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Constitution and Records
of the Claim Association of
Johnson County, Iowa.

by Benjamin F. Shambaugh (1894)


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I. The Claim Association.

Recent tendencies in the study of American history indicate that we can no longer consider our civilization as wholly an inheritance from Europe. The new environment working upon many different races, classes and characters of men is bringing forth a development characteristic of America. Our history, our politics and our institutions, therefore, cannot be justly estimated from the Old World standpoint alone, nor from the standpoint of that part of America which has, in a measure, always retained the European bias, namely, the East. On the contrary "the true point of view in the history of this nation is not the Atlantic coast, it is the Great West." (note: The Significance of the Frontier in American History, by Professor Frederick J. Turner -- See Annual Report of the Am. Hist. Association, 1893, p. 200.) "Too exclusive attention has been paid by institutional students to the Germanic origins, too little to the American factors." (note: Ibid, p. 201.) To which let us add, that in the study of American institutional beginnings and developments too exclusive attention has been paid to Eastern forms and systems, too little to Western influences and factors. Yet the new point of view in American history and the scientific interest which is awakening in the field of Sociology will undoubtedly give an impetus to the investigation and study of those factors in our history and politics which are more distinctively American. And, as I have intimated, the field for such investigation and study is the Great West.

In discussions, political and social, it is not infrequently held by the extreme socialist that our institutions are unnatural and oppressive, and that if men were free to make choices, society would be revolutionized. Now, what nineteenth century men would do, what customs and institutions they would adopt, in short what choices they would make, need not be wholly a matter of speculation. For, in the settlement and growth of the West there has been "a recurrence of the process of expansion." (note: The Significance of the Frontier in American History, by Professor Turner -- See Annual Report of the Am. Hist. Association, 1893, p. 200.) Is the institution of the family unnatural? The frontiersman could have abolished the home and lived in a state of promiscuity. Is all government obnoxious to the American? The pioneers were not compelled to adopt a line or submit to a letter of governmental regulation. Is the system of private property in land oppressive unnatural and a hindrance to progress? The "squatters" of the West were as free to adopt the communal system as they were to breathe the air around them. It is the bearing which it has upon questions like these, that a study of institutions such as the claim association becomes important to students of History, Politics and Sociology. In this place, however, it is not my purpose to enter upon either a detailed or a general discussion of these questions. Here I desire simply to indicate the setting of the records which follow this introduction, by briefly outlining the conditions which gave rise to the claim association and determined its leading characteristics.

The government of the United States, partly through cessions on the part of the original States and partly through treaty and purchase on the part of the United States, obtained a vast and unoccupied Public Domain. This vast territory was under the supervision and at the disposal of Congress, which, from time to time regulated its survey, sale and occupation. In 1807 an act was passed, which prohibited any and all persons from taking possession of, surveying, marking off or occupying any portion of the lands ceded or secured to the United States by any treaty made with a foreign nation or by a cession of any State. The President of the United was authorized to use force, if necessary, in removing trespassers. This act, however, was never rigidly enforced; for it was found impracticable, if not wholly impossible, to keep settlers off the Public Domain. In fact, Congress rather encouraged the violation of its provisions by granting special pre-emption privileges to settlers who had made improvements upon public lands. And yet the act of 1807, notwithstanding its impotency, was revived in March 1833 with special application to that part of Iowa known as the "Sac and Fox Cession of 1832." It was made lawful for the President of the United States to direct the Indian agents at Prairie du Chien and Rock Island to execute and perform all duties required in the act of 1807 in such mode as to give full effect to the act in and over the lands acquired from the Sac and Fox Indians. The act of 1807, however, virtually remained a dead letter, notwithstanding this heroic attempt at resuscitation. Settlers crossed the Mississippi river even before the Indian title had been extinguished; and no sooner had the Indians vacated the lands in June 1833 than hundreds of improvements were made west of the Mississippi. By the spring of 1836 some ten or twelve thousand people had made settlement. In 1838 the population reached twenty-two thousand. Instructions for the survey of these lands were issued in 1836; and by November 1st, 1837, the whole district had been surveyed as to exterior township lines, and about forty townships had been divided into sections. But not until 1838 were any of the lands proclaimed for sale; the first sales were held in the fall of that year.

Observe the constitutional status of these early settlers. Having gone upon the Public Domain in violation of an act of Congress, they occupied and cultivated lands to which they held no legal titles from the General Government. It may even be said that they were virtually without the pale of all constitutional government. The rights, privileges and immunities of citizens of the United States did not in fact extend to them. It is true that in 1834 this whole district west of the Mississippi was attached to Michigan, the inhabitants thereby becoming entitled to the same privileges and immunities and subject to the same laws, rules and regulations in all respects as the other citizens of Michigan. But in reality this statute meant nothing to the settlers west of the Mississippi; for the Territory of Michigan was so far removed from them that it secured to them no governmental privileges whatsoever. The establishment of the territorial government of Wisconsin in 1836, and the erection of the Territory of Iowa in 1838 gave the early settlers, for the first time, something more than a fictitious constitutional status. Yet the territorial governments of Wisconsin and Iowa did not fully provide for the peculiar needs arising from what may be called pioneer environment. In fact no laws, national or territorial, adequately met the conditions of frontier life in the West. And it was to meet the conditions of this western life and to provide for the peculiar needs arising therefrom, that the early settlers organized and established the institution of the claim association.

The claim association is distinctively a Western institution. And the conditions which led to its organization among the early settlers in Iowa are in general the same as those which have given rise to like organizations from the days of the self-governing commonwealths of Watauga, Cumberland and Transylvania down to the settlement of Oklahoma. Although extra-constitutional, the claim association has, nevertheless, been a part of our politics and history, and should be studied along with constitutions and statutes. As Professor Macy, in writing on institutional beginnings in Iowa, has so aptly put it: "If there are persons who regard the bare statutes of a new country as a reliable guide to the history of the growth of its local institutions, a careful comparison of the statutes of Iowa with the local institutions of the State will disabuse them of such a notion. The real local institutions of the early settlers of Iowa are not recorded in any statute books, and many of the institutions recorded in statute-books, never had any existence. (note: Institutional Beginnings in a Western State.--Johns Hopkins University Studies, Vol. II. Consult also in this connection Professor Macy's article on The Relation of History to Politics in the Annual Report of the American Historical Association for the year 1893.)



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