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there were many changes in phraseology and even in whole sentences and sections which made the meaning of what was actually adopted considerably different from the meaning of the provisions which the Democrats had discussed.127 No attempt has been made, therefore, in this monograph to give an abstract of the debates of the several conventions upon the various topics discussed. The debates themselves are in print and their indexes are reasonably adequate for ordinary purposes.
127 See ch. VI, infra.
THE COMPROMISE CONSTITUTION
1. GENERAL NATURE OF THIS CHAPTER. It will be remembered that Mr. Sherburne in reporting the compromise constitution to the Democratic convention reported that it was made up of the Democratic provisions "almost altogether." It was not long before the Democratic newspapers of the territory expressed themselves in almost jubilant tones with reference to the decisive victory they had won over the Republican wing. The Pioneer and Democrat of St. Paul said there was one thing about the constitution gratifying to every Democrat and that was that "the convention has taken care to banish from its articles every provision implying a sympathy with the fanatical dogmas of the Black Republican party of the day. It is a States' Rights National Democratic Constitution. What greater eulogy can be pronounced upon its framers than this?" The Democratic platform a short time afterwards asserted that the proposed constitution was "Democratic in its essential features." It is of interest to observe, however, that the only point specifically mentioned upon which a Republican constitution would have differed from a Democratic was on the matter of negro suffrage and possibly also on the question of resistance to the fugitive slave law, and that not even the Republican convention had proposed to put these propositions into the framework of government. The constitution which the Republicans had almost completed drawing up would have been in almost every particular as "Democratic" as was that which the compromise committee adopted.
Folwell makes the generalization that "Both parties were quite content with the constitution; the Democrats for what they had conserved, the Republicans for germs of future development." This probably puts the whole matter in the briefest possible form. The Republicans gained an amending process which was so simple that they would be able as soon as they gained control of the state government to make whatever changes they saw fit in the constitution. On the other hand, they really lost nothing in accepting such a large portion of the Democratic material in the constitution, and they postponed for only a few years the submission to the people of the question of permitting negroes to vote.
At the time when the compromise committee proceeded to its work, neither convention had completed its draft of a constitution. The compromise committee had to work with partially finished material and some of the various
committee reports proposing articles which were to become part of the several constitutions had not yet been passed when the compromise committee proceeded to its work. Except in the debates there is nowhere preserved the record of the results which each convention had accomplished at the time of the appointment of the compromise committee. In order, therefore, to ascertain the truth as to the claims made by the Democrats that it was their constitution which was adopted, it was necessary to go through each volume of the debates from beginning to end in order to piece together from the committee reports, the amendments, and the debates, the materials which were probably turned over to the conference committee. This work was done by the author with considerable labor and when the conclusions of the several bodies had been ascertained the original constitution of 1857, the Democratic materials, and the Republican materials were arranged in three parallel columns with similar provisions standing opposite each other upon the same page. In this way and only in this way was it possible to ascertain just what the compromise committee did with the various materials turned over to them by the two conventions. The following pages in this chapter give only a summary of the results of the work of this committee, but they will not only serve to show the contributions of the two conventions to the constitution and their different views upon constitutional questions, but will also provide a meager digest of the original constitution.
While the great issues upon which the Democratic and Republican parties of 1857 were divided were national and political rather than local and constitutional, it will not do to say that there were no real differences in their views upon state constitutional questions. It is true there were no fundamental divergencies and no absolute contradictions, but such as they were, the differences were of considerable significance and taken altogether it must be admitted that it would have made a great deal of difference to the incoming state whether it adopted all of the Republican or all of the Democratic provisions or whether it worked out a compromise between the two. In brief it may be said that the Republicans appear in nearly every instance as the radical, libertarian party, careless of the existing order. The Democrats, on the other hand, were the party that had learned by experience and had come to value the established order of things. They were not so trustful of the people nor of their elected officers. In ideas they appeared older and more conservative than the Republicans. Indeed, it is fair to say that if we exclude the puritanical views of the Republican group, that which remains of their program is more closely allied to the policies of Jacksonian democracy than were the principles upon which the Democratic party based its appeal for popular approval.
All persons interested may consult this work in the files of the Bureau for Research in Government, Library, University of Minnesota.
It will be of interest, therefore, to take up the constitution of Minnesota as it came from the hands of the compromise committee, and as it was ratified without amendment by the two conventions, to ascertain in detail the extent to which the proposals of the two parties were embodied in this instrument. At the same time it will be well to notice the proposals of the two parties which were not embodied in our fundamental law.
2. PREAMBLE. It may seem today to be a matter of no importance whether the preamble of the constitution takes one form or another; it is, in a legal sense, not an enforceable part of the constitution. For example whether it does or does not recognize the Deity cannot have any effect upon the conduct of the people or the law of the state. It is important, however, in view of the differences that existed between the parties in 1857 to observe the following facts: It is the Republican preamble which became the preamble of our constitution. This preamble specifically recognizes God as the source of our civil and religious liberties. There was a motion made and supported by several members of the Republican convention to strike out this clause, but the motion was defeated by a decisive vote. The Democrats, on the other hand, although they discussed their preamble at length, at no time entertained a motion by which it would be amended to recognize God. They discussed and seem to have adopted another amendment stating the purpose of Minnesota in adopting a constitution to be admission to the federal Union and at one time seem to have been on the point of asserting the absolute right to admission. Just what debate upon this point took place in the committee of compromise is not clear, but it was the Republican form of the preamble which came to be adopted.
3. ARTICLE I—Bill of rights. The bill of rights shows more completely perhaps than any other article of the constitution the serious intention of the committee on compromise to make a real fusion of the Democratic and Republican materials into one constitution. It was worked out apparently with very great care and it is so nicely pieced together from the materials of the two conventions that it is difficult to say which body is mainly responsible for its provisions. The order of the sections follows in the main that proposed by the Republicans, who had drawn very heavily upon the Wisconsin constitution of 1848. There was but one provision in the bill of rights finally adopted for which the Republicans did not have at least an equivalent and often the J. R. Brown was most insistent upon asserting the right of the people of Minnesota to be admitted into the Union. Dem. Deb., pp. 204-11, 276-81.
7 In other respects, too, as for example in their proposals for the organization of the legislative department, the Republicans chose the Wisconsin constitution as their model. This is a point not easy to explain, since very few of the Republicans appear to have lived in Wisconsin.
identical form of words. On the other hand, the Democrats had no equivalent for section 8 of the bill of rights as adopted, no provision for exemptions for debtors, no prohibition of religious tests for voters, no specific prohibition of the use of public funds for religious purposes and no prohibition of property tests for the suffrage and for the holding of office." The guarantee of jury trial in cases in law "without regard to the amount in controversy” was proposed by the Republicans.10 From this point of view, therefore, it would seem that the Republicans had slightly the better of it on the bill of rights. However, when we study the excluded materials, we find that if the Republicans had had their way they would have guaranteed resident aliens full property rights, forbidden duelling, guaranteed the right to writs of error, guaranteed the right to bear arms, and asserted that the criminal code must rest on principles of reformation and justice. All of these proposals the committee on compromise rejected. The Democrats would have pledged to the public-school system all property escheating to the state and this was also excluded.
The bill of rights gives some evidence also of the broad interpretation which the committee on compromise put upon its own powers. Both conventions had adopted almost identical provisions guaranteeing the right of peaceful assemblage. These sections the compromise committee either did not know about, or neglected to consider, or did consider and reject. As the constitution was reported to the two conventions without being printed and distributed among the members, no one chanced to notice the omission and the constitution was adopted without guaranteeing this right.
Furthermore, in section 13, the Democrats originally provided that damages in case of condemnation of property must be "first paid or secured." This phrase was stricken out by the Democratic convention on August 25 and it had never appeared in the Republican materials and had not even been proposed in this form. Nevertheless it appears in our original constitution, the explanation being that by August 25 the committee on compromise had completed a tentative bill of rights embodying this phrase.
4. ARTICLE 2-ON NAME AND BOUNDARIES. In this article section I is of Democratic origin, although the Republicans had an equivalent in different language.12 Section 2 is practically identical with sections upon the same sub
8 Sec. 2.
9 Secs. 12, 17.
10 Sec. 4.
11 The Republican proposal was as follows: "The right of the people peaceably to assemble to consult for the common good and to petition the government or any department thereof shall never be abridged."
12 The question of boundaries, so important in the months preceding the constitutional convention, took up much of the time of both wings. Many Republicans including Thomas Wilson, St. A. D. Balcombe, Amos Coggswell, and Lewis McKune, representing the interests of southern Minnesota, leaned strongly toward an east and west division of the territory. They brought the boundary question