Not even the Judiciary was spared from the influence of Western Democracy as it rose up and a.s.serted itself in the Convention of 1844.

The day of executive appointment and life tenure of judges had pa.s.sed or was pa.s.sing. 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 a.s.sembly?

Mr. Hempstead favored direct election by the people on the a.s.sumption "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 a.s.sembly. "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 canva.s.s, 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 a.s.sembly 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 a.s.sembly; 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 inst.i.tuted 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 att.i.tude of the Convention on this perplexing problem was perhaps fairly represented in the report of a Select Committee to whom had been referred "a pet.i.tion of sundry citizens praying for the admission of people of color on the same footing as white citizens." This same Committee had also been instructed to inquire into the propriety of a Const.i.tutional 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 inst.i.tution or an a.s.sociation entered into by man, the very const.i.tution 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 a.s.sociate together for that purpose to modify and limit the rights or wholly exclude from the a.s.sociation 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 circ.u.mstances. 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 inst.i.tutions?" 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 prost.i.tution 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 pet.i.tion."

Nor was it thought expedient by the Committee to introduce an article into the Const.i.tution 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 const.i.tuents "to get something put into the Const.i.tution by which negroes might be excluded from the State," felt that the matter could safely be left with the General a.s.sembly. Mr.

Grant thought that an exclusion clause in the Const.i.tution 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 ent.i.tled 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 inst.i.tution, 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 a.s.sembly 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) pa.s.sed by a majority of the members elected to both houses of the General a.s.sembly, (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 a.s.sembly 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 a.s.sent of two-thirds of the members elected to each house of the Legislature shall be requisite to the pa.s.sage 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 a.s.sembly 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 Const.i.tution and leave the whole question of establishing banks to the General a.s.sembly. 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 unconst.i.tutional, and oppressive upon the laboring cla.s.ses 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 cla.s.s that other cla.s.ses 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 Const.i.tution, 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 a.s.sembly. 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 a.s.sembly "shall create no bank or banking inst.i.tution, or corporation with banking privileges" without submitting the charter to a vote of the people. Fourthly, the General a.s.sembly 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 Const.i.tutional Convention of 1844 adjourned _sine die_ after a session of just twenty-six days.

XI

THE CONSt.i.tUTION OF 1844