The sectional interests of Wisconsin territory thrust a plane of cleavage through the Democratic party which in the other western states was nearly unanimous in its hostility to banks. Many of the newcomers were from the eastern states and were in sympathy with the Hunker faction of the dominant party. Some of these tended to act with the Wisconsin Whigs. A Milwaukee correspondent of Moses M. Strong admitted that "on banks and banking there is some difference of opinion among Democrats" but his wish, as late as December, 1846, still fathered the thought that "the voice of the Democracy says no banks.''41

Moses M. Strong, Ryan, and the antibanking extremists controlled the final phrasing of the article. The pains and penalties were ultimately omitted, but small bills were left under the ban, those of ten dollars being prohibited after 1847 and those under twenty dollars after 1849. The factions developed by the banking debate continued throughout the session.

The rest of the constitution was subordinate in its interest to the banking provision. A framework similar to that of other states was readily agreed upon. Much comfort was found in the decisions, often quoted, of the Iowa, Missouri, and New York conventions. Only here and there did novelties creep in. Judiciary and suffrage represented problems on which all the new constitutions had to take stand; homestead exemption and married women's property rights reflected the radicalism that was in the saddle.

The election or appointment of judges was the question at the crux of the judiciary problem. The eastern members of the convention came from states in which long-time appointive judges administered the law. The western members had

other Illinois convention framed a constitution, known by Republicans as "the Egyptian swindle,” because of its popularity in the southern end of the state, and inserted in it, by Democratic votes, a complete prohibition of banks and bank notes. O. M. Dickerson, The Illinois Constitutional Convention of 1862 (University of Illinois Studies, 1, no. 9-Urbana, 1905), 404. "J. W. Helfenstein, Milwaukee, to Moses M. Strong, December 2, 1846, in Moses M. Strong MSS. in Wisconsin Historical Society.

had a wider experience with the new Democratic theory of short term and election. But uniformity of opinion was absent. Ryan, later to be a great chief justice of Wisconsin, was bitterly opposed to the elective principle, although he did much to shape the other details of the article.42 The radical Milwaukee Courier, though itself preferring election, was willing to print certain letters of one "Ormond," advocating appointment—and such tolerance of opinions was not usual in the Wisconsin papers of the day."

43

There was a general agreement with "Ormond" that the constitution "must be Democratic in order to satisfy the people of Wisconsin." As to what was Democratic, there was a tendency to look to New York, where men were studying the Mississippi precedent of 1832. Mississippi had framed its second constitution in this year, adopting the elective principle for judges. J. A. Quitman, a New Yorker who had associated himself with Mississippi and who later became its governor, wrote in 1845 to the editor of the Democratic Review44 that although opposed to this method of choice at first he had come to believe it entirely good. John Bigelow 45 was using this letter, with other Democratic materials, in a series of papers on constitution-making that he wrote for the Democratic Review about this time, and that now remain the best general statements of Democratic theory. And Bigelow was a Barnburner, or Progressive. It was another victory for the liberal faction in Wisconsin when the convention determined that the courts should be filled by election rather than by "the Old Hunker method of appointment.''46 Ryan, though he opposed election now, lived to approve his defeat.

The eagerness of all factions to conciliate and get the votes of immigrants made the definition of the suffrage

42 Strong, History of the Territory of Wisconsin, 516; John B. Winslow, Story of a Great Court (Chicago, 1912), 5.

43 Milwaukee Courier, August 14, September 30, 1846. "Democratic Review, 418 (June, 1846).

45 John Bigelow, Retrospections of an Active Life (New York, 1909), 1, 670. 6 Wisconsin Democrat, October 31, 1846.

franchise a matter of political importance. The convention itself, under the territorial law which called it, had been chosen by white males, twenty-one years of age, citizens of the United States or aliens who had filed their declaration of intention to become citizens, who had resided six months in the territory and ten days in the county.47 Every month population was jumping upward, and by its distribution into unexpected regions was affecting the political balance. Between the censuses of June, 1846, and December, 1847, the growth was from 155,000 to 210,000,48 the increase including nearly enough voters, under the liberal election law, to give control to whichever faction they should support. Many of the newcomers, whose votes all factions wanted to secure, were foreign born, complicating the problem of residence with that of nativism.

In the political breakup of the thirties, Native Americanism came to the front as it has often done in such periods of party dissolution. In general the Whig party, which was in the East the party of conservatism and property, was in sympathy with nativism and the protest against the foreigner; but in Wisconsin there was small difference between the Whigs and Democrats, since both parties exerted themselves to welcome the unnaturalized.

The convention worked at length over the question of extending the suffrage to negroes, but, without serious division, it fixed the qualifications for whites. It extended to one year the residence term for all, and required, in addition, of aliens who had filed their intention papers, an oath to support the Constitution of the United States.49 To many of the foreigners this oath was an affront. They had been allowed to vote for members of the convention itself on residence,

"Laws of the Territory of Wisconsin, 1846, 9. The second Wisconsin convention was chosen by electors having the same qualification, but eliminated the offensive oath from the constitution which it made. Laws of the Territory of Wisconsin, special session, 1847, 4.

48 Madison Argus, January 11, 1848; April 18, 1848.

"Journal of the Convention to Form a Constitution for the State of Wisconsin, with a Sketch of the Debates (Madison, 1848), 604.

but now they were to be required to meet an additional test before voting upon the adoption of the constitution. The United States naturalization law, under which they had made their declaration of intention, did not require an oath of allegiance at this point.50

The oath was retained in the article finally adopted, in spite of protests, but the schedule, in section nine, relieved from the oath persons already in Wisconsin who had been eligible to vote for members of the convention.51 This concession seems to have accomplished its purpose, since among the few counties voting "aye" on the adoption of the constitution was Washington County, into which the foreigners had "commenced to swarm" in 1841, and where Germans "became the predominant race as early as 1850.''52

In no respects did the constitution reflect the marginal reforms of the day more sharply than in the article on homestead exemption and married women's rights. In the previous half century imprisonment for debt had been under fire, and clauses forbidding such punishment are to be found in many of the early constitutions. The frontiersmen now advanced the restriction of the forcible debt-collecting process one stage further in the interests of their society. In the panic of 1837, and its aftermath, they had seen the danger of eviction. They knew the low prices prevailing at forced sales, and many of them had taken part in discouraging speculators from buying foreclosed lands. Forced sales meant to them the loss of the equities, in which alone were the accumulations upon which they based their hope of future prosperity. Texas, in 1845, with a population drawn from Tennessee and its vicinity, had adopted a clear exemption clause, allowing to each citizen a minimum of property which no creditor could attach. California was to take up the principle in 1849. Wisconsin now accepted it. "So it

80

50 F. G. Franklin, The Legislative History of Naturalization in the United States from the Revolutionary War to 1861 (Chicago, 1906).

Journal of the Convention with Debates, 1847, 649.

"History of Washington and Ozaukee Counties, Wisconsin, 557.

should be," said the Louisville Democrat, commenting upon the Texas clause, "if a man's moral worth will not entitle him to credit, the possession of property should not add to his credibility. ""53 Before the Wisconsin convention met, every Democratic paper in the territory, except the Hunker organ, the Madison Argus, was reported as favoring the principle of exemption of a reasonable amount of property from forced sale,54 and many of them reprinted the same approving arguments that Bigelow had used in his article in the Democratic Review.55 In Michigan the legislature was preparing to embody the principle in a statute,56 and in future years the idea was to become an undisputed part of the guarantees that were habitually stated in the bills of rights. But when adopted for Wisconsin, the Whigs interpreted exemption as repudiation, and the conservative Democrats, already out of sympathy with the faction in control of the convention, made it an additional ground for complaint.

Marshall M. Strong, of Racine, was a consistent opponent of the more progressive measures, and upon the last, the recognition of the right of married women to the independent control of their own property, his indignation became so explosive that on December 7 he resigned his seat in the convention, and went home to organize the defeat of the constitution.57 His secession marks the open split in his party in the territory, and so far as the constitution is concerned is the beginning of the end.

Just where the married women's clause originated is not clear. It appeared first in Texas in 1845,58 and was advertised by Bigelow's approval in the Democratic Review. It

63 Quoted in the Mineral Point [Wis.] Democrat, October 15, 1845. 54 Wisconsin Democrat, August 22, 1846.

55 Holmes, "First Constitutional Convention in Wisconsin," in Wisconsin Historical Society, Proceedings, 1905, 243.

56 Kalamazoo [Mich.] Gazette, quoted in Milwaukee Courier, August 26, 1846; Southport [Wis.] American, May 12, 1848.

Journal of the Convention, 1846, 428; Strong, History of the Territory of Wisconsin, 525–529; cf. Racine Advocate, quoted in Wisconsin Democrat, April 15, 1847.

58 Texas Convention Debates, 1845, 600 et seq.