dwelt some few thousands of people who so strongly desired to be organized as the territory of Minnesota that they occasionally spoke as if the wishedfor territorial organization already existed. Sibley's credentials as delegate made him the representative of the Stillwater Convention and of the "people of Minnesota." A few weeks later, however, a different idea came to prevail among certain of the leaders in the Minnesota country. It was simply this, that the territorial organization of Wisconsin was still effective in the region between the St. Croix and the Mississippi.63 It seems that Mr. John Catlin, the last secretary of Wisconsin territory, with the encouragement of what Minnesotans is not definitely known, reached this conclusion when the state of Wisconsin was admitted. The last territorial governor, Mr. Henry Dodge, having been elected senator from the state of Wisconsin, had ceased to be territorial executive; hence Catlin reasoned that he himself, as secretary, became acting governor. Furthermore, the last delegate to Congress from Wisconsin territory, Mr. John H. Tweedy, stood ready to resign, he said; and if he did, what was to prevent Catlin as acting governor from calling a special delegate election, and the people of the remnant of Wisconsin territory from electing a bona fide delegate to Congress? "If a Delegate was elected by color of law," he argued, "Congress would never inquire into the legality of the election." He was sure such a delegate would be seated, and he cited a precedent." "And unless a Delegate is elected and sent on," he warned, "I do not believe a government will be organized for several years." The argument just set forth was expressed in a letter dated August 22, 1848, addressed by Catlin to William Holcombe.65 It was supported by an opinion of James Buchanan, then secretary of state, to the effect that the laws of Wisconsin territory continued in force in the portions of the old territory excluded from the new state, though he failed to express an opinion on whether the governor, secretary, and other general officers of the old territory still had authority to exercise their former powers in the remnant, and stated that "immediate legislation is required." Catlin was encouraged by friends of the Minnesota country to put his ideas into effect. He left Wisconsin to take up his residence as acting governor at Stillwater in the "Territory of Wisconsin." Tweedy having resigned as delegate, Catlin on October 9 called for the election of a new delegate on October 30. The polling places designated were all within the old territory. of Wisconsin. In the election which followed Sibley won by a clear majority over his opponent, Henry M. Rice. Thereupon Catlin, still acting as governor of the territory of Wisconsin, issued to Sibley a certificate of election as "Delegate of the Territory of Wisconsin," and having performed these acts, he presently departed for his home in the real Wisconsin.67 Minn. Hist. Col., 1:53 ff.; Minn. in Three Cen., 2:364. 64 The precedent cited was the case of George W. Jones. See p. 26. Minn. Hist. Col., 1:53-54; Minn. in Three Cen., 2:364. ee Minn. Hist. Col., 1:61; Minn. in Three Cen., 2:371. Ibid., 2:376. Strict adherence to legal formalities is not a common attribute of backwoods communities, and politicians should not be held to an undue consistency. From whatever standpoint it is considered, however, Sibley's position presents an unusual number of inconsistencies. He represented in the first place the Stillwater Convention, which was entirely outside the law, and in the second place the "people of Minnesota," a place which did not exist, and a people who had not elected him to be their delegate, since only the residents east of the Mississippi seem to have voted. He claimed at the same time to be the delegate of the territory of Wisconsin, a hypothetical region consisting of about one third of the old Wisconsin territory and containing certainly not over one thirtieth of its population, a region without a legislature and probably without legal organization. From this portion of the Minnesota country he had been duly elected, and from this alone. Though he claimed to represent this so-called territory of Wisconsin, he himself had not even a constructive residence within its limits. He lived on the other side of the Mississippi in the remnant of the old Iowa territory. But if Wisconsin territory still existed east of the Mississippi, so too did Iowa territory west of that river, a claim which Sibley himself and the handful of people on his side of the river seem never to have put forward. Happily the Wisconsin organic act did not require delegates to Congress to have local residence and though he lived in the remnant of Iowa, it was not strictly illegal for Sibley to represent Wisconsin, if such a territory existed. 69 Following his election, Mr. Sibley proceeded almost at once to Washington, where Congress was due to begin a session on the first Monday in December. He presented his certificate signed by Catlin, and asked to be seated as the delegate from Wisconsin territory. His case received prompt attention from the House committee on elections, and he was given a full hearing. In his most important argument before this body, a speech which has been preserved for us, he reasoned somewhat as follows: There could be no question, he said, as to the legality of his election, since he held the certificate of the acting governor which was "prima facie evidence of that fact." It remained only to show, if possible, "that the residuum of Wisconsin Territory, after the admission of the State, remained in the possession of the same rights and immunities which were secured to the people of the whole Territory by the organic law." This he endeavored to demonstrate by urging that the government is obligated to afford to all its citizens the Stat. at Large, 5:10. Mr. H. P. Hall, in his book Observations, says that "the first delegate to Congress from Minnesota was from Wisconsin." It is more nearly correct, though less epigrammatic, to say, that the first delegate in Congress who claimed to represent the geographical region known as "the Minnesota country," got into Congress as "delegate of the Territory of Wisconsin," but resided in the remnant of the territory of Iowa. H. P. Hall, Observations, (1849-1904), 1904 ed., p. 53. Cf. Minn. in Three Cen., 2:392-93. Cong. Globe, 30 Cong., 2 sess., p. 2; Minn. Hist. Col., 1:61; Minn. in Three Cen., 2:379. 70 Minn. Hist. Col., 1:69 ff. The Republicans in the constitutional convention in 1857 charged Sibley with having changed his views as to the conclusive effect of certificates of election. protection of law, that the only law under which the people of Wisconsin not within the state of Wisconsin could live was the organic law, and that this law had not been repealed by the act admitting the state. Hence, the organic law remained in "full operation" in the excluded territory. And finally, this act, and its higher antecedent, the Northwest Ordinance, both guaranteed the right of representation."1 72 In support of this argument, Sibley cited two supposed precedents. The first was that of Paul Fearing who sat in Congress as delegate for the excluded portions of the Northwest territory after the admission of Ohio as a state. The other case was that of George W. Jones who sat as delegate for Michigan territory after Michigan had formed a state constitution and had sent senators and representatives elect to Washington to apply for admission to Congress.73 It is fair to say that neither of these cases was exactly parallel to that of Sibley. It is not, however, necessary to discuss them, since in no case could they throw much light on the status of the Minnesota region in the period now under discussion. Suffice it, then, that Sibley, being a man of genial bearing and considerable persuasive ability, convinced the committee that he was a gentleman worthy of being admitted to represent his constituents. It was the personality and the abilities of the man, rather than the logic of his case, which won the committee to Sibley's side, and so thorough was his conquest that Mr. Richard W. Thompson, chairman of the committee on elections, was not averse to taking advantage of parliamentary procedure to force a quick vote on the admission.75 The result was that Sibley was seated by a vote of two to one, without there having been any discussion by the House of the merits of his case. The vote seating Sibley was taken on January 15, 1849. Three days later a proposition was put forward to appropriate $10,500 for the salaries and expenses of the officers of the territory of Wisconsin. At this time here was a discussion at some length of the status of the region between the St. Croix and the Mississippi which had been excluded from the state of Wisconsin. The result was a decisive defeat of the proposed appropriation, clearly indicating that the House did not believe that Wisconsin territory still existed. In the course of the debate it was brought out that the pre 76 71 Wisconsin organic act, April 20, 1836, sec. 14, Northwest Ordinance, sec. 14, art. II: "The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature," etc. This certainly did not grant the people the right of representation in Congress. 72 For discussions of this case see House of Rep. Comm. Reports, 30 Cong., 2 sess., no. 10, Jan. 2, 1849; ibid., 35 Cong. I sess., no. 435, May 29, 1858. This case is discussed in House of Rep. Comm. Reports, 30 Cong., 2 sess., no. 10, Jan. 2, 1849. To Cong. Globe, 30 Cong., 2 sess., 259-60. To Ibid., 295-97. On this very day Senator Douglas had proposed in the other chamber to take up the bill to create the territory of Minnesota. cedents were all against such a construction of the law, the cases of Iowa and Missouri being considered especially in point. The question of the status of the Minnesota region is not settled by the several decisions of the House of Representatives here noted, but certainly they throw much light upon the problem. Had the House stopped after seating Sibley, the problem would have been only slightly different from what it is. Briefly, the people of a territory have no absolute right of representation by a delegate in Congress. When this privilege is conferred, it amounts to nothing more than an act of grace on the part of Congress, which may revoke the privilege at any time. Congress may confer the privilege upon any territory, whether organized or not. The cases of Fearing and Jones seem to have been illustrations of the granting of the privilege to unorganized territories. Consequently the reception of a delegate cannot raise any presumptions that the territory represented is an organized one. Even if this presumption could be raised, it could never be more than a mere presumption, for whatever Congress may do in the premises, certainly the House of Representatives alone cannot create a territory, nor can it organize a portion of the unorganized territory of the United States, nor can it, by merely receiving a delegate, raise an unorganized region into the status of an organized territory unless the organization has some other demonstrable legal basis. Therefore, despite the fact that the House seated Sibley as delegate from Wisconsin territory, upon his certificate from a person who claimed to be acting governor of that territory in its organized capacity, this fact alone did. not constitute Minnesota east the territory of Wisconsin. Other considerations which serve but to complete the demonstration that Minnesota east was not the organized territory of Wisconsin, may be summarized as follows:"7 First, within three days after seating Sibley, the House itself, following debate, refused to pass an appropriation for the support of the governmental organization of the territory. Second, before the end of the same session both houses and the president agreed upon a bill establishing a new organization in the same and an additional region, proving that Congress as a whole believed that a new organic act was needed; for it was no mere extension of the "Territory of Wisconsin" which Congress enacted, but a complete new act, organizing the territory of Minnesota. Third, Catlin did not actually carry on a government in the supposed territory. He returned to the state of Wisconsin at an early date after the election of Sibley as delegate. Therefore, there was no actual territorial organization during the months under consideration.78 "While it is true that territories of the United States and municipal corporations do not stand upon the same footing, there are some interesting parallels between them particularly in this matter of the succession of one to the territory, powers, and duties of another. See Pepin v. Sage, 129 Fed. 657; 64 C. C. A. 169 (1904); Brewis v. City of Duluth, 3 McCrary U. S. C. C. Rep., 219 (1881); Dillon, Comm. on the Law of Mun. Corp., 5th ed., I, secs. 352-60, and cases there cited. 78 Minn. in Three Cen., 2:376. The most reasonable conclusion seems to be that the region which we call Minnesota east was, from May 29, 1848 to March 3, 1849, unorganized territory of the United States, and that Minnesota west was in the same position from December 28, 1846 to March 3, 1849. It is not necessary to go so far as to say that the people in these regions relapsed during these periods into a state of anarchy or the philosopher's "state of nature." Private rights acquired under the previously existing organized territorial governments continued to have legal effect, and the private legal relations of man to man were probably but little affected. What was lacking, and it was a very important element, was an organized government which could enforce the law. This was the outstanding need of the Minnesota region and its people. To its establishment Mr. Sibley, loyally supported by his late opponent, Mr. H. M. Rice, now bent his most powerful efforts. |