In testimony whereof I have hereunto set my hand, and caused to be affixed the great seal of the territory.
   Done at Omaha this 14th day of August, 1858.
W. A. RICHARDSON,
Governor of Nebraska.
By the Governor,
   J. S. MORTON,
      Secretary of the Territory.

    The newspapers indulged in some half-serious badinage as to the location of the seat of government -- whether at Omaha, or at Neapolis, where the Florence act had authorized it to go.

   We hear considerable talk among the newly elect as to where the seat of government is and where the legislation is to be done this winter. Some talk of Neapolis; but where is it? How far from a "local habitation"? What is the route, and what is the prospect of getting pay for services rendered? . . .
   But a portion of the commissioners met, if we are not in error, several weeks since at Bellevue and had their bond approved by the chief justice of the territory. A great ado was made at the time by the Florence journals. The approval of the bond by Chief Justice Hall was construed into an affirmative expression of opinion touching the validity of the resolutions passed by the fugitive legislature. The capitol had been removed from Omaha and was to be located at once. Since which memorable time -- the approval of the bond -- we have heard nothing of the new capitol. Of course we are in blissful ignorance whether it is at Neapolis or at Omaha.
   The fact that the Omaha stay-at-homes of the fourth session were awarded their per diem by their federal paymaster while he denied it to the Florence emigrants would have a strong repressing influence on any recurring inclination to legislative tramping. The legislature convened at Omaha according to the call, and the full membership -- thirteen councilmen and thirty-five members of the house -- appeared and qualified.
   There is no available record or any new apportionment of members of this legislature and no record of the votes of counties in detail. In the lists of members in the newspapers and in the journals of the council and house there is no mention of Cuming county, which was in the same district with Burt, or of Clay, Lancaster, and Gage, which belonged to the Cass district.
   The exact partisan division of the two houses can not be ascertained. The metamorphosis from democracy to republicanism going on at this time was in various stages -- most of the subjects being merely embryonic, while few were full-fledged. This could not be said of partisan epithets, for they came forth in prolific maturity from the democratic press, and especially from the News. This journal complained -- October 30th -- that the house was one hundred and eighty bills behind the council, and because "the house is heavily black republican, while the council has a heavy democratic majority, in fact, according to the classification of the black republican journal at the capital, there is not an open and avowed republican in the council." The Advertiser classes Marquett, De Puy, Daily, Stewart, the two Davises, Taffe, and Collier as republicans, and Mason as a whig. Bowen, Furnas, Reeves, and McDonald, members of the preceding or fourth council, were again elected to the fifth, and Dr. George L. Miller, who was a member of the house in the second assembly and of the council in the third, is returned to the fifth council. William H. Taylor, from Otoe county, is an energetic, aspiring, and noisy politician. Though a Virginian he is making up to the coming republican party -- is perhaps more nearly a republican than any other member of the council. He is called "Handbill Taylor" because, though a public lawmaker, he is, as convenience or whim moves him, a law unto himself, and is prone to post bills of warning of disastrous physical results awaiting those who offend him.
   McDonald's seat in the council was contested by Elmer S. Dundy. After holding the seat until October 7th, McDonald complains that he has not been allowed time to establish his right, and resigns; and thus opens the way for a man who is to cut an important figure in Nebraska politics. Mr. McDonald, in speaking of this contest, explained that some democrats were inclined to desert him and that they were cajoled into doing this by Mr. Dundy who, before he was seated: pretended

to be a democrat and made democratic speeches, but soon afterward acted as a thorough republican.
   George W. Doane also begins a long and useful public career. Two members of the house, Oliver P. Mason and Turner M. Marquett -- the latter reëlected -- are destined to be prominent figures in the commonwealth for near forty years. Both are ambitious for political place, both will achieve it temporarily, in about equal measure, and then alike they will win their substantial success and reputation in the practice of law. John Taffe, also an incipient republican, will be well known for a time as delegate to Congress and editorial writer, and Daily will dominate for a season as a republican leader. H. P. Bennet, speaker of the-house, belonged to the first council, as we have seen, and will also have a long and prominent career in Colorado.
   To win distinction in the private walks of life requires ability and character of a high order, and which are rather a hindrance than a help to political preferment; while the successful politician, though inferior in these qualities, is kept in the public eye for a season by virtue of his official place. It is not a pleasing or a promising reflection that the brainiest and best men of Nebraska, who in early life took an active part in politics or aspired to political careers, have retired -- or, more frequently, have been retired -- to private life to the great injury of public interests. Our successful politicians or statesmen will not be offended at this observation; for each will consider himself that exception which goes to prove a general rule.
   We see the incipiency of Nebraska republican organization in the legislature in the house of this fifth assembly. Speaker Bennet, himself hesitatingly making ready to desert the whig Baal that was, for republican god that is or is about to be, puts Mason, who is likewise halting between these two opinions, at the head of the judiciary committee. Daily, Davis, De Puy, Stewart, and Taffe, all classed as republicans, and perhaps others who are coming into the new party fold, "too late to classify," are each put at the head of important committees.
   Heretofore the executive messages had been either bright, but adolescent and unripe, or grandiose and verbose. In Governor Richardson's communication to the fifth assembly we have the sharp contrast of maturity, brevity, and straightforward simplicity, with a strong paternal effectiveness. As Cuming and Black have produced the most brilliant, so Richardson has produced the best state papers ever submitted to this commonwealth. He first states the case for the criminal code:

    The only law under which crime can be punished in this territory, is the common law of England. All other criminal laws have been abolished by the act of a previous legislature. The common law of England is so uncertain and doubtful in reference to every proceeding and offense, and its punishment, that every point will have to be adjudicated before even the courts could tell what the law is.
   Thus, while serious doubts have been entertained as to whether some offenses can be punished at all under that law, it has been clear that perjury, forgeries, and all offenses designated as felonies, are punishable with death; a penalty which renders the strict administration of that law repugnant to our ideas of justice and humanity, and inapplicable to the age and country in which we live.
   Next to the important necessity of enacting a wholesome and judicious system of criminal laws is that of "clearly defining the jurisdiction and duties of justices of the peace and other officers." It appears by the auditor's report that "the total outstanding liabilities of the territory are $15,774.95. It will be seen by the treasurer's report that 'five counties only, viz: Dodge, Douglas, Cass, Otoe, and Nemaha, have paid any revenue into the territorial treasury, and the counties mentioned have not paid the full amount due of them up to this time.'"
   The governor in his message makes this important announcement:

   I issued instructions, during the summer, to the district attorneys to file information in the proper courts against each of the banks that had failed to redeem their notes, when presented for payment, with the view to have their charters forfeited. The cases are now pending, as I am informed, and undecided. While I should not have approved any bank charter that has been adopted in the territory, and while believing the principle upon which

they are based wrong, and the effect injurious, I had no intention to interfere with any corporation that had complied with the law.
   On the subject of military roads the message gives this information: "Appropriations have heretofore been made by Congress to construct two roads in the territory. One from Platte river to L'Eau-Qui-Court, the other from the Missouri river to Fort Kearney, but have proved inadequate to complete them as designed. A further appropriation is therefore necessary." The message congratulates the people of the territory on its

From a photograph taken in 1859 at the age of thirty-seven years.

ELEAZER WAKELEY

Commissioned associate justice of the supreme court of Nebraska territory, January, 1857.

prosperous condition, and states that "We have enough produce to supply the wants of our own people together with those of the emigrant, and yet more for exportation to those upon whom the harvest sun has smiled less propitiously." Notice is taken of the discovery of gold at Cherry creek and of the desirability of a geological survey the better to disclose "those vast stores of mineral and coal which underly the greater portion of the territory. It then predicts that "the Pacific railroad, which thus far has only had its existence in the thoughts and plans of men, will soon become a reality, having a permanent being;" and the idea is reiterated that "the true route for the road and the true interests of its constructors will almost certainly lead it up the rich and beautiful valley of the great Platte."
   The fifth assembly was somewhat superior to any of its predecessors in its sense of duty and capacity for rational work. The improvement was due in part to the increasing consciousness of a more permanent character in the growth of population and institutions, largely also to the great influence of the governor.
   The list of enactments of this legislature is long and important, and comprises a criminal code, a code of procedure, a mechanics' lien law, an improved revenue law, a liquor license law, a general law giving county commissioners power to grant licenses to operators of ferries, a law providing for a territorial board of agriculture, and a new apportionment of members of the legislative assembly. The civil code was copied from that of Ohio, the criminal code from that of New York, "as westernized and adopted by Illinois," and the new school law was the Ohio law, as near as could well be. The liquor license law, which superseded the prohibitory law of the first session, was introduced in the house by Daily on the last day of the session and immediately rushed through the three readings and passage by a vote of 15 to 6. It was evidently a republican measure in this house, receiving the general support of the members of that party, including the leaders, Daily, Marquett, and Mason. It is a curious fact that four of the six opposition votes came from Omaha members. This apparent show of severe Puritan virtue in Omaha seems odd to a familiar, longtime acquaintance of our metropolitan town, and it should be presumed that these apparently prohibitory members preferred the unlicensed freedom of impotent prohibition above the restraints of a license law. The measure passed the council by a vote of 6 to 3, Dundy of Richardson, Porter of Douglas, and

Scott of Washington county casting the negative votes. Under the law, licenses were issued by the county clerk for not more than one year on payment, for the use of the school fund, of a sum not less than $25, nor more than $500; and reasonable restrictions were imposed upon the licensee.
   The act establishing a territorial board of agriculture named as members of the board Thomas Gibson, Harrison Johnson, Alfred D. Jones, Experience Estabrook, John M. Thayer, Christian Bobst, Robert W. Furnas, Jesse Cole, Samuel A. Chambers, Dr. Jerome Hoover, Mills S. Reeves, Braud Cole, Justus C. Lincoln, Harlan Baird, Joel T. Griffin, and Edward H. Chaplin. It was the duty of the board to hold an annual meeting, "for the purpose of deliberating and consulting as to the wants, prospects, and conditions of the agricultural interests throughout the territory," and to receive reports from the subordinate county societies. On the 30th of October, 1858, the territorial board of agriculture held its first meeting at the Herndon House, Omaha, when officers were elected as follows: President, Robert W. Furnas; secretary,. Alfred D. Jones; treasurer, John M. Thayer; board of managers, Edward H. Chaplin of Douglas, Mills S. Reeves of Otoe, Harlan Baird of Dakota, Braud Cole of Cass, Christian Bobst of Pawnee county. The board decided to hold the first territorial fair on the 21st, 22d, and 23d of September, 1859, and the secretary was directed to "engage the services of an orator to deliver the address at the first territorial fair." The all-pervading youthfulness of the commonwealth is illustrated by the fact that the orator selected -- J. Sterling Morton -- was twenty-six years old.
   . The office of attorney-general was abolished and his powers and duties transferred to the district attorneys. This general office was superfluous, since, under the organic act, there was an attorney-general whose salary was paid from the federal treasury. The apportionment act increased the members of the house from thirty-five to thirty-nine, the maximum limit of the organic law. Six additional counties were included in this apportionment: Butler, Dixon, Calhoun, Greene, Hall, and Monroe, but of these only Butler, Dixon, and Hall were ever permanently organized, though Calhoun and Monroe undertook to vote once -- in 1859. The organization of only two new counties, Hall and Merrick, was authorized at this session. The usual large numbers of bills for territorial roads and incorporations were passed. The salary of the auditor was raised to $800 and that of the treasurer to $400. The memorial to Congress for a geological survey recites that "it is well known that extensive coal fields underlie large portions of our fertile prairies," and that "gold exists at the base of the Rocky mountains to an equal extent to the placers and mines of California." Another memorial prays Congress to place the school lands, sections 16 and 36, under control of the legislature, but for leasing, not for selling. Still another memorial gives us the information that "a military or public road, beginning at L'Eau-Qui-Court, and extending southward across the territory, has been located and opened under the direction of the national government, and has become a great thoroughfare whereon military supplies may be expeditiously transported northward. It also affords an avenue of trade of great advantage to the inhabitants of this territory and others and is now one of the prominent mail routes of the territory." But the memorial prays for the construction of a bridge across the Platte "at the point where said road reaches the same," for the reason that "this river constitutes an almost impassable barrier between the two great sections of our territory, and on account of the great difficulty and very often imminent danger in crossing the same by means of a ferry, travel and the mails are much impeded, and at times are altogether stopped."
   A serious question arose early in this special session as to how it might be utilized to draw the federal expense stipend as if it were regular, but the comptroller of the treasury cleared up that question in a communication to Secretary Morton as follows:

   If the convened session, which met on the 4th instant, shall adjourn at the end of forty days from the commencement of the called or extraordinary session, thus constituting the

two one continued session of that number of days, the entire per diem and mileage may be paid to the members and per them to the officers; but if the session which convened on the 4th instant shall, of itself, continue forty days in addition to the thirteen occupied by that which was called by the governor, then you will pay the per them and mileage of the regular or convened session only, and take no notice of the extraordinary session, leaving their compensation for the determination of Congress.
   Mr, Mason of the judiciary committee, to which a bill to make the special session regular by changing the law of the previous session fixing the time for the convening of the regular session, was referred, reported in its favor, while the majority of the committee, headed by Marquett, reported against the scheme, fearing that necessary legislation could not be passed in the regular forty days. A compromise was agreed to by which the bill was amended so that the regular session should begin on October 4th, the organization of the special session to continue through the remaining or regular part of the session, and Congress was memorialized to make an appropriation to cover the expense of the special portion of the sitting.
   A bill providing that in all suits in law and chancery there should be no trial until the second term raised a heated controversy, Rankin and Kline of the select committee, to whom the bill was referred, insisting that the financial embarrassment of the people demanded such protection, while Mason and Collier contended that it was vicious and unconstitutional. In the council it was vigorously opposed by Doane, but it nevertheless became a law. In similar circumstances we have since seen the courts arbitrarily go much further than the provision of this act would allow, in delaying suits against creditors. A council bill and also a house bill which provided for the exemption of homesteads from execution aroused a remarkable discussion. The report of Mr. Mason of the judiciary committee of the council in favor of the bill is a sample of his well-known grandiose style. Judge Mason's singular misconception at that time of an economic system which is the basis of the world's business is shown in the last paragraph of the report:

    Another great benefit, universal in its application, which would result from the passage of a liberal homestead law, would be the blow that would be given to the credit system, that most dangerous of all systems, which destroys alike all who trust to the plaudits of its admirers.
   It seems safe to venture the opinion that in point of rhetorical inflation and floridity the report of Rankin of the house excels all other state papers recorded or otherwise. Our present day legislators might often equal it but seldom dare to on account of the ridicule of an ubiquitous and relentless press. A part of Rankin's remarkable plea follows:

    A homestead, in the true sense of the term, whether it be the humble cabin or the princely palace, is the center of the family circle, and the family affections with all the household goods and all sacred memories clustering around it. The very term suggests a something which should be secured beyond the reach of misfortune, and its holy precincts should never be invaded by the ruthless tread of the officers of the law. Sheriff, spare that home!
   If you tear it from the possession of the owner, and drive him with his wife and children to seek new scenes, you harden a sensitive heart, and strike a fatal blow at that love and pride of state which should swell the heart of every citizen.
   A home, with all of its endearments for every family, is the country's best guarantee of good citizenship and patriotic population. Without it we are Arabs on the plain of life, deprived of those attachments and affections which are awakened and kept warm by the thoughts of "Home, sweet Home."
   The shade tree planted by the father in early manhood, and protecting his children from the suns of summer; the murmuring brook which mirrored the smiles of infancy; the woodbine planted and trained by the mother who is no more! Who shall give value to these, and who would not guard them from the sacrilegious touch of all invaders?
   The controversy in the council was over the question as to the number of acres which should comprise the protected homestead. Dr. Miller favored forty acres, Doane eighty, and Porter one hundred and sixty. There were four votes out of nine for the largest amount,

and then Doane's motion for the exemption of eighty acres was carried by a vote of 7 to 3, and the bill itself was passed by a vote of 6 to 3, the nays being Donelan, Moore, and Miller. In the house there was a struggle by the minority to incorporate a limitation in value of the exemption, and Clayes and Gwyer, a special committee, in their report said:

    Your committee are satisfied that the passage of a homestead law, without limitation of value, would result to the prejudice of a large majority of the people of the territory. It would enable the debtor to live in luxury, and enjoy a life of abundance and case, while his many creditors, the victims of fraud, would be debarred all remedy. It would prove the refuge of fraud and injustice after a successful conspiracy to obtain the fruits of honest labor. Upon this subject the diversity of opinion between the majority and minority proved so great, that a compromise was impossible.
   Thirteen motions were made to fix the value of the exemption at as many different amounts from one dollar to ten thousand dollars. Mason wanted $150 and Daily $1,000. Votes were taken on nine of these motions and all were defeated, and then Rankin's motion to fix the exemption limitation as to value at "160 acres of land with the improvements thereon" was also defeated. The house then amended the council bill by inserting after "family homestead" the words, "every free white householder of this territory, male or female, being an owner or occupant of the premises," and passed it by a vote of 19 to 13. The council refused to concur in the amendment. The Advertiser explained the objection as follows: "An amendment was tacked on in favor of single white persons which the council refused to concur in." A majority of a conference committee recommended passage of the bill without the amendment, but Gwyer's minority report expressed the sentiment of the majority of the house: "The undersigned is firmly impressed with the opinion that a homestead bill having as its principal feature a limitation value is best adapted to the wants of the people of the territory and will best subserve the interest of the creditor as well as the debtor." The house refused to recede, and the bill died from inaction. The Advertiser of November 4th says: "Messrs. Clayes, Daily, Marquett, Collier, Gwyer, Stewart, Fleming, Steele, Steinberger, Kline, Rankin, and Mason, were the principal talkers, the first five being supporters of the money valuation clause, and the latter seven for the council bill which includes only a land limit." The Nebraska News of October 30th, under the mistaken notion that the bill had passed, furiously lashes the legislature for its folly. One who came to know Morton forty years later would easily discern his predilections and methods in these strictures:

    We understand our wise Solons and great men of integrity have passed an act which they term a homestead bill, but which is in reality meant as a plantation-saving act, and which with other acts passed by the present legislature will put a most effectual estoppel upon all legal proceedings for the collection of debts. . .
   If our incomprehensibly wise and unfathomably deep legislators really wanted to abolish the credit system instead of coaxing a man to run into debt, and then cheat his creditors out of their pay, why didn't they come out manfully and abolish all laws for the collection of debts instead of sneaking about with this false appearance of legislative knowledge, judicial sagacity, and smart lawyer tricks with "stays" and "exemptions" and plantation-saving acts under the name of homestead bills? . . . If our legislators expected to afford a purgative to the woefully costive and inexpressibly tight times -- if they desire to legislate men out of debt, they must of course be aware that they could do no such thing, however much credit they expected to gain for themselves in their quack attempts in this direction. . .
   The advantages to be derived from such laws are, as we view them, small indeed, while the disadvantages and positive injury are sensibly felt and vividly witnessed upon the growth and prosperity of a country which enacts them. We cannot see the sense or advantage in destroying our credit abroad, blasting our reputation, driving men of capital out of the territory and presenting an insuperable bar to the ingress of such; we do not see sense in the practice of legislative tricks -- political ledgerdemain -- inevitably leading to such results.
   Though homestead and other property exemption laws have been validated since by the wisdom of most of the states, yet to the last