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."

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.

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