Benjamin Shambaugh - History of the Constitutions of Iowa

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.