submitting a proposal it passed an act1 calling a convention, and providing for the election of delegates. This body met at Iowa City 2 in May, 1846, and framed an instrument which at last received the assent of the people and remained for more than a decade the fundamental law of Iowa. This instrument prohibited slavery, but restricted the franchise to white males. It provided for amendment after 1870 through a convention only, to be called by a majority vote of the people on a proposal submitted through an ordinary legislative act. This was the instrument used so extensively by the California convention three years later." 8 In 1857 the voters ratified a new constitution whose amendment provisions were like those of the instrument of 1844. E. Kansas The state of Kansas passed through a memorable experience in constitution-making during its early history; and while the main interest centred in the substance and contents of the constitution rather than in the manner of its establishment, the record of this period nevertheless constitutes an important chapter in the development of the practice of popular participation. The story of Kansas as the battleground of contending factions over the slavery question is a familiar one, and belongs to the domain of general history. Hardly had the territorial government been organized when a movement was started by the free-soil party looking toward the formation of a state government with a constitution reflecting that party's views on the slavery question. Various unofficial meetings held in the territory during the summer of 1855 resulted in the calling of a so-called constitutional convention at Topeka on the 19th of September of that year. This organization met at the time appointed, and has been 1 Iowa Laws, 1846, Chap. XXXVII, 37. 2 See its Debates, edited by Shambaugh (Iowa City, 1900). 3 It is printed in Iowa Laws, 1847, 1. The document which Mr. Poore ("Charters and Constitutions,” I, 536) gives as the constitution of 1846, is really that of 1857, the latter being printed twice. The two are nearly alike, as both followed closely the rejected instrument of 1844. 4 Art. II, sec. 23. 1 See post, Chap. XVIII. Art. II, sec. I. Art. XI, sec. I. 8 Poore, "Charters and Constitutions," I, 552. • On the preliminary movement see Holloway, "History of Kansas" (Lafayette, Indiana, 1868), 179 et seq. Cf. Spring, "Kansas" (American Commonwealth Series, Boston, 1885), 68 et seq. 1 pronounced "one of the most important bodies of men ever convened in Kansas." The instrument framed by it was of course an anti-slavery document, though not so radical as part of the delegates desired.3 The instrument provided for its own ratification by the people and also for the submission of other proposals at the same time,' but its provision for future amendment was decidedly antiquated, for it adopted the old Connecticut system requiring submission by a twothirds vote of two successive legislatures, and prohibited any amendment for the ensuing ten years or more than once in five years thereafter. The election at which this instrument was voted upon seems to have been little more than "a free-soil primary." " The vote was 1731 to 46. It was not accepted by Congress, nor generally regarded as valid or regular." The next move toward a constitution for Kansas was made by the opposing party, and the forms of law were more carefully observed. An act was first passed by the legislature, submitting to the people the question of calling a convention. This time the election was a pro-slavery primary, and the poll was favorable to a convention." Another act was then passed providing for a convention, but containing no requirement that its work should be submitted to the people. Chiefly on the ground of this omission the act was vetoed by the territorial governor, whose message on the question throws an interesting side-light on the state of public opinion as regards the right of the people to participate in constitution-making. Inter alia the governor said: "The position that a convention can do no wrong, and ought to be invested with sovereign power, and that its constituents have no right to judge of its acts, is extraordinary and untenable. "The history of State constitutions, with scarcely an exception, will exhibit a uniform and sacred adherence to the salutary rule of popular ratification." Holloway, "History of Kansas," 194. 2 See Poore, "Charters and Constitutions," I, 581, 582. Section 6 of Article I prohibited slavery, and Section 21 prohibited the indenture of any negro or mulatto. 3 Holloway, "History of Kansas," 195. The proposal to strike out the word "white" from the constitution was defeated by a vote of 24 to 7, and the franchise was not extended to the negro. Art. XII, sec. 11; Poore, "Charters and Constitutions," I, 592. Art. XVI; Poore, "Charters and Constitutions," I, 591. Spring, "Kansas" (American Commonwealth Series, Boston, 1885), 71. 7 Jameson, "Constitutional Conventions" (4th Ed., Chicago, 1887), sec. 212. 8 Id. sec. 213. • Kansas Historical Collections, IV, 717. The governor had said in a previous 4 The constituent act was passed over the governor's veto, delegates were chosen at an election from which the anti-slavery men still held aloof, and the convention met at Lecompton in the autumn of 1857. It framed an instrument which embodied the "social compact" theory' of Southern constitutions of several decades previous, expressly legalized the institution of slavery, and excluded free negroes from the state. It provided, however, for submission "to all the free white male inhabitants." Its provision for amendment, which was not to become operative until 1864, was through a convention to be called after taking the sense of the people, but slavery was excluded from the subjects of which it might take cognizance. The clause providing for submission specified two classes of ballots, one of which should be indorsed "constitution with slavery," and the other "constitution with no slavery." The election pursuant to this provision took place in December, 1857, and as the free-soil party took no part, there was an overwhelming majority on the face of the returns in favor of the "constitution with slavery." Meanwhile, however, the legislature controlled by the opposite party convened and repealed the act providing for the convention, and passed one requiring the instrument as a whole to be resubmitted." This time the constitution was rejected by a majority much larger than it had received at the preceding election. In 1858 Congress passed an act in effect again submitting it." In the same year the legislature called another convention without a previous consultation of the people, and delegates were elected who met first at Mineola, and afterward at Leavenworth. They framed an instrument which omitted the obnoxious provisions regarding slavery and provided for its own ratification by the people,10 but required a three-fifths vote of the legislature to submit either an amendment or a proposal for a convention." It likewise adopted the New Hampshire system of periodical consultation as modified by New message: "Direct popular vote is necessary to give it [the constitution] sanction and effect." Id. 719. 8 1 Bill of Rights, sec. 1; Poore, "Charters and Constitutions," I, 609. 2 Bill of Rights, sec. 23; Poore, “Charters and Constitutions," I, 610. 3 Sched. 7; Poore, "Charters and Constitutions," I, 611. Sched. 14; Poore, "Charters and Constitutions," I, 612. s Id. • The vote was 6226 to 569. 7 Holloway, "History of Kansas," 474 et seq. 8 The vote was 10,226 to 138. 2 York, and fixed the period at ten years.1 The instrument framed by this convention received a majority of more than three to one on the face of the returns. But it was apparent that the participation of the electors was not general and Congress refused to accept the instrument because of the sparseness of the territory's population.3 In the following year, however, the legislature once more submitted the question of calling a convention, and the poll was favorable.* Pursuant to a subsequent act providing for a fourth convention, delegates assembled at Wyandotte in June, 1859, and framed the constitution under which Kansas was at last admitted into the Union. It was modelled on the Topeka instrument of four years previous.5 Its treatment of the slavery question was similar, but in providing for amendment it retained the two-thirds requirement of the Leavenworth constitution relative to both amendments and conventions, and omitted the clause providing for a periodical consultation of the people. Thus at last the state of Kansas secured a permanent, fundamental code, for the Wyandotte constitution as a whole has never been displaced, though numerous amendments have been added. Indeed, the intensity of the struggles and the importance of the issues involved seem to have contributed in Kansas, as they had during the revolutionary period in Massachusetts, to the permanence of the instrument which was finally evolved. F. Nebraska The commonwealth of Nebraska entered upon the stage of history after the movement for popular ratification had been elsewhere mostly completed. There are, however, some features of its early history which throw an interesting side-light on the movement by reproducing the experience of other communities. The constitutional beginnings of Nebraska are signalized by the organization of society on a basis independent of any formal existing government. When the first settlers entered the territory there was 1 Art. XVIII; Poore, "Charters and Constitutions," I, 627. 2 The vote was 4346 to 1257. 3 Jameson, "Constitutional Conventions” (4th Ed., Chicago, 1887), sec. 216. The vote was 5306 to 1425. See Holloway, "History of Kansas," 196. See Poore, "Charters and Constitutions," I, 645. indeed no government in operation. The Federal officers had not yet arrived, and no laws were in force except the acts of Congress which had mostly a general application. In this situation the Nebraska settlers did what those of early Tennessee and New England had, with such important consequences, done before them. They formed a government of their own, and in the autumn of 1854 adopted a compact which like the instruments of those already referred to, acquired validity from the assent and subscription of all. As land was then the chief item of wealth in the territory, the animating purpose of this movement was the protection of land claims, but it assumed the form of a genuine government, including the establishment of a judicial system. It provided inter alia that "any person to receive the benefit of the foregoing regulations must subscribe thereto... and is in honor bound when called on to assist the marshal in the performance of his duties."1 From the contemporary newspaper accounts it appears that numerous disputed titles were adjudicated, that the decisions of the arbitration committee were respected and enforced, and that the association continued to exercise this most important function of a government for a considerable period." This Belleview association was not, however, the only one of its kind in the territory. In the then small hamlet, a few miles to the north, a similar organization was formed, known as the "Omaha Claim Club." It does not seem to have left a compact, like the former, and its record is marred by an abuse of power and a perversion of its legitimate purpose to selfish and oppressive ends. But the two organizations well illustrate the tendency of frontier communities to revert to archaic political, as well as other, conditions, and the Belleview compact of 1854 is entitled to a place among the primitive, popular local constitutions. The precedent of popular ratification thus established has never been departed from in Nebraska. Five years after the adoption of the Belleview compact and nearly a decade before the state's admis 1 From the Nebraska Palladium, Belleview, September, 1854; reprinted in Omaha Mercury for May 10, 1901. 2 Id. 3 See an account of its operations in Baker v. Morton, 12 Wallace (U.S.) 150; Brown v. Pierce, 7 Id. 205. Also in the local histories: Sorensen, "History of Omaha" (1889); Savage and Bell, "History of Omaha" (1894). Cf. Bell, "History of Washington County," for accounts of similar associations there. |