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the federal law in electing them at large instead of by districts.29 Some objected also, that Minnesota was not a state at the time and consequently was incapable of electing either representatives or senators.30 To the latter objection Senator Seward of New York replied that it was "metaphysical rather than practical.” There must be a transition stage when it is difficult to determine the exact status of things. “The worm becomes a butterfly; there must be stages in its transition in which it is difficult to tell whether it is one thing or the other. That is the condition of the Territory of Minnesota while it is passing from the condition of dependence into the condition of a sovereign state of the Union." The object must be to find a practical solution, and this he argued consisted in accepting the senators-elect.31 The number of representatives was reduced to two, however, and after some debate the House consented to seat the only two who presented their credentials, Becker having been eliminated by the drawing of lots. 32

Scarcely a senator or representative who took part in the debates had the temerity to assert that the proceedings in Minnesota under the enabling act had been regular in all respects, although some made light of the irregularities. It is evident from the debates that both parties in the territory had kept their fellow partisans in Congress fully informed as to developments. In order not to arouse too greatly the ire of those congressmen who believed that an enabling act should be complied with in letter and in spirit, Senator Douglas was very careful to draw the preamble of the bill for admission so as to avoid asserting or even implying that the people of Minnesota had lived up to that act.33 In spite of his care, however, the preamble contained at the end the words “in pursuance of said act of Congress.” Objection being made, these words were also stricken out, leaving nothing in the preamble which could in any way be construed as congressional approval of the proceedings in Minnesota.34 This amendment, and the reduction in the number of representatives allowed, constituted the only changes made by Congress in Senator Douglas' bill.

The leading objectors in the Senate were Senator Pugh, Democrat, of Ohio, and Senator Brown, Democrat, of Mississippi, and in the House were Representative Sherman, Republican, of Ohio, and Representative Garnett, Democrat, of Virginia, but many others also spoke.35 Douglas in the Senate, and Representatives Jenkins of Virginia, and Stephens of Georgia, all Democrats, were the leading supporters of Minnesota's claim to admission.

Cong. Globe, 35 Cong., i sess., pp. 1949, 1956. 20 Ibid., p. 2076.

81 Ibid.

82 Letter of Becker to Sibley, Feb. 9, 1858, Sibley Papers Jan.-June, 1858, Minnesota Historical Society; Cong. Globe, 35 Cong., 1 sess., pp. 2310-15.

* Ibid., pp. 1488-90. 84 Ibid., p. 1490.

* There is a satisfactory summary of the debate in Moran's article, How Minnesota became a state, in Minn. Hist. Col., 8:169-80, although the stress is upon the national aspects of the admission of Minnesota and the objections are not given in detail.

The proceedings in Minnesota were condemned because of alleged frauds in the election of June 1, because the number of persons elected to the convention was excessive, because persons were allowed to sit as delegates who had not been elected at all, because there had never been a real constitutional convention but only “two badly-organized mobs," and because the constitution had not been drawn up by a convention. As to the constitution itself the opposition asserted that it was unrepublican, that it permitted representatives in the legislature to hold for life, permitted aliens and "uncivilized Indians” to vote, required the first state legislature to meet before the admission of the state, and attempted to impose additional duties upon federal office-holders in the territory. The principal objection to the contents of the instrument related to the franchise provisions. In spite of all that the friends of Minnesota said to make the point clear, the opposition congressmen seemed incapable of grasping the distinction between the rights of citizenship and the privilege of the franchise. To the very end some of the members, including even some staunch believers in state rights, denied the distinction and asserted that no state had the power to enfranchise aliens. That the wish was father to the thought was clearly shown in a speech by a representative from Missouri:

I warn gentlemen from the South of the consequences that must result from maintaining the right of unnaturalized foreigners to vote in the formation of State constitutions. The whole of the Territories of this Union are rapidly filling up with foreigners. The great body of them are opposed to slavery. Mark my word: if you do it, another slave State will never be formed out of the Territories of this Union. They are the enemies of the South and her institutions."

On top of all these objections there was the severest condemnation of the manner in which the constitution was ratified and of the attempt to set up a government under it. Senator Pugh pointed out there had been no independent vote upon the question of adopting the constitution, and that for this reason the unanimity of the people in adopting it was apparent rather than real.37 The meeting of the legislature, the election of two United States senators, the passage of laws, and the proposals to amend the constitution, all before the admission of the state, were referred to by various members as revolutionary and as overthrowing the federal authority in the territory. Thus for several days in each house was waged the battle of words. The friends of the act of admission, while they were insistent, did not attempt to force a vote until all the opposition thunder had spent itself. When that time came it was found in both houses that the number of members voting against admission was relatively small.

On May 24, 1858, the news of the passage of the act of admission having at last reached Minnesota, Governor Sibley and the other state officers quietly


88 Cong. Globe, 35 Cong., 1 sess., p. 1980. 37 Ibid., p. 1141.

assumed their respective offices.38 On June 2, the legislature reconvened, to take up its work where it had left off in March. Thus after a movement toward statehood lasting from the legislative session of 1856 until the early summer of 1858, Minnesota found herself at last a fully recognized state in the federal Union, with a state government completely constituted and in operation in all departments.

4. WHEN DID MINNESOTA BECOME A STATE? We come at length, at the end of a somewhat disjointed narrative, to examine briefly the question as to when Minnesota became a state. This question is today of merely historical significance, yet there was a time when important public questions hinged upon its decision and when men differed in their interpretations of the facts. Some said that statehood was an accomplished thing when the constitution was adopted, October 13, 1857.39 Others held to the view that a subsequent act of admission was necessary and that statehood was not brought about until May 11, 1858.40 The divergence of views upon this question lasted from the summer of 1857 until many years after statehood was an admitted fact. The constitutional conventions, the first state legislature, the two houses of Congress, and finally the state supreme court all had to consider the problem at one time or another; Senator Shields, Attorney General Berry, and leading attorneys, not to mention the newspapers, also had their different opinions.

The root and cause of most of the confusion lies in the peculiar wording of the enabling act. This act was entitled “An act to authorize the people of the territory of Minnesota to form a constitution and state government, preparatory to their admission into the union on an equal footing with the original states.” In the first section of the act it was provided that the people within the limits of the present state of Minnesota were “authorized to form for themselves a constitution and state government, by the name of the state of Minnesota, and to come into the union on an equal footing with the original states, according to the federal constitution.” The difficulty arose over the fact that this act seemed to authorize the people of Minnesota not only to form a constitution and state government, but to come into the Union without any further act on the part of Congress. This construction was particularly easy to accept when, as was often the case, the title of the act was completely ignored and the entire attention was concentrated upon the words "authorized ... to come into the union on an equal footing with the original states."


48 Folwell, Minnesota, p. 157.

* Application of Senator Shields, Cong. Globe, 35 Cong., 1 sess., pp. 861-62; opinion of Attorney General Berry, July 2, 1858, in Opin. of the Attys. Gen., 1858-1884, pp. 2-3. Cf. Rep. Deb., pp. 532-35.

40 Minority report of D. S. Norton and W. H. C. Folsom in Senate Journal, (Minn.) 1857-1858, pp. 72-74; report of U. S. Senate judiciary committee, Cong. Globe, 35 Cong., i sess., p. 957.

The constitutional conventions and the compromise committee did not follow any consistent view upon this very important question. They accepted the idea of immediate statehood to the extent of providing for the election of all the state officers at the constitutional election and of requiring the first state legislature to meet December 2, long before Congress could possibly have been expected to pass an act of admission.41 In other passages, however, they clearly show that they were imbued with the idea that an act of admission was a condition precedent to statehood. 42

The construction of the enabling act upon which it was argued that statehood was acquired simultaneously with the adoption of the constitution proves, upon examination, to have been almost entirely unwarranted. To arrive at this interpretation it was necessary to assume that this enabling act was different from the Wisconsin and other enabling acts which had gone before. It is true that there was a slight difference in wording, but Representative Galusha Grow had given his colleagues definite assurances that there was nothing unusual in any respect about the Minnesota enabling act.43 It was, likewise, necessary to ignore the title to the act, and also the words "according to the federal constitution.”44 The federal constitution provides that “new states may be admitted by the congress into this union.”45 and in no other way may they come in. The enabling act was in no sense a contract between Congress and the people of Minnesota, as was asserted by some, and even had it been, its meaning would not have been essentially different. It was still left for Congress to say whether Minnesota should or should not be admitted to the Union. Each house separately refused to seat the representatives sent by Minnesota until after the passage of the act of admission, and the two houses joined in the passage of that act, thus proving conclusively that Congress, which had the sole and exclusive power in the premises, believed that such an act was necessary to give statehood to Minnesota. The enabling act merely authorized Minnesota to equip herself with a constitution and a government suitable for statehood, but not to set them in operation. She was to provide herself with vestments against the marriage day. If Minnesota went beyond this it was no one's fault but her own if difficulties arose. Legally Congress had the power to delay statehood indefinitely, and as long as it did so Minnesota remained a territory.

This is not to say, however, that all the acts of the de facto state government before May 11, 1858, were utterly null and void. On the contrary, the national and territorial administrations were the only authorities which had any right to object. Congress and the president did nothing by way of

1 1

4 Minn. Const., sched., sec. 6.

49 Ibid., art. 5, secs. 7, 9; sched. secs. 1, 8. Art. 2, sec. 3 contains the full title of the enabling act, including the words "preparatory to their admission into the union."

43 See p. 63.
4 See p. 297.
45 Const., art. 4, sec. 3.

protest against what was being done, although members of Congress had full knowledge of the facts; and the territorial officials actually coöperated with the first state legislature from December, 1857, to March, 1858.46 Throughout this period Congress undoubtedly possessed the power to annul the acts mentioned, but instead it admitted Minnesota to the Union without laying down a single condition. After May 11, 1858, the duly constituted state government likewise had power to ignore, or at least to renounce the first group of state laws, yet it not only did nothing toward that end, but actually enforced and took advantage of the acts in question, including the railroad bond amendment to the constitution. The only reasonable conclusion is that Congress and the new state government consented to and ratified what had been done. This was the ground taken by the state supreme court some years later and it is a position which has never been successfully disputed. 48 Minnesota did not actually become a state until May II, 1858, but the acts of the de facto state government before that date were fully validated by subsequent ratification. It may, therefore, very properly be said that some parts of the constitution actually went into effect before the admission of the state, and that the constitution became fully operative on that day.

48 See p. 134-36.

47 Cf. Secombe v. Kittelson, 29 Minn. 555, (1882). When the first state legislature reconvened after its recess on June 2, 1858, a bill was introduced into the senate to validate the legislation signed by Medary and Chase. It passed the senate but was lost in the house. Senate Journal, 1857-1858, pp. 398, 442-43, 482, 492-93. Evidently the latter body thought the act unnecessary.

4 Secombe v. Kittelson, supra.

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