vote

THE CONSTITUTIONS OF IOWA 267

for the Constitution as modified by the act
of Congress. This view was altogether
plausible since no provision had been made
for a separate ballot on the conditions im-
posed by Congress. And so it was thought
that a ratification of the Constitution would
carry with it an acceptance of the Nicollet
boundaries, while a rejection of the Consti-
tution would imply a decided stand in favor
of the Lucas boundaries.

Those who during the fall and winter
had opposed ratification now renewed their
opposition with augmented zeal. The
Whigs turned from their petty attacks
upon the provisions of the Constitution to
denounce the conditions imposed by Con-
gress. They declared that the Constitution
must be defeated in order to reject the un-
desirable Nicollet boundaries.

268 THE CONSTITUTIONS OF IOWA

The boundary question now led a con-
siderable number of the more moderate
Democrats to oppose ratification. Promi-
nent leaders of the party took the stump
and declared that it would be better to re-
ject the Constitution altogether than to
accept the limited boundaries proposed by
Congress. They declared that the "natu-
ral boundaries" as prescribed by the Con-
stitution should not be curtailed, and
called upon all good Democrats to vote
down their own Constitution. Many, how-
ever, continued to support ratification, be-
lieving that the boundaries imposed by the
act of Congress were the best that could be
obtained under the existing conditions.
Augustus Dodge, the Iowa Delegate in
Congress, took this stand.

When the Constitution of 1844 was be-

THE CONSTITUTIONS OF IOWA 269

fore Congress Mr. Dodge had stood firmly
for the boundaries as proposed in that in-
strument. But on the day after the act of
March 3, 1845, had been signed by the
President, he addressed a letter to his con-
stituents in Iowa advising them to ratify
the Constitution and accept the Nicollet
boundwies as prescribed by Congress. Mr.
Dodge thought that the State would still be
large enough. He knew that the country
along the Missouri river was fertile, but
"the dividing ridge of the waters running
into the Mississippi and Missouri rivers,
called the ' Hills of the Prairie,' and which
has been excluded from our new State, is
barren and sterile." He called attention to
the fact that the boundaries prescribed by
Congress were those suggested by Mr.
Nicollet, a United States Geologist, ' ' who

270 THE CONSTITUTIONS OF IOWA

had accurately and scientifically examined
the whole country lying between the Mis-
sissippi and Missouri rivers." Then he
pointed out the influences which operated
in reducing the boundaries, and concluded
by saying: "Forming my opinion from
extensive inquiry and observation, I must
in all candor inform you that, whatever
your decision on the first Monday in April
next may be, we will not be able hereafter
under any circumstances to obtain one
square mile more for our new State than is
contained within the boundaries adopted
by the act of Congress admitting Iowa into
the Union. "

From the returns of the election it was
evident that Mr. Dodge's constituents
either did not take him seriously or were
sure that he was mistaken in his conclu-

THE CONSTITUTIONS OF IOWA

sions. The Constitution of 1844 was re-
jected by a majority of 996 votes.

The result of the election was such as to
"astound the friends of the Constitution
and to surprise everybody, both friend and
foe." Those who had labored for ratifica-
tion throughout the campaign abused the
Whigs for opposing so perfect an instru-
ment, censured the Convention for submit-
ting the Constitution to Congress before it
had been ratified by the people, and pre-
ferred general charges of misrepresentation.
The friends of the Constitution clamored
loudly for a re -submission of the code of
fundamental law as it had come from the
Convention, so that the people might have
an opportunity to pass upon it free from
conditions and without misrepresentation.
Within a few weeks the seventh Legislative

272 THE CONSTITUTIONS OF IOWA

Assembly of the Territory was to meet in
regular session. The members would be
asked to give the Constitution of 1844
another chance.

XIV

THE CONSTITUTION OF 1844 KEJECTED
A SECOND TIME

ON Monday the fifth day of May, 1845,
the Legislative Assembly of the Territory
met in regular session. Three days later
a message from Governor Chambers was
presented and read to the members, where-
by they were informed that the vote in
April had certainly resulted in the rejec-
tion of the Constitution. "And," con-
tinued the Governor, "there is reason to
believe that the boundary offered us by
Congress had much influence in producing
that result."

Believing that the rejection of the Con-
stitution by the people called for some

274 THE CONSTITUTIONS OF IOWA

action on the part of the Assembly, Gov-
ernor Chambers proposed and recommend-
ed "that the question be again submitted
to the people, whether or not they will
at this time have a Convention." But a
majority of the Assembly were in favor of
re-submitting the Constitution of 1844 as
it had come from the hands of the Con-
vention. A bill to re-submit was accord-
ingly introduced and hurried through to
its final passage.

A formal and solemn protest from the
minority, signed by nine members and
entered on the journal of the House of
Representatives, set forth the leading ob-
jections to re -submission. 1. The Assem-
bly had no delegated power to pass such
a measure. 2. The act was designed to
control rather than ascertain public senti-

THE CONSTITUTIONS OF IOWA 275

ment. 3. The Constitution of 1844 had
been deliberately rejected by the people.
4. No memorial indicating a change of
opinion had been sent up by the people
since the election. 5. In the April elec-
tion the people had not been misled; they
voted intelligently; and their ballots were
cast against the Constitution itself. The
conditions imposed by Congress "doubt-
less had influence in different sections of
the Territory, both for and against it.
What was lost on the North and South
by the change, was practically made up by
the vote of the center where the Congres-
sional boundaries are more acceptable than
those defined in the Constitution." 6.
The question of territory being a "minor
consideration," the Constitution was reject-
ed principally on account of its inherent

276 THE CONSTITUTIONS OF IOWA

defects. 7. Under no consideration should
the Constitution of 1844 be again submit-
ted to the people since it embodied so
many objectionable provisions.

Although the bill for re-submission had
passed both branches of the Assembly by
a safe majority, Governor Chambers did
not hesitate to withhold his assent. On
June 6 he returned it to the Council. But
it is difficult to ascertain the precise
grounds upon which the Governor with-
held his approval, since his message deals
with conditions rather than objections. In
the first place he reviewed the conditions
under which the Constitution of 1844 had
at the same time been submitted to Con-
gress and to the people of the Territory.
Then he pointed out that, whereas a poll
was taken on the Constitution according to

THE CONSTITUTIONS OF IOWA 277

law, no provision had been made for a
separate poll on the conditions imposed by
Congress. This, he thought, produced
such confusion in the public mind as to
cause the defeat of the Constitution. To
be sure, he had proposed and was still in
favor of submitting the question of a Con-
vention to the people. But he would not
now insist on such a policy. He freely
admitted that the Legislative Assembly
had the power to pass the measure before
him. At the same time it seemed to him
that, should the Constitution of 1844 be
re- submitted to the people, it would simply
give rise to confusion in attempts to recon-
cile and harmonize the various provisions
of the statutes of the Territory, the act of
Congress, and the Constitution.

In the face of the Governor's veto the

278 THE CONSTITUTIONS OF IOWA

bill to re -submit the Constitution passed
both branches of the Assembly by the
requisite two-thirds majority, and on June
10, 1845, was declared by the Secretary of
the Territory to be a law. It provided
"that the Constitution as it came from the
hands of the late Convention" be once
more submitted to the people for their
ratification or rejection. It directed that a
poll be opened for that purpose at the
general election to be held on the first
Monday of August, 1845. The votes of
the electors were to be given viva voce.
Furthermore, it was expressly provided
that the ratification of the Constitution
" shall not be construed as an acceptance
of the boundaries fixed by Congress in the
late act of admission, and the admission
shall not be deemed complete until what-

THE CONSTITUTIONS OF IOWA 279

ever condition may be imposed by Con-
gress, shall be ratified by the people."

Thus the people were again asked to
pass upon the Constitution of 1844. The
campaign of the summer of 1845 was very
much like the campaign of the spring.
All of the leading arguments both for and
against the Constitution were repeated in
the press and on the stump. The parties
divided on the same lines as before, except
that the Whigs in their opposition had the
assistance of a much larger Democratic
contingent.

One is surprised to find, in connection
with the boundary question, little or no
mention of "slavery," the "balance of
power," or the "small State policy." In-
deed the people of Iowa seemed wholly
indifferent to these larger problems of

280 THE CONSTITUTIONS OF IOWA

National Politics. It is perhaps the most
remarkable fact in the fascinating history
of the Constitution of 1844 that, in the
dispute over boundaries, the parties did
not join issue on common grounds. Con-
gress, on the one hand, desired to curtail
the boundaries of Iowa for the purpose
of creating a greater number of Northern
States to balance the slave States of the
South; whereas the people of Iowa pro-
tested against such curtailment not because
of any balance -of -power considerations,
but simply because they wanted a large
State which would embrace the fertile
regions of the Missouri on the West and
of the St. Peters on the North.

Augustus C. Dodge naturally received a
good deal of criticism and abuse about this
time on account of his March letter ad vis-

THE CONSTITUTIONS OF IOWA 281

ing the acceptance of the boundaries pro-
posed by Congress. By the Whigs he was
set down as "a deserter of the people's
cause." Even the Legislative Assembly,
which was Democratic, resolved "that the
Delegate in Congress be instructed to in-
sist unconditionally on the Convention
boundaries, and in no case to accept any-
thing short of the St. Peters on the North,
and the Missouri on the West, as the
Northern and Western limits of the future
State of Iowa." Mr. Dodge was not the
man to oppose the known wishes of his
constituents; and so, after June 10, 1845,
he was found earnestly advocating the
larger boundaries.

One of the most interesting phases of
the campaign was a surprising revelation
in regard to the attitude and ambitions of

282 THE CONSTITUTIONS OF IOWA

the people living in the Northern part of
the Territory — particularly the inhabitants
of the city and county of Dubuque. In
1844 the people of this region had been in
favor of extending the boundary as far
North as the St. Peters; and in the Consti-
tutional Convention of that year Mr. Lang-
worthy, of Dubuque, had gone so far as to
advocate the forty-fifth parallel of latitude
as a line of division. But on April 26,
1845, the Bloomington Herald declared
that a proposition had gone out from
Dubuque to divide the Territory on the
North by a line running due West from
the Mississippi between the counties of
Jackson and Clinton and townships eighty-
three and eighty -four. Later it was said
that the Dubuque Transcript was alto-
gether serious in reference to this proposed
division.

THE CONSTITUTIONS OF IOWA 283

These charges were not without founda-
tion; for the records of Congress show that
in May, 1846, the Speaker of the House
of Representatives "presented a memorial
of the citizens of the Territory of Iowa
north of the forty -second degree of north
latitude, praying for the establishment of
a new territorial government, extending
from the Mississippi river between the par-
allel of forty-two degrees and the northern
boundary line of the United States. Also
a memorial of Thomas McKnight and
others, citizens of Dubuque county, in said
Territory of like import. ' '

The official returns of the August elec-
tion showed that the Constitution of 1844
had been rejected a second time. But the
majority against its ratification had been
cut down by at least one half. Angry

284 THE CONSTITUTIONS OF IOWA

with disappointment the editor of the Iowa
Capital Reporter declared that its defeat
was due to "the pertinacious and wilful
misrepresentation of the Whig press rela-
tive to the boundaries. ' '

XV

THE CONVENTION OF 1846

WHEN the members of the eighth Legis-
lative Assembly of the Territory of Iowa
met in the Capitol on the first Monday of
December, 1845, they found that, as a
result of the rejection of the Constitution
of 1844, they were face to face with the
question which for six years had con-
fronted the pioneer law -makers of Iowa as
the greatest political issue of the Terri-
torial period. They found that the whole
problem of State organization was before
them for reconsideration.

It was found also that Politics had
worked some changes in the government of

286 THE CONSTITUTIONS OF IOWA

the Territory. John Chambers, who upon
the completion of his first term as Gov-
ernor had been promptly reappointed in
1844 by President Tyler, was as cheerfully
removed by President Polk in 1845. And
the Democracy of Iowa rejoiced over this
manifestation of Jacksonianism. They be-
lieved that they would now have a Governor
after their own heart — a Democrat who
would have confidence in the people and
respect the acts of their representatives.
To be sure, the first Governor of the Terri-
tory of Iowa was a Democrat; but Robert
Lucas had been altogether too independ-
ent. He had presumed to point out and
correct the errors and blunders of the As-
sembly; whereas a true Democratic Gover-
nor was one who did not lead, but always
followed the wisdom of the masses.

THE CONSTITUTIONS OF IOWA 287

James Clarke, the new Governor, was a
citizen of Burlington and editor of the
Territorial Gazette. During his residence
in the Territory he had always taken an
active part in Politics. In 1844 he served
as a Delegate in the Constitutional Con-
vention. Before this he had acted as Ter- -
ritorial Librarian; and for a short time he
filled the office of Secretary of the Terri-
tory.

Governor Clarke regretted the fate of
the Constitution which he had helped to
frame. In his message of December 3,
1845, he said: "Since your adjournment
in June last, a most important question
has been decided by the people, the effect
of which is to throw us back where we
originally commenced in our efforts to
effect a change in the form of government

288 THE CONSTITUTIONS OF IOWA

under which we at present live. — I allude
to the rejection of the Constitution at the
August election. This result, however
brought about, in my judgment, is one
greatly to be deplored. — That misrepre-
sentation and mystification had much to do
in effecting it, there can be no doubt; still
it stands as the recorded judgment of the
people; and to that judgment until the
people themselves reverse the decree, it is
our duty to submit. ' '

As to recommendations in reference to
this problem the Governor was cautious.
He favored State organization, because he
thought that "the prosperity of Iowa
would be greatly advanced by her speedy
incorporation into the Union as a State. ' '
But he did not presume to recommend a
particular course of action; he simply as-

THE CONSTITUTIONS OF IOWA 289

sured the Assembly of his hearty co-opera-
tion in any measure which might be en-
acted looking toward the accomplishment
of the desired end, that is, the early ad-
mission of Iowa into the Union.

Confident that the people of Iowa really
desired State organization and were anx-
ious for its immediate establishment, the
Legislative Assembly passed a bill provid-
ing: for the election of delegates to a Con-

O o

stitutional Convention. This act, which
was approved January 17, 1846, called for
the election by the people of thirty -two
delegates at the township elections in
April. The delegates were directed to
meet at Iowa City on the first Monday of
May, 1846, "and proceed to form a Con-
stitution and State Government for the
future State of Iowa." When completed

290 THE CONSTITUTIONS OF IOWA

the draft of the code of fundamental law
was to be submitted to the people for rati-
fication or rejection at the first general
election thereafter. If ratified by the
people it was then to be submitted to Con-
gress with the request that Iowa be admit-
ted into the Union "upon an equal foot-
ing with the original States." Thus the
Legislative Assembly forestalled the possi-
bility of a repetition of the blunder of
submitting to Congress a Constitution
before it had been passed upon by the
people. There was no serious opposition
to the course outlined by the Assembly,
for a large majority of the people were
now anxious to see the matter of State
organization carried to a successful con-
clusion.

Owing to the absence of vital issues,

THE CONSTITUTIONS OF IOWA 291

the canvass preceding the election of dele-
gates was not what would be called an
enthusiastic campaign. There was of
course a party struggle between the Whigs
and the Democrats for the seats in the
Convention. But the Whigs, "aware of
their hopeless minority," advocated a
" non-partisan election." They clamored
for a "no-party Constitution," — one free
from party principles — for they did not
want to see the Constitution of the State
of Iowa made the reservoir of party creeds.
They contended, therefore, that the dele-
gates to the Convention should be chosen
without reference to party affiliations.

The Democrats, however, were not mis-
led by the seductive cry of the Whigs.
They proceeded to capture as many seats
as possible. Everywhere they instructed

292 THE CONSTITUTIONS OF IOWA

their candidates to vote against banks.
When the returns were all in it was found
that they had elected more than two -thirds
of the whole number of delegates.

Of the thirty-two delegates who were
elected to seats in the Convention of 1846,
ten were Whigs and twenty -two were
Democrats. Fifteen of the members were
born in the South, eight in the New Eng-
land States, four in the Middle States, and
five in Ohio. Of those born in the South
six were from Kentucky, four from Vir-
ginia, three from North Carolina, one
from Alabama, and one from Maryland.
The eight members born in New England
were four from Vermont and four from
Connecticut. The oldest member of the
Convention was sixty -seven, the youngest
twenty three; while the average age of all

THE CONSTITUTIONS OF IOWA 293

was about thirty-seven years. As to occu-
pation, there were thirteen farmers, seven
lawyers, four merchants, four physicians,
one mechanic, one plasterer, one smelter,
and one trader.

It was on the morning of May 4, 1846,
that the second Constitutional Convention
met in the rooms of the Old Stone Capitol
at Iowa City. Thirty names were entered
on the roll. James Grant, a delegate from
Scott county who had served in the first
Convention, called the members to order.
William Thompson (not a member) was
appointed Secretary pro tern. Such was
the temporary organization. It lasted but a
few minutes; for, immediately after the roll
had been called, Enos Lowe, of Des Moines
county, was chosen, viva voce. President
of the Convention. Mr. Thompson was

294 THE CONSTITUTIONS OF IOWA

retained as permanent Secretary, Win. A.
Skinner was named as the Sergeant-at-
Arrns. At this point "the 'Rev. Mr.
Smith invoked a blessing from the Deity
upon the future labors of the Convention."
This was the only prayer offered during
the entire session. Some time was saved
by the immediate adoption of the rules of
the Convention of 1844.

In the afternoon it was agreed to have
six regular standing Committees. These
were: (1) On Boundaries and Bill of
Eights; (2) On Executive Department;

(3) On Legislative Department, Suffrage,
Citizenship, Education, and School Lands;

(4) On Judicial Department; (5) On In-
corporations, Internal Improvements, and
State Debts; and (6) On Schedule.

It is unfortunate that only the barest

THE CONSTITUTIONS OF IOWA 295

fragments have been preserved of what
was said in the Convention of 1846. The
official journal and a few speeches are all
that have come down to us. The debates
could not have been very long, however,
since the entire session of the Convention
did not cover more than fifteen days.
The discussion for the most part was con-
fined to those subjects upon which there
had been a marked difference of opinion in
the earlier Convention or which had re-
ceived attention in the campaigns of 1845.
Indeed, the fact that Boundaries, Incor-
porations, Banks, Salaries, Suffrage, Ex-
ecutive Veto, Elective Judiciary, and Indi-
vidual Rights were among the important
topics of debate is evidence of a desire on
the part of the Convention to formulate a
code of fundamental law that would not

296 THE CONSTITUTIONS OF IOWA

meet with the criticisms which were so
lavishly heaped upon the Constitution of
1844.

The Convention of 1846 was certainly
in earnest in its desire to draft a Consti-
tution which would be approved by the
people. Enos Lowe, the President, had
at the outset informed the members that
they were elected "to form a new Consti-
tution." But the attitude of the Conven-
tion is nowhere better expressed than in
the following action which was taken on
the eleventh day of May: "Whereas, In
the opinion of this Convention, it is all
important that the Constitution formed
here at this time, be so framed as to meet
with the approbation of a majority of the
electors of this Territory, therefore,

"Resolved, That a committee of three

THE CONSTITUTIONS OF IOWA 297

be added to the Supervisory Committee,
whose duty shall be to enquire into the
sectional feelings on the different parts of
a Constitution, and to report such alter-
ations as to them appears most likely to
obviate the various objections that may
operate against the adoption of this Con-
stitution. ' '

By the nineteenth of May the Conven-
tion of 1846 had completed its labors. In
comparison with the Convention of 1844
its history may be summed up in the one
word, ' ' Economy. ' ' The Convention of
1846 contained thirty -two members; that
of 1844, seventy-two. The former con-
tinued in session fifteen days; the latter
twenty-six days. The expenditures of
the second Convention did not exceed
$2,844.07; while the total cost of the first

298 THE CONSTITUTIONS OF IOWA

Convention was $7,850.20. Here then
was economy in men, economy in time,
and economy in expenditures. The thrifty
pioneers were proud of the record.

XVI

THE CONSTITUTION OF 1846

THE Constitution of 1846 was modeled
upon the Constitution of 1844, although
it was by no means a servile copy of that
twice rejected instrument. Both codes
were drawn up according to the same gen-
eral plan, and were composed of the same
number of articles, dealing substantially
with the same subjects. The Constitution
of 1846, however, was not so long as the
Constitution of 1844 and was throughout
more carefully edited.

Article I. on "Preamble and Bounda-
ries" does not contain the quotation from
the preamble of the Federal Constitution

300 THE CONSTITUTIONS OF IOWA

which was made a part of the correspond-
ing article in the Constitution of 1844.
As to boundary specifications, the only
material difference is found in the shifting
of the line on the North from the St.
Peters to the parallel of forty -three and
one half degrees of North latitude. This
new boundary was a compromise between
the boundaries suggested by Lucas and
those proposed by Nicollet.

The "Bill of Rights," which constitutes
Article II., contained one additional sec-
tion, which aimed to disqualify all citizens
who should participate in dueling from
holding any office under the Constitution
and laws of the State.

Article III. on the "Right of Suffrage"
reads the same as in the Constitution of
1844, although in the Convention of 1846

THE CONSTITUTIONS OF IOWA 301

a strong effort had been made to extend
this political right to resident foreigners
who had declared their intention of becom-
ing citizens.

Article IV. on the composition, organi-
zation, and powers of the General Assem-
bly contained four items which differed
materially from the provisions of the Con-
stitution of 1844. First, it was provided
that the sessions of the General Assembly
should commence on the first Monday of
January instead of on the first Monday of
December. Secondly, the Senate was to
choose its own presiding officer. Thirdly,
all bills for revenue must originate in the
House of Representatives. Fourthly, the
salaries for ten years were fixed as follows:
for Governor $1,000; for Secretary of
State $500; for Treasurer $400; for Audi-

302 THE CONSTITUTIONS OF IOWA

tor $600; and for Judges of the Supreme
Court and District Courts $1,000.

Article V. on "Executive Department"
differs from the corresponding article in
the Constitution of 1844 in that the office
of Lieutenant Governor is omitted, while
the term of the Governor is made four
years instead of two.

Article VI., which provides for the
Judiciary, limits the term of the Judges of
the Supreme Court and District Courts to
four years.

Articles VII. and VIII. on "Militia"
and "State Debts" respectively are the
same as in the earlier Constitution.

Article IX. on "Incorporations" is a
radical departure from the provisions of
the old Constitution. The General As-
sembly is empowered to provide general

THE CONSTITUTIONS OF IOWA 303

laws with reference to corporations, but is
restrained from creating such institutions
by special laws. At the same time the
article provides that "no corporate body
shall hereafter be created, renewed, or ex-
tended, with the privilege of making, issu-
ing, or putting in circulation, any bill,
check, ticket, certificate, promissory note,
or other paper, or the paper of any bank,
to circulate as money. The General As-
sembly of this State shall prohibit, by
law, any person or persons, association,
company or corporation, from exercising
the privileges of banking, or creating
paper to circulate as money."

Article X. on "Education and School
Lands ' ' directs the General Assembly to
"provide for the election, by the people,
of a Superintendent of Public Instruction ' '

304 THE CONSTITUTIONS OF IOWA

and to ''encourage by all suitable means,
the promotion of intellectual, scientific,
moral and agricultural improvement."

Article XI. on "Amendments of the
Constitution" provided but one method of
effecting changes in the fundamental law.
The General Assembly was empowered to
provide at any time for a vote of the
people on the question of a Convention to
"revise or amend this Constitution."
If a majority of the people favored a Con-
vention, then the General Assembly was
to provide for the election of delegates.

Article XII. contains three "miscellane-
ous" items relative to (a) the jurisdiction
of Justices of the Peace, (&) the size of
new counties, and (<?) the location of lands
granted to the State.

Article XIII. on "Schedule" provided,

THE CONSTITUTIONS OF IOWA 305

among other things, that the Governor
should by proclamation appoint the time
for holding the first general election under
the Constitution; but such election must be
held within three months of the adoption
of the Constitution. Likewise, the Gov-
ernor was empowered to fix the day of the
first meeting of the General Assembly of
the State, which day, however, must be
within four months of the ratification of
the Constitution by the people.

It is, moreover, interesting to note that
while the Constitution of 1844 prescribed
in general outline a system of county and
township government, the Constitution of
1846 left the whole matter of local gov
ernment to future legislation.

XVII

THE NEW BOUNDARIES

WHILE the people of the Territory of Iowa
were preparing for and holding a second
Constitutional Convention, and while they
were debating the provisions of the new
Constitution of 1846, Congress was recon-
sidering the boundaries of the proposed
State. The matter had been called up
early in the session by the Iowa Delegate.
Mr. Dodge, having been re-elected, re-
turned to Washington with the determi-
nation of carrying out his instructions so
far as the boundary question was con-
cerned. And so, on December 19, 1845,
he asked leave to introduce UA Bill to

THE CONSTITUTIONS OF IOWA 307

define the boundaries of the State of Iowa,
and to repeal so much of the act of the 3rd
of March, 1845, as relates to the bounda-
ries of Iowa." The original copy of this
bill, which has been preserved in the office
of the Clerk of the House of Representa-
tives, bears testimony to Mr. Dodge's
fidelity to promises made to the people;
for the description of boundaries therein
is a clipping from the Preamble of the
printed pamphlet edition of the Constitu-
tion of 1844. In discussing the question
later in the session he referred to his
pledges as follows: "I know, Mr. Chair-
man, what are the wishes and sentiments
of the people of Iowa upon this subject.
It is but lately, sir, that I have undergone
the popular ordeal upon this question; and
I tell you, in all candor and sincerity, that

308 THE CONSTITUTIONS OF IOWA

I would not be in this Hall to-day if I
had not made them the most solemn assur-
ances that all my energies and whatever
influence I possessed would be exerted to
procure for them the fifty-seven thousand
square miles included within the limits
designated in their original constitution.
It was in conformity with pledges that I
had given them personally, with instruc-
tions which I knew I had received from
them at the ballot-box, that I introduced,
at an early day of the present session, the
bill imbodying the boundaries of their
choice."

It was not, however, until March 27,
1846, that Mr. Stephen A. Douglas,
from the Committee on the Territories
to whom Mr. Dodge's bill had been re-
ferred, reported an "amendatory bill."

THE CONSTITUTIONS OF IOWA 309

This bill, which was introduced to take
the place of the original bill, rejected the
boundaries of the Constitution of 1844 and
proposed the parallel of forty -three de-
grees and thirty minutes as the Northern
boundary line of the new State. It was
committed to the Committee of the Whole
House on the State of the Union, wherein
it was discussed on the eighth of June
and reported back to the House. On the
ninth of June the amendatory bill was
taken up by the House and passed. It
was reported to the Senate without delay,
but was not passed by that body until the
first day of August. On the fourth day of
August the act received the approval of
President Polk.

The most important discussion of the
bill was in the House of Representatives

310 THE CONSTITUTIONS OF IOWA

on the eighth day of June. An attempt
was made to reduce the State on the
North. Mr. Kockwell, of Massachusetts,
moved to amend by striking out the words
" forty -three and thirty minutes" where
they occur and inserting in lieu thereof
1 i forty-two degrees. ' ' He understood from
a memorial which had been presented to
the House that the people in the Northern
part of the Territory did not wish to be
included within the proposed boundaries.

Mr. Douglas said that he was now in
favor of the new boundaries as proposed
by the Committee on the Territories. He
declared that the boundaries of the act of
March 3, 1845, "would be the worst that
could be agreed upon; the most unnatural;
the most inconvenient for the State itself,
and leaving the balance of the territory in

THE CONSTITUTIONS OF IOWA 311

the worst shape for the formation of other
new States." As to the memorial from
Dubuque recommending the parallel of
forty -two degrees, Mr. Douglas said that
he was aware of the influences which pro-
duced it. The people of Dubuque ' 'wished
either for such an arrangement as should
cause Dubuque to be the largest town in a
little State, or else to make it the central
town of a large State."

Mr. Rathburn, of New York, was op-
posed to the lines laid down in the bill.
He favored less extensive boundaries be-
cause he desired to preserve "the balance
of power" in the Union by the creation
of small States in the West. He "was
against making Empires; he preferred that
we should have States in this Union."

Mr. Vinton, of Ohio, said that in the

312 THE CONSTITUTIONS OF IOWA

last session of Congress "no question ex-
cept that of Texas had excited more inter-
est in the House." He did not think that
the people of the Territory should decide
the question of boundaries; and he asserted
that "if Congress was willing to let the
people of Iowa cut and carve for them-
selves, he did not doubt that they would
have their State extend to the mouth of
the Columbia."

The strongest speech, perhaps, in the
whole debate was that of the Iowa Dele-
gate. Mr. Dodge reviewed the history
of the boundary dispute and pointed out
that both he and the people of Iowa had
pursued a firm and honorable course. He
showed that many of the States were as
large as or even larger than the proposed
State of Iowa. Referring to the boundary

THE CONSTITUTIONS OF IOWA 313

proposed in the act of March 3, 1845, he
said: "It will never be accepted by the
people of Iowa." But he produced letters
to show that the Iowa Convention of 1846
were willing to accept the compromise
boundary proposed in the bill under dis-
cussion. "Thus, sir, it is now apparent
that, if the House will pass the bill re-
ported by the Committee on Territories,
it will put an end to this question. The
convention of Iowa have met the advances
of the Committee on Territories of this
House."

Mr. Vinton then "moved an amend-
ment, fixing the 43d parallel as the north-
ern boundary. ' ' This was a tempting
proposition. But Mr. Dodge stood firmly
for the parallel of forty -three degrees and
thirty minutes, and closed his remarks

314 THE CONSTITUTIONS OF IOWA

with these words: "I admonish the ma-
jority of this House that if the amendment
of the gentleman from Ohio is to prevail,
they might as well pass an act for our per-
petual exclusion from the Union. Sir, the
people of Iowa will never acquiesce in it."

From the Journal of the Iowa Conven-
tion of 1846, it appears that when the
Committee on Preamble and Boundaries
made their report on the morning of the
second day of the Convention they recom-
mended the compromise boundaries which
had already been proposed by the Com-
mittee on the Territories in the National
House of Representatives. But when the
report was taken up for consideration
several days later an amendment was
offered which proposed to substitute the

THE CONSTITUTIONS OF IOWA 315

boundaries as described in the Constitution
of 1844. On a test ballot the vote of the
Convention stood twenty -two to eight in
favor of the amendment. This was on the
eighth of May. Six days later, a resolu-
tion instructing the Committee on Revision
to amend the article on boundaries so as to
read as follows was adopted by a vote of
eighteen to thirteen:

"Beginning in the middle of the main
channel of the Mississippi river, at a point
due east of the middle of the mouth of
the main channel of the Des Moines river;
thence up the middle of the main channel
of the said Des Moines river, to a point on
said river where the northern boundary
line of the State of Missouri, as established
by the Constitution of that State, adopted
June 12th, 1820, crosses the said middle

316 THE CONSTITUTIONS OF IOWA

of the main channel of the said Des Moines
river; thence westwardly, along the said
northern boundary line of the State of
Missouri, as established at the time afore-
said, until, an extension of said line inter-
sects the middle of the main channel of the
Missouri river; thence, up the middle of the
main channel of the said Missouri river, to
a point opposite the middle of the main
channel of the Big Sioux river, according
to Mcollett's map; thence up the main
channel of the said Big Sioux river, accord-
ing to said map, until it is intersected by
the parallel of forty-three degrees, and
thirty minutes north latitude; thence east,
along said parallel of forty -three degrees
and thirty minutes, until said parallel in-
tersects the middle of the main channel of
the Mississippi river; thence down the mid-

THE CONSTITUTIONS OF IOWA 317

die of the main channel of said Mississippi
river to the place of beginning."

These were in substance the compromise
boundaries which were first proposed in
Congress by the Committee on the Terri-
tories on March 27, 1846. Their precise
description, however, was the work of
the Iowa Convention. Congress promptly
adopted this description in the Act of
August 4, 1846, by striking out the words
of the bill then pending and inserting the
language of the Iowa Convention as used
in the Preamble to their Constitution.

XVIII

THE ADMISSION OF IOWA INTO THE
UNION

WHEN submitted to the people the Consti-
tution of 1846 was vigorously opposed by
the Whigs who insisted that it was a party
instrument. Their attitude and arguments
are nowhere better set forth than in the
address of Wm. Penn Clarke to the elect-
ors of the counties of Muscatine, Johnson,
and Iowa. Mr. Clarke had come to the
conclusion, after reading the proposed code
of fundamental law, that its ratification
would "prove greatly detrimental, if not
entirely ruinous to the nearest and dearest
interests of the people, by retarding the
growth of the proposed State, in popula-

THE CONSTITUTIONS OF IOWA 319

tion, commerce, wealth and prosperity. ' '
This conviction led him to oppose the
adoption of the Constitution of 1846.

First, he objected to the Constitution
"because it entirely prohibits the estab-
lishing of banking institutions, " —institu-
tions which are absolutely essential to the
economic welfare and industrial develop-
ment of the State. He contended that this
"inhibition of banks is not an inhibition
of bank paper as a circulating medium.
.... The question is narrowed down to the
single point, whether we ivitt have hanks of
our own, and a currency of our mon crea-
tion, and under our own control, or whether
we will become dependent on other States
for such a circulating medium .... By pro-
hibiting the creation of banks, we but dis-
able ourselves, and substitute a foreign cur-

320 THE CONSTITUTIONS OF IOWA

rency for a home currency. The effect of
the article on Incorporations will be to
make Iowa the plunder ground of all
banks in the Union."

Secondly, Mr. Clarke opposed the adop-
tion of the Constitution of 1846 because
of the provisions in the eighth and ninth
articles. He maintained that the article
on State Debts was "tantamount to an
inhibition" of the construction of Internal
Improvements by the State government;
while the article on Incorporations aimed
to prohibit the people from making such
improvements.

Thirdly, he protested against the "ex-
periment" of an elective judicial system,
since the election of the judges "is calcu-
lated to disrobe our Courts of Justice of
their sacred character." Mr. Clarke would

THE CONSTITUTIONS OF IOWA 321

not "deny the right or the competency of
the people to elect their judicial officers;"
but he pointed out that the effect would
be "to place upon the bench political
partisans" and "to elevate to the judici-
ary second or third rate men in point of
talents and legal acquirements."

Fourthly, the Constitution should be re-
jected because it contains no provision
securing to the people the right to elect
their township and county officers. Fur-
thermore, it is "entirely silent with refer-
ence to county and township organization."

Fifthly, Mr. Clarke argued against the
adoption of the Constitution because "not
a single letter can be stricken from it with-
out calling a Convention." He declared
that the Democrats, after incorporating
into the Constitution "partizan dogmas,"

322

so formulated the article on Amendments
as to make their creed permanent.

In the closing paragraphs of this re-
markable arraignment of the proposed
Constitution, Mr. Clarke referred to local
interests in connection with the location of
the State Capital. Iowa City, he said,
had been founded "with a view to its
being the permanent Capital of the State."
But the new boundaries, proposed by the
Committee on the Territories, would, if
adopted, threaten the permanency of the
Iowa City location. Indeed, Mr. Clarke
went so far as to intimate that the relo-
cation of the Capital was a part of Mr.
Dodge's program in connection with the
solution of the boundary problem. Cur-
tailing the State on the North and extend-
jfng it at the same time to the Missouri

THE CONSTITUTIONS OF IOWA 323

on the West meant the ultimate shift-
ing of the Capital to the Raccoon Forks.
Mr. Clarke concluded the prophecy by
saying that "to quiet the center, we shall
probably be promised a State University,
or something of that character, and then
be cheated in the end."

Such were the leading objections to the
ratification of the Constitution of 1846 as
urged by the Whigs in the press and on
the stump. They were supported by the
more conservative Democrats who protested
against the article on Incorporations and
the article on Amendments. A large ma-
jority of the people, however, were impa-
tient for the establishment of State organi-
zation. For the time they were even will-
ing to overlook the defects of the proposed
Constitution. Many voted for the instru-

324 THE CONSTITUTIONS OF IOWA

ment with the hope of remedying its im-
perfections after admission into the Union
had once been effected.

The Constitution of 1846 narrowly es-
caped defeat. At the polls on August 3,
1846, its supporters, according to the Gov-
ernor's proclamation, were able to com-
mand a majority ,of only four hundred and
fifty-six out of a total of eighteen thousand
five hundred and twenty-eight votes.

On September 9, 1846, Governor Clarke,
as directed by the Territorial statute of
January 17, 1846, issued a formal procla-
mation declaring the ratification and adop-
tion of the Constitution. In the same
proclamation, and in accordance with the
provisions of the new Constitution, the
Governor designated " Monday, The 26th
Day of October Next" as the time for

THE CONSTITUTIONS OF IOWA 325

holding the first general election for State
officers. The returns of this election
showed that the Democrats had succeeded
in electing Ansel Briggs, their candidate
for Governor, by a majority of one hun-
dred and sixty-one votes. The same party
also captured a majority of the seats in the
first General Assembly.

Following the directions of the Schedule
in the new Constitution, Governor Clarke
issued a proclamation on November fifth
in which he named Monday, November 30,
1846, as the day for the first meeting of
the General Assembly. On December sec-
ond the Territorial Governor transmitted
his last message to the Legislature.

It was on Thursday morning, December
3, 1846, that the Senators and Represen-
tatives assembled together in the Hall of

326

the House of Representatives in the Old
Stone Capitol to witness the inauguration
of the new Governor. Here in the pres-
ence of the General Assembly Judge
Charles Mason, Chief Justice of the Su-
preme Court of the Territory, administered
the oath of office to the first Governor of
the State of Iowa.

Twelve days after the inauguration of
the State Governor at Iowa City, Mr.
Dodge presented to the House of Repre-
sentatives at Washington a copy of the
Constitution of Iowa. The document was
at once referred to the Committee on the
Territories, from which a bill for the ad-
mission of Iowa into the Union was re-
ported through Mr. Stephen A. Douglas
on December seventeenth. It was made a
special order of the day for Monday, De-

THE CONSTITUTIONS OF IOWA 327

cember twenty -first, when it was debated
and passed. Reported to the Senate on the
twenty -second, it was there referred to the
Committee on the Judiciary. This Com-
mittee reported the bill back to the Senate
without amendment. After some consider-
ation it passed the Senate on December
twenty -fourth. Four days later it received
the approval of President Polk. The
existence of Iowa as one of the Common-
wealths of the United States of America
dates, therefore, from the TWENTY-EIGHTH

DAY OF DECEMBER, ONE THOUSAND EIGHT
HUNDRED AND FORTY-SIX.

The act of admission declares that Iowa
is "admitted into the Union on an equal
footing with the original States in all re-
spects whatsoever," and provides that all
the provisions of ' 'An Act supplemental to

328 THE CONSTITUTIONS OF IOWA

the Act for the Admission of the States of
Iowa and Florida into the Union" approved
March 3, 1845, shall continue in full force
"as applicable to the State of Iowa." The
conditions contained in the provisions of
this act, which had been substituted by
Congress in lieu of the provisions of the
Ordinance submitted by the Convention of
1844, were finally accepted by the General
Assembly of the State in an act approved
January 17, 1849.

XIX

THE CONVENTION OF 1857

THROUGHOUT Iowa there was a very general
feeling of satisfaction with the new polit-
ical status which came with the establish-
ment of State government and admission
into the Union. Having outlived the con-
ditions of Territorial government the
pioneers of Iowa now entered into the new
political life without regret. They re-
joiced over the fact that they were recog-
nized as a part of a great Nation. They
appreciated the significance of the change.
Nor were the pioneers of Iowa strangers to
National political life. As settlers on the
Public Domain they were in a very special

330 THE CONSTITUTIONS OF IOWA

sense children of the Nation. They had
always cherished the inheritances of the
"Fathers." But now the days of depend-
ence were over. Henceforth this people
of the frontier would strengthen the whole
country with their own political ideas and
ideals. They would, indeed, help to vi-
talize the Politics of the Nation with the
provincial spirit of Western Democracy.
On the other hand, the people of Iowa
did not accept their new State Constitution
without reservations. Wm. Penn Clarke's
address had been widely read and his argu-
ments were accepted not alone by the
Whigs. In fact the Constitution of 1846
had not been adopted altogether on its
merits. The people were anxious to get
into the Union, and they voted for the
Constitution as the shortest road to admis-

THE CONSTITUTIONS OF IOWA 331

sion. They meant to correct its errors
afterwards.

In 1848 the editor of the Iowa City
Standard asserted that the Constitution of
1846 had been "accepted purely from
motives of expediency, and with a tacit
understanding that it was to receive some
slight amendments as soon as they could
constitutionally and legally be made. And
but for this it would have been rejected
by a very handsome majority. No well
informed citizen can deny this."

And so the Constitution of 1846 had
scarcely been ratified at the polls before an
agitation looking toward its amendment or
revision was begun. As early as August
19, 1846, the Iowa City Standard declared
that "three fourths of the people of Iowa
have determined that, cost what it may,

332 THE CONSTITUTIONS OF IOWA

the Ninth Article shall not remain unal-
tered in the Constitution."

During the first session of the General
Assembly of the State a bill providing for
an expression of the opinion of the people
of Iowa upon the subject of amendment
passed the House of Representatives, but
was indefinitely postponed in the Senate
by a vote of ten to eight. This was in
February, 1847. In 1848 the question of
Constitutional amendment was made an
issue in the political campaign. The
Whigs advocated amendment or revision;
while the Democrats as a rule stood for the
Constitution as ratified in 1846.

A bill providing for an expression of
opinion by the people was again intro-
duced in the House of Representatives dur-
ing the second session of the General As-

THE CONSTITUTIONS OF IOWA 333

sembly, but was indefinitely postponed
after the second reading. A similar bill
was rejected by the House during the third
session. During the fourth regular session
petitions favorable to amendment were re-
ceived from the people.

In the meantime Stephen Hempstead was
elected to the office of Governor. He had
been opposed to the agitation for Consti-
tutional revision, and in his first Message
of December 7, 1852, he said: UI cannot
avoid a feeling of deep concern at the
opinion expressed by some portion of our
fellow citizens in favor of amending the
Constitution of our State in such a manner
as to authorize the establishment of Banks
— of special acts of incorporation for
pecuniary profit, and of contracting State
debts without limitations of the General

334 THE CONSTITUTIONS OF IOWA

Assembly." In the same document he
urged "upon the General Assembly the
propriety of passing a law to prohibit the
circulation of all bank notes of a less de-
nomination than ten dollars." When he
retired from office in December, 1854, he
still declared that he saw no "imperative
reason why our Constitution should be
amended." But his successor, Governor
Grimes, favored submitting the question of
revision and amendment to the people.

The necessity for a Convention to revise
the Constitution of 1846 had become im-
perative. Iowa was flooded with a depre-
ciated paper currency from other States.
Gold and silver money was scarce. The
few pieces which found their way into the
State were hoarded either to pay taxes or
to pay for government land.

THE CONSTITUTIONS OF IOWA 335

Finally, ' ' An Act providing for the re-
vision or amendment of the Constitution of
this State" was passed by the fifth Gen-
eral Assembly and approved by Governor
Grimes, January 24, 1855. In accordance
with its provisions a poll was opened at the
general election in August, 1856, "for the
purpose of taking a vote of the people for
or against a convention to revise or amend
the Constitution." On the tenth day of
September the Governor declared in his
official proclamation that a majority of
eighteen thousand six hundred and twenty -
eight votes had been cast in favor of a
Convention.

In November, 1856, thirty -six delegates
were elected to the Convention which met
in the Supreme Court room of the Old
Stone Capitol at Iowa City on January 19,

336 THE CONSTITUTIONS OF IOWA

1857. Mr. Gray, of Linn County, called
the Convention to order and moved that
John A. Parvin, of Muscatine, be chosen
President pr o tern. On the following day
Francis Springer was elected President of
the Convention. The other permanent
officers were as follows: Thomas J. Saun-
ders, Secretary; Ellsworth N. Bates, As-
sistant Secretary; S. C. Trowbridge, Ser-
geant-at-Arms; Francis Thompson, Door
Keeper; James O. Hawkins, Messenger;
and W. Blair Lord, Reporter.

Of the thirty-six delegates, six were from
the New England States, eleven from the
Middle States, ten from the South, and
nine from the Middle West. As to occu-
pation there were fourteen lawyers, twelve
farmers, two merchants, two dealers in real
estate, two bankers, one book-seller, one

THE CONSTITUTIONS OF IOWA 337

mail contractor, one druggist, and one
pork-packer. The youngest member was
twenty-six, the oldest fifty -six; while the
average age of all the members was forty
years. Twenty-one of the thirty-six mem-
bers were Republicans; the other fifteen
were Democrats.

Early in the session of the Convention
of 1857 there appeared to be considerable
dissatisfaction with the accommodations
afforded at Iowa City. The General As-
sembly had not yet adjourned, and so the
Convention was compelled to meet for a
few days in the Supreme Court room.
Some of the members complained of the
hotel service, and declared that they had
not been welcomed with proper courtesy
and hospitality by the people of Iowa City.
At the same time the Convention received

338 THE CONSTITUTIONS OF IOWA

alluring invitations from Davenport and
Dubuque. A committee of five was ap-
pointed to whom these invitations were
referred. The report of this committee
provoked a lively debate which Wm.
Penn Clarke desired to have suppressed in
the published reports. The result of the
discussion was that the Convention con-
cluded to remain in Iowa City.

On the second day the members took an
oath to support the Constitution of the
United States. Some desired to include
in this oath the Constitution of the State
of Iowa; but the majority did not think it
proper to swear allegiance to a Constitu-
tion which the Convention was called upon
to amend, revise, or perhaps reject alto-
gether.

The act of January 24, 1855, calling

THE CONSTITUTIONS OF IOWA 339

for the Convention, provided for "the re-
vision or amendment of the Constitution."
Many would have been satisfied with a few
amendments. The Convention, however,
proceeded to draft a completely revised
code of fundamental law. The two large
volumes of printed reports show that the
principles of Constitutional Law were dis-
cussed from Preamble to Schedule.

The most important question before the
Convention of 1857 was that of Corpor-
ations in general and of banking Corpor-
ations in particular. The Republican ma-
jority was pledged to make provisions
for a banking system of some sort. But
the popular mind had not decided whether
there should be a State bank with branches,
or a free banking system under legislative
restrictions, or both. Difficult and intri-

340 THE CONSTITUTIONS OF IOWA

cate as the problem was, the Iowa Conven-
tion handled it, nevertheless, with energy
and rare ability. The debates show that
the laws and experience of the other States
were carefully studied. Nor were local
conditions and local experience forgotten.
The discussions were long, earnest, and
often heated; but at no time did the Iowa
Convention lose its political sanity. That
political poise which, in the long run, has
always characterized Iowa Politics was
maintained throughout the session.

As finally agreed upon in the Convention,
the provisions of the new Constitution rela-
tive to banking Corporations were in sub-
stance as follows : (1) The power to make
laws relative to Corporations was conceded
to the General Assembly. (2) But acts
of the General Assembly authorizing or

THE CONSTITUTIONS OF IOWA 341

creating Corporations with banking pow-
ers must be referred to the people for
their approval at a general or special elec-
tion. (3) The General Assembly was em-
powered to establish "a State Bank with
branches." But such a bank, if established,
"shall be founded on an actual specie
basis, and the branches shall be mutually
responsible for each others' liabilities upon
all notes, bills, and other issues intended
for circulation as money." (4) The Gen-
eral Assembly may provide by a general
law for a free banking system under certain
restrictions, (a) Provision shall be made
"for the registry and countersigning, by
an officer of State, of all bills, or paper
credit designed to circulate as money," and
the law shall "require security to the full
amount thereof, to be deposited with the

342 THE CONSTITUTIONS OF IOWA

State Treasurer, in United States stocks,
or in interest-paying stocks of States in
good credit and standing." (#) Records
shall be kept of the names of stockholders
and of the stock held by each. (<?) Every
stockholder shall be individually liable for
an amount equal to twice the amount of
his stock. (cT) In cases of insolvency bill-
holders shall have a preference over other
creditors, (e) The suspension of specie
payments shall never be permitted or sanc-
tioned. (5) By a vote of two thirds of
each branch of the General Assembly all
laws for the organization or creation of
Corporations could be amended or repealed.
(6) The State shall not become a stock-
holder in any Corporation.

Next in importance to the question of
Corporations was the Negro problem.

THE CONSTITUTIONS OF IOWA 343

Shall the public schools of the State be
open to persons of color? Shall the Con-
stitution guarantee to all persons, irrespec-
tive of color, the right to acquire, hold, and
transmit property ? Shall the testimony of
Negroes be accepted in the courts? Was
the militia to be composed exclusively of
''able-bodied white male citizens?" Shall
the right of suffrage be extended to Ne-
groes? It was in respect to these vital
questions of the hour that the Republican
majority in the Convention was compelled
to declare and defend its attitude.

The fact that the Republican party of
Iowa was thus being put on trial for the
first time makes the debates of the Con-
vention of 1857 memorable in the political
annals of the State. But these Iowa Re-
publicans were at the same time defining

344 THE CONSTITUTIONS OF IOWA

and defending the attitude of their party
on National issues; and so the debates of
the Iowa Convention are a source-book also
in the broader history of America.

No one can read the pages of these de-
bates without feeling that Iowa was making
a decided contribution to National Politics.
Nearly four years before the "Divided
House Speech" was delivered at Spring-
field, Illinois, Governor Grimes had said
in his inaugural address : "It becomes the
State of Iowa — the only free child of the
Missouri Compromise — to let the world
know that she values the blessings that
Compromise has secured her, and that she
will never consent to become a party to
the nationalization of slavery." And full
two years before Lincoln defined the atti-
tude of his party in the Lincoln -Douglas

THE CONSTITUTIONS OF IOWA 345

debates, it had gone forth from the Iowa
Convention, (1) that the Republican party
was not a sectional party; (2) that Aboli-
tion was not a part of the Republican
creed; and (3) that, while they would arrest
the further extension of slavery, Republi-
cans had no desire to interfere with the
institution in places where it already
existed.

The question as to whether the Negro
should be allowed to vote in Iowa was
referred to the people to be decided by
them when the Constitution itself was sub-
mitted for ratification.

Another question of interest which pro-
voked considerable discussion in the Con-
vention was the location of the State Uni-
versity and the re-location of the Capital.
This problem had already been solved by

346 THE CONSTITUTIONS OF IOWA

the General Assembly. But to prevent
further agitation by making the compro-
mise permanent the following section was
added to the new Constitution: "The Seat
of Government is hereby permanently es-
tablished, as now fixed by law, at the city
of Des Moines, in the county of Polk, and
the State University at Iowa City, in the
county of Johnson."

After a session of thirty-nine days the
third Constitutional Convention in the his-
tory of Iowa adjourned sine die on Thurs-
day, March 5, 1857.

XX

THE CONSTITUTION OF 1857

THE code of fundamental law which was
drafted by the Convention of 1857 was
modeled upon the Constitution of 1846,
as this instrument had previously been
patterned after the Constitution of 1844.
Perhaps it would be better to say that the
Constitution of 1857 was simply a revision
of the Constitution of 1846. The later
document, however, is fuller and altogether
more complete and more perfect than its
precursors.

The changes which had been effected in
the fundamental law were summed up by
the President of the Convention in his

348 THE CONSTITUTIONS OF IOWA

closing remarks as follows: "We have
added some new and important guards for
the security of popular rights, and for the
promotion of the best interests of the social
compact. Restrictions existed in the old
constitution, which it is believed have oper-
ated to check and retard the energies and
prosperity of the State. These we have
removed. We have stricken the fetters
from the limbs of the infant giant, and given
free scope to resources, capable as we be-
lieve, of working out the highest results."
Some important additions were made to
the Bill of Rights. Section four declares
that the testimony of any person (includ-
ing Negroes), not disqualified on account of
interest, may be taken and used in any
judicial proceeding. Section six provides
that the ' 'General Assembly shall not grant

THE CONSTITUTIONS OF IOWA 349

to any citizen, or class of citizens, privi-
leges or immunities, which, upon the same
terms, shall not equally belong to all citi-
zens." To section nine is added the clas-
sical declaration that "no person shall be
deprived of life, liberty, or property, with-
out due process of law." Section twenty-
four, which is altogether new, provides
that "no lease or grant of agricultural
lands, reserving any rent, or service of any
kind, shall be valid for a longer period
than twenty years."

In Article III. the date of the regular
biennial session of the General Assembly is
changed from the first Monday in Decem-
ber to "the second Monday in January
next ensuing the election of its members."
Section fifteen provides that bills (in-
cluding those for revenue) may originate

350 THE CONSTITUTIONS OF IOWA

in either House of the General Assembly.
But, according to Section seventeen, ' ' no
bill shall be passed unless by the assent of
a majority of all the members elected to
each branch of the General Assembly."
Furthermore, the cases in which the General
Assembly is prohibited from passing local
or special laws are specifically ennumerated
in section thirty.

The most significant change or addition
in the article on the ' ' Executive Depart-
ment " is the provision for a Lieutenant
Governor.

The article on the Judicial Depart-
ment provides for the election of the
Judges of the Supreme Court by the people
instead of by the General Assembly. By
the same article provision is made for ' ' the
election of an Attorney General by the
people."

THE CONSTITUTIONS OF IOWA 351

The article on "State Debts" is more
explicit and more guarded, but permits the
State to contract debts which, however,
"shall never exceed the sum of two hun-
dred and fifty thousand dollars."

Article VIII. removes the illiberal re-
strictions which had been placed by the
Constitution upon Corporations — especially
banking Corporations. And Article X.
makes the process of amending the funda-
mental law altogether more flexible.

The Board of Education, provided for
in Article IX., was an innovation. As a
system of educational control it proved
unsatisfactory and was soon abolished by
the General Assembly.

The new Constitution was submitted to
the people for ratification at the regular
annual election which was held on Mon-

352 THE CONSTITUTIONS OF IOWA

day, August 3, 1857. Naturally enough
the Democrats, who had been in the mi-
nority in the Convention of 1857, opposed
the adoption of this "Republican code."
The Republican party, however, now had
the confidence of the people and were able
to secure its ratification by a majority of
sixteen hundred and thirty votes. At the
same time the special amendment which
proposed to extend the right of suffrage to
Negroes failed of adoption.

On September 3, 1857, Governor James
W. Grimes declared the "New Constitu-
tion" to be "the supreme law of the State
of Iowa. ' '

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