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THE CONVENTION OF 1844

In accordance with the provisions of the act of February 12, 1844, and the act of June 19 amendatory thereof, seventy-three delegates to a Constitutional Convention were elected at the general Territorial elections in August, 1844. These delegates were chosen on partisan grounds. With the electorate the primary question was not, "Is the candidate well grounded in the principles of government and administration?" but "What are his political affiliations?"

When the votes were counted it was found that the Democrats had won a great victory. The Whigs had not succeeded in electing one third of the whole number of delegates.

Events were making rapidly toward the realization of State government. On Monday, October 7, 1844, sixty-three of the delegates elected met in the Old Stone Capitol at Iowa City and organized themselves into a constituent assembly.

The meeting was informally called to order by Francis Gehon of Dubuque County. Ralph P. Lowe was chosen to act as President pro tem. After a temporary organization had been fully effected the Convention of 1844 was formally opened with prayer. Upon the call of Counties by the Secretary the delegates presented their credentials and took their seats. One committee was appointed to examine credentials, and another to draw up rules of proceeding. The Convention then adjourned for the day.

When the Convention met on Tuesday morning the Committee on Credentials presented the names of all the delegates who had produced certificates of election. A report from the Committee on Rules was laid on the table. Mr. Bailey's resolution that "the editors of this Territory be permitted to take seats within the bar of this House" was adopted. The Convention then proceeded viva voce to the election of permanent officers, that is, a President, a Secretary, an Assistant Secretary, a Door-Keeper, and a Sergeant-at-Arms.

The honor of the Presidency fell to Shepherd Leffler of Des Moines County. George S. Hampton and Alexander B. Anderson, who were elected Secretary and Assistant Secretary respectively, were not members of the Convention. Warren Dodd was elected Sergeant-at-Arms, and Ephraim McBride, Door-Keeper.

Upon being conducted to the chair Mr. Leffler addressed the Convention in a most earnest manner. He tried to impress upon the members the serious importance of the work before them. "You meet gentlemen," he said, "on an occasion of the deepest interest. We are in the progress of an important change, in the midst of an important revolution, 'old things are to be done away and all things are to become new.' The structure and organization of our government are to be changed, territorial relations with the parent government are soon to cease, and Iowa must soon take upon herself the duties and the responsibilities of a sovereign State. But before this important change can be fully consummated, it is necessary for us to form a republican constitution, for our domestic government. Upon you, gentlemen, a confiding people have entrusted this high responsibility. To your wisdom, to your prudence, to your patriotism, they look for the formation of that instrument upon which they are to erect the infant republic-under your auspices the youngest and fairest daughter of the whole American family is to commence her separate political existence, to take her rank in the Union of the American States, and to add her star to the proud flag of our common country. Recollect, gentlemen, that the labor of your hands, whatever may be its fashion, will not be the fashion of a day, but permanent, elementary, organic. It is not yours to gild or to finish the superstructure, but to sound the bottom, to lay the foundation, to place the corner stone. Unlike the enactments of mere legislation, passed and sent forth to-day and recalled to-morrow, your enactments, when ratified by the people are to be permanent and lasting, sovereign and supreme, governing, controlling and directing the exercise of all political authority, executive, legislative and judicial, through all time to come."

Mr. Leffler hoped that the Convention would frame a Constitution which would, "in all its essential provisions, be as wise and as good if not wiser and better than any other instrument which has ever yet been devised for the government of mankind," so that "Iowa, young, beautiful and blooming as she now is, endeared to us by every attachment which can bind us to our country, may at no distant day, for every thing that is great, noble or renowned, rival if not surpass the proudest State of the American confederacy."

On the same day, and after the election of officers, the report of the Committee on Rules was taken up, slightly amended, and adopted. In the afternoon Mr. Hall, who came from a back county in which no newspapers were printed, moved "that each member of the Convention have the privilege of taking twenty copies weekly of the newspapers published in this city," and at the expense of the Convention. A lively discussion followed. Some favored the motion because its object was to provide the people with information concerning the Convention, others because they had already promised papers to their constituents. But Mr. Grant thought that it was both useless and corrupt. The delegates had come to the Convention with economy on their lips and therefore should resist such "useless expenditures." The motion was lost.

On the third day standing committees were announced on the following subjects: (1) Bill of Rights; (2) Executive Department; (3) Legislative Department; (4) Judicial Department; (5) Suffrage and Citizenship; (6) Education and School Lands; (7) Incorporations; (8) State Boundaries; (9) County Organization; (10) Internal Improvements; and (11) State Debts. The Convention was now in condition to take up the great task of drafting a code of fundamental law. On Thursday-the fourth day-the real work of the Convention began with a report from the Committee on State Boundaries.

Of the seventy-two members who labored in the Convention and signed the Constitution there were twenty-one Whigs and fifty-one Democrats. Twenty-six of the delegates were born in the South, twenty-three in the Middle States, ten in the New England States, ten in the States of the Old Northwest, one in Germany, one in Scotland, and one in Ireland. Of those born in the United States thirteen were from Pennsylvania, eleven from Virginia, nine from New York, eight from Kentucky, eight from Ohio, six from North Carolina, six from Vermont, and one each from Massachusetts, Connecticut, New Hampshire, Maine, New Jersey, Tennessee, Indiana, and Illinois. The oldest member was sixty-six, the youngest twenty-seven; while the average age of all was about forty years. As to occupation or profession, there were forty-six farmers, nine lawyers, five physicians, three merchants, two mechanics, two miners, two mill-wrights, one printer, one miller, and one civil engineer.

The Convention lost no time in procrastinating delays. Committees were prompt in making reports. Parliamentary wranglings were infrequent. There was no filibustering. The discussions were, as a rule, neither long, wordy, nor tiresome. Indeed, the proceedings were throughout conducted in a business-like manner. The Democrats were determined to frame a Constitution in accordance with what they were pleased to call "the true principles of Jeffersonian Democracy and Economy." They had the votes to carry out this determination.

And yet the proceedings of the Convention were by no means formal and without enlivening discussion. The fragments of the debates which have come down to us contain many remarks suggestive of the life, character, and political ideals of the people of early Iowa. For example, the discussion concerning newspapers, already referred to, brought out an expression of the popular ideal of economy and frugality. To be sure, newspapers containing information concerning the Convention and the fundamental instrument of government which was in the process of making would, if circulated widely throughout the Territory, educate and enlighten the people. But since the proposition involved the expenditure of several hundreds of dollars it was extravagant. The sacred principle of "Economy" could not be sacrificed to enlightenment. This pioneer ideal of thriftiness persisted among the Iowans for more than a generation.

Strict even to parsimoniousness in the matter of public expenditures, the pioneers of Iowa were not always puritan in observing the forms of religion. Their liberal attitude and their fearless courage in expressing views on so delicate a subject were displayed in an interesting debate in the Convention on a resolution offered by Mr. Sells to the effect "that the Convention be opened every morning by prayer to Almighty God."

Mr. Chapman favored the resolution, since "the ministers would gladly attend and render the services without compensation."

Mr. Gehon objected on the ground that "it would not be economical, for the Convention sat at an expense of $200 to $300 per day, and time was money."

Mr. Hall moved to amend the resolution so that the exercise of prayer might "commence at least one half hour before the assembling of the Convention." But Mr. Chapman thought that such a provision would be an insult to the Clergy and to "those who believed in the superintendence of Almighty God."

Mr. Kirkpatrick said that he too believed in a "superintending Providence" that "guided and controlled our actions." He was a firm believer in Christianity, but he "did not wish to enforce prayer upon the Convention." Prayer, he argued, was a moral precept which could not be enforced without violating or infringing the "natural right" of the members to worship God each in his own way. If "we can enforce this moral obligation, then we have a right.. to make every member of this Convention go upon his knees fifty time a day." Mr. Kirkpatrick cared nothing for precedent. "This was a day of improvement. Let those who believed so much in prayer, pray at home." After all "public prayer was too ostentatious."

Mr. Sells was shocked, and would "regret to have it said of Iowa that she had so far travelled out of Christendom as to deny the duty of prayer."

Ex-Governor Lucas, who was a member of the Convention, was astonished at Mr. Hall's amendment. He said that "if ever an assemblage needed the aid of Almighty Power, it was one to organize a system of Government." Furthermore, he believed that "it was due to the religious community, and to our own character" to have prayer. To reject the resolution would, he thought, "give us a bad name abroad."

Mr. Hooten reminded Lucas of the story told of Franklin, who, when a boy, asked his father why he did not say grace over the whole barrel of pork at once.

Mr. Hall was "opposed to any attempt on the part of the Convention to palm themselves off to be better than they really were, and above all other things, to assume a garb of religion for the purpose of giving themselves character." He doubted the efficacy of prayers invoked at political meetings, and cited an instance where a "Reverend gentleman" fervently prayed for the release of Dorr, the election of Polk and Dallas, and the triumph of Democratic principles. To believe in the efficacy of such a prayer implied that "Deity was a Democrat." Now, "if the Almighty was a Democrat, he would perhaps grant the prayer; if not a Democrat he would not grant it." Mr. Hall desired to know what was to be prayed for in the Convention. As for himself, "he would pray as did the man in New Orleans, that God would 'lay low and keep dark,' and let us do the business of the Convention." Prayers in the Convention were, he thought, inappropriate. "There were places where the Almighty could not be approached in a proper spirit-and this was one."

Mr. Bailey asked the members who voted against taking papers on the grounds of economy to be consistent and vote against this resolution to have prayers. It would save some two or three hundred dollars. Then, too, he thought that "people were becoming more liberal in [their religious] sentiment. No man could say that he ever opposed another on account of religion; he respected men who were sincerely religious; but he wanted to have his own opinions." Mr. Bailey feared that members might be compelled, under the resolution, "to hear what they were opposed to. This was contrary to the inalienable rights of man. If members did not feel disposed to come, it took away their happiness, contrary to the Declaration of Independence and the principle laid down by Thomas Jefferson, the Apostle of Liberty."

Mr. Cutler said that "he had not lived a great while, but long enough not to be afraid of meeting such a question openly." He opposed the resolution and desired the yeas and nays recorded on the motion.

Mr. Fletcher "regretted the opposition that he saw, and was unwilling that it should go forth to the world that Iowa refused to acknowledge a God."

Mr. Evans did not believe in progression to the exclusion of prayer. He favored "providing a room for those who did not wish to hear prayers."

Mr. Hepner opposed the resolution because he thought that it was inconsistent with the principle of religious freedom as set forth in the Bill of Rights.

Mr. Shelleday wished to represent the moral and religious feelings of his constituents by supporting the resolution.

Mr. Quinton thought that his constituents were as moral as those of Mr. Shelleday. But he "did not believe praying would change the purposes of Deity, nor the views of members of the Convention." "In the name of Heaven," he exclaimed, "don't force men to hear prayers." By a vote of forty-four to twenty-six the resolution was indefinitely postponed.

The liberal religious spirit of the pioneers is further evidenced by the principle of toleration which was incorporated into section four of the Bill of Rights. As introduced by the Committee the section provided that "no religious test shall be required as qualification for any office or public trust, and no person shall be deprived of any of his rights, privileges, capacities, or disqualified for the performance of any of his duties, public or private, in consequence of his opinion on the subject of religion." Mr. Grant thought that the report "was meant to cover everything." But, to make sure that it did not exclude Atheists from giving testimony in the courts, Mr. Galbraith moved to insert the words "or be rendered incompetent to give testimony in any court of law or equity."

Mr. Lowe, of Muscatine, favored leaving the law on this subject as it was; that is, he thought that "Atheists should not be admitted to give testimony" because "there was nothing that such a person could swear by. An oath called upon Deity to witness the truth of what was said, and to withdraw his favor from the person if it was untrue. Atheists consequently could not take an oath." It would be "unsafe" to permit them to testify.

Mr. Hempstead wanted to "do away with this inquiring into a man's religious opinions. He desired to keep it out of the Constitution. It was the fear of the penalties of perjury that restrained men from stating what was not true-not future punishment."

Mr. Kirkpatrick thought that to refuse to allow Atheists to testify would be an "infringement of the natural rights of man."

Mr. Grant said that "he hoped this Convention would take high grounds upon this subject and silence.. these inquiries into men's belief, and exclusions for opinion's sake."

When the test vote was taken it was found that only ten members of the Convention were willing to deny to Atheists the right to give testimony in the courts.

An interesting debate on salaries led to the adoption of section thirty-five, Article IV., of the Constitution which fixed the compensation of the State officers "for the first ten years after the organization of the government." The discussion was provoked by a report from the Committee on State Revenue in which the following salaries were recommended: For Governor, $1000; for Secretary of State, $500; for Treasurer, $400; for Auditor, $700; for Superintendent of Public Instruction, $700; and for Judges of the Supreme Court, $800. Several motions were made which aimed to increase slightly the sums recommended by the Committee; but the bent of the Convention was manifestly in favor of a reduction of salaries all along the line.

Sums ranging from $600 to $1200 were suggested for the Governor. Mr. Hooten "thought the salary was about right at $1000. The Governor was rather than else considered as public property, would have to entertain a good deal of company, &c., and should have a pretty liberal salary." Mr. Davidson said that "he came here for low salaries. He did not like $1000, but $1200 was worse." The Convention finally agreed upon $800 as a proper salary for the Governor of the State of Iowa. No cut was made in the sum ($500) reported for the Secretary of State; but the Treasurer's salary was reduced to $300. The Convention was willing that the Judges of the Supreme Court should receive the same pay as the Governor, that is, $800.

The Auditor's salary received the most attention. The Committee on State Revenue had recommended $700. "Mr. Grant moved to strike out $700, which would leave the salary blank."

Ex-Governor Lucas hoped that the salaries would not be reduced so low that competent men could not afford to accept them.

Mr. Chapman "desired to pay a fair price for services rendered, but he was not willing to pay a single dollar for dignity. He did not want to have men paid to live as gentlemen, with no services to perform… What were the duties of Auditor, that they could not be performed for a salary of $500 or $600? A farmer toiled from the rising of the sun to its going down, and at the end of the year had not perhaps $100; – there were hundreds of men qualified for that office who labored the whole year for less than half of $700. In this country we are all poor, and have to do with but little."

Mr. Strong came to the Convention with a "desire for economy, and felt disposed to go for as low salaries as any man; but he thought gentlemen were disposed to reduce them too low."

Mr. Hempstead thought that the Convention was "running this thing of economy into the ground." He knew that there were men who would take the offices at almost any salary; but "they would plunder to make it up."

Mr. Quinton declared that the services rendered by the Auditor were not worth more than $400. He would "continue to advocate economy in the State offices, whether it was displeasing to some gentlemen or not."

Mr. Fletcher supported the recommendation of the Committee on State Revenue because the object was to secure as Auditor a man of "the best business talents."

Mr. Hall observed that the proposition to pay "such large salaries to our officers was based upon a misunderstanding of the importance of our little State. We were just commencing to totter, and not to walk."

Mr. Harrison said "we were in a youthful condition, and were poor, and we could not afford to pay such salaries as the great and wealthy State of Ohio." Furthermore, "he wanted the officers to share something of the hardships and privations of the citizens. He would not have them gentlemen of leisure, walking about the streets, talking with their friends, &c., with plenty of money in their pockets. An honest man would perform the duties of Auditor as well for $300 as $1000. If he was not honest we did not want him."

Mr. Bissell favored a reduction. "He did not want to support government officers at high salaries, to ride about in their coaches and sport gold spectacles. He did not want them paid for giving wine parties, and electioneering the Legislature. They should walk from their residences to their offices, as other citizens."

And so the salary of Auditor was fixed at $500. What wonder that Mr. Hempstead "felt disposed to make a motion that no gentleman or man of respectability should be appointed to any office under the Government of the State of Iowa."

From the fragments of the debates which were chronicled in the newspapers of the Capital, it is clear that the Convention of 1844, in providing for the exercise of executive power in Iowa, aimed (1) to make the Chief Magistracy a representative institution and (2) to limit the influence of the Governor in legislation.

The Committee on the Executive Department, of which the venerable Ex-Governor Lucas was the chairman, reported in favor of vesting the supreme executive power in "a Governor, who shall hold his office for four years." A Lieutenant Governor "was to be chosen at the same time and for the same term." Furthermore, section five of the report provided that "no person shall be eligible to the office of Governor or Lieutenant Governor more than eight years in any term of twelve."

Mr. Chapman made a motion to strike out the provisions relative to a Lieutenant Governor, "which motion he enforced upon the principle of economy, and the non-necessity of the office." But the Convention refused to take a step so radical.

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: