Fourthly, they fostered natural Justice, Equality, and Democracy on the frontier (_a_) by establishing order under a Government founded upon the wishes of the people and in harmony with the peculiar conditions, social and economic, of the community, (_b_) by giving security alike to all bona fide settlers, (_c_) by limiting the amount of land any one settler could rightfully hold, (_d_) by requiring all disputes to be settled in regularly const.i.tuted courts, and (_e_) by conducting all public affairs in and through ma.s.s meetings, with the full knowledge and consent of all the people.

In their Const.i.tutions and Resolutions the squatters suggested, and in a measure definitely determined, the manner of disposing of the public lands. The principles of the most important legislation of Congress relative to the public domain came from the frontier. A comparison of the customs of the squatters with the provisions of the pre-emption and homestead acts reveals the truth that the latter are largely compilations of the former. These American principles of agrarian polity are products of frontier experience.

One is even justified in suggesting that herein we have, perhaps, come across the origin of the American principle of homestead exemptions. Is it not reasonable to suggest that the emphasis which frontier life and customs placed upon the importance and value of the homestead gave birth to the laws that are "based upon the idea that as a matter of public policy for the promotion of the property of the State and to render independent and above want each citizen of the Government, it is proper he should have a home--a homestead--where his family may be sheltered and live beyond the reach of financial misfortune?"

The Squatter Const.i.tutions stand for the beginnings of local political inst.i.tutions in Iowa. They were the fundamental law of the first governments of the pioneers. They were the fullest embodiment of the theory of "Squatter Sovereignty." They were, indeed, fountains of that spirit of Western Democracy which permeated the social and political life of America during the 19th century. But above all they expressed and, in places and under conditions where temptations to recklessness and lawlessness were greatest, they effectively upheld the foremost civilizing principle of Anglo-Saxon polity--the Rule of Law.

V

THE TERRITORY OF WISCONSIN

The year one thousand eight hundred and thirty-six is memorable in the const.i.tutional annals of Iowa, since it marks the beginning of the Territorial epoch and the advent of our first general code or text of fundamental law.

To be sure, the Iowa country had had a certain const.i.tutional status ever since the acquisition of the Province of Louisiana in 1803. In 1804, it formed a part of the District of Louisiana, which was placed.

under the jurisdiction of the Governor and Judges of the Territory of Indiana; in 1805, it remained a part of that district known henceforth as the Territory of Louisiana; in 1812, it was included within the newly created Territory of Missouri; in 1821, it was reserved for freedom by the Missouri Compromise; and finally, after being without a local const.i.tutional status for more than thirteen years, it was "attached to, and made a part of, the territory of Michigan" for "the purpose of temporary government." Nevertheless, it would be sheer antiquarianism to catalogue the treaty and conventions of 1803 and the several acts of Congress establishing the District of Louisiana, the Territory of Louisiana, the Territory of Missouri, and the Territory of Michigan as Const.i.tutions of Iowa.

Furthermore, a Const.i.tution is the fundamental law of a _people_, not of a _geographical area_; and since the Iowa country was practically uninhabited prior to 1830, the earlier Territorial governments, which have been mentioned, had for Iowa only a nominal political significance.

This is not to deny that Iowa has a history prior to 1830: it simply points out that this earlier history is largely a record of changes in subordinate jurisdiction over a geographical area, and in no sense the annals of a political society.

Even after the permanent settlement of the Iowa country in the early thirties and its union with the Territory of Michigan in 1834, const.i.tutional government west of the Mississippi continued to be more nominal than real. This is true notwithstanding the fact that the archives of the Territory of Michigan show that the Governor and the Legislative Council made a serious attempt to provide for and put into operation local const.i.tutional government. In his message of September 1, 1834, addressed to the Legislative Council, Governor Mason referred to the inhabitants as "an intelligent, industrious and enterprising people," who, being "without the limits of any regularly organized government, depend alone upon their own virtue, intelligence and good sense as a guaranty of their mutual and individual rights and interests." He suggested and urged "the immediate organization for them of one or two counties with one or more townships in each county."

The suggestions of the Governor were referred to the committee on the Judiciary, and incorporated into "An Act to lay off and organize counties west of the Mississippi River." This act, which was approved September 6th, to go into effect October 1st, organized the Iowa country to which the Indian t.i.tle had been extinguished in June, 1833, into the counties of Dubuque and Demoine. It also provided that each county should const.i.tute a township, and that the first election for township officers should take place on the first Monday of November, 1834. The laws operative in the county of Iowa, and not locally inapplicable, were to have full force in the country west of the Mississippi.

Furthermore, the archives show that the offices of the newly created counties were duly filled by the Governor of the Territory of Michigan "by and with the consent of the Legislative Council." Letters and pet.i.tions addressed to the Governor are evidence that the people did not hesitate to recommend candidates or ask for removals. In Dubuque County they forced the resignation of the Chief Justice of the County Court and secured the appointment of a candidate of their own choice. And when a vacancy occurred in the office of Sheriff, the inhabitants of the same County, thinking that "the best method of recommending a suitable person for that office was to elect one at their annual township meeting,"

voted for Mr. David Gillilan as their choice. The Clerk of the County Court, who was authorized to notify the Governor of the results of the election, expressed the "hope that a commission will be prepared and sent as early as practicable." The records show that Mr. Gillilan was subsequently appointed by the Governor. So much for the public archives of the Territory of Michigan respecting the political status of the Iowa country.

In a memorial to Congress drawn up and adopted by a delegate convention of of the people west of the Mississippi a.s.sembled at Burlington in November, 1837, this statement is made in reference to the two years from 1834 to 1836: "During the whole of this time the whole country, sufficient of itself for a respectable State, was included in the counties Dubuque and Demoine. In each of these two counties there were holden, during the said term of two years, two terms of a county court, as the only source of judicial relief up to the pa.s.sage of the act of Congress creating the Territory of Wisconsin."

The Legislative Council of the Michigan Territory, in a memorial which bears the date of March 1, 1836, went on record to this effect: "According to the decision of our Federal Court, the population west of the Mississippi are not within its jurisdiction, a decision which is presumed to be in accordance with the delegated power of the court and the acknowledged laws of the land; but that ten or twelve thousand free-men, citizens of the United States, living in its territory, should be unprotected in their lives and property, by its courts of civil and criminal jurisdiction, is an anomaly unparalleled in the annals of republican legislation. The immediate attention of Congress to this subject is of vital importance to the people west of the Mississippi."

On the floor of Congress, Mr. Patton of Virginia "adverted to the peculiar situation of the inhabitants of that Territory [the Territory which was soon afterwards organized as Wisconsin] they being without government and without laws." This was in April, 1836. On the same day Mr. George W. Jones, the delegate from Michigan, declared that the people of western Wisconsin "are now, and have ever been, without the pale of judicial tribunals." He "stated that he did not know of a single set of the laws of the United States within the bounds of the contemplated Territory."

The position of the Iowa country for several months immediately preceding the organization of the Territory of Wisconsin was indeed peculiar. In the eastern part of what had been the Territory of Michigan the people had framed and adopted a State Const.i.tution. As early as October, 1835, they elected State officers. But on account of a dispute with Ohio over boundary lines, Congress was in no hurry to recognize the new State. Then for a time there were two governments--the Government of the State of Michigan and the Government of the Territory of Michigan--each claiming to be the only rightful and legitimate authority. It was not until January, 1837, that the existence of Michigan as a State was recognized at Washington.

Lieutenant Albert M. Lea, a United States army officer, who had spent some time in the country west of the Mississippi did not fail to observe the anomalous condition of the people. Writing early in 1836, he said: "It is a matter of some doubt, in fact, whether there be any law at all among these people; but this question will soon be put to rest by the organization of the Territory of Wisconsin within which the Iowa District is by law included."

But a general conclusion concerning the actual political status of the Iowa country prior to the organization of the Territory of Wisconsin is no longer doubtful when to these doc.u.mentary evidences are added the sweeping testimony of the early squatters who declare that the only government and laws they knew or cared anything about in those days were the organization and rules of the claim club. It is substantially correct to say; (1) that the Territorial epoch in our history dates from the fourth day of July, 1836, when Wisconsin was const.i.tuted "a separate Territory," for the purposes of temporary government, and (2) that our first code or text of fundamental law, that is to say, the first Const.i.tution of Iowa was "An Act establishing the Territorial Government of Wisconsin."

As regards this conclusion two criticisms are antic.i.p.ated. First, it will be said that since the Territory of Iowa was organized in 1838, the Territorial epoch in our history could not have begun in 1836. Secondly, it will be said that an act of Congress providing for and establishing a Territory is not a Const.i.tution.

The answer to the first criticism lies in the fact that the Iowa country was not an outlying district attached to the Territory of Wisconsin, but really formed a const.i.tuent part thereof. The area of Wisconsin Territory west of the Mississippi was far more extensive than the area of the same Territory east of the river. In population the two areas were nearly equal; but the west tended to increase more rapidly than the east. The importance of the west is further evidenced by the removal of the Capital after the first session of the Legislative a.s.sembly from Belmont in eastern Wisconsin to Burlington in western Wisconsin. The const.i.tutional history of Wisconsin up to the division of the Territory in 1838 is, therefore, clearly a part of the Territorial history of Iowa. The a.s.signment of the old name "Wisconsin" to the country east of the Mississippi and of the new name "Iowa" to the country west of that river in 1838, when the Territory of Wisconsin was divided, did _not give rise_ to Territorial government among our people.

The act of Congress of June 12, 1838, provided for the division of an existing Territory and the _continuation_ of Territorial government in the western part thereof under the name Iowa.

When, however, all this is conceded, the propriety of referring to the Organic Act of a Territory as a Const.i.tution is questioned. It is true that the act establishing the Territorial government of Wisconsin was not drawn up by the people of the Territory. It was not even submitted to them for ratification. Handed down to them by Congress, in the form of an ordinary statute, it was a pure product of legislation. It did not even have the label "Const.i.tution," or "Fundamental Compact," or "Organic Law." Nevertheless, this instrument was a veritable Const.i.tution, since it was a written body of fundamental law in accordance with which the government of the Territory was inst.i.tuted and administered. It was supreme, serving as the absolute rule of action for all departments and officers of the Territorial government. The courts always took this view of the Organic Act, and refused to enforce acts which were clearly in opposition to its provisions.

VI

THE TERRITORY OF IOWA

In the year 1836 there was printed and published at Philadelphia a small book bearing on its t.i.tle-page these words:

NOTES ON WISCONSIN TERRITORY, WITH A MAP.

BY LIEUTENANT ALBERT M. LEA, UNITED STATES DRAGOONS.

PHILADELPHIA.

HENRY S. TANNER--SHAKESPEAR BUILDING.

1836.

The significance of this little volume lies in the fact that through it the country destined to give birth to "the only free child of the Missouri Compromise" was christened IOWA. Lieutenant Lea was familiar with the country described in his "Notes." He had traveled through it, had seen its beautiful prairies, had met its inhabitants face to face, and had enjoyed their frontier hospitality. He must have been deeply impressed by the Iowa river and its name. Referring to the country west of the Mississippi river he says: "The District under review has been often called 'Scott's Purchase,' and it is sometimes called the 'Black-Hawk Purchase'; but from the extent and beauty of the Iowa river which runs centrally through the District, and gives character to most of it, the name of that stream, being both euphonous and appropriate, has been given to the District itself."

The Iowa District was likely to become a separate Territory at an early day, since all indications pointed in the direction of a division of the Territory of Wisconsin. First, the geographical area of the Territory as designated in the Organic Act was sufficient for three or four ordinary Commonwealths. Secondly, this area did not possess geographical unity.

Thirdly, historical traditions and considerations favored the establishment of a separate Territory east of the Mississippi, which at the proper time should be admitted as the fifth State born of the Ordinance of 1787 within the limits of the old Territory of the Northwest. Fourthly, the population of the Territory, which was increasing with unparalleled rapidity, was so widely scattered as to make it practically impossible to give equal force to the laws and equal efficiency to the administration of government in all of the frontier communities. That the "Father of Waters" should serve as the natural line of division was generally conceded.

Scarcely had the act organizing the Territory of Wisconsin gone into effect, when the agitation for division was launched. By the fall of 1837 it had captured the public mind. The burden of the movement was taken up with enthusiasm by the inhabitants of the Iowa District. They realized that the proposition to remove the seat of the Territorial government from Burlington to some point east of the Mississippi was likely to rob them of much political influence and some distinction.

They felt that a Territorial government located somewhere "in the vicinity of the Four Lakes" could not successfully administer const.i.tutional government in the Iowa District.

The people of Des Moines county were among the first to take formal action on what may well be called the first vital question in the history of the Const.i.tutions of Iowa. At a meeting held in the town of Burlington on Sat.u.r.day, September 16, 1837, they resolved "That while we have the utmost confidence in the ability, integrity and patriotism of those who control the destinies of our present Territorial Government, and of our delegate in the Congress of the U. States, we do, nevertheless, look to a division of the Territory, and the organization of a separate Territorial Government, by Congress, west of the Mississippi river, as the only means of immediately and fully securing to the citizens thereof, the benefits and immunities of a government of laws." In another resolution they "respectfully and earnestly recommend to the people of the Territory west of the Mississippi river, immediately to hold county meetings in their respective counties, and appoint three delegates from each county, to meet in Convention at this place, on the first Monday in November next."

Pursuant to this call of the people of the county of Des Moines for an Iowa District convention, delegates from seven organized counties west of the Mississippi met at the Capitol in Burlington on Monday, November 6, 1837, and organized themselves into a "Territorial Convention."

As such they continued in session for three successive days. On the second day a resolution was adopted inviting the Governor, members of the Legislative Council, Judges, and members of the bar of Burlington "to take seats within the bar." Committees were then appointed to prepare memorials on the several subjects before the delegates for consideration. On the third day three separate memorials to Congress were unanimously adopted. These related to (1) pre-emptions, (2) the northern boundary line of Missouri, and (3) the division of the Territory.

In the memorial relative to the proposed division of the Territory, it was represented, "That the citizens of that part of the Territory west of the Mississippi River, taking into consideration their remote and isolated position, and the vast extent of country included within the limits of the present Territory, and the utter impracticability of the same being governed as an entire whole, by the wisest and best administration of our munic.i.p.al affairs, in such manner as to fully secure individual right and the rights of property, as well as to maintain domestic tranquillity, and the good order of society, have by their respective Representatives, convened in general convention as aforesaid, for the purpose of availing themselves of their right of pet.i.tion as free citizens, by representing their situation and wishes to your honorable body, and asking for the organization of a separate Territorial Government over that part of the Territory west of the Mississippi River.

"Without, in the least, designing to question the official conduct of those in whose hands the fate of our infant Territory has been confided, and in whose patriotism and wisdom we have the utmost confidence, your memorialists cannot refrain from the frank expression of their belief that, taking into consideration the geographical extent of her country, in connection with the probable population of western Wisconsin, perhaps no Territory of the United States has been so much neglected by the parent Government, so illy protected in the political and individual rights of her citizens . . . . It will appear that we have existed as a portion of an organized Territory for sixteen months, with but one term of court. Your memorialists look upon those evils as growing exclusively out of the immense extent of country included within the present boundaries of the Territory, and express their conviction and belief, that nothing would so effectually remedy the evil as the organization of Western Wisconsin into a separate territorial Government. To this your memorialists conceive themselves ent.i.tled by principles of moral right, by the sacred obligation that rests upon the present government to protect them in the free enjoyment of their rights, until such time as they shall be permitted to provide protection for themselves; as well as from the uniform practice and policy of the Government in relation to her other Territories . . . . Your memorialists therefore pray for the organization of a separate territorial government over that part of the Territory of Wisconsin west of the Mississippi river."

The time and place of the meeting of this remarkable "Territorial Convention" were certainly most opportune. Meeting in the halls of the Legislative a.s.sembly at the Capital of the Territory and in the very presence of the members of the a.s.sembly, the delegates declared it to be the wish and will of the people that the Territory be divided. The members of the a.s.sembly were impressed with the fact that the people west of the Mississippi were in earnest, and, as representatives of the whole Territory, they too drew up a memorial which was approved by the Governor within three weeks after the Convention had adjourned.

In this memorial the Legislative a.s.sembly stated the case as follows: "That owing to the great extent of country embraced in the limits of Wisconsin Territory, and that vast extent of Territory being separated by a natural division, (the Mississippi river,) which renders the application of the same laws oppressive or unequal to one section or the other; the true policy of the two sections of the Territory being as widely different as their locations; and the impracticability of the officers of the General Government to administer the laws; render it highly important in the opinion of your memorialists that that portion of the Territory lying west of the Mississippi river be formed into a separate Territorial Government.

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

"Without any intention of censuring the official conduct of the officers in whose hands the administration of our infant Territory has been intrusted . . . . your memorialists would respectfully represent, that the western portion of Wisconsin, with a population of twenty-five thousand souls, reaps but a small portion of the benefits and advantages of the fostering care and protection of the mother Government. Your memorialists would further represent, that the population of Wisconsin is increasing with a rapidity unparalleled in the history of the settlement of our country; that, by a division of the Territory, and the formation of a separate Territorial Government west of the Mississippi river, your honorable body would greatly advance the political and individual interests of her citizens."

By January 1, 1838, the people had expressed their views. They had formulated their convictions into a definite request which called for immediate division of the Territory. The scene of debate and discussion now shifts from the prairies to the halls of Congress. Here on February 6, 1838, the Committee on the Territories, to whom had been referred the memorials of the Territorial Convention and Legislative a.s.sembly along with pet.i.tions from sundry citizens, and who by a resolution of December 14, 1837, had been instructed "to inquire into the expediency of establishing a separate Territorial Government for that section of the present Territory of Wisconsin which lies west of the Mississippi river and north of the State of Missouri," reported a bill to divide the Territory of Wisconsin, and establish the Territorial government of Iowa.