THE RESULTS OF THE PIONEER SESSION
FROM A LEGAL POINT OF VIEW.
By Hon. M. B. Reese. Read before the Society January 3, 1897.
This act to take effect from and after its passage." The
whole matter of preparing the chapters referred to and publishing
them as a part of the law of the territory devolved upon some
functionary of the government, and they were copied into the
territorial laws, occupying one hundred pages of that publication.
Who did this, or by what authority it was done, it is not
necessary now to inquire. It is quite plain, however, that the
legislature spent none of its valuable time in trimming up and
otherwise embellishing the laws of Iowa in order to render them
applicable to territorial conditions. The territory then consisted
of the counties of Burt, Washington, Dodge, Douglas, Cass, Pierce,
Forney, Richardson, and probably Jones. However, it appears that
on the 10th day of December, 1854, Jesse Lowe, deputy United
States marshal, in obedience to a commission issued by Acting
Governor T. B. Cuming, made a report that no person lived in the
county of Jones, "unless a few living in the neighborhood of
Belews precinct in Richardson county, and who would naturally vote
at said precinct," and therefore he was of the opinion that no
apportionment should be made to Jones county. With Jones county
lost, or otherwise not accounted for, the council consisted of
thirteen members, one from each of the counties, excepting
Douglas, which had four, and Pierce, which had three. The house of
representatives was composed of twenty-six members, two from each
of the counties, excepting the counties of Douglas, which had
eight, Cass, which had three, and Pierce, which had five. The
legal effect of this enactment can only be considered with
reference to the results desired, as we know this whole body of
law, thus enacted, constituted a part of the law of the territory
until the year of 1857. In this collection we find some provisions
which to our minds have never been improved upon, and are much
better and more reasonable than the laws enacted in their stead.
The widow's dower in the real estate of her deceased husband was
declared to be one-third in fee simple. This law was repealed by
the act of 1857, and we now have a dower of one-third during the
life of the widow. No improvement.
We notice in that law the qualification for jurors which has
been lost by the carelessness or ignorance of subsequent
legislatures and the efflux of time, which we would do well to
recapture. It was provided by section 211 of that act that "All
qualified electors of the state of good moral character, sound
judgment, and in full possession of the senses of hearing and
seeing, are, competent." Just think of it! Twelve men rounded up
in, one body, all of whom were of good moral character and sound
judgment. Evidently, by the provisions of that act none else would
do. "Sound judgment" was an essential element. Were it not that we
are fully persuaded that the judges of those days were composed of
an excellent quality of clay, we would be compelled to say that
the jurors filling the measure of that section were upon a higher
plane than the judges, for experience has taught those of us who
have acted in judicial capacities, as well as those who have not,
that "sound judgment" is not always attained, even upon the bench.
However, let us be glad that in those days their juries were
sound, - take courage and press on. By the act referred to the
legislature adopted that portion of the Civil Code of Iowa which
prescribed the manner of commencing actions or suits, and for one
year, at least, the territory of Nebraska had a sensible law upon
that subject. It has never had one since.
The process or writ by which jurisdiction over the individual was obtained was called an original notice. It was prepared by the party plaintiff or his attorney, and served upon the defendant either within or without the limits of the territory by reading it to the defendant and giving him a copy if demanded, or if not found by leaving a copy at his usual place of residence with some member of his family over fourteen years of age. It could be served by any person not a party to the suit. By it the defendant was informed that on or before a day named therein a petition would be filed in the court containing a prayer for the relief demanded.
Whether we can say that our present law upon that subject is the "Results of the Pioneer Session" may be a matter of doubt, but certain it is that if it is, the results have been bad. By our
present law, in order to commence an action in the
district court, a petition must first be prepared. Then it must be
sworn to. The clerk must then be found at his office and it must
be filed. If a precipe (sic) accompanies the petition and there is
money enough upon the person of the attorney to pay the fees for
filing the petition a summons may be issued by the clerk. The next
step is to find the sheriff, for no other person can serve that
precious bit of paper excepting that functionary or some one duly
appointed to do so under his hand and endorsed upon the summons.
This all being done, we are ready for the service, but if the
proposed defendant has conceived the idea of absconding he is
perhaps a hundred miles away before this cumbrous machine can be
put in motion. In this the wisdom of the present day is not made
The law of the foreclosure of real estate mortgages as contained in that wonderful bill provided no other proceeding than simple notice and sale, all procedure in courts of justice being entirely omitted. Upon this we have made "valuable," and it is to be hoped, "lasting" improvements by requiring a procedure in court and giving the unlucky mortgagor something of a chance for the redemption of his property.
The law as to the competency of witnesses in judicial proceedings was made after the good old democratic plan, and "an Indian, a negro, a mulatto, or black person" was not allowed to give testimony in any case wherein a white person was a party. This was a shadow of the American Dark Age, which was cast upon our fair territory.
The prohibitionist would say that the law enacted by that legislature upon the subject of manufacturing and selling intoxicating liquors was about right, for a very stringent prohibitory law of but few sections was enacted. By that act the manufacture, giving away, or by any manner of subterfuge trafficking, trading, exchanging, or otherwise disposing of intoxicating liquors within the territory, to be used as a beverage, was prohibited under severe penalties.
Among other things enacted by that legislature was a law for
the admission of attorneys to practice at the bar of
courts. The principal requirement was 21 years of age,
satisfactory evidence of a good moral character, and passing an
examination, in what is not stated, before a judge. Those
essential elements being present, the lawyer was made. The "results" of this
legislation was the immediate immigration from adjoining states and territories
of those without other preparation than the requisite age and moral character
to this territory. They were admitted to the bar and returned to their
homes fully prepared to aid the courts in those states and
territories in the administration of justice.
The enterprise of that body was further manifested by the adoption of a criminal code. The act by which the criminal code was adopted was entitled "An Act Relative to Criminal Laws." The body of the act provided that "The fourth part of the Code of Iowa, given on page 349, as published in the authorized edition of said Code, so far as practicable and not inconsistent with the laws of this territory, be and the same is hereby declared to be in full force and effect in this territory." Thus by the enactment of this short section Nebraska became possessed of a criminal code of 803 sections, providing punishment for all the crimes known to the law of Iowa. This act was approved March 15, 1855. This immense body of criminal law remained in force until probably about the 13th of February, 1857, when it transpired that an unlucky member of the human race had committed the crime of willful and deliberate murder and employed a wide-awake, enterprising, and vigorous attorney to conduct his defense. This attorney, upon an examination of his client's case, discovered that the evidence of guilt was conclusive and the presumption against his client great. There was no help nor hope of escape with that Iowa law staring him in the face. He turned his attention to politics, became a candidate for legislative honors, was elected, and in the conscientious discharge of his duties as a legislator he introduced a bill entitled "An act to repeal certain arts of the legislative assembly of Nebraska passed at the first session of the said assembly." This
act was short. Its provisions were as follows: "An act
entitled 'An act adopting certain parts of the code of Iowa,'
approved March 16,1855, and also an act entitled 'An act relative
to criminal laws,' approved March 15, 1855, be and the same are
hereby repealed." The second section of this law simply provided
that the repealing act "should take effect and be in force from
and after its passage." This is called an emergency clause. You
see, an emergency existed. The bill was promptly passed and the
whole of both civil and criminal codes of the territory were swept
out of existence. In justice to the memory of the then governor,
it should be here said that he vetoed the bill, but that the
necessary two-thirds vote was forthcoming, and his veto did not
count. For one year it is said that the territory of Nebraska was
without either a civil or a criminal code; and tradition informs
us that during that period of one year civil rights were duly
respected and less crime was committed in proportion to the
population than during any other year in the history of the
territory or state. Of course. the luckless defendant who had
taken the life of his fellow man was promptly discharged and
permitted to return east to visit his friends or "go west and grow
up with the country," as might suit his fancy. The enterprise of
his counsel was fully rewarded. A civil code copied after the code
of Ohio was subsequently adopted and this code with its many
imperfections is with us yet. Our lawmakers not being satisfied
with Iowa rules in criminal cases, afterwards adopted the criminal
code of Illinois, but Ohio had been heard from. The home of
statesmen had sent her sons into Nebraska, and in 1873 the
Illinois code was repealed and the Ohio code adopted. In regard to
the criminal code, this Ohio code was an improvement upon the one
we had previously enjoyed. We will probably retain it as the
result of the perfection of human wisdom in criminal matters.
Referring to the laws passed by the pioneer session, aside from the two codes mentioned, but little of those enactments. remains with us. The legislature seems to have been very busy in providing and creating corporations and naming towns and cities which existed alone upon paper, and giving them a system of
municipal government. Indeed, we are informed that so
strong was the desire to incorporate cities and towns that it
became necessary for one of the members to introduce a bill
setting aside certain portions of the state for agricultural
purposes and one section in each township was declared to be free
from the blighting hand of the townsite boomers. It is
interesting, indeed, to peruse the acts referred to and know that
of the many cities thus created, but very few, if any, have a
geographical location. The cities of Carlisle, Margaretta,
Chester, Lawrence, Elizabeth, and many others were born to bloom
A number of counties were duly and properly bounded and made ready for business, some of which have entirely disappeared from the map of the state. Among this latter class might be mentioned the county of Greene, with no county seat nor town lots. The county of Black Bird, with Black Bird city for a county seat, but no town lots. The county of Clay, with a provision that the seat of justice "shall be called Clayton." This embryo city seems not to have had a permanent habitation and therefore no city lots were demanded. The county of McNeale was duly created and Manitou was decreed to be its seat of justice and fifty city lots were required "for the purpose of building a court house and other necessary county buildings." Jackson county was also born and with it the requirement that its county seat "shall be called Jacksonville," and the requisite fifty city lots were demanded for building purposes. Johnston county was declared to lie west of Forney county and its legal existence duly decreed, and it was said the seat of justice "shall be called Frances," with fifty city lots. Izard county closes the list, with Bunton for the county seat and fifty lots reserved. "From a legal point of view," we conclude that these efforts were not productive of great results. It is evident that the anti-monopolist had not then grown to his present magnificent dimensions, for, if there was any subject upon which that legislature might be said to be orthodox, it was that of the creation of corporations and monopolies. If there was any one enterprise or line of business which did not demand the right to the exclusive exercise of
"corporate power," they failed to make the exception.
Everything, from the magnificent railroad company, with its
millions of dollars of capital stock, to the bridge and ferry
company, with its few dollars and pocket ferry-boat for crossing
the spring branches and wet weather drains with which the
territory at that time abounded, was provided for.
The Western Exchange and Marine Insurance Company, with its capital stock of $50,000, and R. W. Latham, William Kempton, James S. Izard, J. McNeale Latham, W. E. Moore, Thomas H. Benton, Jr., and their associates, not to exceed thirteen in number, their heirs and assigns as incorporators, was duly incorporated and the necessary plans and specifications provided, ready for business. It has never been my pleasure to form the acquaintance of that artificial individual, and whether "the legal results" if that law have ever been manifested, I am at this moment unable to say. I think, however, its life was short, owing, possibly, to the inexcusable blunder of the legislature in selecting the unlucky number -13 - as the maximum number of incorporators. This was a bad break and one for which we can imagine no valid excuse. I think it "killed the bill." Had that organization survived we would have had some legal results right there, for by the terms of the bill the "heirs" of the incorporators were not forgotten, and, though unborn when the law was passed., they were "by act of law" made a part of that corporation, whether agreeable to them or not. It is quite probable that the "object of the bill" was to change the rule for the classification of property and make the capital stock of that corporation real estate, descendable to heirs by the law of inheritance. These things are "hard to find out."
Competition and the law of the "survival of the fittest" were not forgotten and so "The Franklin Insurance Company" was also set upon its feet with a capital stock of $10,000, with Paddock, Hathaway, Ellsworth, Kempton, Estabrook, Corfield, and Richardson as incorporators, evidently for the purpose of holding its larger brother in line. While this company had less money, it had some advantages over the big brother, - for in-
stance, instead of having the unlucky number "thirteen"
for the number of its incorporators, it was blessed with the
scriptual (sic) number "seven," - the perfect number. This more
than outweighed the more money and incorporators. It is supposed
this latter company lived fully as long as the former one.
The Platte Valley and Pacific Railroad Company was started on the road to future greatness with its $5,000,000 capital one day before the Missouri River and Platte Valley Railroad Company, with a like capital, became its rival.
We should also notice the fact that salt was not forgotten. Two corporations were created in order that the industry known as the manufacture of salt should keep fully up with the procession.
The educational interests of the territory received the fostering care of the "Pioneer." The "Nebraska University," with capital stock of $150,000 and fifteen incorporators, was created and that great institution was given permission to live. Its location seems to have been at "Fontenelle, in Dodge county." Its perpetuity and safety were doubtless intended to be secured by the fourteenth section of its charter. It was as follows: "The said institution and its preparatory departments shall be open to all denomination of christians, and the profession of any particular faith shall not be required of those who become students. All persons, however, who are idle or vicious, or whose characters are immoral, may be suspended or expelled." You thus see it was in no sense a reformatory institution. The Jew could stay away and the idle, vicious, and immoral could "travel." I more than half suspect that our present "University of Nebraska - the pride of every patriotic Nebraskan - is not the result of that bill.
Simpson University, with $150,000 capital stock, was turned loose about the game time, but the fatal "thirteen" mistake was again made, and there are no results "from a legal point of view" in sight.
"The Nebraska City Collegiate and Preparatory Institute," with an equal volume of capital stock, wag given permission to,
compete with the others named for public favor and
patronage, but "results" not being visible from our "point of
view," we are compelled to abandon the search.
Before closing this hastily written paper we should notice another act of the "Pioneers" fit the educational line, which we are persuaded has furnished its "results" and borne abundant fruit. The title of that act was, "An act to establish a common school system." The bill contained seventy-three sections, was evidently prepared with care, and provided for territorial, county, and school district officers, specifying their several duties with considerable minuteness. From it has probably grown up our now complete common school system. The librarian of the territory was made the superintendent of public instruction, with a yearly salary of $200. In some respects the bill was crude when surveyed from a "legal point of view," but in no sense to be despised. That act alone should give the "Pioneer Session" a lasting hold upon the affections of the Nebraskan of to-day and of the future.
View of Judge J. H. Broady. Delivered before the Society January 13, 1897.
Ladies and Gentlemen: There are two kinds of titles, the original kind and the artificial kind. The artificial are always in a large majority, but the longer they are in our country the smaller that majority. They are brought suddenly into contact with nature. They deal with natural things rather than artificial things, with substance rather than form. They are put upon their individuality, and their individuality crops out continually in a new country more on the average than in an old one. As to the work of the first legislature of the territory of Nebraska, I can only say that I became a citizen of this state about a dozen years after that took place, and I have not given it any careful attention for the purposes of this talk here tonight. Yesterday I did run through it some, and I had some knowledge of it before. Its great characteristics, it strikes me, are these: The clearness and penetration of the minds of the
men who were in that legislature, indicating superior
metal over the average legislature in the older states; and the
less amount of illogical verbosity that is so usually found among
professional men in law courts and the procedure of legislatures
in general. Looking over those acts calls to mind what I heard
some one say not long ago. It was the old and general proposition
that the less a man knows the longer it takes him to say it. How
much more apt those law-makers were to sift out the words that
were not necessary, and how well they covered the subject for the
purpose they had in view, with a few words, even more effectively
than longer acts passed by other legislatures? I am not here
eulogizing that legislature. I will leave that to you men who were
members of it, as we all like to talk about how much nicer things
used to be than they are now. But I will give you a sample of it.
And we know, too, that they were not careful about repealing these
acts, and did repeal most of what they did at the next
legislature. This happened at a time when the democratic party was
in power in Washington, and that crops out here the very first
thing. That good governor whose image we see here was a good
Jacksonian. In those days I believe they were all straight party
men. Being a good Jacksonian, and looking for a time when this
body should meet, he put it just the right time, the best time in
the year: "The said legislature will convene on the 8th day of
And they were clear and penetrating, as you see when you read the words they put in their acts, though you must concede that the main questions lay deeper down in a great matter than it appears many times. Secretary Morton has indicated in his letter something about this prohibition being a recent thing. This legislature made the beat prohibition law anybody ever made. Let me just read it, and notice the wording, and notice how they shut up the loopholes through which lawyers might evade the law (Laws of 1855, p. 158.)
"Section 1. Be it enacted by the council and house of representatives of the Territory of Nebraska, that from and after the first day of April, A. D. one thousand eight hundred and fifty-five,
it shall not be lawful for any person to manufacture, or
give away, sell, or in any way, or by any manner of subterfuge,
traffic, trade, exchange, or otherwise dispose of any intoxicating
liquors within this territory, to be used as a beverage.
"Sec. 2. The places commonly known as 'dram shops' are hereby prohibited and declared public nuisances, and their establishment shall be presumptive evidence of a sale of intoxicating liquor within the provisions of the foregoing section."
Just look at those words! You can't restrain it; it is a public nuisance and they understood it, and left no escape through the door of a jury trial. And it goes on with the presumption, and they acknowledge it, then and there, that the sale of liquor is a nuisance and can be prevented. The proclamation continues:
"Sec. 3. The establishment or keeping of a place of any description whatever, and whether within or without a building, coming within the spirit and intent of this act, and the establishment, or the keeping a place of any description where other persons are accustomed to resort, providing their own liquors, of the prohibitory character purchased elsewhere and drinking the same there, shall be taken to be within the meaning of this act.
"Sec. 4. Every person engaged in any of the acts above prohibited, or in any way aiding or assisting in such illegal acts, whether as principal or clerk, bar keeper, or otherwise, shall be subject to the penalties herein provided.
"Sec. 5. Courts and juries are required to construe this act so as to prevent evasion and subterfuge and so as to cover the act of giving, as well as of selling in the places above prohibited.
"Sec. 6. Whoever is guilty of violating any of the provisions of this act, on conviction thereof, shall be fined in a sum not less than ten dollars, nor more than one hundred dollars, or be imprisoned in the county jail not more than ninety days, or both, in the discretion of the court, and may be prosecuted therefor, either by indictment or by information before a justice, of the peace, the punishment shall be fine only.
"Sec. 7. Any person being convicted for a second, or any subsequent violation of this act, shall be fined in a sum not less than one hundred dollars or be imprisoned not more than one year."
It provides a less penalty the first
time. That is a feature that is very meritorious in it. This act
provides for an information. Read this act and see the clearness
and penetration of the minds of these men who enacted it.
This was a great legislature for granting agencies. A great variety is found in its acts, and here is another feature, which is very brief, viz., to authorize the governor to appoint emigrant agents. "That the governor shall be authorized to appoint and commission for one year, one or more traveling or local emigrant agent or agents, to reside at any point, or to travel upon any of the thoroughfares in the United States.
"It shall be the duty of each agent or agents to disseminate correct intelligence among emigrants coming to the Territory of Nebraska, to give necessary directions as to the proper routes and modes of travel, and to use all proper exertions to induce emigration to said territory."
Those are sections one and two. Section three is a very wise provision as to the compensation of such emigrant agents: "The services of such emigrant agent or agents shall constitute no charge against. the territory of Nebraska or the government of the United States." (Laws of 18551 p. 179.)
These legislators struck away out as far as we have gone, in most things in which we have been thinking we had shown so much sense. I have just alluded to the prohibition law. That is in advance of anything I have ever seen anywhere else. And here is a herd law. We have one now, and a week or two ago I was down on the Missouri river, where a man was complaining of the herd law. There was an old fellow down there on the bottoms with a lot of old horses. The way horses are now, they were not worth anything, and he took them down on the bottoms and turned them loose, and let them go around in the cornfields. One man in whose corn the horses had been feeding, talked with me, and he said: "What am I to do? The horses are there feeding and I can't take them up under the herd law, because they are not worth keeping. What am I going to do about it?" I advised him to kill them. And he said he was not au-
thorized to kill them, and he might get into trouble, and
then I didn't know what to tell him to do. There is no law against
malicious mischief, and I didn't know what to tell him to do. But
here is their act, and they say it covered it like a top. Here it
"Section 3. If any such animal be found running at large and it be found impossible or dangerous to take up and secure the same, it shall be lawful for any person to kill said animal, and the owner thereof shall sustain no action against such person for so doing." (Laws of 1855, p. 206.)
Another is the impeachment law. We have had some of that in this state, and some in congress. The question is to know whether you can impeach a man not in office, and another question that has been discussed here and at Washington is whether after a man is impeached, he shall exercise the function's of the office until he is convicted. Lawyers and judges have worried their brains about it, but these men had penetration enough to settle it. And another thing we used to discuss among the lawyers is, what is meant by "removal from office and disqualification to hold any other office of honor, trust, and profit," - whether they could make such a law or whether our constitution and the federal constitution did not settle that, and which should be first or which second, and all that. That is what has caused such a myriad of words, and books and books and myriad words, until it would make a man dizzy to hear them, and then not know as much when he got through as he did when he commenced. Here is what they say upon these points: "Any civil officer of this territory, except county or township officers, may be impeached for corruption or other malconduct in office, as well as for high crimes and misdemeanors. Upon conviction the judgment shall be removal from office. It may also attach a disqualification to hold any office of trust, honor, or profit under the laws of this territory. Every officer impeached shall be suspended from the exercise of his official duties until his acquittal. Conviction on an impeachment does not exempt the offender from a private action or public prosecution for the same act or offense." (Ibid, 302.)
There men went at that in not exactly
an artistic way; they didn't pay so much attention to the way a
word was spelled as to the use of the same, you know. They seldom
spelled a name twice alike. It was the substance they were after.
They can't spell the name right, perhaps, but they get in the
meaning. But this was when they started the state, and they
started in a good way. They started by enacting the common law of
England, subject to the constitution of the United States and the
organic act of the Territory of Nebraska. There they had a code in
one section with five or six lines, and they had a code of laws to
proceed under right there, if they hadn't done anything else, and
even if they did enact laws and then repeal them. Some
legislatures would repeal anything others did, but they had this
governing system that has governed for ages in England, with the
modification of the constitution of the United States. And
notwithstanding that they did soon after repeal the civil and
criminal code, they had a code here. Some people think that if
legislators didn't know so many words, and couldn't use so many
words, they wouldn't pass so many acts and the public would be
Here is another instance: A law "To make a road from Pawnee to Nebraska Center." I don't know where Nebraska Center is, but just look at the brevity of this: "Section 1. Be it enacted," and so forth, "that Lorin Miller, D. C. Oakes, and John B. Bennett or a majority of them, be appointed commissioners to locate and establish a territorial road from Pawnee to Nebraska Center. Section 2. The said commissioners shall meet at Pawnee on the first Monday in June next, or within six months thereafter, and proceed to lay out and establish a territorial road according to the true intent and meaning of this act, and after locating the same, shall deposit a certified plat of same for record in the register's office at Pawnee." (Laws of 1855, p. 331.)
If that act had been drawn in the modern way you could get up a lawsuit on the subject, with the probability of an awful scrap among the attorneys as to when it was located and whether it was located at all or not, until that map was filed, but under
the language of this act they couldn't have any point on
that, because it was located before that is filed, and then after
it was located they filed a map of it. It doesn't say how the
commissioners shall be paid. I don't suppose they cared whether
they were paid at all or not, but when they got the map out and
had the road staked out, there was the road.
Then here is a city charter of the city of Brownville, in five sections. They got together and said, "We have all the offices we want"; and the assembly said, "You don't have to have anything unless you want it, and if you want anything you can have all you want." (Laws of 1855, p. 406.)
They were great on joint memorials to congress, and there wasn't anything small about them either. South Pass, as I understand it, was over on the other side of the mountains. There must have been a good many Indians around here about that time and they were making a good deal of trouble. And the people memorialized the legislative assembly of the territory of Nebraska, representing that the interests of this territory and the nation at large would be greatly advanced by the construction of a railroad running from the town of Plattsmouth, in Cass county, immediately on the Missouri river, via Fort Kearney and Fort Laramie to the South Pass, with a branch starting at or near the mouth of the Nemaha river, and intersecting the main trunk at Fort Kearney or Grand Island. And they memorialized congress, and they go on to tell congress what a great country this is. You can see there is nothing small about them. They propose to start two tracks, one in the South part of the state, at the Missouri river, and the other in the north part, and run on out to Denver and to the mountains and South Pass. There is nothing small about them. They memorialized congress to grant a right of way and to grant land, and then they told their delegate in congress to get that through. (Laws of 1855, p. 451.)
Then here is another joint resolution. It shows that they are all in line with what they thought was the trend of the democratic party at that time. There wasn't any trouble about democrats then; they were all right. "Resolved, that we herewith
endorse the principles enunciated in the bill organizing
the territory of Nebraska and Kansas; that we rejoice that the
geographical line between the Northern and Southern states has
been erased, leaving the people of every state and territory free
to control their domestic institutions, and that we commend the
firm and patriotic course of the men, without distinction of
party, who have aided in establishing the sound constitutional
principles of the compromise of 1850. And resolved, furthermore,
that we pledge ourselves to oppose any unfair discriminations,
such as those of the late Missouri compromise, but to protect and
defend the rights of the states, and the union of the states, and
to advance and to perpetuate the doctrine of popular
Then there was the mail route, the Overland Route. There was nothing small about that either. It extends from the Atlantic to the Pacific. "Concerning the protection of settlers and emigrants between the Mississippi valley and the Pacific ocean, including the establishment of postal and telegraphic correspondence across the American continent."
I will not weary the audience, but I wanted to read this much to show that an examination of these acts passed by that body of men only corroborates what a little thought and a little history will prove, - that when men are put so much upon their individuality anything that comes up in which actions and words reach down in a great matter, they are the kind of men whose words are gilded words and carry a thought with them, and their actions the same. That is impressed upon us largely in the acts passed in the first legislative assembly in the Territory of Nebraska, far more so than we can discover in any of the older states. That is only in harmony with what was heard in parliament when Chatham declared that in his opinion and judgment no body of legislators, ever assembled in the world, was greater than the Continental congress which assembled in Philadelphia. And so they used words with more far-seeing and penetrating minds than now. In those days, when they were brought so continually into great struggles, they impress them-
selves on the mind and make their acts strike deeper into their minds, and they were more careful to use words that would mean something; and secondly, they were freer from verbosity, and there was less than now of what we might call "a wilderness of words."
View of Hon. J. R. Webster. Delivered before the Society January 13, 1897.
Ladies and Gentlemen: In studying for the
first time the results, from a legal point of view, of the first
legislative assembly of Nebraska, it seemed to me that the best
thing to say of it, in a general way, was that epitaph of a child
that died very young: "Oh, what did I come for, to be so soon done
for?" for most of its work remained a very short time. There is,
however, a little to be noticed in its work which has remained. I
notice in the president's paper that was read here to-night, he
speaks of the mechanic's lien for the laboring man's protection as
a development of the last fifty years. Of course, so far as
Nebraska is concerned that is a fact, but the mechanic's lien law,
as a separate chapter in the part of this code that was so soon
repealed, was one of the things passed and adopted, probably, from
some other state at that legislative assembly.
Another thing I noticed was that the law for the protection of a married woman in her property rights was in every respect as liberal. It fully emancipated her, and gave her as complete control of that which was her own as the recently much lauded act of 1873, and I was surprised that as long ago as 1855, in the legislature of Nebraska, so liberal a view as that prevailed.
I also noticed that there was another action, that the owners of the salt manufactured goods incorporated, and that the corporation was granted more than ordinary powers; this was a manufacturing corporation to manufacture salt at some of the Salt springs. It was made a governmental corporation, like a city. It was to build a town and the town was to be named Nesuma, and that corporation was given all corporate power of legislation that Nebraska City had, as a part of its charter of
incorporation. That certainly was not anti-municipal
Seventy-seven pages were given to the bridge and toll charters. Nearly every stream you could think of in Nebraska was provided with a toll bridge or a toll ferry, and 114 of these were private corporations. Yet you cannot say that the results to Nebraska of that first legislative assembly, in a judicial or legal point of view, were very marked.
Not much of it can now be traced. Most of the work was soon stricken down. Its most effective part, probably, was in the direction of education, and that remains. As I saw this picture of Governor Cuming here, I thought that the Society ought to have, - I may be out of order, but I will take a moment or two to may that you ought to have, - a picture of John M. Young, who used to live here in Lincoln, who was a man in whose heart no guile ever came. He reached the strength of manhood in intellectual thought, with the love and sincerity of a child. He led here a clan of men devoted to education, coming for the purpose of establishing here a center of education. That is the motive that brought him here, and the impress upon that clan of men through his spirit was shown in the fact that even after his death it has remained here. If there was any pioneer of Nebraska, in the early day, who more controlled, without knowing it and without knowing that he was a remarkable man, and who made his impress more plainly upon the state and the spirit that leads to its progress in liberal education, I never heard of him. I think perhaps some old photographs or pictures might be obtained from some of his relatives, and if the secretary of this society was instructed to collect two or three I would take it upon myself to get a good crayon made from those pictures, and I believe I could succeed. He is worthy to be honored by a portrait in the hall of this society, and I hope the society at the proper time and in the proper way will take this suggestion and work it out.
As to the repeal of this code, I think our president this evening may say something. When this repeal was made, as Judge Reese says, the governor vetoed it, and modestly suggested that
he doubted the expediency of taking away all the civil and all the criminal law of Nebraska and substituting nothing for it except that we would have to fall back upon the common law. I was very much surprised in reading the legislative assembly proceedings to find that Governor Furnas voted to override the veto. I see that the very next day, however, he moved to reconsider the vote. So doubtless that was the reason he voted to override the veto, in order that he might be in a position of advantage to move reconsideration, and on that vote he voted right, and doubtless intended to all the time. George L. Miller was the only member of the council who voted against the bill on its original passage, and evidently the bill was not well considered, and from its title you would see that it was introduced by an editor by the name of Bradford, who also was chairman of the judiciary committee. It seems not. to have been read at length, so it appears probable that they did not understand it, but when it came to the governor's veto there were five men for reconsideration and seven against reconsideration, so of course reconsideration did not carry. So, having merely in a jocose way called attention to the fact that Governor Furnas voted for that measure, I think I have taken back the charge when I say he voted for reconsideration.
View of Judge S. B. Pound. Delivered before the Society January 13, 1897.
Mr. President, Ladies and Gentlemen: I assume that this is a discussion to the jury rather than to the court, and infer that you will not expect radical argument, but rather a few discursive remarks. I will say I am not prepared to agree with the gentlemen who have just preceded me in estimating the ability of the members of the first session of the legislature of Nebraska, in 1855. They have placed a very high estimate upon them. They claim they were original creatures, able to express themselves in strong, terse language, and in every way proved themselves very able men. Well, that might be. I am hardly disposed to say any-thing that would detract from their credit in
any way. When you consider that a large portion of the
legislation of that session consisted in adopting in bulk the code
of another state, both the civil and criminal code, and that they
lacked the knowledge and ability to frame laws of their own and
express them in their own language, I think there is ground for
suspicion that a large part of their legislation was borrowed. It
has been said that the adoption of the criminal code was in this
way: Be it enacted that one-fourth of the criminal code of Iowa,
beginning on such a page, shall constitute the criminal law of the
territory of Nebraska. I should say that is pretty crude
legislation. I believe they made a party chief clerk to copy that
portion of the code. But they did not say that the copy, or a
certified copy, should be evidence of the law at all. In trying a
lawsuit, how are we too know what the law was? Take the criminal
law, and how were the people to know what it was and how could
they find out? The law did not say that the certified copy of the
clerk should be evidence of it at all.
To illustrate my meaning somewhat, I heard a lamented member of this society say that he was attorney in a case arising under that law, which was tried before a very dignified magistrate, and after the case had been proved, as it was supposed, by the attorney on the other side, he made the point that the law itself had to be proved; that there was nothing in the statute as enacted by the legislature making the copy proof of the law at all. He insisted that the clerk should be produced as a witness to prove that the copy was a true copy of the act of Iowa, and be stated that that was the only way to prove it and that they must prove not only the facts of the case, but must prove the law, because the statute did not make the copy evidence of that fact, and he won his point before the magistrate. So much for that. That was queer legislation. Nothing more nor less could be said of it.
I have said this because we have been disposed to laud these men as superior to the men of the present time. I presume they were men of more than ordinary ability. Men who would come out in this western country at that early day and try to build
up a state, we might presume, were men of more than
ordinary energy and enterprise.
I think it may fairly be claimed as one of the results of the legislation of the first session, in 1855, that we never have had any small towns or villages in this state. Our municipalities have all been cities. At that session there were some fifteen or twenty cities incorporated. That legislation has been explained on this theory: That the early inhabitants of this state were, at least one-third of them, distinguished and titled persons; they were majors, colonels, generals, judges, and governors, who preferred to live in cities rather than in small towns and villages, and the result was that the ratio between titled and untitled persons has been pretty faithfully maintained from that time to this. If you remember, a large per cent of our citizens to-day are titled persons; we are all colonels, or judges, or something of that sort, so that this may fairly be claimed as one of the results of this legislature. We all live in cities. We have the cities of Brownville, Nemaha City, Nebraska City, the city of Plattsmouth, Dakota City, the city of Carlisle, the city of Fontanelle, Republican City, - all these are cities.
It is not unlikely that the legislation of that session also gave point and trend to the public mind on the question of municipal corporations. At that session there were some thirty ferry companies incorporated, giving them exclusive privileges to ferry passengers over, and to charge a toll therefor. This, too, at a time when there was little or no travel, and when inhabitants were so few there were hardly enough to make a respectable town meeting; and then there were the incorporated banks, and railroads, and emigration societies, and seminaries, and insurance companies, and all sorts of corporations of that kind. This shows one thing, and that is that people at that time seem to have thought that the great source of wealth and prosperity was in legislation; that in order to obtain money all that was necessary was to incorporate banks; if they wanted a railroad, to incorporate a railroad; if they wanted salt, to incorporate a manufacturing company for salt. That is the way they seem to have
thought to be the way to get on in the world; that a private individual could accomplish nothing toward developing the resources of the state, but to carry on the great industrial enterprises of the state there must be a concentration and combination of skill and capital and enterprise. That seems to have been their idea. Legislation was a useful and necessary thing, and therefore they incorporated companies for everything they could think of. Nothing could be carried on by individual effort. I am afraid that sentiment is too much abroad in the country today. Whether we can trace this present sentiment to the impetus that was given to it at that time and in that session, I cannot say. But the fact is, that there is a prevailing sentiment of that kind abroad at the present time, in the minds of people, that individual effort cannot accomplish much; that in order to get on in the world and to develop the resources of our state it is necessary to form corporations, to concentrate, to combine. I think it is a false opinion - a false idea. Legislation can do something, but not much. Very much depends on the individual and very little on the legislation.
View of Hon. Samuel Maxwell. Presented at Annual Meeting January 13, 1897.
The impression prevails in some of the older
states that a large proportion of the settlers of a new state have
but little respect for law and order, and hence neither life nor
property are secure. This may be true in some new mining camps and
like places, where gamblers and prostitutes form the larger part
of the population, but as a rule has no application to an
agricultural community. And this is particularly true of the
people of this state, who from the first have shown a desire for
equal and just laws and a disposition to obey the game.
Nearly all of the first settlers were young in years, but full of enterprise, hope, and ambition, not only to succeed themselves, but to lay the foundation of a great state. The territory of Nebraska then was bounded on the north by British America, on
the east by Minnesota, Iowa, and the Missouri river, on
the South by the 40th parallel, and on the west by the dividing
ridge of the Rocky mountains.
The first session of the territorial legislature met in Omaha in January, 1855. The bill organizing the territory passed congress in May, 1854. and from that time until the close of the 1855 session, there was practically no statute law in force in the territory. The legislature of 1855 appointed Origen D. Richardson, of Omaha, a member of the council, and, I think, J. D. N. Thompson, of Falls City, a member of the house, as special commissioners to prepare a code of laws, civil and criminal, to submit to the legislature.
Mr. Richardson had been lieutenant governor of Michigan and was a capable lawyer and an honorable, upright, worthy gentleman. Mr. Thompson was also a capable lawyer and every-way worthy as an associate of Mr. Richardson. The statutes reported by these gentlemen were necessarily borrowed from other states. The Code of Civil Procedure was almost wholly copied from that of Iowa. I think the Criminal Code was also taken from the Criminal Code of that state.
The laws passed at that session, including those borrowed from Iowa, cover almost every question relating to rights and remedies in civil actions; and the Criminal Code provided for punishing almost every species of crime. In considering the general laws then passed, the student will be impressed with their simplicity, fairness, directness, and brevity.
The laws copied from Iowa continued in force until February, 1857, when, without providing any legislation to take their place, the legislature of that year, in its closing hours, repeated both the Civil and Criminal, and left the territory for more than a year without either a Civil or Criminal Code. In addition to this the legislature elected in August, 1857, when in regular session in December of that year, split on the capital removal question, - a part going to Florence, - hence nothing was done until a called session in the fall of 1858.
Our present Code of Civil Procedure, So far as it relates to ac-
tions at law, was passed in November, 1858, and
took effect April 1, 1859.
The distinction between actions at law and suits in equity, however, was not abolished until 1867. The credit of this change, which is so important in the administration of justice, is due to the efforts of Hon. W. F. Chapin, then of Cass county, speaker of the house in the second session of the state legislature. The 1858 session of the legislature also passed a Criminal Code, which, in deference apparently to Governor W. A. Richardson, of Illinois, was copied from the laws of that state and continued in force until 1873.
The legislature of 1855 also created a number of counties and described their boundaries as accurately as possible, as but a small part of the territory had been surveyed at that time. It also granted charters to educational institutions like "Simpson University" and other like schools.
It granted special charters to railways, cities, ferries, bridges, etc. These laws indicate the spirit of progress which pervaded the early settlers and their determination to make Nebraska one of the leading states in the nation.
But few persons who have not had actual experience know the hardships and obstacles encountered by the pioneers of a new country, but these difficulties were met bravely and with a determination to overcome them. The new settler on the prairie, it is true, has a claim upon the land he has settled upon, but, as a rule, every pound of fuel must be purchased, as well as all lumber, brick, and lime for his house, etc., and in most cases he must hire it erected. He must provide suitable out-buildings for his stock. If he has sufficient means to pay for all these things and crops are reasonably good, ordinarily he will soon be on the high road to prosperity. But if crops fail, or severe illness affects him or his family., the probabilities are that it will require a great deal of courage and self-denial of both himself and wife to succeed. Such people, however, possess the necessary brain and brawn to found a new state upon the foundations of justice and equal rights, and to protect and uphold the rights and duties of the state and nation.
Forty-three years ago western Iowa from
Marshalltown to the Missouri river was very sparsely settled. A
large part of the public lands of the western part of that state
had been entered by speculators with land warrants. These warrants
were worth about one dollar per acre in cash. In May, 1856, a land
grant of alternate sections of public lands across Iowa was made
by congress to form lines of railway in that state. This caused a
withdrawal for a time of the public lands of Iowa from pre-emption
or private entry, hence in the fall of 1856 and spring of 1857
there was quite an influx of settlers into this then territory.
Most of these were worthy people and good citizens with but little
means. They settled at various points, usually near streams and
timber. They were not required to prove up until just before a
public sale. In the latter part of 1857, the owners of land
warrants induced the president to order a public sale of lands in
the territory. This caused the settlers to complete their
pre-emptions. Many had to borrow 160 acre land warrants to enter
their land, and secured the same by a mortgage thereon. The usual
price of warrants on credit was $280, due in one year.
The result in every case, so far as I know, was that the mortgagee obtained the land. With the passage of the homestead law a new policy was inaugurated in favor of actual settlers, which has done so much to add to the population and wealth of the state.
There have been but few cases of mob violence in the territory or state - the sentiment of the great mass of people being that the law furnishes an adequate remedy and that mob violence should he deprecated.
The character of our people from the first is exemplified in our schools and churches. These are found side by side in every city and village. The large amounts voluntarily paid each year for the support of the churches and religious institutions is more than equalled by the taxes levied to make our schools free, and bring them to the highest degree of efficiency.
In some of the western states there has been a tendency to squander the public lands granted by the general government
for educational purposes, but not so in this state. The
framers of the constitution of 1866 desired to prevent these lands
from passing into the hands of speculators, therefore the first
constitution fixed the maximum price at $5 per acre, although
there were not 1,000 acres in the state that could then be sold at
that price. The constitutional convention of 1875 increased the
minimum to $7, and in all cases the lands were not to be sold
below the appraised value. The effect has been to lay the
foundation for a magnificent school fund that will soon provide
free schools for every school district in the state.
I do not think the first session of the legislature had any particular influence in shaping public sentiment, but public sentiment, - the general desire of the people, - controlled the legislature, and we have to-day the same desire of the people of the state for fair, equal, and just laws.
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