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History of the Constitutions of Iowa
by Benjamin F. Shambaugh
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Congress was not long in exercising this extraordinary power. On March 3, 1839, within eight months of the organization of the Territory, the President approved two acts amending the Constitution. These were: (1) "An act to alter and amend the organic law of the Territories of Wisconsin and Iowa;" and (2) "An Act to authorize the election or appointment of certain officers in the Territory of Iowa, and for other purposes."

The first limited the veto power of the Governor by providing that bills not approved by him might, nevertheless, become laws if passed a second time by two-thirds of both houses of the Legislative Assembly.

The second likewise aimed at curtailing the powers of the Governor by authorizing the Legislative Assembly to "provide by law for the election or appointment of sheriffs, judges of probate, justices of the peace, and county surveyors."

The history of a quarrel between the Governor and the first Legislative Assembly, which in a great measure occasioned these amendments, is significant in throwing light upon the political ideas and the democratic frankness and determination of the people of the Territory.

On July 7, 1838, President Van Buren issued a commission to Robert Lucas of Ohio, appointing him Governor of the new Territory of Iowa. The position was a difficult one to fill; but the President's selection promised to be the very best. Lucas was neither young, obscure, nor inexperienced. Born in Virginia, he had served with distinction in the War of 1812. He had served in the Legislature of Ohio, and had twice been elected to the office of Governor by the people of that State. In 1832 he acted as Chairman of the first National Convention of the Democratic Party.

Upon receiving his commission as Governor of Iowa, Robert Lucas repaired with all possible haste to the West. Venerable with years and political experience, he arrived at Burlington in August, 1838. Here he found that Wm. B. Conway, the Secretary of the Territory, "had assumed the Executive prerogative, had issued a proclamation dividing the Territory into Judicial Districts, and was about issuing a proclamation apportioning the Representatives and ordering an election." The conduct of the Secretary provoked the Governor; and Robert Lucas was not the man to conceal his feelings or hesitate to express his mind. From that time to the death of the Secretary in November, 1839, the two men were enemies. Lucas, in a letter to John Forsyth, Secretary of State, declared that Conway "has not only done nothing to render me assistance, but is generally believed to be the prime mover of the opposition to my proceedings, and the author of the documents forwarded to Washington by the members of the Legislature."

The first Legislative Assembly of the Territory of Iowa did not meet until November 12, 1838. On the first day of the session each house proceeded to organize pro tempore. Then they assembled jointly in the hall of the House of Representatives to be sworn in by the Governor, and to receive any communication which his "Excellency" might have to make to them.



Governor Lucas delivered his first message in person. He took pains to emphasize the fact that the Organic Act had vested the legislative power in "the Governor and a Legislative Assembly," which meant that "the Executive is vested with advisory and restraining powers, and the Legislative Assembly with deliberative and enacting powers." "In no place," he declared later in a communication to the Secretary of the Territory, "is there any power vested in the Legislative Assembly independent of the Governor."

Throughout the message, which when printed covered ten pages of the journal, the Governor freely advised and recommended such measures as he deemed most expedient. Then near the close he boldly added: "I shall at all times take pleasure in concurring with you in acts that tend to advance the general interests of the Territory, and the prosperity of the people;—but at the same time will be compelled to withhold my assent to such acts, or proceedings, as I may conscientiously for the time being believe to be prejudicial to the public good." Robert Lucas lived up to the spirit and the letter of his declaration.

In the matter of appointments the Governor's policy was courageously set forth in these words: "I shall at all times pay a due respect to recommendations; but cannot conscientiously nominate to office any individual of bad moral character, or, that may be addicted to intemperance or gambling, if known to me. These vices are so contaminating in their character, that all public officers in my opinion should be clear of even a suspicion of being addicted to them." Lucas, writing some years later, was of the opinion that this declaration was one of the potent causes of opposition to his administration.

After the election of permanent officers, which followed the Governor's speech, the Legislative Assembly proceeded with energy and enthusiasm to the business of legislation. But not a few of its measures met with the disapproval of the Governor. It soon became evident that the relations between the Executive and the Assembly were not altogether cordial. The situation was made still more embarrassing by the ill feeling which existed between the Governor and the Secretary of the Territory. Indeed it is clear that Mr. Conway was instrumental in stirring up much of the opposition to Governor Lucas by confiding his private grievances to members of the Assembly, by deferring to the Assembly to the point of servility, and by affecting to set up an administrative department distinct and separate from that of the Governor. On November 14, he submitted to the Council and House of Representatives the first of a series of communications bearing directly upon his own position and powers as Secretary and his relations to the Legislative Assembly, and indirectly upon his relations to the Governor and the relations of the latter to the Assembly.

It was early in the session that the Council and House of Representatives resolved "That when an act is presented to the Governor for his approval, he shall, within a reasonable time thereafter, make known to the House in which said act may have originated of his approval thereof; or if not approved of, the act shall be returned, with his objections thereto." For some weeks after its passage, this resolution seems to have received no attention. Either there was delay in presenting it to the Governor, or the Governor did not give it his immediate attention. It was not until January 4, 1839, that the resolution was returned to the House of Representatives with this observation from the Governor: "I see no place in the organic law, that vests the Council and House of Representatives with the right to dictate to the Executive in the discharge of his official duties."

In the meantime the Council had taken steps looking toward the regulation by statute of all official intercourse between the legislative and executive departments of the government. On December 4, 1838, a committee of two was appointed to confer with the Governor and report a bill. The committee held the conference and reported a bill on the day following. After some discussion the bill passed the Council on December 11, but not without important amendments. On the day following, the bill as amended passed the House of Representatives. It was presented to the Governor on the 18th.

On December 19, Lucas returned the bill to the Council with his veto. He objected to the changes which had been made in the bill as originally reported by the committee. At the same time he took occasion to state, for the information of the Assembly, the course he intended to pursue in the future. He said: "All bills, resolutions, or memorials, submitted to me, will be carefully examined, and if approved, will be signed and deposited in the office of the Secretary of the Territory. If special objections are found, but not sufficient to induce me to withhold my assent from the bill, resolution, or memorial, a special note of explanation will be endorsed with my approval. Bills, resolutions, or memorials, that may be considered entirely objectionable, or of doubtful policy, will be retained under advisement or returned to the Legislative Assembly, with my objections, at such time, and in such way and manner as I may, for the time being, deem to be most advisable."



In reply to all this it was "Resolved, By the Council and House of Representatives of the Territory of Iowa, That his Excellency Gov. Lucas, is hereby respectfully requested to inform each House of the Legislative Assembly, of all acts by him approved during the present session; and that he is further requested hereafter to inform the House in which a bill originated of his approval thereof immediately after the same has been given."

With a brief message, Lucas returned this resolution to the House of Representatives on January 5, 1839. He would at all times be pleased to comply with requests from the Assembly, provided it "could be done with some propriety and conscience; but having neither secretary, clerk, messenger, assistant or other attendant, in public employ, at the Executive office, . . . . I must respectfully decline a compliance with your respectful request, and most respectfully invite your attention to my communication of the 19th December last."

Two days later a committee of the House of Representatives headed by James W. Grimes reported on the Governor's vetoes. They held that the "various Executive vetoes" were not only uncalled for, but were unwarranted by the Organic Act of the Territory. The phrase in the Constitution which reads, "shall approve of all laws," is mandatory and leaves the Executive without discretion. The committee took the whole matter very seriously, believing that great principles were at stake. "As representatives of the people," they declared, "we conceive that we should be recreant to their rights and true interests, if we should acquiesce in the 'veto power' as used by the Executive . . . . We believe the people should be heard through those who represent them and are responsible to them. That their wishes should be regarded, and not the wishes of the Federal Government or a federal officer. We believe the principle claimed by the Governor is a most dangerous and pernicious principle, and as the representatives of freemen we cannot acquiesce in it."

A week later the House "Resolved, That Robert Lucas is unfit to be the ruler of a free people," and appointed a select committee to prepare a memorial to the President of the United States praying for his immediate removal.



The Council committee on Territorial Affairs was no less emphatic in its condemnation of the "Executive Vetoes." They did not believe that Congress in framing the Organic Act intended to confer the power of an absolute veto upon the Governor. In their report of January 22, 1839, upon the bill regulating the intercourse between the executive and legislative departments, they exclaimed: "It is time to remonstrate. The liberty of the people should be dear to their representatives, and he who DARES not defend their sacred rights, who would not, in the hour of peril, stand as a sentinel to guard their privileges, is unworthy the name of a freeman."

In the meantime the Legislative Assembly had prepared a memorial to Congress requesting an amendment to the Organic Act which would limit the Governor's veto power.

The Governor remained firm and unmoved to the end of the session. Notwithstanding all the resolutions, reports, and memorials of the Assembly, he continued to approve some measures, veto others, and endorse still others with special notes of explanation.

Nor did the indignation of the members of the Legislative Assembly subside as the session neared its close. They now hoped to get rid of the Governor. So they addressed a memorial to "His Excellency Martin Van Buren, President of the United States," in which they enumerated at length "the faults of Governor Lucas' administration," and asked for his immediate removal from the office of Chief Executive. In the House of Representatives the minority offered a preamble and resolution praying that they be allowed to forward a counter memorial to the President, but on the motion of James W. Grimes their preamble and resolution were rejected.

This remarkable memorial concerning Robert Lucas reads much like the arraignment of King George III in the Declaration of Independence. In the political history of Iowa it stands as the declaration of the independence of the will of the representatives of the people as over against the will of the administration. It stands as the protest of Democracy against the exercise of arbitrary power. Its significance lies not in any statement or misstatement of historical facts, but in the spirit of independence, courage, and democracy which pervades its lines.

When the Legislative Assembly met in November, 1839, the storm had passed. The Constitution of the Territory had been amended. Robert Lucas was still in office. But, reflecting upon the situation, he could truthfully say in his message: "It is with heartfelt gratitude to Almighty God . . . . that I am, through His special Providence, permitted again to address the Legislative Assembly."



IX

AGITATION FOR A STATE CONSTITUTION

The early agitation for the establishment of a State government cannot justly be interpreted as opposition to the Constitution of the Territory, or as disaffection with the Territorial government. On the contrary, it was altogether natural for the people who settled in the new Territory west of the Mississippi to look forward to the early establishment of a State government. Never in the history of the United States had Territories been viewed as permanent. In fact it was everywhere understood that the Territorial organization was at most a temporary arrangement which in time would give way to the more perfect Constitution of the Commonwealth. Then, too, in the case of Iowa there was such a rapid growth of population that admission into the Union could not be long delayed under any circumstance. Mr. Shepard was right when in 1838 he said: "If the Territory of Iowa be now established, it will soon become a State."

The movement for the establishment of a State government was inaugurated by Robert Lucas in his message to the second Legislative Assembly which met at Burlington on November 4, 1839. The Governor was of the opinion that in view of the "rapidly increasing population, and advancing prosperity of the Territory" the Assembly might "with propriety proceed to measures preparatory to the formation of a Constitution and State government." He knew that some would object to such measures as premature, "inasmuch as our expenses are defrayed by the United States," while the financial burdens of a State government would all have to be borne by the people. But, argued the Governor, did not prosperity and improvement within the States of Ohio, Indiana, Illinois, and Michigan languish during the Territorial period, and then advance "with rapid strides from the moment of their several admissions into the Union as independent States?" To his Excellency these historical "facts" were conclusive. The inference was clear in his mind. Prosperity and improvement result from the establishment of State government. So he earnestly recommended to the Legislative Assembly "the early passage of a memorial to Congress, respectfully asking of that body the passage of an Act, at their ensuing session, granting to the inhabitants of Iowa Territory the right to form a Constitution and State Government, and to provide for their admission into the Union upon an equal footing with the original States." Furthermore, he recommended "the passage of a law to provide for the calling of a convention to form a state constitution, so soon as Congress may grant by law the privilege to do so." The Governor was seriously in earnest. He even went so far as to recommend definite boundaries for the proposed Commonwealth.

Lucas was not alone in these advanced views. The newly elected President of the Council, Stephen Hempstead, thought that, notwithstanding the fact that the "Territory is yet in the bloom of infancy," only a "short period will elapse before Iowa will become a State." "You, gentlemen," he said, addressing the members of the Council, "are placed here for the purpose of maintaining her rights as a territory, to enact salutary laws for her government and to prepare her for an admission into the Union, under the great principles of civil liberty."

But the Legislative Assembly was more conservative. At the regular session of 1839-40 it neither memorialized Congress on admission into the Union nor passed a law providing for the calling of a Convention to form a Constitution. In opposition to the recommendations of the Governor and the views of a minority in the Assembly, it was argued (1) that the establishment of State Government would increase the burdens of taxation "which must render the new State government burdensome as well as odious to the people," (2) that "it could not add to the prosperity of the agriculturalist, the merchant, the miner, or the mechanic; nor could it render any more fruitful the sources of profit which are open to honest industry and application," and (3) that the people of the Territory enjoy under the acts of Congress ample liberty and freedom in self-government. The second Legislative Assembly of the Territory was not willing to assume the responsibility of measures looking toward so radical a change in the political status of the people of Iowa. On January 17, 1840, it adjourned only to meet again in extra session later in the year.



In the meantime the Committee on Territories in the House of Representatives had reported a bill enabling the people of Iowa to form a Constitution and State government. This gave Lucas an opportunity of directing attention again to the matter in which he was so deeply interested. When the Assembly met in extra session July 13, 1840, he was prepared with a suggestion that was as reasonable as it was democratic. He would have the whole question referred to the people for decision.

Presuming that the bill before Congress would pass, Lucas ventured to "suggest to the Legislative Assembly the expediency of providing by law for taking the sense of the people of this Territory on the subject of a convention at the next ensuing annual election." "It appears to me," he said, "that there can be no objection to submitting the subject to the people for their consideration, as an expression of public opinion through the ballot-box would enable the ensuing Legislative Assembly to act understandingly, and in accordance with the expressed will of the people on this important subject."

Following the suggestion of the Chief Executive the Assembly provided by law for obtaining the wishes of the people at the annual August elections. All who favored the calling of a Convention were required to write "convention" on their ballots; while all who opposed the proposition were required to write "no convention." The law having been approved by the Governor on the last day of July, very little time was left for its consideration by the electorate before the elections.



When the official returns were counted the Governor in a proclamation declared the result to be 937 votes for and 2,907 votes against a Convention. The defeat, which was decisive, indicated that the squatters had not yet paid for their claims. And so the Organic Act of 1838 continued to serve the people of Iowa as the code of fundamental law. Robert Lucas was disappointed, but he had to admit that the Territory went on increasing in population and wealth with phenomenal rapidity, notwithstanding the "facts" in the history of the Old Northwest. Not even the "imperfect conditions of Territorial government" seemed to affect in the slightest degree the economic prosperity and improvement of this frontier community.

The overwhelming defeat of the Convention proposition at the polls checked for a time all agitation in favor of a State Constitution. Even the Governor, who up to this time had been its most sanguine advocate, declared in his message of November that since the people had expressed their preference for Territorial Government, "all further legislation on the subject at the present session" is precluded. The question now remained in statu quo for over a year, that is, from August, 1840, to December, 1841.

In the meantime Robert Lucas had served out his full term of three years. There was no chance for his reappointment since the Democrats had lost the Presidency in the elections of 1840. The new Whig President, William Henry Harrison, appointed John Chambers, of Kentucky, to succeed the Ohio statesman. Again Iowa was fortunate in securing as Governor a man of experience and of National reputation.

When Governor Chambers sent his first message to the Legislative Assembly in December, 1841, he thought he had reason to believe that if the question of a Convention were again submitted to the people there would be evidenced by them a marked change in sentiment. Why? The answer was clearly set forth in the message. First, the population of the Territory had increased phenomenally since August, 1840. Secondly, Congress had passed the "Distribution Act" which provided (a) that Iowa should participate in the pro rata distribution, along with the twenty-six States and three Territories, and the District of Columbia, of the net proceeds of the sales of public lands, and (b) that five hundred thousand acres of land for internal improvements should be granted to every new State that should be admitted into the Union. John Chambers thought the liberal provisions of the Distribution Act would remove the grounds of all objections based upon the argument that State organization would be followed by burdensome taxes. In the light of these considerations he recommended that the question of a Convention be again submitted to the people.

Following this recommendation, the third Legislative Assembly passed "An Act to provide for the expression of the opinion of the people of the Territory of Iowa, upon the subject of the formation of a State Constitution and Government, and to enable them to form a Constitution for the State of Iowa," which act was approved February 16, 1842. Its provisions were as elaborate as its title.

A poll was to be opened at each electoral precinct at the time of the general election in August. As the qualified electors approached the polls they were to be asked by the judges of election whether they were in favor of or against a Convention. Thereupon the electors were to answer simply, "Convention" or "No Convention." The clerks of election were charged with keeping a record of these viva voce votes.

The act provided further, that should a majority of the votes polled be found to favor a Convention, then eighty-two delegates to such a Constitutional Convention were to be elected on the second Tuesday in October next after the election aforesaid. On the first Monday of November next following their election, the delegates elected were to meet at Iowa City "and proceed to form a Constitution and State Government, for the Territory of Iowa."

Finally it was provided "that when a Constitution and form of State Government" shall have been adopted by the Convention, the same shall be published in the newspapers of the Territory and voted upon by the people at the next general election, which would be held in August, 1843.

The Governor's message and the measure inspired by it were clear, full, and to the point. They called up for public consideration the whole problem of State organization in its several phases of (a) the calling of a Constitutional Convention, (b) the formation of a State Constitution, and (c) the admission of the State into the Union. They opened up a lively political discussion which was to continue for full five years.

As to the propriety and wisdom of calling a Constitutional Convention there was from the beginning a decided difference of opinion. The act of February 16, 1842, had met with strong opposition in both houses of the Legislative Assembly. In the press and among the people of the Territory the question became, naturally enough, the local issue in party politics. The Democrats who had fathered the measure in the Assembly were everywhere heartily in favor of State organization, but the Whigs, who, being in the minority, would neither control the Convention nor officer the new State government, were vigorous in their opposition.

Three days after the approval of the act of the Assembly there appeared in the Iowa City Standard a remarkable letter. Its author was Francis Springer, a member of the Council and a Whig of considerable influence. His letter was in substance "a speech prepared by him to be delivered in the Council on the bill relating to the Convention, but not delivered because shut down by the majority."

From this speech it appears that the bill relative to State organization, as originally introduced, provided for a vote of the people on the question of a Constitutional Convention and the election of delegates at the same time. This was confusing, since the election of delegates assumed a favorable vote on the question of a Convention.

But Mr. Springer was opposed to the bill in any form. He thought that since the people had not expressed a contrary opinion their adverse vote in 1840 "ought to settle the question." He intimated that the bill sought to create places for disappointed politicians. Certain prominent Democrats—notably Robert Lucas and Judge Williams—had recently lost their positions. "So offices must be created for them. Hence the proposition to create a State Government." Furthermore, Mr. Springer opposed the bill because State organization would greatly increase the burdens of local taxation. Nor was the recent legislation of Congress a satisfactory reply; for in his opinion the benefits to be derived from the Distribution Act would after all be inconsiderable.

Satisfied with existing conditions, he asked: "Are we slaves? Is our liberty restricted? Are we deprived of the rights, immunities, and privileges of American citizens? Is the rod of oppression held over us by the General Government? Has that Government manifested its care towards us by sending persons to 'spy out our liberties, misrepresent our character, prey upon us, and eat out our substance?' It is not pretended that there is a murmur of the kind. We are in possession of the most enlarged liberty and the most liberal favors. Then why urge this measure, uncalled for by the people, unwarranted by the condition of the Territory?" The newspapers of the Territory were divided on party lines. The Democratic press favored the calling of a Convention and urged the immediate organization of a State government; while the Whig press just as vigorously opposed all such measures from the calling of a Convention to admission into the Union.

In favor of a Constitutional Convention it was urged that the admission of Iowa into the Union would result in a more rapid increase in the population by immigration, since immigrants as a rule preferred States to Territories. Again, admission into the Union would give Iowa more influence at Washington, which would probably mean generous appropriations by Congress for the improvement of the rapids of the Mississippi. Politically the change would place the new Commonwealth on an equal footing with the other States, give the people a voice in the election of a President in 1844, and secure to them the long desired privilege of choosing their own Governor. It was even claimed that Statehood would promote character, foster independence, engender State pride, and inspire dignity, since "it would secure to us the noblest privilege of freemen! that of electing our own officers to govern over us, instead of being subjected to the additional humiliation of having them sent from abroad for that purpose." Finally, it was suggested that if Iowa did not hasten to make application for admission into the Union, Florida, the slave Territory which was then ready to be admitted, would be paired with Wisconsin.

These arguments were frequently accompanied by declamation and exhortation. The Territorial state was declared to be a condition of "colonial dependence" or "colonial vassalage." And so the question before the people was set forth as one of "Dependence" or "Independence." Will they support the proposition to establish a State government and thus follow in the footsteps of the Fathers of the Revolution? Or will they oppose the proposition and thereby brand themselves as Tories? To the advocates of State government the way was clear. "The freemen of Iowa should rise and strike for independence."

On the other hand, the opponents of State organization were quite willing "to let good enough alone." They were satisfied with Territorial government and saw no good reasons for a change. They were not unmindful of the fact that under the existing arrangement the expenses of the Territorial government were paid out of the Treasury of the United States. Then, too, the Whigs thought that the whole movement in favor of a State government savored of "jobs" and party aggrandizement. "It is evident," they said, "that a scheme is maturing with the Loco-focos of this Territory to involve the people in the support of a State government" for the "express purpose, as we believe, of benefitting such men as Ex-Governor Lucas (Lord Pomposity) and Judge Williams, and a few others of the same stamp."

Furthermore, some declared that Iowa was too young for Statehood, her resources were too limited, and the people were hardly prepared for the adoption of State government. Mr. Lowe argued that the change would be undesirable because there really were no eminent men in the Territory fitted for the tasks of State government. This was intimating that the pioneers of Iowa were incapable of self-government.

But the vital argument against this or any measure looking toward the establishment of a State government was the one which appealed directly to the people as taxpayers. Under the Organic Act of 1838 the United States generously assumed the burden of supporting the general government of the Territory, and so the salaries of Governor, Judges, Secretary, Attorney, and Marshals, the per diem allowance of the members of the Legislative Assembly, the expense of printing the laws, the contingent expenses of the Territory, and other incidental expenses were all paid out of the Treasury of the United States. Public buildings were erected out of funds drawn from the same source. But a change from Territorial to State organization meant that in the future these public expenditures would have to be met by warrants drawn on the Treasury of the State, the coffers of which must be supplied through local taxation. The people protested. The men who were industriously breaking the prairies, clearing the forests, and raising corn preferred to invest their small earnings in lands and plows and live stock.

An attempt was made to answer this argument. It was confidently asserted that the additional expense entailed by a State government would not exceed thirty thousand dollars annually. Nor would this amount have to be contributed by the people of Iowa, since it was estimated that the benefits to be derived from the Distribution Act would more than meet all additional obligations. Besides the State would receive five hundred thousand acres of land as a gift; while all the lands reserved for the support of schools could, under State organization, be used for such purposes.

The answer was of little avail. No one could predict with certainty the operation of the Distribution Act. Under the circumstances a majority of the voters were not willing to abandon the Territorial organization for the "dignity" of a Commonwealth government. At the general elections in August, 1842, every County in the Territory returned a majority against a Convention. Again the existence of the Organic Act of 1838 as a code of fundamental law was prolonged by a vote of the people.

Again the agitation for a State Constitution remained in abeyance for over a year, that is, from August, 1842, to December, 1843. In the meantime there were at least some immigrants who did not "prefer States to Territories." By May, 1844, the population of the Territory numbered over seventy-five thousand souls.

When the Legislative Assembly met in December, 1843, Governor Chambers was confident that the population of Iowa had "attained a numerical strength" which entitled the people to a participation in the government of the Union and to the full benefits of local legislation and local self-government. He therefore recommended in his message that provision be made for ascertaining the wishes of the people "in relation to this important matter." At the same time he advised the Assembly to "apply to Congress to fix and establish, during its present session, a boundary for the proposed State, and to sanction the calling of a Convention and to make provision for our reception into the Union as soon as we shall be prepared to demand it."

The Governor's reference at this time to a possible boundary dispute is interesting in the light of subsequent events. He says: "The establishment of a boundary for us by Congress will prevent the intervention of any difficulty or delay in our admission into the Union, which might result from our assuming limits which that body might not be disposed to concede to us."

The Legislative Assembly responded promptly to the suggestion that the people of the Territory be given another opportunity to express an opinion on what had come to be the most interesting question in local politics. As early as February 12, 1844, "An Act to provide for the expression of the opinion of the people of the Territory of Iowa upon the subject of the formation of a State Constitution for the State of Iowa" was approved by the Governor. In substance this act was practically a restatement of the provisions of the act of February 16, 1842. The viva voce vote was to be taken at the Township elections in April, 1844.

In many respects the campaign of the spring of 1844 was a repetition of the campaign of 1842. On the main issue the political parties were divided as before, that is, the Democrats favored and the Whigs opposed the calling of a Convention. In the public speeches and in the utterances of the press there was little that was new or refreshing. All the old arguments of 1840 and 1842 were dragged out and again paraded through the editorial columns of the newspapers. Again the opponents of State organization talked about the certain increase in the burdens of taxation and intimated that the whole movement was set on foot for no other purpose than to provide places for Democratic office-seekers. Again the ardent supporters of State government ignored the latter charge and replied to the taxation argument by quoting the provisions of the Distribution Act. Altogether the discussion lacked freshness, force, and vigor—it was stale and hackneyed. Two years of growth and reflection had wrought a change in sentiment. The public mind had evidently settled down in favor of State organization. At the elections in April the people returned a large majority in favor of calling a Constitutional Convention.

This first move in the direction of Statehood having been made by the people, it now remained to take the several additional steps of (1) the election of delegates to a Constitutional Convention, (2) the drafting of a State Constitution, (3) the adoption of such a Constitution by the people, and (4) the admission of the new State into the Union.



X

THE CONVENTION OF 1844

In accordance with the provisions of the act of February 12, 1844, and the act of June 19 amendatory thereof, seventy-three delegates to a Constitutional Convention were elected at the general Territorial elections in August, 1844. These delegates were chosen on partisan grounds. With the electorate the primary question was not, "Is the candidate well grounded in the principles of government and administration?" but "What are his political affiliations?"

When the votes were counted it was found that the Democrats had won a great victory. The Whigs had not succeeded in electing one third of the whole number of delegates.

Events were making rapidly toward the realization of State government. On Monday, October 7, 1844, sixty-three of the delegates elected met in the Old Stone Capitol at Iowa City and organized themselves into a constituent assembly.

The meeting was informally called to order by Francis Gehon of Dubuque County. Ralph P. Lowe was chosen to act as President pro tem. After a temporary organization had been fully effected the Convention of 1844 was formally opened with prayer. Upon the call of Counties by the Secretary the delegates presented their credentials and took their seats. One committee was appointed to examine credentials, and another to draw up rules of proceeding. The Convention then adjourned for the day.

When the Convention met on Tuesday morning the Committee on Credentials presented the names of all the delegates who had produced certificates of election. A report from the Committee on Rules was laid on the table. Mr. Bailey's resolution that "the editors of this Territory be permitted to take seats within the bar of this House" was adopted. The Convention then proceeded viva voce to the election of permanent officers, that is, a President, a Secretary, an Assistant Secretary, a Door-Keeper, and a Sergeant-at-Arms.

The honor of the Presidency fell to Shepherd Leffler of Des Moines County. George S. Hampton and Alexander B. Anderson, who were elected Secretary and Assistant Secretary respectively, were not members of the Convention. Warren Dodd was elected Sergeant-at-Arms, and Ephraim McBride, Door-Keeper.

Upon being conducted to the chair Mr. Leffler addressed the Convention in a most earnest manner. He tried to impress upon the members the serious importance of the work before them. "You meet gentlemen," he said, "on an occasion of the deepest interest. We are in the progress of an important change, in the midst of an important revolution, 'old things are to be done away and all things are to become new.' The structure and organization of our government are to be changed, territorial relations with the parent government are soon to cease, and Iowa must soon take upon herself the duties and the responsibilities of a sovereign State. But before this important change can be fully consummated, it is necessary for us to form a republican constitution, for our domestic government. Upon you, gentlemen, a confiding people have entrusted this high responsibility. To your wisdom, to your prudence, to your patriotism, they look for the formation of that instrument upon which they are to erect the infant republic—under your auspices the youngest and fairest daughter of the whole American family is to commence her separate political existence, to take her rank in the Union of the American States, and to add her star to the proud flag of our common country. Recollect, gentlemen, that the labor of your hands, whatever may be its fashion, will not be the fashion of a day, but permanent, elementary, organic. It is not yours to gild or to finish the superstructure, but to sound the bottom, to lay the foundation, to place the corner stone. Unlike the enactments of mere legislation, passed and sent forth to-day and recalled to-morrow, your enactments, when ratified by the people are to be permanent and lasting, sovereign and supreme, governing, controlling and directing the exercise of all political authority, executive, legislative and judicial, through all time to come."

Mr. Leffler hoped that the Convention would frame a Constitution which would, "in all its essential provisions, be as wise and as good if not wiser and better than any other instrument which has ever yet been devised for the government of mankind," so that "Iowa, young, beautiful and blooming as she now is, endeared to us by every attachment which can bind us to our country, may at no distant day, for every thing that is great, noble or renowned, rival if not surpass the proudest State of the American confederacy."

On the same day, and after the election of officers, the report of the Committee on Rules was taken up, slightly amended, and adopted. In the afternoon Mr. Hall, who came from a back county in which no newspapers were printed, moved "that each member of the Convention have the privilege of taking twenty copies weekly of the newspapers published in this city," and at the expense of the Convention. A lively discussion followed. Some favored the motion because its object was to provide the people with information concerning the Convention, others because they had already promised papers to their constituents. But Mr. Grant thought that it was both useless and corrupt. The delegates had come to the Convention with economy on their lips and therefore should resist such "useless expenditures." The motion was lost.

On the third day standing committees were announced on the following subjects: (1) Bill of Rights; (2) Executive Department; (3) Legislative Department; (4) Judicial Department; (5) Suffrage and Citizenship; (6) Education and School Lands; (7) Incorporations; (8) State Boundaries; (9) County Organization; (10) Internal Improvements; and (11) State Debts. The Convention was now in condition to take up the great task of drafting a code of fundamental law. On Thursday—the fourth day—the real work of the Convention began with a report from the Committee on State Boundaries.

Of the seventy-two members who labored in the Convention and signed the Constitution there were twenty-one Whigs and fifty-one Democrats. Twenty-six of the delegates were born in the South, twenty-three in the Middle States, ten in the New England States, ten in the States of the Old Northwest, one in Germany, one in Scotland, and one in Ireland. Of those born in the United States thirteen were from Pennsylvania, eleven from Virginia, nine from New York, eight from Kentucky, eight from Ohio, six from North Carolina, six from Vermont, and one each from Massachusetts, Connecticut, New Hampshire, Maine, New Jersey, Tennessee, Indiana, and Illinois. The oldest member was sixty-six, the youngest twenty-seven; while the average age of all was about forty years. As to occupation or profession, there were forty-six farmers, nine lawyers, five physicians, three merchants, two mechanics, two miners, two mill-wrights, one printer, one miller, and one civil engineer.

The Convention lost no time in procrastinating delays. Committees were prompt in making reports. Parliamentary wranglings were infrequent. There was no filibustering. The discussions were, as a rule, neither long, wordy, nor tiresome. Indeed, the proceedings were throughout conducted in a business-like manner. The Democrats were determined to frame a Constitution in accordance with what they were pleased to call "the true principles of Jeffersonian Democracy and Economy." They had the votes to carry out this determination.

And yet the proceedings of the Convention were by no means formal and without enlivening discussion. The fragments of the debates which have come down to us contain many remarks suggestive of the life, character, and political ideals of the people of early Iowa. For example, the discussion concerning newspapers, already referred to, brought out an expression of the popular ideal of economy and frugality. To be sure, newspapers containing information concerning the Convention and the fundamental instrument of government which was in the process of making would, if circulated widely throughout the Territory, educate and enlighten the people. But since the proposition involved the expenditure of several hundreds of dollars it was extravagant. The sacred principle of "Economy" could not be sacrificed to enlightenment. This pioneer ideal of thriftiness persisted among the Iowans for more than a generation.

Strict even to parsimoniousness in the matter of public expenditures, the pioneers of Iowa were not always puritan in observing the forms of religion. Their liberal attitude and their fearless courage in expressing views on so delicate a subject were displayed in an interesting debate in the Convention on a resolution offered by Mr. Sells to the effect "that the Convention be opened every morning by prayer to Almighty God."



Mr. Chapman favored the resolution, since "the ministers would gladly attend and render the services without compensation."

Mr. Gehon objected on the ground that "it would not be economical, for the Convention sat at an expense of $200 to $300 per day, and time was money."

Mr. Hall moved to amend the resolution so that the exercise of prayer might "commence at least one half hour before the assembling of the Convention." But Mr. Chapman thought that such a provision would be an insult to the Clergy and to "those who believed in the superintendence of Almighty God."

Mr. Kirkpatrick said that he too believed in a "superintending Providence" that "guided and controlled our actions." He was a firm believer in Christianity, but he "did not wish to enforce prayer upon the Convention." Prayer, he argued, was a moral precept which could not be enforced without violating or infringing the "natural right" of the members to worship God each in his own way. If "we can enforce this moral obligation, then we have a right . . . . to make every member of this Convention go upon his knees fifty time a day." Mr. Kirkpatrick cared nothing for precedent. "This was a day of improvement. Let those who believed so much in prayer, pray at home." After all "public prayer was too ostentatious."

Mr. Sells was shocked, and would "regret to have it said of Iowa that she had so far travelled out of Christendom as to deny the duty of prayer."

Ex-Governor Lucas, who was a member of the Convention, was astonished at Mr. Hall's amendment. He said that "if ever an assemblage needed the aid of Almighty Power, it was one to organize a system of Government." Furthermore, he believed that "it was due to the religious community, and to our own character" to have prayer. To reject the resolution would, he thought, "give us a bad name abroad."

Mr. Hooten reminded Lucas of the story told of Franklin, who, when a boy, asked his father why he did not say grace over the whole barrel of pork at once.

Mr. Hall was "opposed to any attempt on the part of the Convention to palm themselves off to be better than they really were, and above all other things, to assume a garb of religion for the purpose of giving themselves character." He doubted the efficacy of prayers invoked at political meetings, and cited an instance where a "Reverend gentleman" fervently prayed for the release of Dorr, the election of Polk and Dallas, and the triumph of Democratic principles. To believe in the efficacy of such a prayer implied that "Deity was a Democrat." Now, "if the Almighty was a Democrat, he would perhaps grant the prayer; if not a Democrat he would not grant it." Mr. Hall desired to know what was to be prayed for in the Convention. As for himself, "he would pray as did the man in New Orleans, that God would 'lay low and keep dark,' and let us do the business of the Convention." Prayers in the Convention were, he thought, inappropriate. "There were places where the Almighty could not be approached in a proper spirit—and this was one."

Mr. Bailey asked the members who voted against taking papers on the grounds of economy to be consistent and vote against this resolution to have prayers. It would save some two or three hundred dollars. Then, too, he thought that "people were becoming more liberal in [their religious] sentiment. No man could say that he ever opposed another on account of religion; he respected men who were sincerely religious; but he wanted to have his own opinions." Mr. Bailey feared that members might be compelled, under the resolution, "to hear what they were opposed to. This was contrary to the inalienable rights of man. If members did not feel disposed to come, it took away their happiness, contrary to the Declaration of Independence and the principle laid down by Thomas Jefferson, the Apostle of Liberty."

Mr. Cutler said that "he had not lived a great while, but long enough not to be afraid of meeting such a question openly." He opposed the resolution and desired the yeas and nays recorded on the motion.

Mr. Fletcher "regretted the opposition that he saw, and was unwilling that it should go forth to the world that Iowa refused to acknowledge a God."

Mr. Evans did not believe in progression to the exclusion of prayer. He favored "providing a room for those who did not wish to hear prayers."

Mr. Hepner opposed the resolution because he thought that it was inconsistent with the principle of religious freedom as set forth in the Bill of Rights.

Mr. Shelleday wished to represent the moral and religious feelings of his constituents by supporting the resolution.

Mr. Quinton thought that his constituents were as moral as those of Mr. Shelleday. But he "did not believe praying would change the purposes of Deity, nor the views of members of the Convention." "In the name of Heaven," he exclaimed, "don't force men to hear prayers."

By a vote of forty-four to twenty-six the resolution was indefinitely postponed.

The liberal religious spirit of the pioneers is further evidenced by the principle of toleration which was incorporated into section four of the Bill of Rights. As introduced by the Committee the section provided that "no religious test shall be required as qualification for any office or public trust, and no person shall be deprived of any of his rights, privileges, capacities, or disqualified for the performance of any of his duties, public or private, in consequence of his opinion on the subject of religion." Mr. Grant thought that the report "was meant to cover everything." But, to make sure that it did not exclude Atheists from giving testimony in the courts, Mr. Galbraith moved to insert the words "or be rendered incompetent to give testimony in any court of law or equity."

Mr. Lowe, of Muscatine, favored leaving the law on this subject as it was; that is, he thought that "Atheists should not be admitted to give testimony" because "there was nothing that such a person could swear by. An oath called upon Deity to witness the truth of what was said, and to withdraw his favor from the person if it was untrue. Atheists consequently could not take an oath." It would be "unsafe" to permit them to testify.

Mr. Hempstead wanted to "do away with this inquiring into a man's religious opinions. He desired to keep it out of the Constitution. It was the fear of the penalties of perjury that restrained men from stating what was not true—not future punishment."

Mr. Kirkpatrick thought that to refuse to allow Atheists to testify would be an "infringement of the natural rights of man."

Mr. Grant said that "he hoped this Convention would take high grounds upon this subject and silence . . . . these inquiries into men's belief, and exclusions for opinion's sake."

When the test vote was taken it was found that only ten members of the Convention were willing to deny to Atheists the right to give testimony in the courts.

An interesting debate on salaries led to the adoption of section thirty-five, Article IV., of the Constitution which fixed the compensation of the State officers "for the first ten years after the organization of the government." The discussion was provoked by a report from the Committee on State Revenue in which the following salaries were recommended: For Governor, $1000; for Secretary of State, $500; for Treasurer, $400; for Auditor, $700; for Superintendent of Public Instruction, $700; and for Judges of the Supreme Court, $800. Several motions were made which aimed to increase slightly the sums recommended by the Committee; but the bent of the Convention was manifestly in favor of a reduction of salaries all along the line.

Sums ranging from $600 to $1200 were suggested for the Governor. Mr. Hooten "thought the salary was about right at $1000. The Governor was rather than else considered as public property, would have to entertain a good deal of company, &c., and should have a pretty liberal salary." Mr. Davidson said that "he came here for low salaries. He did not like $1000, but $1200 was worse." The Convention finally agreed upon $800 as a proper salary for the Governor of the State of Iowa. No cut was made in the sum ($500) reported for the Secretary of State; but the Treasurer's salary was reduced to $300. The Convention was willing that the Judges of the Supreme Court should receive the same pay as the Governor, that is, $800.

The Auditor's salary received the most attention. The Committee on State Revenue had recommended $700. "Mr. Grant moved to strike out $700, which would leave the salary blank."

Ex-Governor Lucas hoped that the salaries would not be reduced so low that competent men could not afford to accept them.

Mr. Chapman "desired to pay a fair price for services rendered, but he was not willing to pay a single dollar for dignity. He did not want to have men paid to live as gentlemen, with no services to perform. . . . . What were the duties of Auditor, that they could not be performed for a salary of $500 or $600? A farmer toiled from the rising of the sun to its going down, and at the end of the year had not perhaps $100;—there were hundreds of men qualified for that office who labored the whole year for less than half of $700. In this country we are all poor, and have to do with but little."

Mr. Strong came to the Convention with a "desire for economy, and felt disposed to go for as low salaries as any man; but he thought gentlemen were disposed to reduce them too low."

Mr. Hempstead thought that the Convention was "running this thing of economy into the ground." He knew that there were men who would take the offices at almost any salary; but "they would plunder to make it up."

Mr. Quinton declared that the services rendered by the Auditor were not worth more than $400. He would "continue to advocate economy in the State offices, whether it was displeasing to some gentlemen or not."

Mr. Fletcher supported the recommendation of the Committee on State Revenue because the object was to secure as Auditor a man of "the best business talents."

Mr. Hall observed that the proposition to pay "such large salaries to our officers was based upon a misunderstanding of the importance of our little State. We were just commencing to totter, and not to walk."



Mr. Harrison said "we were in a youthful condition, and were poor, and we could not afford to pay such salaries as the great and wealthy State of Ohio." Furthermore, "he wanted the officers to share something of the hardships and privations of the citizens. He would not have them gentlemen of leisure, walking about the streets, talking with their friends, &c., with plenty of money in their pockets. An honest man would perform the duties of Auditor as well for $300 as $1000. If he was not honest we did not want him."

Mr. Bissell favored a reduction. "He did not want to support government officers at high salaries, to ride about in their coaches and sport gold spectacles. He did not want them paid for giving wine parties, and electioneering the Legislature. They should walk from their residences to their offices, as other citizens."

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

From the fragments of the debates which were chronicled in the newspapers of the Capital, it is clear that the Convention of 1844, in providing for the exercise of executive power in Iowa, aimed (1) to make the Chief Magistracy a representative institution and (2) to limit the influence of the Governor in legislation.

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

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

Mr. Langworthy moved to strike out four and insert two "as the term for which the Governor should hold his office." This was "to test whether any officer in the State of Iowa was to hold his office more than two years." Mr. Langworthy "wanted the whole government to be changed once in two years." His motion prevailed.

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

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

The Committee on the Legislative Department had reported a form of executive veto which was so limited that it could be passed over by an ordinary majority in the two branches of the General Assembly. Mr. Peck favored a two-thirds majority of the members present.

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

Mr. Bailey "thought the veto power was a valuable one; it was the people's power . . . . The Governor was more the representative of the people, than the Representatives themselves. The Representatives were chosen by sections, and represented local interests, and they might continue to pass bad laws. But the Governor had no local feelings."

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

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

Mr. Hall discussed the question at length. "Gentlemen," he said, "supposed that the Legislature might be corrupt—he would suppose on the other hand, that the Governor might he corrupt, and his supposition was as good as theirs. Some gentlemen were afraid of the tyranny of the representatives—he would suppose that the Governor would be the tyrant; or he would suppose that the Governor would combine with the Legislature, and they would all be corrupt and tyrannical together. A number of persons were not so liable to corruption and combination as a single individual;—just as numbers increased the probability of corruption decreased." He declared that "there was no need of the power in this Territory."

The Convention finally agreed upon the form of the limited executive veto as provided for in the Federal Constitution.



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

In discussing this question the Convention desired to follow the wishes of the people; but it was not known that the people themselves really desired to elect the Judges. On the other hand there is no evidence that anyone favored executive appointment. So the question before the Convention was: Shall the Judges be elected by the people or shall they be chosen by the General Assembly?

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

Mr. Bailey did not doubt "the capacity of the people to elect their Judges;" but he thought that "there was real danger in the Judges becoming corrupt through political influences. They were liable to form partialities and prejudices in the canvass, that would operate on the bench." He had "no objection to the people electing the Judges; but he did not think they desired the election—they had never asked to have it."

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

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

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

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



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

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



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

In the opening paragraph of their remarkable report the Committee freely admitted (1) "that all men are created equal, and are endowed by their Creator with inalienable rights," and (2) that these rights are "as sacred to the black man as the white man, and should be so regarded." At the same time they looked upon this declaration as "a mere abstract proposition" which, "although strictly true when applied to man in a state of nature, . . . . becomes very much modified when man is considered in the artificial state in which government and society place him."

The Committee then argued that "government is an institution or an association entered into by man, the very constitution of which changes or modifies to a greater or less extent his natural rights. Some are surrendered others are modified . . . . In forming or maintaining a government it is the privilege and duty of those who are about to associate together for that purpose to modify and limit the rights or wholly exclude from the association any and every species of persons who would endanger, lessen or in the least impair the enjoyment of these rights. We have seen that the application of this principle limits the rights of our sons, modifies the privileges of our wives and daughters, and would not be unjust if it excluded the negro altogether.—'Tis the party to the compact that should complain, not the stranger. Even hospitality does not sanction complaint under such circumstances. True, these persons may be unfortunate, but the government is not unjust."

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



"However your committee may commiserate with the degraded condition of the negro, and feel for his fate, yet they can never consent to open the doors of our beautiful State and invite him to settle our lands. The policy of other States would drive the whole black population of the Union upon us. The ballot box would fall into their hands and a train of evils would follow that in the opinion of your committee would be incalculable. The rights of persons would be less secure, and private property materially impaired. The injustice to the white population would be beyond computation. There are strong reasons to induce the belief that the two races could not exist in the same government upon an equality without discord and violence, that might eventuate in insurrection, bloodshed and final extermination of one of the two races. No one can doubt that a degraded prostitution of moral feeling would ensue, a tendency to amalgamate the two races would be superinduced, a degraded and reckless population would follow; idleness, crime and misery would come in their train, and government itself fall into anarchy or despotism. Having these views of the subject your committee think it inexpedient to grant the prayer of the petition."

Nor was it thought expedient by the Committee to introduce an article into the Constitution which would exclude altogether persons of color from the State, notwithstanding the fact that "the people of Iowa did not want negroes swarming among them." Even Mr. Langworthy, who had been instructed by his constituents "to get something put into the Constitution by which negroes might be excluded from the State," felt that the matter could safely be left with the General Assembly. Mr. Grant thought that an exclusion clause in the Constitution would "endanger our admission into the Union."

Although the report was laid on the table, it nevertheless represented the dominant opinion then prevalent in Iowa. Our pioneer forefathers believed that the negroes were men entitled to freedom and civil liberty. But more than a score of years had yet to elapse before there was in their minds no longer "a doubt that all men [including the negroes] are created free and equal."

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

The opposition to banks and bank money was not local; it was National. The bank problem had become a leading party issue. Democrats opposed and Whigs generally favored the banks. It was so in Iowa, where the agitation was enlivened by the presence of the "Miners' Bank of Du Buque." This institution, which was established in 1836 by an act of Congress, had been the local storm center of the bank question. Prior to 1844 it had been investigated four times by the Legislative Assembly of the Territory.

In the Convention a minority as well as a majority report was submitted from the Committee on Incorporations. The majority report provided: (1) that one bank may be established with branches, not to exceed one for every six counties; (2) that the bill establishing such bank and branches must be (a) passed by a majority of the members elected to both houses of the General Assembly, (b) approved by the Governor, and (c) submitted to the people for their approval or rejection; (3) that "such bank or branches shall not have power to issue any bank note or bill of a less denomination than ten dollars;" (4) that "the stockholders shall be liable respectively, for the debts of said bank, and branches;" and (5) that "the Legislative Assembly shall have power to alter, amend, or repeal such charter, whenever in their opinion the public good may require it."

The same majority report provided further: (1) that "the assent of two-thirds of the members elected to each house of the Legislature shall be requisite to the passage of every law for granting, continuing, altering, amending or renewing any act of Incorporation;" (2) that no act of incorporation shall continue in force for more than twenty years; (3) that the personal and real property of the individual members of a corporation shall be liable for the debts of such corporation; and (4) that "the Legislative Assembly shall have power to repeal all acts of incorporation by them granted."

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

In the discussion that followed the introduction of these reports the Whig members of the Convention were inclined to keep restrictions out of the Constitution and leave the whole question of establishing banks to the General Assembly. The Democrats were not united. The more radical supported the minority report; others favored the establishment of banks well guarded with restrictions.

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

Mr. Quinton thought that "the whole concern of Banks, from big A down, were a set of swindling machines, and now was the time for the people of Iowa to give an eternal quietus to the whole concern."

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

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

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



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

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

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

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



As finally agreed to in the Convention, article nine of the Constitution, which dealt with corporations, contained the following provisions. First, no act of incorporation shall continue in force for more than twenty years without being re-enacted by the General Assembly. Secondly, the personal and real property of the members of a corporation shall at all times be liable for the debts of such corporation. Thirdly, the General Assembly "shall create no bank or banking institution, or corporation with banking privileges" without submitting the charter to a vote of the people. Fourthly, the General Assembly shall have power to repeal all acts of incorporation by them granted. Fifthly, the property of the inhabitants of the State shall never be used by any incorporated company without the consent of the owner. Sixthly, the State shall not become a stockholder in any bank or other corporation. In this form the question of banks and corporations was submitted to the people.

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



XI

THE CONSTITUTION OF 1844

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

Article I. on "Preamble and Boundaries" acknowledges dependence upon "the Supreme Ruler of the Universe" and purports to "establish a free and independent government" in order "to establish justice, ensure tranquility, provide for the common defense, promote the general welfare, secure to ourselves and our posterity, the rights of life, liberty, and the pursuit of happiness."

Article II. as the "Bill of Rights" declares that "all men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." All political power is "inherent in the people;" for their "protection, security, and benefit" government is instituted; and they, the people, have "the right at all times, to alter, or reform the same, whenever the public good may require it."

Following these classic political dogmas of the American Revolution is a rather exhaustive enumeration of the fundamental rights of the individual, which at various times and in various ways had found expression in the state papers and Constitutions of England and America, and which together constitute the domain of Anglo-Saxon liberty and freedom.

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

Article IV. proclaims the theory of the separation of powers in sweeping terms, and prescribes the constitution of the law-making department. Herein the legislative authority was vested in a General Assembly, which was organized on the bicameral plan. The members of the House of Representatives were to be chosen for two years, those of the Senate for four years. The regular sessions of the General Assembly were to be held biennially.

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

Article VI. organizes the "Judicial Department." It provides for a Supreme Court consisting of "a Chief Justice and two Associates," to be chosen by the General Assembly for a term of four years. The District Court was to "consist of a Judge, who shall reside in the district assigned him by law," and be elected by the people for the same term as the Judges of the Supreme Court.

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

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

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



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

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

Article XII. provides for "Amendments to the Constitution." In the case of partial revision of the Constitution, the specific amendment must be passed by two successive General Assemblies and ratified by the people. When it is desired to have a total revision of the fundamental law, the General Assembly submits the question of a Constitutional Convention to a direct vote of the people.

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

From the view-point of subsequent events the most significant provision of the Constitution of 1844 was the one which defined the boundaries of the future State. There is, however, no evidence that the members of the Convention foresaw the probability of a dispute with Congress on this point, although Governor Chambers in his message of December, 1843, had pointed out its possibility should the people of Iowa assume to give boundaries to the State without first making application to Congress for definite limits. It was on the question of boundaries that the Constitution of 1844 was wrecked.

In the Convention the regular standing Committee on State Boundaries reported in favor of certain lines which were in substance the boundaries recommended by Governor Lucas in his message of November, 1839. Indeed, it is altogether probable that the recommendations of Robert Lucas were made the basis of the Committee's report. This inference is strengthened by the fact that the illustrious Ex-Governor was a member of the Committee. It will be convenient to refer to the boundaries recommended by the Committee as the Lucas boundaries.



The Lucas boundaries were based upon the topography of the country as determined by rivers. On the East was the great Mississippi, on the West the Missouri, and on the North the St. Peters. These natural boundaries were to be connected and made continuous by the artificial lines of the surveyor. As to the proposed Eastern boundary there could be no difference of opinion; and it was generally felt that the Missouri river should determine the Western limit.

On the South the boundary must necessarily be the Northern line of the State of Missouri. But the exact location of this line had not been authoritatively determined. During the administration of Lucas it was the subject of a heated controversy between Missouri and Iowa which at one time bordered on armed hostility. The purpose of the Convention in 1844 was not to settle the dispute but to refer to the line in a way which would neither prejudice nor compromise the claims of Iowa.

The discussion of the Northern boundary was, in the light of subsequent events, more significant. As proposed by the Committee the line was perhaps a little vague and indefinite since the exact location of certain rivers named was not positively known. Some thought that the boundary proposed would make the State too large. Others thought that it would make the State too small. Mr. Hall proposed the parallel of forty-two and one-half degrees of North latitude. Mr. Peck suggested the parallel of forty-four. Mr. Langworthy, of Dubuque, asked that forty-five degrees be made the Northern limit.

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

On October 14 the report of the regular Committee on State Boundaries was referred to a Select Committee consisting of representatives from the twelve electoral districts. But this Committee made no changes in the original report except to make the Northern boundary a little more definite.

As finally adopted by the Convention and incorporated into the Constitution of 1844, the boundaries of the State were as follows: "Beginning in the middle of the main channel of the Mississippi river opposite the mouth of the Des Moines river; thence up the said river Des Moines, in the middle of the main channel thereof, to a point where it is intersected by the Old Indian Boundary line, or line run by John C. Sullivan in the year 1816; thence westwardly along said line to the 'Old Northwest corner of Missouri;' thence due west to the middle of the main channel of the Missouri river; thence up in the middle of the main channel of the river last mentioned to the mouth of the Sioux or Calumet river; thence in a direct line to the middle of the main channel of the St. Peters river, where the Watonwan river (according to Nicollet's map) enters the same; thence down the middle of the main channel of said river to the middle of the main channel of the Mississippi river; thence down the middle of the main channel of said river to the place of beginning."

In accordance with the act of the Legislative Assembly of February 12, 1844, and section six of the "Schedule" it was provided that the new Constitution, "together with whatever conditions may be made to the same by Congress, shall be ratified or rejected by a vote of the qualified electors of this Territory at the Township elections in April next." And the General Assembly of the State was authorized to "ratify or reject any conditions Congress may make to this Constitution after the first Monday in April next."

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

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



XII

THE CONSTITUTION OF 1844 SUBMITTED TO CONGRESS

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



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

The day after its passage in the House of Representatives the bill was reported to the Senate. Here it was referred to the Committee on the Judiciary, from which it was reported back to the Senate without amendment on February 24. The Senate considered the measure on March 1, and passed the same without alteration by a vote of thirty-six to nine. On March 3, 1845, the act received the signature of President Tyler.

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

When Iowa applied for State organization in 1844, Florida had been waiting and pleading for admission ever since the year 1838. The reason for this delay was very generally understood and openly avowed. States should be admitted not singly but in pairs. Florida was waiting for a companion. And so in 1844 it fell to Iowa to be paired with the peninsula. The principle involved was not new; but never before had two States been coupled in the same act of admission. The object sought was plainly the maintenance of a balance of power between the North and the South.

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

Upon examination it was found that the proposed Constitution of Florida not only sanctioned the institution of Slavery, but it positively guaranteed its perpetuation by restraining the General Assembly from ever passing laws under which slaves might be emancipated. On the other hand the Constitution of Iowa, although it did not extend the privilege of suffrage to persons of color, provided that "neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State."

Now it so happened that the opposing forces of slave labor and free labor, of "State Rights" and "Union," came to an issue over the boundaries of the proposed State of Iowa. In the bill for admission, as reported by the House Committee on Territories, the boundaries asked for by the Iowa Convention in the Constitution submitted by them were retained without alteration. But Mr. Duncan, of Ohio, had other limits to propose. He would have the new State of Iowa "bounded by the Mississippi on the East, by a parallel of latitude passing through the mouth of the Mankato, or Blue Earth river, on the North, by a meridian line running equidistant from the seventeenth and eighteenth degrees of longitude West from Washington on the West, and by the Northern boundary of the Missouri on the South." Mr. Duncan pointed out that these were the boundaries proposed by Nicollet in the report which accompanied the publication in January, 1845, of his map of the basin of the upper Mississippi. He preferred the Nicollet boundaries because (1) they were "the boundaries of nature" and (2) at the same time they left sufficient territory for the formation of two other States in that Western country.

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