It may seem strange to class the customs of the pioneers among the early
laws of Iowa. But to refer to the "Resolutions" and "By-Laws" of the
squatters as political Constitutions is more than strange; it is
unorthodox. At the same time History teaches that in the evolution of
political institutions, customs precede statutes; written laws follow
unwritten conventions; the legal is the outgrowth of the extra-legal;
and constitutional government is developed out of extra-constitutional
government. One need not search the records of antiquity nor decipher
the monuments for illustrations of these truths; for in the early
political history of Iowa there is a recurrence of the process of
institutional evolution including the stage of customary law. Here in
our own annals one may read plainly writ the extra-legal origin of laws
and constitutional government.
Absence of legislative statutes and administrative ordinances on the
frontier did not mean anarchy and disorder. The early settlers of Iowa
were literally, and in that good old Anglo-Saxon sense, "lawful men of
the neighborhood," who from the beginning observed the usages and
customs of the community. Well and truly did they observe the customs
relative to the making and holding of claims. And as occasion demanded
they codified these customs and usages into "Constitutions,"
"Resolutions," and "By-Laws." Crude, fragmentary, and extra-legal as
were their codes, they nevertheless stand as the first written
Constitutions in the history of the Commonwealth. They were the
fundamental laws of the pioneers, or, better still, they were Squatter
Constitutions.
The Squatter Constitutions of Iowa, since they were a distinctive
product of frontier life, are understood and their significance
appreciated only when interpreted through the conditions of Western life
and character.
It was through cession and purchase that the United States came into
possession of the vast public domain of which the fertile farming fields
of Iowa formed a part. Title to the land vested absolutely in the
Government of the United States. But the right of the Indians to occupy
the country was not disputed. Until such right had been extinguished by
formal agreement, entered into between the United States and the
Indians, no white citizen was competent to make legal settlement
therein.
As early as 1785 Congress provided that no settlement should be made on
any part of the public domain until the Indian title thereto had been
extinguished and the land surveyed. Again, in 1807, Congress provided:
"That if any person or persons shall, after the passing of this act,
take possession of, or make a settlement on any lands ceded or secured
to the United States by any treaty made with a foreign nation, or by a
cession of any State to the United States, which lands shall not
have been previously sold, ceded, or leased by the United States, or the
claim to which lands, by such person or persons, shall not have been
previously recognized and confirmed by the United States; or if any
person or persons shall cause such lands to be thus occupied, taken
possession of, or settled; or shall survey, or attempt to survey, or
cause to be surveyed, any such lands; or designate any boundaries
thereon, by marking trees, or otherwise, until thereto duly authorized
by law; such offender or offenders shall forfeit all his or their right,
title, and claim, if any he hath, or they have, of whatsoever nature or
kind the same shall or may be to the lands aforesaid, which he or they
shall have taken possession of, or settled, or caused to be occupied,
taken possession of, or settled, or which he or they shall have
surveyed, or attempt to survey, or the boundaries thereof he or they
shall have designated, or cause to be designated, by marking trees or
otherwise. And it shall moreover be lawful for the President of the
United States to direct the marshal, or the officer acting as marshal,
in the manner hereinafter directed, and also to take such other
measures, and to employ such military force as he may judge necessary
and proper, to remove from land ceded, or secured to the United States,
by treaty, or cession, as aforesaid, any person or persons who shall
hereafter take possession of the same, or make, or attempt to make a
settlement thereon, until thereunto authorized by law. And every right,
title, or claim forfeited under this act shall be taken and deemed
to be vested in the United States, without any other or further
proceedings."
In March, 1833, the act of 1807 was revived with special reference to
the Iowa country to which the Indian title was, in accordance with the
Black-Hawk treaty of 1832, to be extinguished in June. It was made
"lawful for the President of the United States to direct the Indian
agents at Prairie du Chien and Rock Island, or either of them, when
offenses against the said act shall be committed on lands recently
acquired by treaty from the Sac and Fox Indians, to execute and perform
all the duties required by the said act to be performed by the marshals
in such mode as to give full effect to the said act, in and over the
lands acquired as aforesaid." Thus it is plain that the early
settlers of Iowa had no legal right to advance beyond the surveyed
country, mark off claims, and occupy and cultivate lands which had not
been surveyed and to which the United States had not issued a warrant,
patent, or certificate of purchase.
But the pioneers on their way to the trans-Mississippi prairies did not
pause to read the United States Statutes at Large. They outran the
public surveyors. They ignored the act of 1807. And it is doubtful if
they ever heard of the act of March 2, 1833. Some were bold enough to
cross the Mississippi and put in crops even before the Indian title had
expired; some squatted on unsurveyed lands; and others, late comers,
settled on surveyed territory. The Government made some successful
effort to keep them off Indian soil. But whenever and wherever the
Indian title had been extinguished, there the hardy pioneers of Iowa
pressed forward determining for themselves and in their own way the
bounds and limits of the frontier.
Hundreds and thousands of claims were thus located! Hundreds and
thousands of farms were thus formed! Hundreds and thousands of
homesteads were thus established! Hundreds and thousands of improvements
were thus begun! Hundreds and thousands of settlers from all parts of
the Union thus "squatted" on the National commons! All without the least
vestige of legal right or title! In 1836, when the surveys were first
begun, over 10,000 of these squatters had settled in the Iowa country.
It was not until 1838 that the first of the public land sales were
held at Dubuque and Burlington.
These marginal or frontier settlers (squatters, as they were called)
were beyond the pale of constitutional government. No statute of
Congress protected them in their rights to the claims they had staked
out and the improvements they had made. In _law_ they were trespassers; in
_fact_ they were honest farmers.
Now, it was to meet the peculiar conditions of frontier life, and
especially to secure themselves in what they were pleased to call their
rights in making and holding claims, that the pioneers of Iowa
established land clubs or claim associations. Nearly every community in
early Iowa had its local club or association. It is impossible to give
definite figures, but it is safe to say that over one hundred of
these extra-legal organizations existed in Territorial Iowa. Some, like
the Claim Club of Fort Dodge, were organized and flourished after the
Commonwealth had been admitted into the Union.
In the "Recollections" and "Reminiscences" of pioneers many references
are made to these early land clubs or claim associations, and
Constitutions, By-laws, or Resolutions are sometimes reproduced
therewith in whole or in part. But _complete and adequate manuscript
records_ of but two Iowa organizations have thus far come to light. The
"Constitution and Records of the Claim Association of Johnson County,"
preserved by the Iowa State Historical Society, were published in full
in 1894. The materials of this now famous manuscript, which are
clear and complete, were arranged as follows: I. Constitution and Laws;
II. Minutes of Meetings; III. Recorded Claims; IV. Recorded Quit Claim
Deeds.
The Constitution of the Johnson County Association is perhaps the most
elaborate Squatter Constitution in the annals of early Iowa. It was
adopted March 9th, 1839, and consists of three articles, twenty-three
sections, and over twenty-five hundred words.
Article I. fixes the name of the Association, and declares that "the
officers of this association shall be one President, one Vice
President, One Clerk or Recorder of claims, deeds or transfers of
Claims, seven Judges or adjusters of claims or boundary . . . and two
Marshalls." All of the officers were elected annually.
Article II. relates to "sallerys." It provides that "the Clerk or
Recorder shall receive Twenty-five cents for recording each and everry
claim, and fifty cents for everry deed or conveyance . . . . and Twelve
& a half cents for the privalege of examining his Books." The Judges and
Marshals were allowed one dollar and fifty cents each for every day
spent in the discharge of the duties of their respective offices.
Article III. contains ten sections bearing upon a variety of subjects.
Section 1 indicates in detail how claims are to be made and recorded and
the boundaries thereof designated. No person was allowed to hold more
than four hundred and eighty acres. Section 2 provides that "any white
male person over the age of eighteen can become a member of this
association by signing the laws rules and regulations governing the
association," that "actual citizens of the County over the age of
seventeen who are acting for themselves and dependent on their own
exertions, and labour, for a lively hood, and whose parents doe not
reside within the limits of the Territory can become members of this
association and entitled to all the privalages of members," but that "no
member of the association shall have the privalege of voting on a
question to change any article of the constitution or laws of the
association unless he is a resident citizen of the county and a
claimholder, nor shall any member be entitled to vote for officers of
this association unless they are claim holders."
The same section provides that "any law or article of the constitution
of this association may be altered at the semianual meetings and at
no other meetings provided, however, that three fifths of the members
presant who are resident citizens of the county and actual claim holders
shall be in favour of such change or amendment, _except that section
fixing the quantity of land that everry member is entitled to hold by
claim and that section shall remain unaltered_."
By the same article semi-annual meetings of the Association are provided
for in section 3. Section 5 declares that "all persons who have resided
within the limits of the County for Two months, shall be recognized and
considered as citizens of the County." Another section stipulates that
"members of the association who are not citizens of the County shall be
required in making claims to expend in improvements on each claim
he or they may have made or may make the amount of fifty Dollars within
six months of the date of making such claim or claims and fifty Dollars
every six months there after until such person or persons becomes
citizens of the county or forfeit the same." The 10th section relates to
the procedure of the Claim Court. Finally, in section 11 the members
pledge their "honours" for the "faithful observance and mantanance" of
the Constitution by subscribing their names to the written document.
In addition to the Constitution, Resolutions were, from time to time,
adopted with the force of laws. It is here that the real spirit and
purpose of the pioneer squatters is best expressed. With characteristic
frankness they resolved to "discountenance any attempts on the part
of any and every person to intrude in any way upon the rightful claims
of another," since "the presumption is that a person thus attempting to
take away a portion of the hard earnings of the enterprising and
industrious setler is dishonest & no Gentlemen."
That they insisted upon equity rather than upon refined technicalities
in the administration of their law is seen in the following: "Resolved
that to avoid difficulty growing out of the circumstance of persons
extending their improvements accidentaly on the claims of others before
the Lines were run thereby giving the first setlr an opportunity or
advantage of Preemption over the rightful owner that any person who hold
such advantages shall immediately relinquish all claim thereto to
the proper owner and any one refusing so to do shall forfeit all claim
to the right of protection of the association."
For the speculator who sometimes attended the land sales the squatters
had little respect; so they "Resolved that for the purpose of garding
our rights against the speculator we hereby pledge ourselves to stand by
each other and to remain on the ground until all sales are over if it
becomes necessary in order that each and every setler may be secured in
the claim or claims to which he is justly entitled by the Laws of this
association." And remarkable as it may seem, the same protection which
was pledged "before the sale" was guaranteed to "all such members as may
be unable to enter their claims at the sale after such sale and
until the same may be entered by them."
The following are typical records of claims as recorded in the claim
book of the Johnson County Association:
"The following is a decription of my claim made about the 15 of
January 1838, that I wish recorded. Situated on Rapid Creek About Two
Miles above Felkners & Myers mill Johnson County Iowa Territory
Commencing about 20 Rods South of Rapid Creek at a double white Oak
Tree Blazed & 3 notches on one side and 4 on the other and then
running West three fourths of a mile to a double white Oak on the east
side of a small branch Blazed and marked as before described then
running North about three fourths of a mile to a white Oak tree Blazed
and marked as before then running East about three fourths of a
mile to a small Bur Oak tree on the west side of Rapid Creek marked
and blazed as before mentioned then running South crossing Rapid Creek
to the place of beginning
March 20th 1839. GRIFFITH SHRECK"
"The following claim I purchased of John Kight in February 1839, & I
wish it registered to me as a claim made as I have not got his deed
with me the same being the S W qr of S 14, & that part of the S 1/2 of
S 15, that Lyes East of the Iowa River--T 79 N. R. 6 W. July 3rd 1840
handed in July 3, 1840 ROBERT LUCAS"
An illustrative quitclaim deed from the
same records reads as follows:
"This bargen made and entered into by the following parties Viz this
day I James Williams has bargened and sold to Philo Costly a
certain claim lying on the E side of Rapid Creek boundrys of said
claim as follows commencing at a white Oak tree standing about 80 Rods
below the upper forks of Rapid Creek thence running south 1/2 mile
thence E 1 mile to a stake standing on the Prairie near 2 Trees.
thence N 1/2 mile to a stake thence W. 1 mile to the starting place--I
the said Williams agree and bind myself to defend all rights & claims
excepting the claim of the general Government and also singular all
rights claims & Interests to said claim for and in concideration of
the sum of one hundred Dollars the receipt thereof I here in
acknowledge said Williams agrees to put up a House and finish Except
putting up the Chimney & dobing and also said Williams is to Haul
out Eight or Ten hundred rails all included for the receipt above
mentioned. Receipt. Johnson County. I. T.
January 25, 1841
JAMES WILLIAMS [SEAL]
Witness
CORNELIUS HENYAN
Handed in Februrary 3rd 1841"
The manuscript records of the Claim Club of Fort Dodge, discovered
several years ago among the papers of Governor Carpenter, are now
carefully preserved by the Historical Department at Des Moines. From
these records it appears that the first meeting of the Claim Club of
Fort Dodge was held on the 22d day of July, 1854. At this meeting a
committee was chosen to draft a "code of laws," and the following
motions were passed:
"First. That 320 Acres shall constitute a claim.
2d. A claim may be held one month by sticking stakes and after that 10
dollars monthly improvements is necessary in order to hold a claim.
Also that a cabin 16 x 16 feet shingled and enclosed so as to live in
is valued at $30.00."
Of the same date are the following By-laws or Resolutions:
"Whereas the land in this vicinity is not in market and may not be
soon, We, the undersigned claimants deem it necessary in order to
secure our lands to form ourselves into a Club for the purpose of
assisting each other in holding claims, do, hereby form and adopt the
following byelaws:
_Resolved_ 1st. That every person that is an Actual claimant is
entitled to hold 320 Acres of land until such time as it comes into
market.
_Resolved_ 2d. That any person who lives on their claim or is
continually improving the same is an actual Claimant.
_Resolved_ 3d. That stakeing out a claim and entering the same on our
Claim Book shall hold for one month.
_Resolved_ 4th. That $10, Monthly shall hold a claim thereafter.
_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