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."
As regards this conclusion two criticisms are anticipated. 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 Constitution.
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 constituent 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
Assembly from Belmont in eastern Wisconsin to Burlington in western
Wisconsin. The constitutional history of Wisconsin up to the division of
the Territory in 1838 is, therefore, clearly a part of the Territorial
history of Iowa. The assignment 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 Constitution 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 "Constitution," or "Fundamental Compact," or
"Organic Law." Nevertheless, this instrument was a veritable
Constitution, since it was a written body of fundamental law in
accordance with which the government of the Territory was instituted 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.