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appertaining to any Indians within the said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to impair the obligations of any treaty now existing between the United States and such Indians, or, to impair or anywise to affect the authority of the Government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty or law, or otherwise, which it would have been competent to the Government to make if this act had never been passed: Provided, That nothing in this act contained shall be construed to inhibit the Government of the United States from dividing the Territory hereby established into one or more other Territories, in such manner and at such times as Congress shall, in its discretion, deem convenient and proper, or from attaching any portion of said Territory to any other State or Territory of the United States.

SEC. 2. And be it further enacted, that the executive power and authority1 in and over the said Territory of Iowa shall be vested in a Governor, who shall hold his office for three years, unless sooner removed by the President of the United States. The Governor shall reside within the said Territory, shall be commander-in-chief of the militia thereof, shall perform the duties and receive the emoluments of superintendent of Indian affairs, and shall approve of all laws passed by the Legislative Assembly before they shall take effect; he may grant pardons for offences against the laws of the said Territory, and reprieves for offences against the laws of the United States, until the decision of the President can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of the said Territory, and shall take care that the laws be faithfully executed.

SEC. 3. And be it further enacted, That there shall be a 1“The legislative and judicial departments of the Territory were separate and independent. It was not within the province of either to encroach upon the duties and authority of the other.”—Levins v. Sleator, 2 Green, 607.


Secretary of the said Territory, who shall reside therein, and hold his office for four years, unless sooner removed by the President of the United States; he shall record and preserve all the laws and proceedings of the Legislative Assembly hereinafter constituted, and all the acts and proceedings of the Governor in his executive department; he shall transmit one copy of the laws and one copy of the executive proceedings, on or before the first Monday in December in each year, to the President of the United States, and, at the same time, two copies of the laws to the speaker of the House of Representatives, for the use of Congress. And in case of the death, removal, resignation, or necessary absence of the Governor from the Territory, the Secretary shall have, and he is hereby authorized and required to execute and perform all the powers and duties of the Governor during such vacancy or necessary absence, or until another Governor shall be duly appointed to fill such vacancy.

Sec. 4. And be it further enacted, That the legislative power shall be vested in the Governor1 and a Legislative Assembly The Legislative Assembly shall consist of a Council and House of Representatives. The Council shall consist of thirteen members, having the qualifications of voters as hereinafter prescribed, whose term of service shall continue two years. The House of Representatives shall consist of twenty-six members possessing the same qualifications as prescribed for the members of the Council, and whose term of service shall continue one year. An apportionment shall be made as nearly equal as practicable, among the several counties, for the election of the Council and Representatives, giving to each section of the Territory representation in the ratio of its population, Indians excepted, as nearly as may be. And the said members of the Council and House of Representatives shall reside in and be inhabitants of the district for which they may be elected. Previous to the first election, the Governor of the Territory shall cause the census or enumeration of the inhabitants of the several counties in the Territory to be taken and made by the sheriffs of the said counties, respectively, unless the same shall have been taken within three months previous to the third day of July next, and returns thereof made by said sheriffs to the Governor. The first election shall be held at such time and place, and be conducted in such manner as the Governor shall appoint and direct; and he shall at the same time, declare the number of members of the Council and House of Representatives to which each of the counties or districts are entitled under this act. The number of persons authorized to be elected having the greatest number of votes in each of the said counties or districts for the Council, shall be declared by the said Governor to be duly elected to the said Council; and the person or persons having the greatest number of votes for the House of Representatives, equal to the number to which each county may be entitled, shall also be declared by the Governor to be duly elected: Provided, The Governor shall order a new election when there is a tie between two or more persons voted for, to supply the vacancy made by such tie.

1“An act is not 'passed' by the legislature until it is duly approved by the Governor who, quoad hoc, is a part and portion of the legislature."-- United States v. Fanning, Morris, 350 Cf. Act of March 3d, 1839, p. 117 of this number.

“The approval of the Executive is absolute, unconditional.”—United States v. Fanning, Morris, 350.

A note appended by the Governor to his approval is simply the expression of “a judicial opinion.”—United States v. Fanning, Morris, 350. See Statutes of the Territory of Iowa, 1838, pp. 206, 207 and 208.

And the persons thus elected to the Legislative Assembly shall meet at such place, and on such day as he shall appoint; but thereafter the time, place, and manner of holding and conducting all elections by the people, and the apportioning the representation in the several counties to the Council and House of Representatives, according to population, shall be prescribed by law, as well as the day of the annual commencement of the session of the said Legislative Assembly; but no session in any year shall exceed the term of seventy-five days.

SEC. 5. And be it further enacted, That every free white


male citizen of the United States, above the age of twentyone years, who shall have been an inhabitant of said Territory at the time of its organization, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters at all subsequent elections, shall be such as shall be determined by the Legislative Assembly; Provided, That the right of suffrage shall be exercised only by citizens of the United States.

Sec. 6. And be it further enacted, That the Legislative power of the Territory shall extend to all rightful subjects of legislation;1 but no law shall be passed interfering with the

1“ By the organic law it is provided, 'that the legislative power of the territory shall extend to all rightful subjects of legislation. This language is general and comprehensive, and shows that our territorial legislature was invested with as much power at least, as is enjoyed by the most unrestrained State legislatures. The power to pass general divorce laws has been exercised by every State legislature in the Union. Many of them have passed special acts of divorce upon individual applications, and have granted divorces with such facility, and upon such meager showing, as to supersede the necessity of judicial action in such cases. But however much this power may have been abused by legislative bodies, it is generally conceded, that the state and territorial governments have complete control and discretion over the subject of divorce. It is a subject that can be regulated by no other than the legislative department of government.” -Levins v. Sleator, 2 Green, 605.

"The power of our legislature being confined to rightful subjects of legislation,' and the bill of rights contained in the ordinance of 1787, having declared that the legislature ought not to interfere with private contracts previously formed in good faith; such contracts are just as sacred here, as they are under the federal constitution within the States.”—Mi. ners' Bank of Dubuque v. United States, Morris, 484.

“ It [an act of the legislature of the Territory] is not within the scope of rightful legislation, for it does not profess to declare a general rule of action for the citizen, but is partial, limited and exclusive.”—Reed v. Wright, 2 Green, 29.

By what may be termed the organic làws creating the governments of both the territories above mentioned, [Wisconsin and Iowa) it will be seen, that those governments were vested with general legislative power; and were subjected to no enumerated or specific limitations of that general power, save in certain exceptions applicable to the lands or other property of the United States, and to the right on the part of the governments, in exercising the power of taxation, to discriminate between the property of residents and non-residents.”—Miners' Bank v. Iowa, 12 Howard, 4.

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primary disposal of the soil;' no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws of the Governor and Legislative Assembly shall be submitted to, and if disapproved by, the Congress of the United States, the same shall be null and of no effect. 2

Sec. 7. And be it further enacted, That all township officers, and all county officers, except judicial officers, justices of the peace, sheriffs, and clerks of courts, shall be elected by the people, in such manner as is now prescribed by the laws of the Territory of Wisconsin, or as may, after the first election, be provided by the Governor and Legislative Assembly of

1 But the traffic in public lands was not considered illegal. Therefore, it was not considered fraud to sell lands belonging to the United States, provided no deception was practiced. See Stannard et al. v. McCarty, Morris, 124. Cf. Hill v. Smith, Morris, 70, and Freeman v. Holliday, Morris, 80. For a definite conception of the extent of the actual traffic in public lands in Iowa, see “Constitution and Records of the Claim Association of Johnson County,” by Shambaugh.

A statute of the legislature of the Territory making it an indictable offence to cut and carry away timber off the school lands does not interfere with the “primary disposal of the soil.” “We conclude therefore, that it would be competent for the legislature to punish all wilful injuries to real estate as misdemeanors; that this power extends as well to lands owned by the United States, as to that belonging to individuals.”—Chalfont v. United, States, Morris 217. Cf. Hodgen v. United States, Morris, 218, and Hughell v. Wilson, Morris, 383.

“ To authorize the judges to hold special or extra terms of their courts, whenever in their opinion occasion might require

would be a rightful subject of legislation within the meaning of the organic law, and within the province of the legislative assembly.”—Harriman v. Iowa, 2 Green, 276.

But no act of the legislature of the Territory could abolish the right of trial by jury.-Reed v. Wright, 2 Green, 15.

Congress, in creating the territorial governments, and in conferring upon them powers of general legislation, did not, from obvious principles of policy and necessity, ordain a suspension of all acts proceeding from those powers, until expressly sanctioned by themselves, whilst for considerations equally strong they reserved the power of disapproving or annulling such acts of territorial legislation as might be deemed detrimental.”Miners' Bank v. Iowa, 12 Howard, 8. Cf. No. IV. of this series, p. 96.



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