Ingenuity amounting to genius (it is a pity that the possessor should be unknown) found a new expedient, namely, to write out two const.i.tutions in full, exact duplicates except as to signatures, the one to be signed by Democratic officers and members, and the other by Republicans These two const.i.tutions were filed in the archives of the State and one of them, which one will probably never be known, was adopted by the people Oct. 13, 1857.

The question arises in the writer's mind as to the legality of the const.i.tution of Minnesota. Have we a const.i.tution? If so, which one?

The question of legality, however, has never been raised before the proper tribunals, and it is perhaps well to leave it thus unquestioned.

FIRST MINNESOTA STATE LEGISLATURE, HELD 1857-8.

Under a provision of the const.i.tution adopted Oct. 13, 1857, the legislature was elected and convened December 2d of that year, although the State had not then been admitted to the Union, and Gen.

Sam Medary was still recognized as governor, though not at the time in the Territory, and acting through his private secretary. The whole state, judicial and legislative ticket had been elected in October, but none of the state officers could qualify prior to the formal admission of the State. The legality of their proceedings was called in question. The Republicans entered a protest against legislation until after the admission of the State, but the Democratic party was in the majority, and territorial Democratic officers governed the legislature, and the protest was unheeded. Notwithstanding the doubtful validity of acts pa.s.sed by this body, some bold and extravagant measures were proposed and pa.s.sed, among them the famous $5,000,000 loan bill, authorizing the issue of bonds to that amount, ostensibly to aid in the construction of railroads in Minnesota, and to be used as a basis for banking. This bill was pa.s.sed near the close of the session, which lasted ninety days, and was an amendment to the const.i.tution to be voted on April 15, 1858.[J] The result proved even worse than had been predicted by the most ardent opposers of the bill, and although adopted by an overwhelming majority, speedily fulfilled the predictions of its opponents. The State was flooded with worthless bank issues, based upon these worthless bonds. Financial distress and panic ensued. A reaction followed, and in November, 1860, the amendment to the const.i.tution was expunged. Of these bonds, $2,275,000 had already been issued, when the section granting their issue was repealed. These the State subsequently redeemed.

This bill, though afterward adopted as an amendment to the const.i.tution by an overwhelming majority, was opposed most vigorously in both houses of the legislature, and characterized at the time as mischievous and infamous. Though not present at the time of its pa.s.sage, on account of sickness, the author fully committed himself as an opponent of the bill, and placed himself on record in an address to his const.i.tuents dated March 19th, at the senate chamber, which address was circulated extensively at the time. The views and predictions therein expressed as to the disastrous character of the bill have been amply justified and verified by subsequent events.

Hon. Chas. F. Lowe, when a member of the Republican wing of the const.i.tutional convention, had designed and prepared a seal to be used by the incoming state government. It was adopted by that wing of the convention, and Mr. Lowe hoped to have it formally adopted by the first state legislature. At the request of Mr. Lowe, it was presented by the writer, then a member of the senate, and was adopted by the senate and house with many encomiums upon its beauty and appropriateness. The design was indeed a beautiful one, and the workmanship of the seal, by Buechner, of St. Paul, was admirable. The design of the seal was as follows:

[Ill.u.s.tration: STATE SEAL.]

A waterfall (supposed to be that of Minnehaha) within a shield; this part of the device was intended to symbolize the idea of water for the amount and varied forms of which Minnesota is distinguished above any other part of our country. In addition was represented the figure of an Indian pointing toward the setting sun, as his course of destiny runs, with his tomahawk, bow and arrows; at his feet opposite the Indian was the figure of a white man, with a sheaf of wheat and the implements of agriculture at his feet, representing to the Indian that he must partake of the habits of civilized life or depart toward the setting sun. In one corner of the field appeared a distant view of Lake Superior, with a ship in sail. In another was a view of a river, indicating the Minnesota river, running from the westward, with a steamboat ascending its stream. In rear of the shield and waterfall were three trees, which are typical of the three timbered regions, the oak on the left typifying the south and southwest portion of the State, the pine in the centre typifying the great pine regions of Lake Superior, Upper Mississippi and St. Croix, and the maple on the right typifying the north and northwestern portion of the State. For a motto to accompany the words state of Minnesota, A. D. 1858, which were placed upon the upper rim of the seal, the words placed upon the lower rim of the seal were, "Liberty and Union, Now and Forever One and Inseparable." The act of the legislature went to the governor, who returned it to the senate approved and signed, July 14, 1858.

Some length of time elapsed before the appearance of the great seal as appended to official doc.u.ments, and when it did appear it was very different from the one adopted, and the credit of the design was given to Rev. E. D. Neill by the newspapers commenting upon it. However beautiful and appropriate the design of the present great seal of the state of Minnesota, there seems to be no evidence that it was ever legally adopted, and the question may well be raised as to its validity. It lies, however, in the eternal fitness of things that a state without a legal const.i.tution should also be without a seal.

At the joint convention of Dec. 19, 1857, Hon. Henry M. Rice and Gen.

James Shields, of Mexican War fame, were elected senators. The Republicans supported David Cooper and Henry D. Huff. During this session the presiding officer of the senate was Richard G. Murphy, a somewhat eccentric character. His decisions were often diverting. When perplexing questions arose he would say gravely, "The chair can not decide more than two questions at oncet." After pa.s.sing many really important measures, the legislature adjourned March 25, to meet June 2, 1858.

ADJOURNED SESSION.

The legislature met, pursuant to adjournment, June 2d, the State having been admitted in the interim. Lieut. Gov. Holcombe presided over the senate and proved an acceptable and able presiding officer.

The five million amendment having been approved by the people, this legislature pa.s.sed a banking law, establishing banks in various parts of the State with the five million bonds as a basis.

It can do no good at this late day to raise a question as to the validity of the acts of the first state legislature, but it is due to ourselves and others who with us at the time protested against the validity of acts pa.s.sed at this session, to give a few extracts from senate and house journals tending to show that a feeling of distrust was quite general. The ground of this opinion was the fact that the legislature elected as a state legislature held its first session prior to the admission of the State, and under the administration of the territorial governor, Medary, through his secretary, acting in his place. The question was openly discussed, not only in the legislature but in the public press of the State.

As early as Dec. 8, 1887, the following protest was presented in the senate:

SENATE CHAMBER, ST. PAUL.

We, the undersigned senators of the state of Minnesota, do hereby enter and record this, our _solemn_ PROTEST, against the recognition by this body, in any manner, directly or indirectly, of Samuel Medary, Esquire, governor of the territory of Minnesota, as the governor of the state of Minnesota, or as being invested with any of the rights, authority, privileges, powers or functions of governor of said state of Minnesota.

And we do _solemnly_ PROTEST against the recognition by this body, in any manner, of the claims of the said Samuel Medary, to exercise any of the rights, authority, privileges, powers or functions of the governor of the state of Minnesota--such claim being wholly unauthorized and unwarranted by the const.i.tution of the state of Minnesota; and in violation of the expressed will of the people of the state of Minnesota, and an attempted usurpation of office, at war with the fundamental principles of free government, and dangerous to the liberties of the people.

D. G. NORTON, LEWIS MCKUNE>, GEO. WATSON, EDWIN M. SOMERS, BOYD PHELPS, J. K. REINER, H. L. THOMAS, JAMES RIDPATH, MICHAEL COOK, CHARLES H. LINDSLEY, E. N. BATES, E. HODGES, A. G. HUDSON, JONATHAN CHASE, W. H. C. FOLSOM, S. S. BEMAN, DELANO T. SMITH.

On December 8th Mr. Norton offered the following resolution to the senate:

"WHEREAS, By the provisions of the const.i.tution the executive officers of the State can not qualify until after the admission of the State by Congress, and

"WHEREAS, There is no governor of the state of Minnesota to whom acts may be submitted, as required by the const.i.tution; therefore,

"_Resolved_, That this legislature can pa.s.s no acts which could become a law until after the admission of the State by Congress, and the qualification of the governor elected by the people."

The resolution was adopted and referred to the following committee: Van Etten, Streeter, Jones, Norton, and Folsom.

The majority of the select committee reported December 21st, claiming that by the enabling act the people of the Territory were empowered to form a state government, which they did, electing their delegates on the second Monday in July, 1857, to form a state const.i.tution, and take necessary steps for establishment of a state government; that these delegates met at the time and place appointed, and on the twenty-ninth of August adopted a const.i.tution which was submitted to the people and adopted by a majority of over 28,000 votes. That on the thirteenth of October, in conformity with an article (section 16, article 16) of the const.i.tution then adopted, the people had elected representatives to Congress, governor and lieutenant governor, judges and members of both houses of the legislature, the latter to meet on the first Wednesday in December at St. Paul.

The majority admitted that the governor elected under the act could not qualify until after the admission of the State, but claimed that the members of the legislature did not rest under the same disability, but were competent to legislate because they derived their power from the const.i.tution itself, and had been directed to meet for that purpose on the first Monday in December, and that because they were thus required to meet they were authorized to act. The people were omnipotent in the premises. They had declared that the governor should not qualify until after the admission of the State, and that the members of the legislature should meet. It was absurd to suppose this body should be called together and have no power to act. They held, moreover, that the territorial governor was empowered to act until his successor could legally qualify; that the framers of the const.i.tution of Minnesota and the people had declared that he should be continued in office until superseded by a state officer, and that the very time had been specified when he should be thus superseded, namely, on the admission of the State into the Union, and therefore that Samuel Medary was, _de facto_ and _de jure_, governor of Minnesota; that Minnesota was then a state _out_ of the Union, and that the acts of the first legislature would be legalized when the State was admitted.

The minority report, signed by D. S. Norton and W. H. C. Folsom, claimed that the const.i.tution contemplated an admission into the Union as a prerequisite to the exercise of state sovereignty, in article 5, section 7, where it is enacted that "the term of each of the executive officers named in this article shall commence upon taking the oath of office, _after the State shall be admitted by Congress into the Union, etc._"

Section 9, same article, provides that "Laws shall be pa.s.sed at the first session of the legislature _after the State is admitted into the Union_ to carry out the provisions of this article.

"Section 1, article 16, _schedule_, provides that all process which may be issued under the authority of the territory of Minnesota previous to its _admission into the Union of the United States_, shall be as valid as if issued in the name of the State."

Section 8, same article, provides that if the const.i.tution shall be adopted by a vote of the people, the governor of the Territory shall forward a certified copy of the same to the president of the United States, "_to be by him laid before the Congress of the United States_."

The minority claimed that under the first of the above cited sections there can be no qualified governor (_elected under, and according to the provisions of the const.i.tution_) to whom "bills" _must_ be submitted before they can become laws, until _after_ "admission"--nor indeed can there be _any_ executive officers, contemplated to perform the duties of their several offices, until that time.

In reference to the provisions of section 18, article 16, _schedule_, as inconsistent with that view, it was claimed that the territorial government should continue, and that its officers should exercise the sovereign powers delegated to them by the Union, until, upon an admission by Congress, and a surrender of sovereignty to the State, its authority should commence.

It was claimed that this section (6) of article 16, requiring the legislature to convene on the first Wednesday of December, 1857, was an oversight or error. After considerable debate the majority report was adopted by a party vote. A similar protest, signed by all the Republican members of the house, was presented to that body. In addition to these protests there was in both branches of the legislature continuous and various protests by the minority against the exercise of legislative functions.

In the house, on Jan. 25, 1858, Mr. Sheetz offered a resolution with reference to the causes of the delay in the admission of Minnesota, asking that a committee of three be appointed with instructions to investigate the circ.u.mstances of this delay and report to this house upon these points:

_First_--As to whose duty it was to forward to the president for submission to Congress a copy of the const.i.tution.

_Second_--Why an incorrect or incomplete copy of said const.i.tution was forwarded to the president.

_Third_--What official correspondence, if any, has pa.s.sed between the governor and the acting governor in regard to this matter.

On motion the resolution was adopted.

Mr. Sheetz, from the committee appointed to communicate with the acting governor relative to the admission of the state of Minnesota, submitted the following report:

_To the Honorable House of Representatives:_

Your committee appointed to inquire into the causes of the probable delay in the admission of Minnesota into the Union, ask leave to make the following report:

Your committee find that according to section 8 of the schedule to the const.i.tution, it is made the duty of the governor of the Territory, upon the adoption of the const.i.tution by the people, to forward a certified copy of the const.i.tution to the president of the United States, to be by him submitted to Congress.

Your committee have conferred with his excellency, Acting Gov. Chase, and have ascertained from him that at or about the time of the adjournment of the const.i.tutional conventions, there were deposited with him, as acting governor in the absence of Gov. Medary, two copies of the const.i.tution as adopted by the two branches of the const.i.tutional convention, one copy signed by _fifty-one_ members of the Democratic branch of the convention, and the other signed by _fifty-three_ members of the Republican branch of the convention, that the two copies were preserved by him in the same safe, side by side where they now are.

Your committee are further informed that a short time prior to the departure of our senators and representatives elect for Washington, the governor caused to be made a transcript of the const.i.tution as requested by the schedule and that instrument, which transcript was forwarded to the president of the United States.

No record is known to your committee to exist of the time and manner of making such transcript, and your committee, in the absence of the governor and his private secretary, can not ascertain whether said transcript contained the names of the members of the two branches of the const.i.tutional convention or not.

Your committee are also informed by Acting Gov. Chase that there has been no official correspondence between the governor and himself upon this subject since the departure of the former for Washington.

All of which is respectfully submitted and signed.