The Territorial epoch in our history began in 1836, when the Territory
of Wisconsin was established; it came to a close in 1846, when the State
of Iowa was organized and admitted into the Union. Two Constitutions
belong to this decade--the Organic Act of the Territory of Wisconsin,
and the Organic Act of the Territory of Iowa. These Constitutions are
very much alike both in form and content. Indeed, the latter was copied
from or modeled upon the former. An outline of either would fairly
indicate the content of the fundamental law for the whole Territorial
epoch. But to avoid unnecessary repetition on the one hand and
confusion on the other, the title of the present chapter will be taken
to mean the Organic Act of 1838.
The Constitution of the Territory of Iowa is clearly an outgrowth of
American political development. In its provisions is summed up the final
product of that most interesting series of evolutionistic
transformations in Territorial government that took place throughout the
North and West.
The first in the long line of American Territorial Constitutions, and
the starting point of subsequent development, was the ordinance of the
Congress of the Confederation now familiarly known as "The Ordinance of
1787." Nor was this famous ordinance itself a code of _new_ political
principles. Consciously or unconsciously its framers drew largely
from the principles, forms, and practices of American government prior
to the Revolution. The analogy between the Colonial and Territorial
governments of America is too striking to be dismissed as accidental.
The relation of the United States to the Territories has always been of
a Colonial character. In the history of Territorial government the
Ordinance of 1787 stands as the Magna Charta of the West. But the Great
Ordinance like the Great Charter was in many respects crude, incomplete,
and un-American. Place it by the side of the Constitution of the
Territory of Iowa, and it is plain to see that in the course of fifty
years marked changes had taken place--especially in the direction of
democratization.
The Constitution of the Territory is a written instrument of twenty
sections or articles, containing in all about four thousand words. It
has no preamble, but is simply introduced by the enacting clause. As a
pure product of Congressional legislation it was promulgated upon the
legislative authority of Congress with the approval of the President of
the United States. In its origin, therefore, it resembles the Royal
Charters of Europe more than the written Constitutions of America. The
Constitution of the Territory was literally handed down to the people
who were governed under its provisions _without their own consent_
directly given.
The first section purports to create a new Territory, by fixing the
boundaries thereof and declaring that from and "after the third
day of July next, all power and authority of the Government of
Wisconsin, in and over the Territory hereby constituted shall cease." On
reading this section one is almost startled by the matter-of-fact way
in which a body of legislators _seem_ to have made a Constitution and
established a new political society.
In providing for the executive department in the very next section the
logical order of the Constitution of the United States was reversed by
placing the executive "power and authority" before that of the
legislative. This, however, was altogether natural, since the Governor
had been the central figure in Territorial government ever since the
days of the great St. Clair. He was no figure-head, but the real
Government, influencing legislation as well as directing the
administration. Robert Lucas, the first of the Territorial Governors of
Iowa, seems to have fully apprehended this fact, for from the very
outset he made himself the real power in public affairs. The influence
of the Governor was dominant in Territorial government chiefly because,
like his prototype in the Colonies, he represented the majesty and the
supreme authority of the National government.
"The executive power and authority in and over the said Territory of
Iowa," runs the Organic Act, "shall be vested in a Governor, who shall
hold his office for three years, unless sooner removed by the President
of the United States." The Governor was appointed by the President, but
must reside in the Territory and "shall take care that the laws be
faithfully executed." He was commander-in-chief of the militia and
commissioned all officers appointed under the laws of the Territory. It
was his to grant pardons for offenses against the laws of the Territory
and provisional reprieves for offenses against the laws of the United
States. Besides all this, he was Superintendent of Indian affairs for
the National government.
In the government of the Territory of Iowa the Governor was something
more than chief of the militia and author of commissions and pardons.
Like the King of England, he was a constituent branch of the law-making
body. Not only did the Organic Act declare "that the legislative power
shall be vested in the Governor and a Legislative Assembly," but it gave
to the Governor the power of an absolute veto over all acts of the
Assembly. Indeed, it was this extraordinary power to participate in
legislation along with the power to appoint all inferior judicial
officers, justices of the peace, sheriffs, militia officers, and county
surveyors that gave our first Governor a real power and prestige not
since enjoyed by any executive--State or Territorial.
A Secretary of the Territory was provided for in the third section. This
officer stood next to the Governor in importance; and in case of the
death, removal, resignation, or necessary absence from the Territory of
the latter he was authorized and required to execute and perform the
gubernatorial powers and duties. The Secretary was appointed by the
President for a term of four years, but was subject to removal at
any time. His chief duty was to record and preserve the laws, acts, and
proceedings of both the Legislative Assembly and the Governor, and
yearly transmit copies thereof to the President of the United States and
to the Speaker of the House of Representatives.
The legislative power was, by the fourth section of the Constitution,
"vested in the Governor and a Legislative Assembly." The Assembly was a
representative body organized on the bicameral plan into a "Council" and
a "House of Representatives." The Council consisted of thirteen members,
elected biennially; while the House of Representatives had just double
that number, elected annually. The members of both houses were chosen
directly by the qualified voters of the Territory. They were
elected by districts, and apportioned on the basis of population. The
Assembly was to meet annually; "but no session in any year shall exceed
the term of seventy-five days."
A lavish delegation of power was granted to the Legislative Assembly by
the sixth section of the Constitution which provided "that the
Legislative power of the Territory shall extend to all rightful subjects
of legislation." Just what is meant by "rightful subjects of
legislation" is nowhere stated. But from the pages of the Territorial
statutes it is manifest that the important subjects of legislation were
in general the establishment of local government, the creation of
business and public corporations, the maintenance of the institution of
private property, the fulfilment of contracts, and the guarantee
of personal security. The sphere of legislation granted to the Territory
was larger than that reserved to the Commonwealth of Iowa.
It would, however, be a grave mistake to view the powers of the
Legislative Assembly as unlimited, since the Constitution of the
Territory contains (_a_) certain specific prohibitions, (_b_) a
general limitation, and (_c_) a Bill of Rights. The specific
prohibitions are: "no law shall be passed, interfering with the
primary disposal of the soil; no tax shall be imposed upon the
property of the United States; nor shall the lands or other property
of non-residents be taxed higher than the lands or other property of
residents."
These specific prohibitions are followed in the same section by
the general limitation which reads: "All the laws of the Governor and
Legislative Assembly shall be submitted to, and if disapproved by, the
Congress of the United States, the same shall be null and of no effect."
The Territorial Bill of Rights as set forth in the Constitution is
exceedingly brief--perhaps the shortest Bill of Rights on record. It
consists of a single sentence and reads as follows: "The inhabitants
of the said Territory shall be entitled to all the rights, privileges
and immunities heretofore granted and secured to the Territory of
Wisconsin and to its inhabitants." On its face this guarantee of the
fundamental rights of man and of the citizen seems vague and
unsatisfactory. But it is, nevertheless, large in implication. If we
turn to the Constitution of the Territory of Wisconsin to see what
rights, privileges, and immunities were therein guaranteed, we find
"that the inhabitants of the said Territory shall be entitled to, and
enjoy, all and singular the rights, privileges, and advantages,
granted and secured to the people of the Territory of the United
States northwest of the river Ohio, by the articles of the compact
contained in the ordinance for the Government of the said Territory,
passed on the thirteenth day of July, one thousand seven hundred and
eighty-seven; and shall be subject to all the conditions and
restrictions and prohibitions in said articles of compact imposed upon
the people of the said Territory." In other words, the provisions of
the Ordinance of 1787 are by implication made a part of the
Constitution of the Territory of Iowa. Thus the people of Iowa
inherited through the Territorial Constitutions of 1836 and 1838 the
political principles of the great Ordinance of 1787 as a Bill of
Rights.
Great was the legacy. Mark the classical expression of that instrument
in enumerating the immemorial rights, privileges, and principles of
Anglo-Saxon polity. "No person demeaning himself in a peaceable and
orderly manner, shall ever be molested on account of his mode of worship
or religious sentiments . . . . The inhabitants of the said Territory
shall always be entitled to the benefits of the writ of _habeas corpus_,
and of the trial by jury; of a proportionate representation of the
people in the legislature, and of judicial proceedings according
to the course of the common law. All persons shall be bailable, unless
for capital offences, where the proof shall be evident, or the
presumption great. All fines shall be moderate; and no cruel or unusual
punishments shall be inflicted. No man shall be deprived of his liberty
or property, but by the judgment of his peers, or the law of the land,
and should the public exigencies make it necessary, for the common
preservation, to take any person's property, or to demand his particular
services, full compensation shall be made for the same. And in the just
preservation of rights and property, it is understood and declared, that
no law ought ever to be made, or have force in the said territory, that
shall, in any manner whatever, interfere with, or affect private
contracts or engagements, _bona fide_, and without fraud
previously formed."
These words are more than formal expressions of great principles; they
are ennobling. But to read farther, that religion, morality, and
knowledge are necessary to good government and the happiness of mankind,
and that there shall be neither slavery nor involuntary servitude in the
said Territory, is to inspire reverence. Such, indeed, are the
"liberties we prize" and the "rights we will maintain."
The judicial power of the Territory was vested by the Constitution in
"a Supreme Court, district courts, probate courts, and in justices of
the peace." The Supreme Court consisted of a Chief Justice and two
associate justices. They were appointed by the President for a period
of four years, and were required to hold a term of court annually at
the seat of government. The Constitution further directed (_a_) that
the Territory be divided into three judicial districts, (_b_) that a
district court or courts be held in each of the three districts by one
of the judges of the Supreme Court, and (_c_) that the said judges
reside in the districts respectively assigned to them.
The courts of the Territory of Iowa were "legislative courts," that is,
courts created by Congressional legislation. The extent of their
jurisdiction was much greater than that of State courts, since by the
Organic Act they were empowered to exercise the customary jurisdiction
of both State and Federal courts.
In addition to those already mentioned, the Constitution provided for
two other prominent Territorial officers, namely, a Marshal and an
Attorney. Both were appointed by the President of the United States for
a term of four years.
At the National Capital the Territory was represented by a Delegate who
was elected by the people for a term of two years. The Delegate was
entitled to a seat in the House of Representatives where he could
participate in debate but was not allowed a vote.
One of the most significant sections of the Constitution is the fifth.
It provides "that every free white male citizen of the United States,
above the age of twenty-one years, who shall have been an inhabitant of
said Territory at the time of its organization, shall be entitled to
vote at the first election, and shall be eligible to any office
within the said Territory." Thereafter the suffrage qualifications were
to be determined by the Legislative Assembly; "_Provided_, That the
right of suffrage shall be exercised only by citizens of the United
States."
Although the Organic Act of 1838 was almost a literal copy of the
Organic Act of 1836, the following differences are worthy of
observation: First, the term of the members of the Council was changed
from four years in 1836 to two years in 1838. Secondly, the term of
Representatives was changed from two years in 1836 to one year in 1838.
Thirdly, the term of the judges of the Supreme Court was changed from
"good behavior" in 1836 to four years in 1838. Fourthly, by the Organic
Act of 1838 the judges of the Supreme Court were required to
reside in their respective districts. Fifthly, the salary of the judges
of the Supreme Court was reduced from eighteen hundred dollars in 1836
to fifteen hundred dollars in 1838.
Reflection upon the history and provisions of the Constitution of the
Territory leads to a few general conclusions. First, this Constitution
was written i. e. codified. In the second place, it was an act of
Congress. Again, its provisions represent political evolution in
Territorial government up to the year 1838. Furthermore, government in
the Territory, though subordinate, had a wider sphere of activity under
the Organic Act than has ever since been enjoyed by government under a
State Constitution. This is true, since the Legislative Assembly and the
Territorial courts exercised to a considerable extent the
customary functions of both National and State governments. Still
further, the President of the United States was in theory the head of
Territorial administration, since he had the power to appoint and remove
the chief administrative officers in the Territory. Finally, there
existed in the machinery of Territorial government a nice balance
between administration on the one hand and legislation on the other,
that is, between the part which was responsible directly to the
President of the United States and the part which was responsible
directly to the people of the Territory.