USA > Iowa > An illustrated history of the state of Iowa, being a complete civil, political, and military history of the state, from its first exploration down to 1875; > Part 9
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This veto message fanned the flame of strife already enkindled, and many of the members became very bitter towards the governer in their denunciations of his course. Among the many acts vetoed by him, was an act requiring him when a bill was presented to him for his approval, to inform the legislature of his approval thereof, or if he did not approve of it, to return the bill with his objec- tions ; an act authorizing the post master at Davenport to have the mail carried from that place to Dubuque twice a week in two horse post coaches ; a joint resolution making the secretary of the territory a fiscal agent of the legislature, authorizing him to pay out money without an appropriation, to the members and officers of the legislature.
The feelings of the members were so bitter towards the governor because he kept them in check by his vetoes, that there was a
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special committee appointed in the house on vetoes, of which James W. Grimes (afterwards governor and United States senator) was the chairman. The organic act provided that the governor " shall approve of all laws passed by the legislative assembly, be- fore they shall take effect." On this provision of the law, the committee made a lengthy report, in which they took the ground that the words " shall approve all laws," meant that it was his imperative duty under the organic law to approve of all acts passed by the legislature of the territory, and that the mere fact of the governor vetoing them or withholding his approval did not prevent the acts of the legislature from becoming laws, but was a neglect of duty on the part of the governor. This report was con- curred in by a vote of sixteen to six.
Thesc acts, and the abuse of the legislature, did not intimidate the governor in the right of the discharge of his duties, being ac- tuated with a desire to do what he supposed was right, and let those of the future judge of the wisdom of his course.
When the members of the legislature found they could not control the governor by resolutions, reports of committees and abusive speeches, their next move was to remove him from office. A resolution was introduced in the house, in which it was set forth, that whereas, it was known to the legislature "that gov- ernor Lucas had been writing notes and explanations on sundry laws passed by the legislature," and also setting forth that these acts of his were " an unwarrantable encroachment upon the judi- cial department of the territorial government, as well as an insult and rude invasion of the rights of the legislature; therefore, Resolved, that Robert Lucas is unfit to be ruler of a free people, and that a select committee be appointed to prepare a report and memorial to the president * *
* * praying in strong terms for his immediate removal from office."
This resolution was adopted by a vote of twelve to ten, and a committee of five was appointed. The committee, after due delib- eration, made their report, requesting the president for various reasons to remove the governor from office. There was a majority in both branches of the legislature who were opposed to the gov- ernor, and the memorial was adopted and forwarded to the presi- dent of the United States.
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In these proceedings, the governor was not without some friends who strongly opposed the adoption of the report, and they claimed the privilege " to forward a counter-memorial to the president on the same subject, and to spread their protest on the journal of the house;" but their request was refused, when eight of the mem- bers of the house, in their private capacity, got up a protest in which they reviewed the memorial, and denied or explained most of the charges preferred against the governor, so that from the protest, or some other cause, president Van Buren did not see fit to remove the governor from his office, and he held it till there was a change in the administration of the federal government.
The difficulties which had arisen between Gov. Lucas and the legislature induced congress to make some amendments to the law organizing the territory ; and on the 3d of March 1839, they passed two acts by which it was provided that every bill passed by the council and the house of representatives should be present- ed to the governor, and if he approved of it, the same should be- come a law; if not he should return it with his objections to the house in which it had originated for reconsideration, and if both branches of the legislature passed it by a two-thirds vote, it should then become a law without the approval of the governor. They also made provision for authorizing the legislature to pass laws permitting the people to elect sheriffs, judges of probate, justices of the peace and county surveyors.
There was likewise a law passed authorizing the delegate, Wm. W. Chapman, who was elected at the time of the organization of the territory as representative to congress, to hold his seat till the 11th day of October 1840, and made provisions that the next representative, after Chapman's term expired, should only hold his seat till the 4th of the next March, after which the term should be the same as other members of congress, for the period of two years.
The legislature was not slow in taking advantage of these acts of congress, for at their next session, among the first measures that claimed their attention, were those making provisions authorizing the people to elect their sheriffs, judges of probate, justices of the peace and county surveyors; and by these acts the governor was very much curtailed in his power and influence. The legislature
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closed its business and adjourned January 25, 1839. At the election in September, 1838, for members of the legislature, a del- egate to congress was also elected. There were four candidates for this office, viz : Wm. W. Chapman and David Rorer, of Des Moines county ; B. F. Wallace of Henry county, and Peter Hill Engle of Dubuque county. Mr. Chapman was elected by thirty- six majority over Mr. Engle. The federal appointments in the territory in addition to the governor were as follows : Chas. Mason of Burlington, Joseph Williams of Pennsylvania and Thos. S. Wilson of Dubuque, judges of supreme and district courts ; Mr. Van Allen of New York, district attorney, Francis Gehon of Dubuque, United States marshal ; Wm. B. Conway of Pittsburg, secretary of the territory ; A. C. Dodge of Burlington, register and V. P. Van Antwerp of Terre Haute, Indiana, receiver in the land office at Burlington ; Thos. McKnight receiver and- -, register of the land office in Dubuque.
CHAPTER XIV.
EARLY COURTS.
Judges Irwin and Mason - Jail Incidents - Trial of a Justice - Curious Trials - Pioneer Administration of Justice.
AT THE organization of the territory of Wisconsin on the 4th of July 1836, the only counties west of the Mississippi river were Dubuque and Des Moines. At the session of the legislature held at Belmont that winter, there were created out of Dubuque, the counties of Jackson, Clinton, Scott and Cedar ; out of Des Moines, the counties of Lee, Van Buren, Henry, Slaughter (Washington), Louisa and Muscatine. David Irwin, associate judge of the United States district court, was assigned to that part of the ter- ritory lying west of the river, and, in company with Charles Mason, went to Burlington in the spring of 1837, and settled at the place now occupied by Judge Mason. Judge Irwin was origin- ally from Virginia, but had been appointed a judge for the terri- tory of Michigan, and presided in that part of the territory which afterwards constituted Wisconsin. He was a man of ability, with- out the ordinary vices of that day ; he decided promptly and cor- rectly. Few, if any, better judges ever presided in that district. He was a bachelor, and when Iowa was made a territory, he re- turned to Wisconsin and remained upon the bench until 1841, when he was removed by the President, and went to Texas where he was living a short time since. In the recent war of the rebel- lion, he was a rebel of the strictest character.
Hawkins Taylor, Esq., of Washington, has written a pleasant and interesting account of the early sessions of the court held in Lee county, with incidents of practice in the courts at that time. Mr. Taylor was a pioneer settler of Iowa, and what he states is from his own knowledge.
" The first court in Lee county was held at Fort Madison, on
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the 27th of January, 1837. David Irwin, judge, W. W. Chap- man U. S. district attorney, Francis Gehon, marshal, Joshua Owen, sheriff, John H. Lines, clerk of the court. The judge decided that the jury was illegally summoned and there was no grand jury at that term and little business transacted. The second term of court was held August 28, 1837 - the same officers of court as at the March term. The grand jurors were: Samuel Ross, Jesse Wilson, P. P. Jones, John Gregg, Campbell Gilmore, Jesse O'Neil, John Box, Wm. Tyrrell, Lorenzo Bullard, Leonard B. Parker, John G. Kennedy, A. Hundaker, Geo. Herring, Wm. Anderson, Benj. Brattain, E. D. Ayres, Henry Hawkins, J. J. Thacris, J. Stephenson, Aaron White, Jos. Skinner, J. S. Doug- las and Thos. Small, Jr. E. D. Ayres was made foreman of the grand jury and Philip Viele, prosecuting attorney.
"During the term there were about two hundred bills of indict- ment found, but they were all demurred out of court, so that no convictions followed the wholesale action of the grand jury.
" Of the officials of these first courts. Chapman, after being the first delegate in congress, went to Oregon, where he now resides. Gehon, the marshal, is deceased. Douglas, one of the brightest minds in the territory, was blown up on the Moselle, on his re- turn home from the inauguration of President Harrison, in the spring of 1841. He was to have had one of the land offices at Burlington, and had he lived would, no doubt, have been one of the leading men of the territory and state.
"The jail, in use at that time, was a little log house, on Elm street, near the upper square, belonging to Henry D. Davis. Da- vis was a shoemaker, and used the jail as a shop, as well as rent- ing it to the county. At that time the two hardest cases in Fort Madison were two men named Clark and Morehead, both big, rough, drunken, dangerous fellows, and all the time in some sort of a scrape, and often in jail ; in fact, to be in jail, suited them well, for it gave them board at the county's expense, and they could go in and out as they pleased. On one occasion, when Morehead was boarding at the jail, he cut up into all sorts of shapes, entirely destroying the stock of leather that Davis had on hand. The next morning, when Davis went to his jail-shop, he found his leather entirely destroyed. Morehead showed him the
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pieces, as cut up, and inquired what kind of shoes he could make out of them ; but Davis had no remedy ; he could not prove that Morehead had destroyed his leather, and if he could, he had no business to use the jail as a shop.
"One day Clark came and demanded a writ of ejectment against Morehead. A few days before, Clark had been committed to jail for some offense, and a few days later Morehead had been com- mitted ; and when the constable put Morehead in, Clark went out, and demanded of the same justice that had committed them both, a writ of ejectment against the new-comer, for "jumping his claim," a squatter phrase at that day. The justice ordered Clark off, telling him to go back to jail, where he belonged. Clark went off and got from one of the justice's enemies the necessary fee for the writ, when he went back and tendered the money for the writ, when the 'squire again refused to issue the writ, and ordered Clark off, when the latter stepped outside of the door, swearing terrible oaths and threatening what he would do, then and there, if the writ was not issued at once, and for the purpose of carrying out his threat, he commenced unbuttoning his clothes, when the 'squire took up a good hickory club, well selected for defense and the enforcement of the law, and with both hands belabored Clark, until he cried "murder, murder." By the time help came, his head was completely covered with cuts, bruises and blood. The justice was arrested for assault and battery and taken five or six miles in the country for trial. The trial lasted several days and was prosecuted with much bitterness by the enemies of the justice, and defended with great earnest- ness by his friends. 'Squires Briggs and Ross tried the case. Judge Viele prosecuted, and Henry Eno defended. The court acquitted Guthrie, the defendant, deciding that the statute admin- istered was not recognized by all the courts, but that its applica- tion, as administered and under the circumstances, was admissible and appropriate and well calculated to be useful. Guthrie had no further trouble with roughs -they found out that the " Yankee" would fight, and that fully satisfied them."
The third and last term of court held in Lee county, while a part of the territory of Wisconsin, was commenced in Fort Madi- son. The same judge and other officers as at previous terms. A
CROSSCUP & WEST-SC.PHIL.A.
B, Hendershott
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grand jury was impaneled, of which Mr. Taylor was one. The attorneys in attendance were: J. W. Woods, David Rorer, Henry Eno, M. D. Bendney, Jas. W. Grimes and Franklin Perrin. Isaac Van Allen, now of Peoria, was admitted a member of the bar. At the suggestion of Judge Viele, prosecuting attorney, Jas. T. Dinwid- die was made foreman of the grand jury. The latter was a hard working blacksmith, living a few miles below town, an honest man, a Kentuckian by raising, a man of powerful will and consti- tution, a good fighter, and was able to manage a large supply of whisky and still wield the sledge-hammer; but when the jury retired to the garret of the "Madison House" where court was held, the foreman had more than his usual supply. On a motion made by one of the jurors, that Hawkins Taylor act as secretary for the jury, the foreman took this as a direct insult, and declared that he could do "all the writing needed by the jury," and at once demanded that if any one was to be indicted " bring them in." The first case presented was the steamer Bee. The offense was the taking off the old man Kellogg, deputy sheriff, who had gone on board at Fort Madison, to serve an attachment on the boat, when the captain cut his line and backed out, and took off the officer, carrying him down to Warsaw, and then only running near enough to the shore to let the officer jump off. When Mr. Kellogg appeared before the grand jury, the foreman took his pen and , marked down the case, and then turned to the witness and with great earnestness said, " Where is the steamboat Bee?" To this the witness could give no positive information, as he had not seen her since the previous fall. The foreman then remarked sharply, " If you want the steamboat Bee indicted, bring her up here ! Bring her up here ! She may be gone to the d -- 1, or she may be gone to Texas - if you want her indicted, bring her up here," and at once commenced to tear up the memorandum that he had made, saying, loudly, but to himself, " No bill, no bill," and then turned to the witnesss and said, " you may go," and he went, apparently, with about as much feeling of relief as when he escaped from the steamer the fall before. Several other cases were brought up and disposed of by the foreman in the same summary manner, one being a case of James Fiske for an assault with intent to kill made on George Perkins, a peaceful citizen. In this case the foreman
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found a true bill. The next morning sentinels were placed below town to meet the foreman and get him into the jury room before he had an opportunity to take more whisky than he could man- age. The plan was successsful, and after that, there was no . trouble with the foreman ; but there were many amusing incidents that took place in the jury room. Among them H. D. Davis who was a member of the jury tried to indict Morehead, who had, while in jail, cut up and destroyed his leather, for breaking jail. Davis proved by Isaac Johnson, another juror, that Morehead was in the habit of crawling into the jail at night ; in fact, that he went out and in when he wanted to. There were about sixty bills found by this grand jury, mostly for gambling; all of the bills were decided on the trial, to be defective. I believe that no single indictment found in Lee county up to the organization of Iowa territory was sustained by the court on trial, but it was about as well, as if they had been good. There was no penitentiary in the territory, and no place to keep criminals, and those indictments caused many to run off to where there were both jails and peni- tentiaries ; and in those days judge Lynch held court occasionally. In his court there was no demurring to indictments, and so seldom mistakes in his rulings, that there was a very wholesome dread among the worst class of criminals to coming into that popular court.
The following sketch of a court scene in pioneer days of Lee county is taken from the " Keokuk Daily Constitution," of 1871 :
" The traveler through Keokuk, as he views its elegant private and public buildings, and notices the stream of human beings who throng its streets and marts of commerce, can hardly realize the fact that thirty years ago, nearly all the ground of Keokuk was covered by a dense growth of bushes and trees, and that the most important character then of the place, financially considered, was a wood dealer ; one who had erected a log hut near the river and there kept a wood yard, selling occasionally a few cords to the few steamers which then ventured on the waters of the upper Mis- sissippi. Yet such was the fact. The wood dealer referred to was a yankee by birth, who could turn his hand occasionally to any sort of business that would earn an honest penny; and he managed by some means to become the owner of what was called
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in the language of those days, a " blanket claim or title" to a por- tion of the " half-breed tract." That sort of a title usually cost a blanket, paid to some drunken Indian or half-breed; and though it had merits sometimes, yet usually was good for nothing. But to return to our wood-cutter. He sold his " blanket title" to the then clerk of the district court at Fort Madison, for eight hundred dollars, and took his note therefor upon six months' time; when pay time arrived, the clerk refused to pay the note, on the ground that the title bought was valueless, and the note was obtained by the fraud of the wood-cutter. This led to a law suit in the dis- trict court at Fort Madison, and the wood-cutter had Hon. Phillip Viele for his attorney, aud the clerk had Miller and Galbraith for his attorneys. Charles Mason was judge, and the case was one of the first issues submitted to a jury. The evidence of the wit- nesses being conflicting, the trial was severely contested. The lawyers of Lee county who have come here in late years, can hardly realize with what zeal, enthusiasm and sometimes bitter- ness of debate attorneys fought over their cases thirty years ago. The country was new, the lawyers were mostly young, and the struggle was, which, among them, would be enabled to secure the best legal character. They were fighting for place and reputation. When the evidence was all in, and the case ready for argument by the attorneys, Miller whispered to his partner, that their client was beaten, unless the plaintiff's attorney (Viele) made some mis- step in his argument of the case. Galbraith took the hint, and being possessed of excellent speaking powers, especially in a case of severe criticism and review of another's conduct, he pitched into judge Viele's conduct as attorney for plaintiff with severe animadversions. Viele showed signs of excitement during the excoriations of the opposing counsel, but husbanded his wrath for the concluding speech, which belonged to him. His exordium was beautiful in language, though terrible in the denunciations of his opponent ; but he was so much excited by controversy with the lawyers against him, that his argument was more declamation than solid reasoning, and fell much below his usual standard ; for the judge was usually an able debater. The exciting character of his speech, however, filled the court house with hearers, who sev- eral times cheered the best of his periods. But we now come to
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the conclusion of the judge's speech, which, touching in sentiment, yet as it was based in part on a mistake in fact, caused the judge to lose his case. The judge, pausing a moment, reached forward, and taking his client (who was sitting near him) by the hand, raised him up and standing him before the jury, said: " Here, gentlemen, is my client ; he is an honest man, and his face bears the impress of his honesty. He is a hard working man, and his hands show his industry and his honest means of a livelihood. He has a wife and a large family of young children at his humble home in Keokuk, dependent upon his daily sweat and toil." As the judge finished this period, his client stepped close to him and whispered that he was not married, but the judge had gone too far to retreat, and waving his hand to his client indicative of a wish for him to step back, said to him in his usual bland voice, "Yes, my friend, it is all right ; it will come out right." He then proceeded with his remarks to the jury, as follows : "Yes, gen- tlemen, while I am addressing you, demanding justice at your hands for my client, at this moment the wife and children of my client are standing at the doorway of their humble cottage home, with eyes strained up the road towards Fort Madison, looking for the return of the husband and father ; and the first words that will greet my client on his return home will be, 'husband,' ' pa,' have the court and jury at Fort Madison done you justice ?" These remarks, delivered in a sympathetic tone, and with graceful ges- ticulations, were greeted with a general buzz of approbation from the audience. When the jury retired to consider of their verdict, it stood on its first vote, eleven for plaintiff and one for defendant."
" The eleven demanded of the one, why he went for the defend- ant? He answered that he had intended to go for the plaintiff too, until he had heard Judge Viele's sympathetic appeal for the " wife and children," etc. " For," said he, "I know the plaintiff well, and he has no wife nor children, and keeps 'bach' in a log cabin ; and as that statement of his lawyer was erroneous, I believe the whole claim is a fraud." This changed about one half the jury ; and they disagreed, and were discharged. Before the next term of court, the judge's client committed some act of " border warfare," somewhat common in Iowa in those days, and fled the country, and neither he nor his have since been heard of.
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" Those were grand old days of pleasantry among lawyers of Iowa. But what changes has time made upon them ! Several of the most eloquent have long since passed to the summer land ; several have retired from the bar, oppressed with the weight of years ; and those who still linger on this side of the river, are whitened with the frosts of age. A little while yet, and the pio- neer lawyer of Iowa, like its old settlers in common, will belong to the history of the past ; but the many anecdotes of their gen- iality, sociability and forensic displays will survive them, and encourage those who succeed them, to rival their pleasantness, virtues and honors."
CROSSCUP & WEST-SC.PHILA:
CHAPTER XV.
ADMINISTRATION OF GOV. LUCAS.
Second Session of the Territorial Legislature-Legislative Statistics -The Capital.
THE SECOND session of the territorial legislature convened at Burlington on the 4th of November and adjourned January 17, 1840; and an extra session was held at the same place on the 13th of July, 1840. Of the regular session, Steph. Hempstead was elected president and B. F. Wallace, secretary ; and in the house, Edward Johnson was chosen speaker and Jos. T. Fales, clerk. Soon after the meeting of the legislature, the proceedings of that body were interrupted by the death of Hon. Wm. B. Conway, secretary of the territory; and at that time there were no provisions by statute for any person to discharge the duties of that office in case of a vacancy. To meet this emer- gency, the legislature passed a joint resolution appointing Chas. Weston fiscal agent, making it his duty to take charge of the office of the secretary, and perform the duties of that office, so far as practicable, until the vacancy should be filled by appointment from the president. James Clark received the appointment to fill the vacancy occasioned by the death of Con- way, and immediately entered upon the duties of his office.
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