History of the Constitutions of Iowa

Mr. Langworthy moved to strike out four and insert two "as the term for which the Governor should hold his office." This was "to test whether any officer in the State of Iowa was to hold his office more than two years." Mr. Langworthy "wanted the whole government to be changed once in two years." His motion prevailed.

On the motion of Mr. Peck section five of the report, which aimed to prevent the Governor and Lieutenant Governor from succeeding themselves in office more than once in twelve years, was stricken out.

The question of an executive veto on legislation naturally received considerable attention, since the administration of Lucas was still fresh in the minds of many members of the Convention.

The Committee on the Legislative Department had reported a form of executive veto which was so limited that it could be passed over by an ordinary majority in the two branches of the General Assembly. Mr. Peck favored a two-thirds majority of the members present.

But Mr. Hall moved to strike out the whole section and said that "in making this Constitution he wished to throw off the trammels of fashion and precedent. He had so pledged himself to his constituents. This veto power was a trammel, and an unnecessary restraint on the freedom of legislation. The law of progress required that it should be abolished."

Mr. Bailey "thought the veto power was a valuable one; it was the people's power.. The Governor was more the representative of the people, than the Representatives themselves. The Representatives were chosen by sections, and represented local interests, and they might continue to pass bad laws. But the Governor had no local feelings."

Mr. Peck said that "the veto power was a qualified negative to prevent hasty and ill-advised legislation." He declared that the executive veto was a wholesome remedy for over-legislation. "It was a Democratic feature of any Constitution."

Ex-Governor Lucas took part in the discussion. "We were," he said, "engaged in making a Constitution to protect the rights of the people. The veto was one of the instruments that had been used to defend the people's rights.. It might have been exercised imprudently at times, but that was not a good argument against the power."

Mr. Hall discussed the question at length. "Gentlemen," he said, "supposed that the Legislature might be corrupt-he would suppose on the other hand, that the Governor might he corrupt, and his supposition was as good as theirs. Some gentlemen were afraid of the tyranny of the representatives-he would suppose that the Governor would be the tyrant; or he would suppose that the Governor would combine with the Legislature, and they would all be corrupt and tyrannical together. A number of persons were not so liable to corruption and combination as a single individual; – just as numbers increased the probability of corruption decreased." He declared that "there was no need of the power in this Territory."

The Convention finally agreed upon the form of the limited executive veto as provided for in the Federal Constitution.

Not even the Judiciary was spared from the influence of Western Democracy as it rose up and asserted itself in the Convention of 1844. The day of executive appointment and life tenure of judges had passed or was passing. The Committee on the Judiciary recommended that "the Judges of the Supreme Court and District Court shall be elected by the joint vote of the Senate and House of Representatives and hold their offices for six years;" but a minority report, introduced by Mr. Fletcher, proposed that all of the judges be elected by the qualified voters of the State.

In discussing this question the Convention desired to follow the wishes of the people; but it was not known that the people themselves really desired to elect the Judges. On the other hand there is no evidence that anyone favored executive appointment. So the question before the Convention was: Shall the Judges be elected by the people or shall they be chosen by the General Assembly?

Mr. Hempstead favored direct election by the people on the assumption "that in a Republican or Democratic government the people were sovereign, and all power resided in them." He did not believe that the influence of politics would be worse in the election of Judges by the people than in the election of members of the General Assembly. "Joint ballot," he declared, "was one of the most corrupt methods of election ever devised."

Mr. Bailey did not doubt "the capacity of the people to elect their Judges;" but he thought that "there was real danger in the Judges becoming corrupt through political influences. They were liable to form partialities and prejudices in the canvass, that would operate on the bench." He had "no objection to the people electing the Judges; but he did not think they desired the election-they had never asked to have it."

Ex-Governor Lucas said "the question would seem to be, whether there was any officer in the government whose duties were so sacred that they could not be elected by the people. All officers were servants of the people, from the President down." He repudiated the idea that the people were not capable of electing their own servants.

Mr. Quinton supported the proposition to elect the Judges, since "this was said to be an age of progress." In his opinion "the ends of Justice would be better served by elections by the people than by the Legislature."

Mr. Kirkpatrick declared that the selection of Judges by the General Assembly was "wrong both in principle and in policy." He was opposed to "voting by proxy." He believed that "we should choose our Judges ourselves and bring them often to the ballot box."

Mr. Fletcher "came pledged to go for the election of Judges by the people." He believed that "the surest guaranty, which could be had for the fidelity and good conduct of all public officers, was to make them directly responsible to the people."

The outcome of the discussion was a compromise. The Judges of the Supreme Court were to be named by the General Assembly; but the Judges of the District Court were to be elected by the people.

That the pioneers of Iowa, including the members of the Convention of 1844, were Democratic in their ideals is certain. They believed in Equality. They had faith in Jeffersonianism. They clung to the dogmas of the Declaration of Independence. They were sure that all men were born equal, and that government to be just must be instituted by and with the consent of the governed. Such was their professed philosophy. Was it universally applicable? Or did the system have limitations? Did the Declaration of Independence, for example, include negroes?

The attitude of the Convention on this perplexing problem was perhaps fairly represented in the report of a Select Committee to whom had been referred "a petition of sundry citizens praying for the admission of people of color on the same footing as white citizens." This same Committee had also been instructed to inquire into the propriety of a Constitutional provision prohibiting persons of color from settling within the State.

In the opening paragraph of their remarkable report the Committee freely admitted (1) "that all men are created equal, and are endowed by their Creator with inalienable rights," and (2) that these rights are "as sacred to the black man as the white man, and should be so regarded." At the same time they looked upon this declaration as "a mere abstract proposition" which, "although strictly true when applied to man in a state of nature… becomes very much modified when man is considered in the artificial state in which government and society place him."

The Committee then argued that "government is an institution or an association entered into by man, the very constitution of which changes or modifies to a greater or less extent his natural rights. Some are surrendered others are modified.. In forming or maintaining a government it is the privilege and duty of those who are about to associate together for that purpose to modify and limit the rights or wholly exclude from the association any and every species of persons who would endanger, lessen or in the least impair the enjoyment of these rights. We have seen that the application of this principle limits the rights of our sons, modifies the privileges of our wives and daughters, and would not be unjust if it excluded the negro altogether. – 'Tis the party to the compact that should complain, not the stranger. Even hospitality does not sanction complaint under such circumstances. True, these persons may be unfortunate, but the government is not unjust."

Thus the problem of negro citizenship was not one of abstract right, but must be settled on grounds of expediency. "Would the admission of the negro as a citizen tend in the least to lessen, endanger or impair the enjoyment of our governmental institutions?" The answer of the Committee reads as follows:

"However your committee may commiserate with the degraded condition of the negro, and feel for his fate, yet they can never consent to open the doors of our beautiful State and invite him to settle our lands. The policy of other States would drive the whole black population of the Union upon us. The ballot box would fall into their hands and a train of evils would follow that in the opinion of your committee would be incalculable. The rights of persons would be less secure, and private property materially impaired. The injustice to the white population would be beyond computation. There are strong reasons to induce the belief that the two races could not exist in the same government upon an equality without discord and violence, that might eventuate in insurrection, bloodshed and final extermination of one of the two races. No one can doubt that a degraded prostitution of moral feeling would ensue, a tendency to amalgamate the two races would be superinduced, a degraded and reckless population would follow; idleness, crime and misery would come in their train, and government itself fall into anarchy or despotism. Having these views of the subject your committee think it inexpedient to grant the prayer of the petition."

Nor was it thought expedient by the Committee to introduce an article into the Constitution which would exclude altogether persons of color from the State, notwithstanding the fact that "the people of Iowa did not want negroes swarming among them." Even Mr. Langworthy, who had been instructed by his constituents "to get something put into the Constitution by which negroes might be excluded from the State," felt that the matter could safely be left with the General Assembly. Mr. Grant thought that an exclusion clause in the Constitution would "endanger our admission into the Union."

Although the report was laid on the table, it nevertheless represented the dominant opinion then prevalent in Iowa. Our pioneer forefathers believed that the negroes were men entitled to freedom and civil liberty. But more than a score of years had yet to elapse before there was in their minds no longer "a doubt that all men [including the negroes] are created free and equal."

When the delegates were elected to the Convention of 1844 the people of the Territory were still suffering from the effects of over-speculation, panic, and general economic depression. Many of them still felt the sting of recent bank failures and the evils of a depreciated currency. Hence it is not surprising to learn from the debates that not a few of the delegates came to the Convention instructed to oppose all propositions which in any way favored corporations, especially banking corporations.

The opposition to banks and bank money was not local; it was National. The bank problem had become a leading party issue. Democrats opposed and Whigs generally favored the banks. It was so in Iowa, where the agitation was enlivened by the presence of the "Miners' Bank of Du Buque." This institution, which was established in 1836 by an act of Congress, had been the local storm center of the bank question. Prior to 1844 it had been investigated four times by the Legislative Assembly of the Territory.

In the Convention a minority as well as a majority report was submitted from the Committee on Incorporations. The majority report provided: (1) that one bank may be established with branches, not to exceed one for every six counties; (2) that the bill establishing such bank and branches must be (a) passed by a majority of the members elected to both houses of the General Assembly, (b) approved by the Governor, and (c) submitted to the people for their approval or rejection; (3) that "such bank or branches shall not have power to issue any bank note or bill of a less denomination than ten dollars;" (4) that "the stockholders shall be liable respectively, for the debts of said bank, and branches;" and (5) that "the Legislative Assembly shall have power to alter, amend, or repeal such charter, whenever in their opinion the public good may require it."

The same majority report provided further: (1) that "the assent of two-thirds of the members elected to each house of the Legislature shall be requisite to the passage of every law for granting, continuing, altering, amending or renewing any act of Incorporation;" (2) that no act of incorporation shall continue in force for more than twenty years; (3) that the personal and real property of the individual members of a corporation shall be liable for the debts of such corporation; and (4) that "the Legislative Assembly shall have power to repeal all acts of incorporation by them granted."

The minority report, which was signed by two members of the Committee, provided that "no bank or banking corporation of discount, or circulation, shall ever be established in this State."

In the discussion that followed the introduction of these reports the Whig members of the Convention were inclined to keep restrictions out of the Constitution and leave the whole question of establishing banks to the General Assembly. The Democrats were not united. The more radical supported the minority report; others favored the establishment of banks well guarded with restrictions.

Mr. Hempstead said that he was opposed to all banks as a matter of principle. He pointed out that there were three kinds of banks-banks of deposit, banks of discount, and banks of circulation. "To this last kind he objected. They were founded in wrong, and founded in error." He declared that such corporations should be excluded altogether from the State. Indeed, he said that "if the whole concern-banks, officers and all-could be sent to the penitentiary he would be very glad of it."

Mr. Quinton thought that "the whole concern of Banks, from big A down, were a set of swindling machines, and now was the time for the people of Iowa to give an eternal quietus to the whole concern."

Mr. Ripley declared that "Banks had always been a curse to the country.. He believed Banks to be unconstitutional, and oppressive upon the laboring classes of the community."

Mr. Bailey was an anti-Bank man; "but he knew many Democrats who were in favor of Banks under proper restrictions."

Mr. Hall said that "Banking was a spoiled child; it had been nursed and petted till it had become corrupt." He objected to banking "because it conferred privileges upon one class that other classes did not enjoy." He believed that the people would find that "a bank of earth is the best bank, and the best share a plough-share."

Mr. Gehon wanted to put his "feet upon the neck of this common enemy of mankind."

Ex-Governor Lucas, who represented the conservative Democrats, said that this was not a party issue but rather a question of expediency. He was in favor of leaving it to the Legislature and the people.

Mr. Lowe said that "the truth was, this matter, like all other questions of internal policy, should be left where all the other States of the Union have left it, to the sovereign will of a free and independent people."

Mr. Hawkins said that "the Whigs were in favor of leaving this matter to the action of future Legislatures and to the people. When a proposition was made for a charter, let the details be decided by them with all the lights before them at that time."

As finally agreed to in the Convention, article nine of the Constitution, which dealt with corporations, contained the following provisions. First, no act of incorporation shall continue in force for more than twenty years without being re-enacted by the General Assembly. Secondly, the personal and real property of the members of a corporation shall at all times be liable for the debts of such corporation. Thirdly, the General Assembly "shall create no bank or banking institution, or corporation with banking privileges" without submitting the charter to a vote of the people. Fourthly, the General Assembly shall have power to repeal all acts of incorporation by them granted. Fifthly, the property of the inhabitants of the State shall never be used by any incorporated company without the consent of the owner. Sixthly, the State shall not become a stockholder in any bank or other corporation. In this form the question of banks and corporations was submitted to the people.

On Friday morning, November the first, the Constitutional Convention of 1844 adjourned sine die after a session of just twenty-six days.

XI

THE CONSTITUTION OF 1844

The Constitution of 1844 as submitted by the Convention to Congress and to the people of the Territory of Iowa contained thirteen articles, one hundred and eight sections, and over six thousand words.

Article I. on "Preamble and Boundaries" acknowledges dependence upon "the Supreme Ruler of the Universe" and purports to "establish a free and independent government" in order "to establish justice, ensure tranquility, provide for the common defense, promote the general welfare, secure to ourselves and our posterity, the rights of life, liberty, and the pursuit of happiness."

Article II. as the "Bill of Rights" declares that "all men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." All political power is "inherent in the people;" for their "protection, security, and benefit" government is instituted; and they, the people, have "the right at all times, to alter, or reform the same, whenever the public good may require it."

Following these classic political dogmas of the American Revolution is a rather exhaustive enumeration of the fundamental rights of the individual, which at various times and in various ways had found expression in the state papers and Constitutions of England and America, and which together constitute the domain of Anglo-Saxon liberty and freedom.

Article III. defines the "Right of Suffrage" by limiting the exercise thereof to white male citizens of the United States, of the age of twenty-one years, who shall have been residents of the State six months next preceding the election, and of the county in which they claim a vote thirty days.

Article IV. proclaims the theory of the separation of powers in sweeping terms, and prescribes the constitution of the law-making department. Herein the legislative authority was vested in a General Assembly, which was organized on the bicameral plan. The members of the House of Representatives were to be chosen for two years, those of the Senate for four years. The regular sessions of the General Assembly were to be held biennially.

Article V. on the "Executive Department" provides that the "Supreme Executive power shall be vested in a Governor, who shall hold his office for two years; and that a Lieutenant Governor shall be chosen at the same time and for the same term." The Governor must be a citizen of the United States and have attained the age of thirty years.

Article VI. organizes the "Judicial Department." It provides for a Supreme Court consisting of "a Chief Justice and two Associates," to be chosen by the General Assembly for a term of four years. The District Court was to "consist of a Judge, who shall reside in the district assigned him by law," and be elected by the people for the same term as the Judges of the Supreme Court.

Article VII. provides that the "Militia" shall be composed of "all able bodied white male persons between the ages of eighteen and forty-five years," except such persons as are or may be especially exempted by law. All details relative to organizing, equipping, and disciplining the militia were left to the General Assembly.

Article VIII. on "Public Debts and Liabilities" prohibited the General Assembly from contracting debts and obligations which in the aggregate would exceed one hundred thousand dollars.

Article IX. placed restrictions upon banking and other business corporations.

Article X. deals with "Education and School Lands." It provides for a "Superintendent of Public Instruction" who shall be chosen by the General Assembly. It directs the General Assembly to provide for a system of common schools. It declares also that the General Assembly "shall encourage, by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement."

Article XI. outlines a system of local government which includes both the county and the township organization. The details are left to the General Assembly.

Article XII. provides for "Amendments to the Constitution." In the case of partial revision of the Constitution, the specific amendment must be passed by two successive General Assemblies and ratified by the people. When it is desired to have a total revision of the fundamental law, the General Assembly submits the question of a Constitutional Convention to a direct vote of the people.

Article XIII. provides a "Schedule" for the transition from the Territorial to the State organization.

From the view-point of subsequent events the most significant provision of the Constitution of 1844 was the one which defined the boundaries of the future State. There is, however, no evidence that the members of the Convention foresaw the probability of a dispute with Congress on this point, although Governor Chambers in his message of December, 1843, had pointed out its possibility should the people of Iowa assume to give boundaries to the State without first making application to Congress for definite limits. It was on the question of boundaries that the Constitution of 1844 was wrecked.

In the Convention the regular standing Committee on State Boundaries reported in favor of certain lines which were in substance the boundaries recommended by Governor Lucas in his message of November, 1839. Indeed, it is altogether probable that the recommendations of Robert Lucas were made the basis of the Committee's report. This inference is strengthened by the fact that the illustrious Ex-Governor was a member of the Committee. It will be convenient to refer to the boundaries recommended by the Committee as the Lucas boundaries.

The Lucas boundaries were based upon the topography of the country as determined by rivers. On the East was the great Mississippi, on the West the Missouri, and on the North the St. Peters. These natural boundaries were to be connected and made continuous by the artificial lines of the surveyor. As to the proposed Eastern boundary there could be no difference of opinion; and it was generally felt that the Missouri river should determine the Western limit.

On the South the boundary must necessarily be the Northern line of the State of Missouri. But the exact location of this line had not been authoritatively determined. During the administration of Lucas it was the subject of a heated controversy between Missouri and Iowa which at one time bordered on armed hostility. The purpose of the Convention in 1844 was not to settle the dispute but to refer to the line in a way which would neither prejudice nor compromise the claims of Iowa.

The discussion of the Northern boundary was, in the light of subsequent events, more significant. As proposed by the Committee the line was perhaps a little vague and indefinite since the exact location of certain rivers named was not positively known. Some thought that the boundary proposed would make the State too large. Others thought that it would make the State too small. Mr. Hall proposed the parallel of forty-two and one-half degrees of North latitude. Mr. Peck suggested the parallel of forty-four. Mr. Langworthy, of Dubuque, asked that forty-five degrees be made the Northern limit.