A fourth settlement under a Spanish grant was made by Francois Cayolle. As to this claim the records show that Julien Dubuque produced before the Commissioners a concession from Don Carlos Dehault Delassus. Lieutenant-Governor, to Francois Cayolle, dated August 13th, 1799. The concession included 7,056 arpents of land and was located opposite Prairie du Chien. In May, 1805, it was conveyed to Dubuque. The Commissioners, however, did not regard the title as complete. Nevertheless, witnesses before the board testified that there had been a large house on the premises; that Cayolle did actually inhabit the claim; that there was a garden; and that the land had been cultivated for nine years.

At this point it may well be observed that these facts confirm the view advanced above that down to the year 1830 Iowa was too sparsely inhabited, either to take any part in the earlier government or to be affected in any other than a nominal way by its regulations. The fact is, that Iowa, before 1830.

did not have inhabitants sufficient for the

formation of a society for the development of institutions either social or political. This accounts for the absence of any civil law element in its early government.

THE PERMANENT SETTLEMENT OF IOWA.

The year 1830 may be taken to mark the beginning of the permanent settlement of Iowa. In that year the Dubuque claim was again inhabited and its mines reopenedthis time by miners from Galena, Ill. And soon afterwards the Mississippi was crossed at other points. But, as this was before the Indian title had been extinguished, it became the duty of the United States military forces stationed at Prairie du Chien and Rock Island to dispossess the trespassers. In the face of these conditions few settlers ventured tr. cross the river until after the close of the Black Hawk war, when on the 21st of September, 1832, a treaty was entered into between the United States and the confederIated tribes of the Sac and Fox Indians by which the latter agreed to vacate the lands immediately west of the Mississippi river on or before the 1st of June, 1833. Settlers, however, did not wait till the 1st of June. They began to make improvements in the early spring. Occasionally the United

States troops would drive them back to the east bank of the river; but they returned as often as they were dispossessed. After the Ist of June the United States ceased to interfere, and the settlers were allowed to take possession of the lands without molestation. And yet, according to the letter of the law, they were trespassers and liable and subject to forcible ejectment at any time.

The rapidity with which Iowa was now settled is said to have been unparalleled in the history of previous territories. At the end of the year 1835 Lieutenant Albert Lea estimated the population at 16,000; the census reports put it at the more moderate number of about 10,500. By 1838 it had reached 22,859; and 43,112 is the estimate for the year 1840. Six years later, when Iowa became a state, it had a population of 102,388.

HOW SETTLEMENTS WERE MADE.

In reference to this early population three questions may be asked. These are: first, the manner in which the people entered and settled? second, the subjective environment of the people? and third, the character of the people?

It is generally supposed that the country west of the Mississippi was settled by people who came there as independent individuals or in single families and as such "squatted" here and there on the prairie or in the woods without reference to the settlement of any other person or persons. This, however, does not seem to be an accurate statement

of the facts. For while it is quite true that the people did, for the most part, come as independent individuals or in single families, they settled in groups. Thus one, two, three, five or more families became the nucleus of a "community" or "neighborhood," in the vicinity of which the new-comer located his claim. In the course of a few years by the addition of new-comers the communities touched each other and merged into one whole. Thus the community was formed by an aggregation of individuals; the population at large by the integration of communities.

Again, the emigrant population on entering Iowa was not politically a homogeneous population. In their habits, ideas, and previous training, they differed widely. With a fair sprinkling of foreigners, notably Irish

and Germans, Iowa's emigrant population was constituted of people from every state in the Union. Settlers came from Ohio, from Kentucky, from New York, from Missouri, from Pennsylvania, from Georgia, and from Michigan. Whole neighborhoods are said to have moved from Indiana and Illinois.

And yet this emigrant population did from the beginning form a homogeneous society, because they had the same subjective and objective economic environment. It was the projection of a certain class of economic ideas into the same objective environment that brought them together. Considerations based upon parallels of latitude, climatic conditions, or previous political and social habits were not the determining factors. On the contrary, the factors which determined the early population of Iowa were, for the most part, economic. Men with common economic concepts, ideas, and pictures of life sought their realization within the geographical limits of a particular objective environment. Settlers did not come to Iowa with the anticipation of realizing political or social ideals; they came here to gain wealth for themselves and their posterity. They settled in communities, which were primarily economic aggregates. Soon, by the addition of new-comers, there was a growing together of communities, which was followed by an economic integration of the whole population into one people. Thus economic integration seems to have preceded political organization and created out of a population politically heterogenous, a homogenous people. Furthermore, this economic integration by breaking down inherited political and social differences, prepared the way for that harmonious adjustment to the government which is characteristic of this early population.

THE CHARACTER OF THE PIONEERS.

As to the character of the early settlers there seems to have been at the time a difference of opinion. Calhoun states that he was informed that "the Iowa country had been seized upon by a lawless body of armed men." Clay had received information of the same nature. And Mr. Ewing (Senator from Ohio) emphatically declared that he would not object to giving each rascal who

It

crossed the Mississippi one thousand dollars to get rid of him. Nor was the view represented by these statesmen uncommon. was entertained by a large class of men throughout the east and the south, who looked upon the pioneers in general as renegades and vagabonds, forming a "lawless rabble" on the borders of civilization. To them the first settlers were "lawless intruders" on the public domain, "land robbers," "fugitives from justice," and "idle and profligate characters." Squatters, they said, were those "who had gone beyond the settlement and were wholly reckless of the laws either of God or man." They were "nonconsumers of the country performing no duties, either civil or military." In other words, they were held up as the fragments of society.

But however apt this characterization may have been when applied to frontiersmen of an earlier day, it was wholly unjust when made in reference to the squatters or lowa. All testimony based on direct personal observation is overwhelmingly against it. Albert Lea, a lieutenant in the service of the United States, who traveled through Iowa in 1835, writes that "the character of this population is such as is rarely to be found in our newly acquired territories. With very few exceptions there is not a more orderly, industrious, active, painstaking population west of the Alleghanies, than is this of the Iowa District. Those who have been accustomed to associate the name 'squatter' with the idea of idleness and recklessness, would be quite surprised to see the systematic manner in which everything is here conducted. * * * * * It is a matter of surprise that about the Mining Region there should be so little of the recklessness that is usual in that sort of life." Two years later (1838) P. H. Engle, writing from Dubuque (Iowa) says: "The people are all 'squatters'; but he who supposes that these settlers * who are now building upon, fencing and cultivating the lands of the government, are lawless depredators, devoid of the sense of moral honesty, or that they are not in every sense as estimable citizens, with as much intelligence, regard for law and social order, for public justice and private rights

*

as the farmers and yeomen of New York and Pennsylvania * * * has

been led astray by vague and unfounded notions, or by positively false information." The statements of Lea and Engle fairly represent the opinion universally advanced by those who came in contact with or who participated in the pioneer life of Iowa.

Indeed, nothing is more certain than that the squatters of lowa as a class were neither idle, ignorant, nor vicious. They were representative pioneers of their day, than whom Benton declared "there was not a better population on the face of the earth." They were of the best blood and ranked as the best sons of the whole country. They were young, strong and energetic men, hardy and adventurous. Caring little for the toils and dan gers of the frontier, they extended civilization and reclaimed for the industry of the world vast forests, prairies and deserts. By their industry they added much to the utilities of the country. They made roads, built bridges and mills, cleared the forests, broke the prairies, erected houses and barns, planted orchards and defended the settled country against the aggressions of the Indians. Especially were they distinguished for their intelligence, hospitality, independence and bold enterprise. They had schools and school houses, erected churches and observed the Sabbath. A lawabiding people, they were always loyal American citizens, strongly attached to the Nation and the General Government. their theology they were rather narrow and of the old orthodox type. But otherwise and in general the pioneer was quite liberal and broad-minded in his ethical and religious views.

In

Nor is it a matter of surprise that the pioneer should have had these characteristics. It is simply indicative of a more or less perfect adaptation to the conditions of his life. In the first place only strong and independent hearts ventured to the frontier. A weaker class could not have hoped to endure the toils, the labors, the pains and the loneliness of pioneer life. For the hardest, and at the same time the most significant, battles of the century were fought with axes and plows in the "winning of the West." The frontier called for men with large capacity for adaptation-men with flexible and dynamic natures. Especially did it require

those who could break with the past, forget traditions, and discard, if necessary, inherited political, religious and social ideas.

And with such material to work upon, the strong external factors of the West brought into American civilization elements distinctively American. The broad, rich prairies of Iowa and Illinois seem to have broadened men's views and tertilized their ideas. Says Stephen A. Douglass: "I found my mind liberalized, and my opinions enlarged when I got out on these broad prairies, with only the Heavens to bound my vision, instead of having them circumscribed by the narrow ridges that surrounded the valley (in Vermont), where I was born."

And nowhere did the West exert a more marked influence than in the domain of politics. By compelling men to be extremely practical and dynamic in the ordinary affairs of life, it led them to give up political doctrines whose chief support was an "historic argument." argument." The very conditions of western lite led men to view all government as relative. Failing to appreciate the force of "historical" states-rights and logical deductions from the law of contracts, the Westerner turned with impatience to arguments of ex pediency. In his mind the national government stood foremost. It was endeared to him. For during his pioneer days it was his only political sovereign; it gave him territorial government; and sold him land for $1.25 an acre.

At the same time the American principles of self-government were not neglectedcould not be neglected. The first self-government which the pioneer settlers enjoyedthe government of the "Claim Association" or "Land Club"-was of their own creation. If they wanted a road, a bridge or a school house, they did not apply to any officer or department of government; they went ahead and built the bridge or school house themselves.

Thus the West, while fostering and intensifying the principles of self-government, introduced into American politics those agen cies which were to nationalize and democratize American people. And for the accomplishment of this great work it produced such leaders as Jackson, Lincoln and Kirkwood.

As a part of Louisiana, Iowa came into the possession of the United States through a treaty of purchase. That the General Government possessed the power under the Constitution of acquiring this territory was afterwards definitely settled by the Supreme Court. But at the time, the purchase was declared by many to be extra-constitutional; and President Jefferson, taking this view, proposed an amendment to the Constitution.

PROVISIONS OF THE TREATY OF 1803.

The third article of the treaty with France provided "that the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and, in the meantime, they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they pro fess." Nor is the power of the General Government to make this provision in the treaty to be questioned. For undoubtedly the United States may rightfully stipulate in a treaty with a foreign nation "that the Congress will or will not exercise its legislative power in some particular manner on some particular subject," and in the same instrument guarantee the maintainance of a certain sphere of individual liberty into which the General Government will neither penetrate itself nor permit interference from any other quarter. At the same time it is not admitted that the treaty-making power can in any way expand the legislative domain of Congress, or deprive it of any of the legislative power conferred by the Constitution. Of course, as a matter of political ethics treaty stipulations "should be voluntarily kept with the most scrupulous good faith." But so far as they are questions of diplomacy or legislation they are not likely to be entertained by the courts.

However, this article of the treaty was most probably only a temporary provision

and ceased to have any force when the territory then inhabited was admitted into the Union. In other words, it is not likely that any of the country north of Missouri was contemplated in this article, since that country was then uninhabited within the meaning of the treaty.

POLITICAL STATUS OF THE INDIANS.

Although a wilderness and practically unsettled by civilized men at the time of its transfer to the United States, the Iowa region was, nevertheless, inhabited and occupied by Indians. Their relation to the United States was unique.

As domestic dependent nations they were regarded as within the jurisdictional limits of the United States. They occupied territory which was admitted to compose a part of the United States and to which the United

States asserted absolute title independent of their will. Indeed, they and their country were considered to be so completely under the sovereignty of the United States that any attempt to acquire their lands without the consent of the General Government would have been deemed an offense against said government. At the same time the Indians were acknowledged to have an unquestionable right to occupy the lands until that right had been extinguished by voluntary cession.

Furthermore, all intercourse with the Indians was by the Constitution and the laws of the United States vested in the General Government. Hence, no State or Territory had power to make laws respecting Indian Territory; and no person had a right to enter their country but with the assent of the Indians themselves, or in comformity with the treaties and acts of Congress. Thus it appears that before the settlement of Iowa could be encouraged or sanctioned, treaties of cession must first have been concluded be tween the Indian occupants and the Government of the United States. And until such cessions were m. de it was the duty of the United States to protect the Indian right of

occupancy by keeping out the settlers.

Again, since the primary object of extinguishing the Indian title was, of course, the epening up of the country to actua! settlers, the activity of the General Govement did not end with the signing of treaties. For, if the lands thus acquired were to be settled and cultivated, some hope or promise must be given to the settler or cultivator of the ultimate fee to his claim; and to provide for this transfer of title it was necessary for the General Government to survey the country, establish land districts and land offices and hold public land sales.

CONSTITUTIONAL STATUS OF THE COUNTRY.

Passing over this politico-economic relation as actually established between the General Government and the early settlers in consequence of the power of the former to regulate and dispose of the public domain, we have next to consider the scope and nature of the jurisdiction of the General Government in the establishment of a local government for the settlers. That is to say, we have to consider the relation of the General Government to the people of Iowa viewed as a political unit.

In the first place, the relation of the government of the United States to the government of a state or commonwealth must not be confounded with that which exists between the General Government and a Territory. For the cardinal rule of constitutional interpretation which governs in the former relation does not apply in the latter. In the one instance, the Constitution is construed as denying what is not granted, and in the

other, of granting what is not denied. As viewed from the standpoint of the State or Commonwealth the General Government has enumerated powers; from that of the Territory it has general powers.

Secondly, the power of the United States to provide government for the people of lowa, whether arising from the power to acquire territory or from the power to make "rules and regulations respecting the territory or other property of the United States," or from both, was unquestionably vested in Congress. That body had full and complete legislative authority over the people of the Territory and all the departments of the territorial government, combining in the exercise thereof the powers of a general and of a commonwealth government. The Territo rial government was, therefore, simply a legislative government based upon the acts of Congress. In a sense the Territory was a political subdivision of the outlying dominion of the United States for administrative purposes. The Congress in legislating for a Territory has, indeed, been likened to a Commonwealth legislating for a County.

Thirdly, the people of the Territory did not share in the General Government; they did not participate in its political power. By the organic law they were, it is true, allowed a larger sphere of local self-government; but this was only with the sufferance of Congress.

In short, then, early government in Iowa, so far as that government was constitutional, rested not on the will of the people, but on the act of June 12th, 1838. That act was the fundamental law; it was the organic law; it was the Constitution.

In the "history of governments" above recited, we have not unconsciously traced the evolution of Territorial government in the United States from 1787 to 1836. And now we have but to observe that of the two, or perhaps three, forms of Territorial government that have prevailed down to the present day, that of early Iowa is typical of final development. Indeed, the form of government outlined in the organic law of Wis

consin in 1836, which was closely followed in the act establishing the Territory of Iowa, became the model from which were evidently copied, with few and inconsiderable variations, all subsequent acts for the organization of Territories in the United States.

THE LEGISLATURE.

By the organic law of the Territory the legislative power was vested in "the Gov