History of Iowa From the Earliest Times to the Beginning of the Twentieth Century/1/16
The first census of Wisconsin Territory, taken in August, 1836, showed the population on the west side of the Mississippi to be as follows:
| Dubuque County | 4,274 |
| Des Moines County | 6,257 |
| Total | 10, 531 |
In May, 1838, a second census was taken in the sixteen counties organized from the territory of the two original counties, with the following result:
| Lee | 2,839 |
| Slaughter | 283 |
| Clayton | 274 |
| Henry | 3,058 |
| Scott | 1,252 |
| Clinton | 445 |
| Muscatine | 1,247 |
| Des Moines | 4,605 |
| Van Buren | 3,174 |
| Cedar | 557 |
| Johnson | 237 |
| Dubuque | 2,381 |
| Linn | 205 |
| Jones | 241 |
| Jackson | 881 |
| Louisa | 1,180 |
| Total population | 22,859 |
In June, 1838, the bill pending before Congress entitled, “An Act to divide the Territory of Wisconsin and to establish the territorial government of Iowa,” became a law, having been approved by the President on the 12th inst. It provided that
It will be seen that the Territory thus established included all of Iowa, most of Minnesota and a portion of Dakota. The act provided for the appointment by the President of a Governor to hold office three years, unless sooner removed by the President, who should also be commander-in-chief of the militia and superintendent of Indian affairs. He should approve all laws enacted by the Legislative Assembly before they took effect. The Secretary of the Territory was appointed for four years, and in case of death or removal, or necessary absence of the Governor from the Territory, the Secretary was authorized and required to perform all duties of the Governor during such vacancy.
The Legislative Assembly consisted of a Council and House of Representatives; the Council composed of thirteen members, and the House of twenty-six. Members of the Council were chosen for two years, and of the House for one year. The election was to be called by the Governor after a census of the Territory had been taken; the Assembly to meet at such time and place as the Governor might designate. The courts consisted of supreme, district and probate judges, and justices of the peace, appointed by the Governor. The Supreme Court was composed of a Chief Justice and two associate judges with terms of four years. The Territory was divided into three judicial districts, court to be held in each district by one of the judges at such times as may be fixed by law. The Chief Justice and associate judges, Attorney and Marshal of the Territory to be appointed by the President for four years, a delegate in Congress to be elected by the voters of the Territory for a term of two years.
The Governor was further empowered to grant pardons,
ROBERT LUCAS
First Governor of Iowa Territory, 1838-1841
appoint all minor judicial officers, sheriffs and militia officers. He was authorized to divide the Territory into judicial districts and select the place for meeting of the first Legislative Assembly.
President Van Buren first selected Brigadier-General Henry Atkinson for Governor of Iowa Territory, because of his intimate acquaintance with Indian affairs in the Mississippi Valley. But General Atkinson preferred to retain his position as commander of the western division of the army and declined the office.
The President then made the following appointments for officers of the new Territory; Robert Lucas, Governor; William B. Conway, Secretary; Francis Gehon, Marshal; Cyrus S. Jacobs, United States Attorney; Charles Mason, Chief Justice; Joseph Williams and Thomas S. Wilson, Associate Judges; A. C. Dodge, Register; and J. P. Van Antwerp, Receiver of the United States Land Office at Burlington; B. R. Peterkin, Register, and Thomas McKnight, Receiver of the Land Office at Dubuque. Cyrus S. Jacobs, who had been elected to the Territorial Legislature, was killed in a political affray soon after his appointment as United States Attorney and the vacancy filled by the appointment of Isaac Van Allen, of New York. Mr. Van Allen died soon after his appointment and was succeeded by Charles Weston.
Governor Lucas received his commission on the 17th of July, 1838, and, on the 25th departed for the distant Territory by way of the Ohio River. Stopping at Cincinnati to purchase a library, for the Territory for which Congress had appropriated $5,000, he made the acquaintance of a young college graduate, Theodore S. Parvin. The Governor was favorably impressed with the young man and tendered him the position of private secretary which Mr. Parvin accepted. They reached Burlington on the 13th of August, the Governor having selected that city for the capital of the new Territory.
When he arrived he was surprised to learn that William B. Conway, the Secretary, when notified of his appointment at his home in Pittsburg, had hurried to the Territory and assumed the duties of Governor, issued a proclamation for an election, signing the document “Acting Governor.” Governor Lucas quietly ignored the presumptuous act of the Secretary and at once entered upon the discharge of his duties.
The first official act of the Governor was to issue a proclamation, dated August 13, 1838, dividing the Territory into eight representative districts and apportioning the members of the Council and House among the nineteen counties then organized. The Legislature elected met at the old Zion Church in Burlington on the 12th day of November, 1838. Jesse B. Browne, of Lee County, was chosen President of the Council and William H. Wallace, of Henry County, Speaker of the House. The Democrats had a large majority in each branch of the Legislature but partisan considerations were ignored in the election of presiding officers, both being members of the Whig Party. The members were largely young men, fourteen of the twenty-six in the House were under thirty-five years of age and ten of the fourteen members of the Council were under forty. Among the youthful members of this First Territorial Legislature of Iowa were several of marked ability, who attained high positions in the State and Nation. James W. Grimes, who was the youngest member of the House, being but twenty-two years of age, became Governor of the State and later a distinguished United States Senator. Stephen Hempstead, a member of the Council, who was but twenty-six years of age, became the second Governor of the State in 1850. S. C. Hastings, a member of the House, twenty-four years old, was afterward elected to Congress and in 1846 was Chief Justice of the State Supreme Court.
Governor Lucas in his message recommended a careful revision of the judicial system from which should be excluded all technical and ambiguous rules of practice, that
OLD ZION CHURCH
In which the Legislative Assembly Met from 1838 to 1841
their proceedings might tend toward prompt adjustment of cases in controversy by the simplest and most direct methods; the enactment of a general road system; laws to supress gambling and intemperance; the organization of the militia; the selection of commissioners to locate the seat of government; a system of common schools; the laying out of the surveyed portion of the Territory into counties of uniform size as nearly as practicable; the prohibition of the subdivision or change of county boundaries and the location of county-seats by impartial commissioners.
He strongly urged the appointment of commissioners to prepare a code of civil and criminal laws and practice, to be reported at the next session of the Legislature. The Governor expressed a determination to appoint no man to a public office who was intemperate or a gambler.
The Legislature had a most important work to perform in providing an entire system of laws for the government of the new Territory; and it must be conceded, in view of the absence of legislative experience on the part of most of its members, the work was remarkably well done. Its acts fill a book of nearly five hundred pages, embracing a system of civil and criminal practice, probate courts, organization of the militia, revenue laws, location of the capital and penitentiary, provision for a board of county commissioners and establishment of a common school system. The only discreditable act was one prohibiting free negroes from settling in the Territory, unless able to give a bond of $500 as security for good behavior, and prohibiting such negroes from becoming a charge upon the county. This act provided that any negro who should settle in the Territory without giving such a bond should be arrested and forcibly hired out to the highest bidder for cash, to serve six months. Any citizen who sheltered or employed a colored man who had failed to give a bond was subject to a fine of one hundred dollars. Any slave holder was authorized to come into the Territory to procure the arrest and surrender to him, by an Iowa officer, of any slave who had escaped from bondage and sought freedom on Iowa soil. The House journal shows no opposition to this infamous law, but in the Council, James M. Clark, Robert Kalston and Jonathan W. Parker voted against it. The name of Slaughter County was changed to Washington and Jefferson County was established and named for the author of the Declaration of Independence. During the session an unpleasant contest arose between the Legislature and the Governor over the exercise of the veto power. The organic act provided that “The Governor shall approve all laws passed by the Legislative Assembly before they shall take effect.” Under this provision it would seem that the power of absolute veto was conferred upon the Governor and that no act could become a law without his approval. The two branches of the Legislature had by joint resolution directed the Secretary to pay certain of its officers and employees.
The Secretary doubting the legality of such payment without the authority of a law having the approval of the Governor, submitted the resolution to Governor Lucas and asked his opinion as to whether the resolution would be legal authority for payment of public money. The Governor replied that, in his opinion, it would not; holding that a law must first be enacted by the Legislature and approved by the Governor before the Secretary could legally pay for the services of the legislative officers.
The Secretary submitted the Governor’s opinion to the Legislature. A committee was appointed to consider the communication, which reported that in the opinion of the members of the Legislature, the Secretary had a legal right to pay the expenses of the Legislature when directed so to do by the resolution of that body, upon a certificate of the presiding officers of each House. On motion of Hawkins Taylor, the House declared by resolution that “the Secretary of the Territory is the only disbursing officer known to the organic law, and that a certificate signed by the Speaker and Clerk is a sufficient voucher upon which to pay for services rendered by any employee of the House.”
Upon the passage of a similar resolution by the Council the Secretary decided to make payment as directed by the Legislature, without the approval of the Governor. Many of the acts of the Legislature were vetoed by the Governor and these disagreements between the Legislature and the Executive were apparently fomented by the Secretary, as would appear from his official acts. A joint resolution was passed requesting the Governor to immediately notify the Assembly upon his approval of a bill. The Governor declined to do so, stating that upon his approval of bills or joint resolutions they were as required by law immediately deposited with the Secretary of the Territory.
The Governor returned the joint resolution without his approval. The House then passed a resolution calling upon the Secretary for the information desired. James W. Grimes, one of the representatives from Des Moines County, from a special committee appointed to consider the Governor’s vetoes, made a lengthy report of which the following is a summary:
The report was signed by James W. Grimes, C. Swan, Laurel Summers and Hawkins Taylor and was adopted by a vote of sixteen yeas to six nays. Upon receipt of a report of the Secretary showing the action of the Governor upon bills and joint resolutions passed by the Assembly, Mr. Bankson offered a resolution declaring that
The resolution was adopted by the close vote of twelve ayes to ten nays. Bankson, Hall, Summers, Taylor and Nowlin were the committee appointed to prepare the memorial. A lengthy memorial was reported reciting the grievances complained of, and requesting the removal of the Governor from office. It was adopted by a vote of sixteen for and eight against it. The minority requested permission of the House to enter a protest against the removal of the Governor, that their protest be entered upon the journal and a copy be forwarded to the President. The House, by a vote of sixteen to eight, refused to permit the minority to be heard. The memorial for the removal of the Governor was signed by the presiding officers of the two Houses and forwarded to the President.
A protest was also sent to the President against removal, signed by eight members of the House. In reply to the charges made against the Governor, the minority said in conclusion:
The President inclosed the memorial for his removal to Governor Lucas requesting an explanation. The Governor with candor and dignity explained the unfortunate controversy and forwarded it to the President, accompanied with a strong petition from the people for his retention in office. That was the last heard of the affair.
A controversy had arisen between the people of the Territory of Iowa and the State of Missouri over the boundary line between them. By the act of Congress of March 6, 1820, defining the boundaries of Missouri, the northern line was described as follows:
A line had been run in 1816 by J. C. Sullivan and marked by mounds and stakes to establish the northern boundary of the Territory of Missouri. It began one hundred miles north of where the Kansas River empties into the Missouri, thence east along that parallel of latitude to the Mississippi River. The “Rapids Des Moines” were thus first designated by Lieutenant Pike in his report of the exploration of the upper Mississippi in 1805. As he passed up that river by the mouth of the Des Moines River, he writes:
“On Tuesday, the 20th of August, we arrived at the foot of the Rapids Des Moines, which are immediately above the confluence of the river of that name with the Mississippi. The Rapids are eleven miles long with successive ledges and shoals extending from shore to shore across the bed of the river.”
These rapids in the Mississippi River were thus called by Lieutenant Pike “Rapids des Moines” and from that time to the present have been known as the Des Moines Rapids. But many have supposed that the “Des Moines Rapids” were in the Des Moines River, not only at the time of the controversy over the boundary line, but up to the present day, hence the misapprehension which led to the long and bitter controversy. There is no doubt that Missouri officials so understood, as this was the chief point upon which their claim was based in attempting to establish their northern boundary nearly thirty miles north of the mouth of the Des Moines River. Lieutenant Pike, however, in his map of 1805, locates the “Rapids des Moines” in the Mississippi River, above the mouth of the Des Moines.
In 1837 the State of Missouri appointed commissioners to run the northern boundary line and mark it. In a search for rapids in the Des Moines River they found ripples near Keosauqua, which they assumed to be the “Rapids of the Des Moines” named in the act of Congress defining the boundary in 1820. But these ripples had never been called the “Rapids of the Des Moines,” until so designated by these Missouri commissioners. The conflict first arose over the disputed territory when Clark County, Missouri, enrolled the citizens within its limits, and placed their names on its tax list. When the Missouri tax officer undertook to collect the taxes for Clark County, the settlers who lived in the territory in dispute refused to pay. The collector levied upon their property, was arrested on a warrant issued by a magistrate in Van Buren County, and delivered into custody at Muscatine.
Governor Boggs of Missouri sent General Allen with a thousand armed men to aid the officers of Clark County in collecting the tax. Governor Lucas promptly ordered General J. B. Browne to call out the militia and march to the defense of the Van Buren County officials; 1,200 men responded to the call. Before proceeding to hostilities, General Browne selected A. C. Dodge, of Burlington; General Churchman, of Dubuque; and Dr. Clark, of Fort Madison, to act as commissioners to negotiate a peaceable settlement. In the meantime the sheriff of Clark County had been directed to postpone the collection of taxes and a delegation had been sent to Governor Lucas to propose an amicable adjustment of the controversy.
General Allen had withdrawn his army and awaited the result of negotiations. The Iowa militia was disbanded. Colonel McDaniels and Dr. Wayland, the Missouri commissioners, went to Burlington and conferred with the Governor and Legislature then in session, and it was agreed that hostilities should be postponed and the matter in dispute be referred to Congress for settlement.
On the 18th of June, 1838, Congress passed an act authorizing the President to cause the southern boundary of Iowa to be ascertained and marked. Lieutenant Albert M. Lea was appointed commissioner for the United States and Dr. James Davis was appointed by Governor Lucas for Iowa. No appointment was made by the Governor of Missouri. The two commissioners made an examination of the various lines claimed, and Lieutenant Lea made a report to the commissioner of the General Land Office in January, 1839. The controversy was not finally settled until December, 1848, when the United States Supreme Court decided that the line run by Sullivan was the true northern boundary of Missouri. This decision gave Iowa all the territory claimed by her public officials.
H. B. Hendershott, of Iowa, and W. G. Minor, of Missouri, were appointed commissioners to resurvey and mark the boundary line. This they proceeded to do, erecting iron pillars ten miles apart along our southern boundary. By decree of the United States Supreme Court the line surveyed and marked was made the permanent boundary between Iowa and Missouri, thus settling the long pending controversy.
The commissioners chosen by the Legislature to locate the capital of the Territory were Chauncey Swan of Dubuque, John Ronalds of Louisa and Robert Ralston of Des Moines County. They were required by law to meet at the town of Napoleon, in Johnson County, on the first Monday of May, 1839, and to locate the seat of government at the most suitable point in that county. The location was made on the east bank of the Iowa River, about two miles northwest of Napoleon, where 640 acres of land were procured. By the terms of the act providing for the location of the Capital it was named “Iowa City.” A portion of the land was cleared of brush and timber and laid out into lots. The Governor was required to order a sale of lots at the newly chosen Capital, under the supervision of the commissioners, the proceeds thereof to be paid into the treasury of the Territory. The selection had been made on the 4th of May and designated by a stake driven into the ground bearing the following inscription:
“Seat of Government
City of Iowa.”
A sale of lots was widely advertised for August 18, 1839. A few log houses had been built before the sale took place. The first sale lasted three days and was then postponed until October. Two hundred and six lots were disposed of at these sales for $28,854.75, which amount was estimated to be about one-fourth of the value of the entire plat.
When the city was laid out one rude log cabin stood on the site of the future Capital of Iowa. Matthew Tenrick with his family occupied it. The commissioners and surveyors boarded at this cabin while engaged in platting the city. The first substantial log house was erected by Mr. Tenrick during the summer at the corner of Iowa Avenue and Dubuque Street. It was constructed of hewn logs and was two stories in height. The first frame building was put up the same summer by Wesley Jones, south of the University Square, in which the first store was opened. Walter Butler came with his family, and before winter erected and opened a hotel on the corner of Clinton and Washington Streets. Young men began to arrive at the new backwoods Capital and open offices for future business. The first lawyer was William L. Gilbert; the first doctor was Henry Murray; the first minister Rev. Mr. Ferree, of the Methodist Episcopal Church; the first postmaster was Samuel H. McCrory; and the first blacksmith Henry Usher.
There were no roads leading into the town, and in order to guide travelers to the new Capital from the Mississippi River, the enterprising first settlers employed Lyman Dillon to run a furrow across the prairie and through the groves to guide strangers to the new seat of government.
Dillon started from Iowa City with his huge breaking plough, drawn by five yoke of oxen, a two-horse emigrant wagon carrying provisions, cooking utensils and bedding for the journey. All day the patient ox-team drew the plough, turning over the tough prairie sod, mile after mile, to mark the way for travelers. At noon and night the oxen were turned out to graze on the rich prairie grass, while the men cooked their food and slept in the wagon. For nearly one hundred miles the longest furrow on record marked the way and soon a well-beaten road was made beside it by the white-top wagons of the coming settlers.
During the autumn of 1839 Governor Lucas, accompanied by two daughters, with General Fletcher, of Muscatine, as guide, all traveling on horseback, visited the new Capital. They met a most cordial reception. The hospitality of the most commodious house in the village, the only one having an attic, was tendered the distinguished guests. The way to their sleeping room was up a rude ladder through a small opening in the upper floor. Before his return the Governor purchased a claim near the city which in after years became his home. No mail line had yet been established between the new Capital and the outside world; letters and papers were brought from Muscatine for the citizens by any one who happened there on business. There was no flouring mill nearer than Muscatine, corn meal, ground in coffee mills, took the place of wheat flour with many. The food was plain, the houses rudely constructed and cold, this first winter in the history of Iowa City; but her pioneer inhabitants cheerfully endured all the privations of frontier life and looked hopefully to the future for realization of their visions of coming good fortune.
These first settlers in and about the new Capital are described, by one who was among them, as
“Mostly young men without families, who have left the paternal roof in the older States in search of homes on the frontier, there to work out their own way in life’s battles and toils. The young pioneer is not encumbered with extra baggage; with a gun and knife, a bake-pan, tin cup, some corn meal and bacon, all packed on his back, he explores the country on foot. He selects his claim, builds a rude log cabin, cooks his coarse food, and freely shares his scanty supply with any traveler who comes along. When absent, his cabin door is left unfastened, and some cooked food left in sight for any weary, hungry pioneer who may chance to come in to rest. When several settlers have taken claims in one vicinity, the first act towards civil government is to meet at one of the cabins and form a ‘claim association’ for mutual protection of their new homes. They select officers, record the names of the members, as well as the number of each member’s claim. They pledge themselves to stand by each other in holding possession of their respective homes until they can be purchased from the United States. In the absence of laws protecting their claims from mercenary speculators, they organized and enacted homestead and pre-emption laws long in advance of the legislation which was subsequently founded upon the recognition of the justice of this principle thus first established by the necessities of the early pioneers.”
One of the most important and notable of the early decisions of the Territorial Supreme Court was the case of Ralph, a colored man, who had been a slave in Missouri, belonging to a man by the name of Montgomery. His master had made a written contract with Ralph to sell him his freedom for $550 and to permit him to go to the Dubuque lead mines to earn the money. Ralph worked industriously for several years, but was not able to save enough to pay Montgomery the price of his freedom. Two Virginians at Dubuque who knew of the agreement, volunteered to deliver Ralph to his former owner in Missouri for $100.
Montgomery accepted the offer. Ralph was seized at
CHARLES MASON
First Chief Justice of the Supreme Court of Iowa
the mines while at work, hand-cuffed and taken to Bellevue to be sent by a steamer to Missouri. Alexander Butterworth, a farmer working in his field, saw the kidnapping and hastened to the office of Thomas S. Wilson, one of the Judges of the Supreme Court and demanded a writ of habeas corpus, which Judge Wilson promptly issued and served, by which Ralph was returned to Dubuque. The case was one of so much importance that at the request of Judge Wilson it was transferred to the Supreme Court for trial.
The court consisted of three judges, Charles Mason, Chief Justice, with Thomas S. Wilson and Joseph Williams, associates. After a full hearing it was unanimously decided that Montgomery’s contract with Ralph, whereby he was permitted to become a citizen of a free territory, liberated him, as slavery did not and could not exist in Iowa. Judge Mason, in delivering the opinion, said:
“Where a slave with his master’s consent becomes a resident of a free State or Territory he could not be regarded thereafter as a fugitive slave, nor could the master under such circumstances exercise any rights of ownership over him. When the master applies to our tribunals for the purpose of controlling as property that which our laws have declared shall not be property, it is incumbent upon them to refuse their co-operation.”
When it is remembered that the three judges (all Democrats), thus early enunciated the doctrine of humanity and equity, that slavery was local and freedom a natural right, the liberty loving people of Iowa will forever honor these pioneer judges who, in their sturdy manhood and love of justice, immortalized their names in an opinion in direct conflict with the infamous later decision of the National tribunal in the case of Dred Scott.