History of the Constitutions of Iowa

Resolved 5th. That no mans claim is valid unless he is an actual settler here, or, has a family and has gone after them, in which case he can have one month to go and back.

Resolved 6th. That any person not living up to the requirements of these laws shall forfeit their claim, and, any Actual Settler who has no claim may settle on the same.

Resolved 7th. That any person going on anothers claim that is valid, shall be visited by a Com. of 3 from our club and informed of the facts & and if such person persist in their pursuits regardless of the Com or claimant they shall be put off the Claim by this Club.

Resolved 8th. That the boundaries of these laws shall be 12 miles each way from this place.

Resolved 9th. That this club shall hold its meetings at least once in each month.

Resolved 10th. That the officers of this club shall consist of a Chairman & Secty.

Resolved 11th. That the duty of the Chairman is to call to order, put all questions, give the casting vote when there is a tie, &c. &c.

Resolved 12th. That the duty of the sec. is to keep the minutes of the meetings and read the same at the opening of each meeting and have the book and papers in his charge.

Resolved 13th. That any or all of the bye laws may be altered or abolished by a majority vote at a regular meeting."

On the offense of "claim-jumping" the records of the Fort Dodge Club contain this suggestive entry: "On Motion of Wm. R. Miller that if any member of this Club finds his or any of his friends Clames has been Jumpt that they inform this Club of the fact and that this Club forthwith put them off of said clame without trobling the Sivel Law."

In the Iowa News of March 28, 1838, was printed "The Constitution of the Citizens of the North Fork of the Maquoketa, made and adopted this 17th day of February, A. D. 1838." It is a typical Squatter Constitution of the Territorial period.

"Whereas, conflicting claims have arisen between some of the settlers residing upon Government Lands, and whereas many individuals have much larger claims than are necessary for common farming purposes, Therefore, we, the subscribers, to preserve order, peace and harmony, deem it expedient to form an association, and adopt some certain rules, by which those difficulties may be settled, and others prevented. Therefore, we do covenant, and agree to adopt and support the following articles.

Art. 1. This association shall be called the North Fork of Maquoketa Association, for the mutual protection of settlers' claims on Government Lands.

Art. 2. That there shall be elected by the subscribers, a President, whose duty it shall be to call meetings to order, and preside as Chairman, and to receive complaint and to appoint a Committee of three from the Great Committee, to settle all difficulties that arise from conflicting claims, and also to fill vacancies.

Art. 3. There shall be a Vice President elected, whose duty it shall be to fill the office of President in his absence.

Art. 4. There shall be chosen a Secretary, whose duty it shall be to keep a correct Journal of the acts and proceedings of each and every meeting, and register all claims in a book kept by him for that purpose, who shall receive the sum of 25 cents for the registering of each and every claim.

Art. 5. There shall be elected a committee of nine men, to be called the Grand Committee.

Art. 6. No settler shall be entitled to hold more than three quarter sections of land. Each settler shall give in the numbers of the quarter sections that he may claim. Each and every settler shall make an improvement on his, her, or their claim, sufficient to show that the same is claimed, previous to having the same recorded.

Art. 7. All minors under sixteen shall not be considered as holding claims, either by themselves, parents, or otherwise.

Art. 8. The Secretary, at the request of eight subscribers, shall call a meeting of the settlers, by advertising the same in three different places, not less than ten days previous to the meeting.

Art. 9. No person shall have any attention paid to his, her, or their complaint until they first subscribe to this Constitution.

Art. 10. All committees that shall sit or act under this constitution, shall determine in their decision and declare which party shall pay the costs, and each declaration shall be binding and be collected according to the laws of this Territory.

Art. 11. When complaints shall be made to the President, he shall immediately notify the sitting committee of three to meet at some convenient place. Then if said committee be satisfied that the opposing party has been timely notified, shall then proceed to investigate and try the case in dispute, receive evidence, and give their decision according to justice and equity, which decision shall be final: Provided, always, That either party considering injustice has been done, shall have a right to appeal to the Grand Committee, together with the President, who shall investigate the same, and shall give their decision in writing, from which there shall be no appeal. All appeals shall be made within ten days, or forever excluded.

Art. 12. There shall be held an annual meeting on the 1st Monday of November for the election of officers and committees.

Art. 13. The fees of each committee man with the President, shall not exceed one dollar per day.

Art. 14. This constitution may be altered and amended by a vote of two thirds of the members.

Art. 15. All committees made under this constitution shall be the judges of its meaning and spirit, and the resolutions of its meeting shall be governed according to their decisions.

Art. 16. All persons not settlers, having claims not settled before the 1st of May, 1838, shall be forfeited."

A hundred pages could easily be devoted to this interesting phase of our political history, but the details already given will suffice to indicate the nature, scope, and purpose of the Squatter Constitutions of Iowa. Their influence is clearly seen in a fourfold direction.

First, they made it possible and practicable for the settlers to go upon the public domain (surveyed or unsurveyed) and establish homes without the immediate inconvenience of paying for the land.

Secondly, they secured to the bona fide settlers the right to make improvements on the public lands and to dispose of the same for a reasonable consideration, or to purchase their improved land from the Government at the minimum price of $1.25 an acre.

Thirdly, they afforded bona fide settlers adequate protection in the peaceable possession and enjoyment of their homes without fear of being molested or ousted, either by the Government, or the newcomer, or the land speculator, until the land was offered for sale, or opened for entry, or until they were able to enter or purchase the same for themselves and their families.

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 constituted courts, and (e) by conducting all public affairs in and through mass meetings, with the full knowledge and consent of all the people.

In their Constitutions and Resolutions the squatters suggested, and in a measure definitely determined, the manner of 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 Constitutions stand for the beginnings of local political institutions in Iowa. They were the fundamental law of the first governments of the pioneers. They were the fullest embodiment of the theory of "Squatter Sovereignty." They were, indeed, fountains of that spirit of Western Democracy which permeated the social and political life of America during the 19th century. But above all they expressed and, in places and under 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 constitutional annals of Iowa, since it marks the beginning of the Territorial epoch and the advent of our first general code or text of fundamental law.

To be sure, the Iowa country had had a certain constitutional status ever since the acquisition of the Province of Louisiana in 1803. In 1804, it formed a part of the District of Louisiana, which was placed. under the jurisdiction of the Governor and Judges of the Territory of Indiana; in 1805, it remained a part of that district known henceforth as the Territory of Louisiana; in 1812, it was included within the newly created Territory of Missouri; in 1821, it was reserved for freedom by the Missouri Compromise; and finally, after being without a local constitutional status for more than thirteen years, it was "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 Constitutions of Iowa.

Furthermore, a Constitution 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, constitutional 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 constitutional 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 title had been extinguished in June, 1833, into the counties of Dubuque and Demoine. It also provided that each county should constitute 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 petitions 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 assembled at Burlington in November, 1837, this statement is made in reference to the two years from 1834 to 1836: "During the whole of this time the whole country, sufficient of itself for a 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 passage 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 Constitution. As early as October, 1835, they elected State officers. But on account of a dispute with Ohio over boundary lines, Congress was in no hurry to recognize the new State. Then for a time there were two governments-the Government of the State of Michigan and the Government of the Territory of Michigan-each claiming to be the only rightful and legitimate authority. It was not until January, 1837, that the existence of Michigan as a State was recognized at Washington.

Lieutenant Albert M. Lea, a United States army officer, who had spent some time in the country west of the Mississippi did not fail to observe the anomalous 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 documentary 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 constituted "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 Constitution of Iowa was "An Act establishing the Territorial Government of Wisconsin."