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ject in both Democratic and Republican materials. Section 3 is of Republican origin and there seems to have been no equivalent for it in what the Democrats proposed.
5. ARTICLE 3-DISTRIBUTION OF THE POWERS OF GOVERNMENT. This article is of Democratic origin. The Republicans somehow neglected this whole question of giving a separate statement to the distribution of the powers of government until, near the end of the proceedings of the convention, a similar but briefer provision was embodied in the article on miscellaneous provisions.
6. ARTICLE 4-THE LEGISLATIVE DEPARTMENT. It is fair to say that the Democrats had their way in practically all matters dealing with the structure of the government. This is true of the legislative department but more so of the executive and judicial departments. If the Republican materials relative to the organization of the legislature had been adopted, the legislature of the state of Minnesota would have consisted of two small bodies, the senate having from twenty-four to thirty-two members and the house from sixty-four to one hundred. The sessions would have been limited as they were later by amendment but to still shorter periods. The first session according to the Republican arrangement would have been limited to not over ninety days. any other regular session to not over sixty days, and any special session to a maximum of forty days. Since annual sessions were contemplated, however, these limits were not so stringent as those now prevailing. No law could have been revised, altered, or amended by a reference to its title alone; its provisions would have had to be published at length as reenacted or changed. Most interesting of all, perhaps, the legislature would have had the power to refer any one of its enactments to the people for their approval.18 up for debate on the first day of the convention, and not until a month later did the matter receive its quietus in the Republican wing. On August 13 the convention voted by 30 to 28 to submit to the voters the question of an east and west division at 46° north latitude, with the understanding that the proposition would be submitted to Congress if approved by the electors. The vote was promptly ordered to be reconsidered, however, and on the 14th the proposal was voted down by 31 to 26. In the Democratic wing the struggle was equally prolonged but it was not so easy to get votes for the east and west plan. Mr. Flandrau was most persistent in support of this division. A proposal to make Minnesota extend to the 46th parallel on the north and to the Missouri river on the west lost by 36 to 6; another, to make 45° 30′ the northern boundary, lost by 33 to 9. A third proposition to permit the voters to express themselves separately on making the line of 45° 15' the northern boundary, with the approval of Congress, lost by 25 to 13, some northern as well as some southern delegates voting for this plan. The upshot was the acceptance by both wings of the convention of the boundaries proposed in the enabling act. To most of the members it seemed impolitic if not practically impossible to do anything else. This can be stated even more strongly by saying that a majority of the delegates were satisfied if not actually pleased with the boundaries proposed. Rep. Deb., pp. 15-26, 37-39, 68, 88, 126-27, 221-29, 408, 412-17, 417-37, 439-40, 441-49, 452-54, 466-71, 521, 537-39, 558; Dem. Deb., pp. 295-306, 525-29, 558, 631.
18 This proposed section took the following form: "The legislature may submit to the people any act for their ratification or rejection, and such act so submitted shall, if approved by a majority of the legal voters at the appointed election, become a law." Rep. Deb., pp. 86, 204-5.
It may be suggested that the Republicans had in mind the prohibition law of 1852 which, after approval by the electorate, was declared unconstitutional by the territorial courts. Perhaps they looked forward to the passage of another prohibition law and its resubmission to the people. The proposed limitation on the length of the sessions corresponded to that which was common in the case of territorial governments at that time. The provisions as to the size of the two chambers were similar to those in the Wisconsin constitution.15
Speaking more in detail of what was adopted it should be noted that the last provision of section II reading "the governor may approve," etc., was of Republican origin and not in the Democratic materials. Section 24 was also Republican in its origin and had a very definite meaning in its original context. When it was lifted out of the Republican materials and set down among somewhat discordant Democratic provisions, it lost part of its meaning. The word "also" became totally meaningless in the new context. Sections 30 and 31 were also from the Republican materials and not in the Democratic.
To offset these Republican provisions inserted into the constitution, it should be said that the Republicans had no equivalents for the following provisions of the constitution drawn from the Democratic materials: section 12, the second sentence of section 17, section 18, section 20, section 21, and section 22. For a few others the Republicans had only partial equivalents.
Two other points should be noticed. The second sentence of section 13 requiring a majority of all members elected to the legislature to pass a law was not in the Democratic proposals and had been rejected by the Republicans. The committee on compromise assumed the authority to write it in. As to the term of office, both Democrats and Republicans had proposed one year for representatives and two for senators. The compromise committee in piecing out this article of the constitution left out both the Democratic and the Republican provisions on this point. This omission resulted in a very unusual situation and was the cause of some criticism of the Minnesota constitution in Congress as an unrepublican form of government. The representatives in the first state legislature were reported in Washington to be strutting the streets of St. Paul claiming the right to hold office for life. Some congressmen seem to have taken this matter very seriously.16 In fact it was necessary in the course of a few years to amend the constitution to remove any doubt upon the subject of terms of office.17
14 Rep. Deb., p. 204. See p. 38.
15 Wis. Const., art. 4, sec. 2.
16 Senators Trumbull (Ill.) and Pugh (Ohio), and Representatives Grow (Penn.) and Sherman (Ohio). See, for example, Cong. Globe, 35 Cong., 1 sess., pp. 1141, 1406. 17 See p. 165.
7. ARTICLE 5-—THE EXECUTIVE DEPARTMENT. The Democratic provisions on the executive department were all adopted and in almost identically the original words. As in several other cases the Republicans had shown themselves either inexperienced in the drafting of the constitution or willing to make radical experiments. They had had two committees in this field, one to deal with the executive department proper and the other to draft provisions for "state officers other than executive." This was an exceedingly disorderly arrangement, as it resulted in overlapping of the work of the two committees. When the committee on compromise received the materials of the two conventions it was found difficult to rewrite the Republican provisions into one harmonious article. This is perhaps the great reason why the Democratic provisions were adopted almost in toto
In substance, however, there was no great difference between the Democratic and the Republican proposals beyond those which are now to be enumerated.
(1) The Republicans would have made the governor more completely the real executive head of the government. This would have resulted
(a) from section 1 of the Republican materials which provided that
(c) by the putting of the provisions relating to the auditor, the sec-
(2) The Republicans provided for electing a superintendent of public instruction in addition to the treasurer, the attorney general, and the secretary of state.
(3) The Republicans also proposed to make the secretary of state, the treasurer, and the chief justice of the supreme court a canvassing board for state-wide elections. A similar arrangement was later made part of the constitution by amendment.18
The committee on compromise made very few changes in the Democratic proposals for this article. The term of the auditor was changed from the Republican proposal of two years and the Democratic of four to three years, a genuine compromise. The governor's salary, which had been fixed
18 See pp. 174-75.
by the Democrats at $1,500 per year and for which the Republicans had set no limit, was put at $2,500 a year for the first term by the compromise committee. The salary of the secretary of state for his first term was also fixed by the committee though neither convention had tried to determine this matter. It was set at $1,500. As other salaries had been stated in the Democratic proposals, which were chiefly adopted, it seemed logical to set the salary of the secretary of state also.
8. ARTICLE 6 THE JUDICIARY. The Democrats won a real victory in the matter of the organization of the judiciary. With the exception of certain modifications in detail, the Democratic proposals were adopted entirely. They proposed that the supreme court should appoint its clerk as well as its reporter.19 They desired five instead of the six judicial districts which were established.20 They desired also a five-year term for district judges, while a seven-year term was adopted, which was a year more than the Republicans had proposed. By their proposals the probate courts of the state would have had general probate power in addition to other specified powers. Thus also in other details there are slight differences between what the Democrats proposed and what was adopted, but essentially the article on the judiciary was the work of the Democratic wing.
A perusal of the Republican plans for the judicial department brings out clearly that the Republicans had no very consistent plan of organization and that in many particulars what they proposed was different from the scheme of judicial organization actually adopted. They proposed that there should be three supreme-court justices elected from three distinct districts for a term of nine years each. There was to be a supreme-court clerk elected by the people in each of the three supreme judicial districts for a term of three years each. They proposed also the establishment of six judicial circuits for the holding of circuit or district courts. They required two years of residence, American citizenship, and the ages of thirty and twenty-six years respectively for supreme-court and circuit-court judges but they did not require that the judges should be learned in the law. They made no provision with reference to the holding of incompatible offices by the judges nor with reference to their election to other offices while serving as judges. They provided that all judicial officers should be conservators of the peace in their respective districts. There was to be, according to their plans, a prosecuting attorney elected by the people in each judicial circuit. In addition to these important provisions the Republicans proposed a number of unnecessary sections with reference to details of judicial organization. It was very clear that the Republicans had not studied the problems of judicial administration as long and as
10 The legislature has in recent years proposed amendments which embodied the plan of making the clerk appointive by the supreme court itself, but the voters did not approve the amendments in sufficient numbers to make the change effective. See p. 176.
20 See pp. 102-3 for a discussion of the original system of judicial districts.
carefully as had some of the Democrats. It was, therefore, to be expected that the compromise committee would accept the Democratic proposals.
9. ARTICLE 7-THE ELECTIVE FRANCHISE. It is difficult to say in detail just what the Republican proposals with reference to the elective franchise may have been. The printed debates give only a part of the report of the Republican committee on the franchise and the newspapers add very little to what is printed in the debates.21 It is clear, however, that when the committee on compromise came to discuss this matter, the Democratic proposals were made the basis for the article which was drawn up. The Republicans had proposed a period of six months' residence in the state and ten days in the district. The Democrats had proposed four months' residence in the state, but had set no definite number of days of residence required in the district. The compromise worked out fixed the periods at four months in the state and ten days in the district.22 In the matter of negro suffrage it should be said that in spite of a very sharp struggle in the Republican convention the majority of that wing had insisted upon limiting the suffrage to white persons of proper qualifications, and this had been done also, as a matter of course, by the Democratic convention. By way of exception, however, both had made specific provisions that civilized Indians and half-breeds should be permitted to vote upon proof of their having attained the habits of civilization.23 Furthermore, in the Republican convention, where few men dared to deny the right of the sovereign people to settle all questions directly, the minority had forced the convention to agree to submit at the time of the election for the adoption of the constitution the separate question of striking the word "white" from the constitution to be adopted. As has been said elsewhere, the Republican members of the committee on compromise made an earnest effort to get the committee to agree to the separate submission of this question. The effort was not successful and the best the Republicans could do was to get an agreement upon a very simple and direct method of amending the constitution.24 The Republicans hoped to carry the state at an early election after the admission to the Union and they no doubt fully expected at that time to submit the question of negro suffrage to the people at the earliest election possible. It required, however, a number of years and several submissions to the people before this amendment was adopted.25
In the matter of alien suffrage the Democrats were more liberal than their opponents. They would have permitted any alien who had declared his intention to become a citizen and who had complied with the residence requirement of one year's residence in the United States and four months in the
But see the Daily Minnesotian, July 31, 1857, for a summary of the Republican proposals.
"This provision, which became and is still a part of the constitution, was sharply criticized in Congress. Cong. Globe, 35 Cong., 1 sess., pp. 1514, 1947, 1953.
24 See pp. 99-101.
See pp. 178-79.