SQUATTER CONSTITUTIONS

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.

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