USA > Iowa > Polk County > Des Moines > Des Moines, the pioneer of municipal progress and reform of the middle West, together with the history of Polk County, Iowa, the largest, most populous and most prosperous county in the state of Iowa; Volume I > Part 19
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Among the many stories which have survived this eccentric man's career on the bench, perhaps the one which comes from Marion county best illustrates his original way of cutting the Gordian knots of jurisprudence. A lawyer brought into court a score or more of witnesses for his client, plaintiff in a di- vorce case. Judge McFarland asked the lawyer why he had so many witnesses. The ready reply was, "To prove the allegations in our petition." The judge, with a sweep of the hand, said, "Take your decree: I know the defendant."
But what of Fort Des Moines and the Supreme Court of Iowa?
Fort Des Moines began to feel the symptoms of coming greatness when the Third General Assembly enacted a law, approved February 5, 1851, includ- ing Fort Des Moines in the circuit of the Supreme Court of Iowa. The law declared that a term of the Supreme Court should be "holden in Fort Des Moines, in the county of Polk, in this State, on the first Monday of November, 1851, and anually thereafter."
In pursuance of that law, Joseph Williams, Chief Justice, and John F. Kin- ney and George Greene, Judges, held court in "Fort Des Moine" in Novem- ber, 1851.
There were ten cases tried, none of them of first importance, one appealed from Appanoose, another from Dallas, and all the rest from Polk. The only local attorneys of record in these cases were Perry & Curtis, Casady & Tidrick and Madison Young.
By an act approved January 22, 1853, the Supreme Court, for a time "on wheels," was directed to hold its terms "at the capital of the State, and at no other place." The first term was to be held on the first Monday in June, and the second on the first Monday in December. Under this law, in '58, the Su- preme Court moved over from Iowa City to Des Moines with the other depart- ments of State.
7 Andrews-Pioneers of Polk County, v. I, p. 451.
CHAPTER XVI.
THE BAR OF FORT DES MOINES.
In the roll of attorneys admitted to practice in the Supreme Court of Iowa in 1847,1 there was not a single attorney credited to Polk county.
Two years later, there was no dearth of lawyers at the county seat of Polk. In the initial number of the Star, that paper concludes its summary of advan- tages possessed by Fort Des Moines with ironical exultation over the fact that the town could already boast twenty-nine lawyers !
The Journal of September 12, 1852, mentions seventy-two cases on the docket in Judge McKay's court, and refers to the rapid dispatch of court busi- ness, facetiously adding that there were "only about thirty lawyers from our own county in attendance !"
The Code of 1851, with its many complexities, was a veritable godsend to the pioneers of the Polk county bar. The varying interpretations of the new code gave rise to much litigation. The Journal of September 19, '51, reports the adjournment of the District Court on the previous Saturday, and remarks on the unusual number of cases which would be taken up to the Supreme Court, some of them "in order to settle points arising under the Code."
In another issue the Journal joins with the Iowa Observer in surprise "that as learned men in the law as Judge Mason, Governor Hempstead and Mr. Woodward should commit such glaring blunders, and should impose upon the legislature and the people a code so ill-adapted to the wants and circumstances of the people." But, with the more than ample supply of lawyers in Fort Des Moines the embarrassing complications following the issuance of that remark- able body of laws were regarded as not wholly without attendant advantages!
That the Journal presented but one side of the question raised by the new Code is evident from the mature judgment of Hon. Horace E. Deemer, of the Supreme Court of Iowa, who, referring to the Iowa Civil Code of 1851, which was made the basis of laws in Nebraska, declared it to be "one of the best ar- ranged, most systematic and thoroughly considered" codes ever enacted. Judge Deemer adds: "It was largely the handiwork of the then Chief Justice of Iowa, Charles Mason, one of the most learned and scholarly men who ever graced a seat upon any bench." 2
The bar of Fort Des Moines included many well-known names,-among the best known, Casady, Williamson, Young, Granger, Dawson, the McHenrys, (M. D. and W. H.),3 Finch, Nourse, Polk, Cole, Kasson, Crocker, White, Phil- lips, Withrow, Wright, Ingersoll, Sibley, Brown and Maxwell. Many of these lawyers developed careers extending far into the later history of Des Moines.
Major Hoyt Sherman, in a reminiscent talk before the Early Settlers in the Nineties, pictured the District Court held in the spring and fall in the late For- ties. He said the litigation of the period consisted of hog cases, rival timber claims and minor differences between neighbors. Judge Wright, then of Keo- sauqua, Judge Seevers, and Enoch W. Eastman, of Oskaloosa, were frequently
1 Printed in Morris's Iowa Reports.
2 Deemer-The Part of Iowa Men in the Organization of Nebraska. Annals of Iowa, October, 1909.
3 The two McHenrys were distantly related.'
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called in to assist local attorneys in trying causes, and the Major remarked that they usually left little for the local attorneys !
One of the early deaths among the pioneers of the Fort Des Moines bar was that of Luther D. Johnson, on the 22d of August, 1850. A meeting of the bar of Fort Des Moines was held September 5, with P. M. Casady president, and J. E. Jewett, secretary, at which resolutions were passed expressing the general sense of loss and the keen appreciation of the living for the dead.
The funeral of ÆEmilius T. Reynolds, member of the District Court of Polk county, August 7, 1851, was attended by the members of the bar of Fort Des Moines, and of Pioneer Lodge of Masons. Rev. Thompson Bird delivered the funeral sermon, which by request was published in the Star of August 14-a discourse which reveals the strength of this pioneer preacher.
Of Judge Bates, Barlow Granger, Judge Casady and other members of the early bar much has been said already. These men with abundant mental re- sources, saw so much that needed to be done outside their practice in the courts that they became of necessity publicists, promoters and, in the best sense of the term, politicians.
James M. Ellwood, a substantial member of the bar, was too available as a candidate to be permitted to practice undisturbed in the courts. "Old Facts and Figures" as the Whigs derisively called him was an honor to the bar.
Tallmadge E. Brown, an indefatigable worker, an able advocate and a good citizen, is a memory well worth preserving.
Jefferson S. Polk and Frederick M. Hubbell-names inevitably associated with the history of Des Moines-were widely known as able lawyers; but oppor- tunities in business and in the promotion of the material interests of Des Moines proved too tempting and they became known as successful financiers rather than as attorneys. But their thorough knowledge of business law contributed greatly to their success as organizers and to the success of corporations of which they, together and individually, were the organizing and controlling minds.
C. C. Nourse was a brilliant member of the early bar. He was attorney- general of Iowa for two terms, and on the death of Judge Gray was appointed his successor and was afterwards elected to that position. In August, 1866, he resigned, and was succeeded by H. W. Maxwell, of Indianola, then prose- cutor for the district. The Judge still survives his era and is completing an autobiography which will be an invaluable addition to the political history of the State.
Daniel O. Finch was one of the most eloquent jury lawyers among the members of the early bar. His glory as a lawyer was bedimmed somewhat by his successes as a political campaigner. Unfortunately for him politically, his party, once dominant in Iowa, went into a minority early in his career and never fully regained its former prestige. Mr. Finch bravely led one forlorn hope after another in politics, losing valuable time and expending hard-earned money, and was never adequately rewarded for his sacrifices.
Marcellus M. Crocker's greatness as a lawyer is overshadowed by his fame as a soldier. Coming to Des Moines in 1854, he became a law partner of Mr. Finch. Defeated by John H. Gray in his ambition to be district judge in 1858, he practiced law in partnership with P. M. Casady and J. S. Polk until the early spring of 1861, when he sacrificed his ambition as a lawyer to his duty as a citizen. On the March to the Sea General Crocker's health began to, fail and on the 26th of August, he died, at the early age of 35. They who best knew young Crocker discovered great possibilities in him,-possibilities early threatened by the inroads of consumption. When his delicate health was mentioned to deter him from enlisting, he refused to let anything prevent him from performing what he regarded as the duty of the hour.
One of the most brilliant members of the Des Moines Bar, whose name, like that of General Crocker, is part of the nation's history, was John A. Kasson. Ambition for public service deprived him, as it has so many brilliant members
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of the bar, of the satisfaction of rounding out a great career as a lawyer. From the time when President Lincoln appointed him First Assistant Postmaster- General until old age prevented him from accepting fresh honors, Mr. Kasson was honored again and again-six times by his district as its representative in Congress, and in several capacities in the diplomatic service. The preëminent service he rendered his State and its Capital city was in leading through two General Assemblies the movement for the New Capitol-the story of which movement has been told at length in a separate chapter. In Mr. Kasson's long and successful career, both as statesman and as diplomat, his early mastery of the underlying principles of the law was evident on every page of his printed speeches and state papers.
W. W. Williamson, whose active participation in pioneer life has been fre- quently mentioned, made two costly attempts to establish a home in Texas, but returned to Des Moines and resumed the practice of the law, regaining his for- mer high position at the bar. His public spirit did not abate with the years.
J. E. Jewett's career at the bar was broken by the war, in which as Major of the Fourth Cavalry, he won distinction. After the war he removed to Iowa City.
Judge William Phillips and Judge W. H. McHenry, both prominent in later chapters on the Bar of Des Moines, began their careers away back in the early Fifties.
Of Judge Cole's ability and useful public service much has been said in later pages. In his eighty-eighth year he is still practicing law and lecturing to law students, his mind clear and his reasoning convincing as of old.
Stephen Sibley was an industrious, clear-headed, successful attorney who left a name honored and respected by all.
M. D. McHenry, who came to Des Moines from Kentucky just before the war. was barred from political success by the fact that during his active career his party was in a hopeless minority. He was in his time a candidate for a seat on the Supreme bench and for Congress. He was an experienced and success- ful lawyer, a strong supporter of temperance, deeply interested in education and in all respects public spirited.
CHAPTER XVII.
THE LONG CAMPAIGN FOR THE REMOVAL OF THE STATE CAPITAL-1847-1857.
The extension of the western boundary of the State to the Missouri, with the rapid inrush of settlers in the Des Moines valley made apparent to the statesman of the Forties that the removal of the State Capital from Iowa City to some point in the Des Moines river valley was only a question of time. The trade relations of the influential city of Keokuk with the towns along the Des Moines,-notably the fast-growing town of Fort Des Moines,-crystallized the prevailing opinion and sentiment into political influence, and the result was a powerful combination of legislators agreed as to the wisdom of a removal to the Des Moines valley, but not entirely agreed as to the exact location of the capital in the valley.
The strength of Fort Des Moines as a rival of Iowa City began to develop as early as 1846! In an address of William Penn Clarke, of Iowa City,1 to the electors of Muscatine, Johnson and Iowa counties, published in the Iowa Standard, July 20, 1846,2 the writer frankly admits that the South and the Southwest had "not only the will, but the numerical strength" to take the Capital from Iowa City. He estimated that should the new Constitution be adopted, en- larging the State westward, to the Missouri, the first General Assembly under the Constitution would give "Raccoon Forks" 12 senators and 26 representa- tives, as against Iowa City's 7 senators and 13 representatives. He asks: "Are we not, then, in the hands of the Philistines? The proposed boundaries are so formed as to throw the Raccoon Forks into the center of population for the next fifty years, and the ascendency they enjoy now they will be likely to main- tain for a considerable period of time. Those, then, who vote for the ratification of the Constitution, do so with the almost moral certainty that the removal of the seat of government from this point will be one of the first consequences of its adoption."
The animus of this surprising strength of "Raccoon Forks," a community as yet unincorporated and "not yet out of the woods" is traced by Mr. Clarke to the "increasing hostility" of the Southern portion of the Territory to Iowa City "and a determination to remove the Capital to some other point?" 3 He had seen this spirit in the late constitutional convention. He analyzed the vote for Mr. Steel's amendment, leaving the boundary as it then was, and found that "every vote but two in favor of the proposed boundaries," involving the re- location of the seat of government, "represented Southern interests and that the great question of territory was sacrificed to obtain possession of the Capital." He complained because Delegate Dodge had assured Congress that "a very large portion of the people of Iowa believe and desire that their ultimate seat of government should be on the Desmoines river."
The beginning of the long contest for the re-location of the Capital was the debate following the introduction of a bill "to provide for the location of the
1 Candidate for a seat in the last Territorial Council.
2 Reprinted in Shambaugh's "Debates of the Constitutional Convention of 18.44 and 1846," pp. 347-65.
3 Iowa City had robbed Burlington of the Capital and the populous Southeast of its old-time accessibility to the seat of government, and had given the southern cities little or nothing of trade as an equivalent.
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Seat of Government of the State of Iowa, and for the selection of land granted by Congress to aid in erecting Public Buildings."
The bill passed both houses of the First General Assembly and was ap- proved by Governor Briggs, February 22, 1847. It named John Brown of Lee, Joseph D. Hoag of Henry and John Taylor of Jones as commissioners to locate the seat of Government of the State, and to select the government lands to aid in the erection of public buildings. The commissioners were, under oath, to perform these duties honestly and faithfully and to the best of their ability. They were directed to meet prior to the following June and proceed to examine such parts of the State as they might think expedient to visit in order to deter- mine judiciously. The fourth section which proved to be the bone of contention -- the inclusion of which was the saving clause for Fort Des Moines, read as follows :
"The location shall be made as near the geographical centre as, in the opinion of the commissioners, may be consistent with an eligible and healthy site, the general features of the surrounding country and the interest of the State gen- erally ; and the point thus selected shall be the permanent seat of Government."
Section 5, also, was in the interest of Fort Des Moines, giving to the pioneer "boosters" at the Forks an opportunity to overcome the taxpayer's objection. It read: "In making the selection of land in this act mentioned, and the location of the Seat of Government, it shall be lawful for said commissioners to take into consideration any proposition of land or claims which may be submitted for that purpose."
The commissioners were directed to employ a surveyor; who after the se- lection of a site should survey the land selected and make a plat of it, the plat to accompany their report. They were further directed to cause to be laid off and surveyed a town, "upon such a place as they may think most conducive to the interest and convenience of the State, and cause plat or plats of the town to be made and recorded." They were directed to cause a square to be laid off, of not less than five acres, upon which to erect the capitol, also such other squares as they might think proper.
To the general surprise and disappointment of the projectors of the move- ment, the committee selected a location in Jasper county. Governor Gue de- scribes it as "remote from any town, river, grove or settlement, possessing no natural advantages for a city, or State Capitol." Jasper county itself had, all told, a population of only 560. The site chosen was between the Skunk and Des Moines rivers, about two miles southeast of Prairie City. A tract two miles north and south by two miles and a half east and west was laid out and named "Monroe City." Lots were advertised, the sale to begin October 28, 1847. There was a large attendance at the opening sale. On the 3rd of November 425 lots had been sold for sums aggregating $6,189.72, or a little more than $14 a lot. Of this sum, $1,797.40 was paid in cash, the balance covered by notes payable in two, four and six years. Two of the commissioners, together, bought fifty-two lots, and secured for themselves large interests in lands near the pro- posed Capital.
The inadequacy of the site became so apparent that the General Assembly in 1848 repealed the act empowering the commissioners to locate, vacated the plat of "Monroe City" and directed the Treasurer of State to refund, with six per cent interest, all moneys paid for lots at that point. The thrifty com- missioners were excluded from the benefit of the refund. Thus ends the first chapter in the history of the re-location of the Capital.
The one lasting result of the Monroe City episode was a familiarization of the public with the thought of re-location .. The route from Iowa City to Des Moines was via Monroe City !
A sequel to the Monroe City episode appears in the minutes of the Sixth General Assembly, in 1856, in the shape of a resolution allowing John Brown the sum of $292.70, the balance due him "as Commissioner appointed to locate
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a permanent Seat of Government of the State of Iowa, under an act approved Feb. 22, 1847. and for monies by him paid on lots purchased at the sale of lots in said Seat of Government, "the commissioner to relinquish to the State all claims which he has to lots in Monroe City." Thus was the privilege of a locating commissioner to speculate on the result of his own official act officially recognized !
In the fall of 1850, the newspapers of southeastern Iowa contained many editorial articles urging the re-location of the Capitol of the State.
The removal of the Capitol to Fort Des Moines became an issue in Polk county politics as early as 1850. The Star had expressed disapproval of Hon. Lysander W. Babbitt, of Jasper, the local democratic member in the Iowa House because he was reported as having voted against the location of the seat of government in Fort Des Moines. On July 20, Mr. Babbitt, through the Star, informed the voters of Polk county of his position.
I. He believed that public opinion had "already fixed upon Fort Des Moines at the proper point for the permanent location of the seat of government of the State." If elected he would feel it his duty to favor Fort Des Moines.
2. He pledged, if elected, to give Davenport, Iowa City, Fort Des Moines and Council Bluffs his undivided support as points through which the central line of road should run.
He further stated that in the last legislature he voted to locate the Capitol at Fort Des Moines and to fix these points on the line of the proposed road.
The Gazette insisted that Mr. Babbitt's pledge came too late, since he was on record as having attempted to load down the Fort Des Moines bill with a rider providing "that the citizens of Polk county shall refund to purchasers of lots in Monroe City all money paid thereon."
The campaign by petition for a removal of the Capitol to the Des Moines valley commenced in the Third General Assembly on the 6th of January, 1851, when Senator Casady presented the petition of Richard R. Watts and 103 others, citizens of Marion County praying for the location of the Capitol at Fort Des Moines. This was speedily followed by the petition of George B. Warden and 73 others, citizens of Polk and Dallas counties, to the same effect.
On the 13th Senator Spees presented the petition of Joseph Foster and some 300 others, citizens of Van Buren county, praying for the location of the Capital at Oskaloosa.
Senator Wright followed, on the 17th, with a petition from June Sutton and 87 others, for Fort Des Moines as the future Capital city. This was followed by like petitions presented by Senator Selman, signed by William S. Burge and fifty others, citizens of Page county, and J. A. Drake and 52 others, of Davis county.
Nothing happened, and the campaign reopened in the Fourth General As- sembly. Senator Hull, of Polk, opened the battle, December 15, 1852, present- ing a proposition from Adam M. Tool and others of his Jasper county con- stituents, offering to donate to the state certain tracts of land in Jasper county, provided the seat of government be located at Tool's Point.
The senator, five days later, presented the petition of John Coe and 35 others, of Jasper, also of A. L. Gray and 31 others of Jasper, urging Fort Des Moines.
Pottawattamie county, through Senator Johnson, came out for Fort Des Moines in petitions signed by J. E. Johnson. H. Burdick and 49 others.
On the 23rd, the Senate was deluged with Fort Des Moines petitions from Polk county, signed by James Sherman, John Tyler, Samuel Gray, Max Kraus, J. M. Griffiths. and, in the aggregate about 200 others. John S. Wilson and 38 others, of Marion county, joined with the Polk petitioners.
On the 28th came a significant paper presented by Mr. Hull,-nothing less than a bond signed by H[oyt] Sherman and others, citizens of Polk county, "agreeing to save the state of Iowa any expenses which may be incurred in removing the Capital to Fort Des Moines.
MAJOR HOYT SHERMAN
(Younger brother of General Sherman.) Pioneer of Fort Des Moines, 1848
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Tool's Point came to the front again on the 29th, with 54 petitioners for the Jasper county location ; also with a proposition from Stephen B. Shelledy and eleven others offering to donate to the State certain tracts of land in Jasper county, or, in lieu thereof, an equivalent in money, provided the Capital be removed to Tool's Point.
Oskaloosa had her day on the 31st, when Senator Lowe presented petitions of 131 citizens of Keokuk and Mahaska counties in her favor; and Senator Needham presented a proposition of citizens of Mahaska county, together with a bond of $50,000, contingent upon the removal of the Capitol to Oskaloosa.
The new year, 1853, opened with a flood of petitions for relocation.
Editor Sherman, of the Gazette, severely takes to task the overzealous W. H. Seevers, of Oskaloosa, who at a railroad meeting on the 26th of October, 1851, made a report showing the extreme desirability of Oskaloosa as a can- didate for the proposed railroad and for the location of the Capital., One para- graph of the Seevers report concludes with this unwarranted statement :
Nor can we refrain from suggesting that the country [around Oska- loosa ] is susceptible of a heavy population, from which the road would receive support, which perhaps cannot be said, with equal truth, of a road constructed, say, forty miles north of Oskaloosa, as the fact is fast getting to be notorious that the country North and West of Raccoon Forks is susceptible of no more than a sparse population."
The Gazette editor, in an editorial more than a column long, indignantly shows the total lack of foundation for this attempt to win by misrepresentation.
The legislative history of the definite movement for a removal of the seat of government to Fort Des Moines begins with the introduction of Senate file No. 4, on December 10, 1852-"a bill for an act to remove the seat of gov- ernment from Iowa City, Johnson county, Iowa, to Fort Des Moines, Polk county, Iowa."
On the 13th, Senator Cowles called up his bill, and on motion of Mr. Preston it was referred to the committee on public buildings.
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