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one almost, or ambition for office, while moral principle is bartered for policy, expediency, that principle which ruined, as I think, ... the whole Whig party and which will ruin any party which trusts to policy for success.1
Perhaps others did not take the outcome with such a feeling of despair as did Messer but it is well known that there were members in both conventions who went home thoroughly disgusted with the whole proceedings. Some refused entirely to sign the constitution and while it is not on record that any of the members directly opposed the constitution before the people it is difficult to understand how some of them could well have supported it.
8. THE TWO ORIGINALS OF THE CONSTITUTION. On the afternoon of Friday, August 28, both conventions adopted the report of the conference committee.107 The effect of this action was to substitute the constitution agreed upon by the conference committee in place of all the articles and sections of the constitution severally agreed upon by the two conventions up to that time. The work which the conventions had been doing simply gave way to the results produced by the conference committee.108
The next day was Saturday. The sessions had already lasted seven weeks. The members were tired and disgusted and they wished an immediate adjournment so that they might go home. Late on Friday afternoon, therefore, the Republican convention adopted a resolution authorizing the committee on conference "to employ a sufficient number of copyists to enrol the constitution, and have it prepared for authentication by members of this convention early tomorrow morning." 109 This resolution was sent at once to the Democratic convention which adopted another resolution authorizing its members on the conference committee to coöperate with the Republican members "in superintending the enrollment of the constitution."110 The work had to be done, therefore, in one night. More than that, it was necessary to prepare two complete copies of the constitution written out in long hand; for Sibley, the president of the Democratic wing, had resolutely refused to sign the same document with Balcombe and his organization.111 Many more on both sides entertained similar feelings. It was no small task, therefore, which had to be performed by lamplight that night. It appears from a study of the two documents that the work of copying was divided among a number of men. There are eight distinct handwritings in the document signed by the Republicans, and an equal number in that signed by the Democrats. Unfortunately some of the copyists were possessed of little 108 Stevens Papers, Minnesota Historical Society, letter of Messer to Stevens, Aug. 20, 1857. 107 Dem. Deb., pp. 614-15; Rep. Deb., pp. 582-83.
108 Rep. Deb., pp. 582-83.
100 Ibid., pp. 584-85.
110 Dem. Deb., p. 617.
11 Rep. Deb., pp. 577-78. President Balcombe of the Republican wing denied that he had refused to sign the same document with Mr. Sibley.
skill in writing and were lacking in knowledge of spelling or punctuation or both. It is evident also that no careful comparison of the two resulting documents was made. There are in all two hundred and ninety-nine differences in punctuation between the two documents, not counting a number in sections 10, 12, and 14 of the schedule, and a number of others which are doubtful. It is true that most of these are of little or no significance, yet it is impossible to say when in a particular case a difference in punctuation may not change slightly or even considerably the meaning of a section. In addition to the differences in punctuation, there are five cases in the body of the constitution and two in the schedule where one version uses the singular form of a noun and the other the plural. There are three cases in the constitution proper and two in the schedule where one version omits a word used in the other. There are also three cases in the constitution proper and one in the schedule where the two documents use slightly different words and there is one case in the constitution proper and one case in the schedule, the latter of no importance, where one document omits a phrase given in the other.112
The separate effect of each of these little differences is in most cases trivial. The cumulative effect of all is more weighty. Since both original versions are of equal validity, no court having as yet decided which document shall be referred to, and since these two originals differ from each other in over three hundred minor respects, it is impossible today to print an absolutely correct text of the state constitution.113 It is very likely that there is no other state in the Union in exactly this predicament.
To conclude from what has been said that we have no constitution in this state, is, of course, absurd on the face of it. Substantially the two documents are the same. The people in voting for the constitution thought they were voting on the same document and Congress in admitting the state to the Union assumed that the two versions of the original constitution were identical in meaning. Further, the courts have gone on enforcing the constitution since the foundation of the state government without having raised any question as to the existence of the constitution. Where there are minor differences in the two original versions, they can, if the question ever arises. be harmonized by judicial interpretation. As a general rule the small discrepancies are of such trivial importance that they will not weigh heavily in the scales.
9. THE CONVENTION DEBATES. It has already been said above that both conventions made provision for the publication of their debates. The Democratic debates published in a volume entitled The Debates and Proceedings 113 See the table of footnotes printed with the corrected text of the constitution, appendix 1, pp. 270-75.
113 It was one of the purposes with which this study was undertaken to prepare an edition of the constitution as nearly perfect as the conditions would permit. It is possible to say, at least, that the version of the constitution printed herein is the most nearly perfect of all existing reprints. See appendix 1, pp. 207-75.
of the Minnesota Constitutional Convention, etc., were published by Mr. E. S. Goodrich, territorial printer, at the Pioneer and Democrat office, St. Paul, in 1857. This is a volume of 685 pages, including several appendices. The Republican proceedings printed in a volume entitled Debates and Proceedings of the Constitutional Convention for the Territory of Minnesota, etc., were printed in the office of George W. Moore, the owner and editor of the Daily Minnesotian, a Republican newspaper, in St. Paul in 1858.114 This is a volume of 625 pages including several appendices and contains altogether a great deal more matter than is to be found in the Democratic debates. These two volumes are herein referred to briefly as Democratic Debates and Republican Debates, respectively."
There can be no question that the debates of both conventions contain a great deal of very valuable historical material. Anyone wishing to study the political, economic, and social conditions of the times will pick up many valuable bits of information from these two volumes. Furthermore, they give us, in almost complete form, the speeches of a great number of the leaders in the political and business life of the territory and the state. They are, of course, also unsurpassed by any other source for the light which they throw upon the political ideas of the people of the time. The state is, indeed, fortunate to have both records preserved in such well printed and well bound form.
The question arises, however, as to the value of these debates as aids in the interpretation of the constitution itself. This question has been considered several times by the state supreme court and it must be said that there has been no consistency in the attitude which the court has taken on this question from time to time. In the case of the Minnesota and Pacific Railroad Company v. Sibley in 1858, Chief Justice Emmett laid it down as a general proposition that "in construing a constitution or law, the history of its passage through the convention or legislature is often of great assistance, and the history of this amendment to the constitution, during its progress through the two branches of the legislature, fully sustains the position, that the state had no priority of lien as to these first mortgage bonds."116 It will be observed, however, that the constitutional provision here considered was not one which emanated from the constitutional convention itself but was the first amendment adopted to article 9 in 1858.117 This passage does not, therefore, throw much light on the immediate problem.
The general position here taken by Chief Justice Emmett in this early litigation before the supreme court was maintained by him as much as six years later in a case arising in 1864.118 Referring in his decision in this case
114 See Bibliography, p. 303 for the exact citations of these volumes.
115 Abbreviated "Dem. Deb." and "Rep. Deb."
110 2 Minn. 13 (Gil. 1).
117 See pp. 185-87.
118 Crowell v. Lambert, 9 Minn. 283 (Gil. 267), (1864).
to the fact that the courts of New York in certain cases "looked freely into the debates of the convention which framed their constitution, in order to gather therefrom the intention of that body, in adopting the clause they were endeavoring to construe," and referring also to the passage in the Minnesota case cited above, the Chief Justice continued:
We need not explain here the dual character of our constitutional convention; we will be sufficiently understood, when we refer to one as the convention presided over by the Hon. Mr. Sibley, and to the other, as that presided over by the Hon. Mr. Balcombe. To premise, then, the whole of the article on the judiciary, which was adopted by the joint committee of the two conventions, and which now forms the sixth article of the constitution, is, with the exception of the tenth section, identical with that which was passed by the convention over which Mr. Sibley presided; and we must look, therefore, to the debates in this convention, rather than the other, for light in regard to the meaning and intent of the different sections of the article.119
Following this general statement, Justice Emmett included in his opinion a series of quotations drawn from the Democratic debates. It is interesting to observe that Mr. Emmett had himself been a member of this convention and that the party to which he belonged very generally took the attitude that the Democratic convention was entirely, or almost entirely, responsible for the constitution which was adopted.
At the next term of the court, however, Chief Justice Emmett had been succeeded by Chief Justice Wilson. The latter had been a member of the other or Republican wing of the convention, whose work, it will be recalled, was very largely rejected by the compromise committee, whereas the Democratic convention proposals were very largely adopted. In a case arising in the supreme court in 1865 before Chief Justice Wilson and his associates, attorneys attempted to argue that the debates in the convention which framed the constitution should be considered in construing the document itself.120 To this Chief Justice Wilson made the following reply:
It is also urged that the debates in the convention that framed the constitution, show that the construction claimed by plaintiff is the correct one. If such debates could ever properly be resorted to as aids in interpretation, it seems quite obvious that such rule could not properly be followed in this case. The convention that framed this constitution divided on the first day of the session, forming two organizations, and afterwards a joint committee of each reported a constitution that each wing adopted, and which is now the constitution of our state. As well might we resort to the debates in a committee room, as to the debates of either wing of said convention to show what was meant by the language used in the constitution. But we think such debates should not influence a court in expounding a constitution in any case. Eakin v. Rawb, 12 Serg. & R. 352; 3 How. U.S. 1; Sedgwick Stat. and Con. Law, 489; id. 241; Bank of Pennsylvania v. Commonwealth, 19 Penn. St. 144; The Southwark Bank v. The Commonwealth, 26 Penn. St. 446.1"
119 Crowell v. Lambert, 9 Minn. 283 (Gil. 276).
120 Taylor v. Taylor, 10 Minn. 107 (Gil. 81), (1865).
11 Ibid., pp. 126-27 (Gil. 99).
Since that day it appears that there have been very few references by the supreme court to the debates of either convention. In a case arising in 1903 Justice Brown spoke of the framers of the constitution and their intentions with reference to the taxation of the property of seminaries of learning, but he did not actually cite the debates nor rely upon them for his conclusions.122 In a case decided in 1908, Justice Lewis made the following statement: "By referring to the constitutional debates it is apparent that the framers of the constitution were dealing with the question whether or not it was advisable to prevent members of the legislature from holding any other than the legislative office, which might be created by the legislature, or the emoluments of which might be increased during the session they were members, or within a year after the expiration of the term."123 It is not clear from this passage whether Justice Lewis referred to the Democratic or the Republican debates or both. The passage is interesting merely as indicating that some of the justices may still look upon the debates as throwing some light upon the meaning of the constitution.
When all the facts are considered, however, it is impossible to escape the conclusion that the debates in the two wings of the Minnesota constitutional convention have for legal purposes far less value than is ordinarily the case with constitutional debates. It is clear from what the members of the compromise committee said in reporting their final conclusions to the several conventions, that they worked somewhat independently of both conventions.124 The whole effort of the compromise committee was directed toward the adoption of one compromise constitution. In laboring toward that end the committee put in provisions which neither convention had adopted. They changed many proposals of both conventions. There was indeed much truth in the remarks of Mr. Robbins of the Republican wing in objecting to the publication of the debates. He could not see what the object was in publishing debates which had no reference whatever to the constitution which had been adopted. He said: "We may have discussed articles similar to them, but to say that our debates have any reference to this constitution, seems to me to be erroneous.”125 He spoke probably with more truth concerning the Republican debates than with reference to the Democratic debates. But still Mr. Sherburne in the other convention, while he claimed that the Democratic articles had been adopted "almost altogether" had admitted that the conferees had endeavored primarily "to agree among themselves as to what was proper and right."126 While he assured the Democrats that there was no difference of importance between what the Democrats had proposed and what the committee had adopted, nevertheless the record shows, and he also admitted, that
123 State v. Bishop Seabury Mission, 90 Minn. 92; 95 N. W. 882, (1903).
1 Rep. Deb., p. 583.
138 Dem. Deb., p. 599.