USA > Iowa > Fremont County > History of Fremont County, Iowa : containing a history of the county, its cities, towns, etc., a biographical directory of many of its leading citizens, war record of its volunteers in the late rebellion, general and local statistic, portraits of early settlers and prominent men, history of Iowa and the Northwest, map of Fremont County, constitution of the state of Iowa, reminiscences, miscellaneous matters, etc > Part 45
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385
HISTORY OF FREMONT COUNTY.
THE SECOND DISTRICT COURT.
The second district court was held in May, 1851, at the house of A. H. Argyle, with James Sloan, presiding judge. At this term of court Hon. L. Lingenfelter, was admitted to practice on his oath that he "would properly demean himself as an attorney and counselor at law," together with C. P. Brown, William L. Berge and A. C. Ford.
In this term of court was returned the first indictment ever found by a grand jury in Fremont county. It is as follows:
STATE OF IOWA,
COUNTY OF FREMONT, ss.
District Court, May term, A. D., 1851.
The grand jurors duly selected, empaneled and sworn to inquire of crimes and offences in and for the body of the county of Fremont aforesaid, upon their oaths present and find that Immanuel S. Jones and George McDonald, late of said county, on or about the sixth day of March, A. D., 1849, with force and arms in the night time, wilfully, maliciously, and forcibly break and enter into the dwell- ing house of one Jeremiah Lambert, with the intent to commit the crime of arson, and that feloniously and burglariously against the form of the statute in such case made and provided, and against the peace and dignity of the people of the. State of Iowa.
And the grand jurors aforesaid, upon their oaths aforesaid, do further present. that Immanuel S. Jones and George McDonald, late of the county and state aforesaid, did on or about the sixth day of March, A. D., 1849, with force and arms in the night time, wilfully, maliciously, forcibly, feloniously, and burglar - iously break and enter into the dwelling house of one Jeremiah Lambert, then and there in the said county of Fremont, aforesaid, with the intent to commit the crime of arson and theft against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Iowa.
WILLIAM L. BERGE, Prosecuting Attorney.
STATE OF IOWA VS.
Indictment for Burglary.
IMMANUEL S. JONES and GEORGE MCDONALD. A true bill.
ELIAS FINDLEY. Foreman Grand Jury.
Witnesses.
JERMIAH LAMBERT, D. BLANCHARD. ANDERVILLE CLARK, DAVID MARKWOOD.
This case was the first on the docket in the third term of the district court held in Sidney, in October, 1851. The accused was defended by L.
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HISTORY OF FREMONT COUNTY.
Lingenfelter. During the progress of the trial it was developed that in the winter of 1848-9, Jones and McDonald had been out in a cold snow storm and were for a long time exposed to the inclemency of the weather. There were but few houses and their suffering being great they took ref- uge in the dwelling of Jeremiah Lambert, while he and his family were from home. They built a fire in the fire-place to warm themselves, and when they left did not take proper precautions to prevent fire. Shortly after their departure some brands fell out on the puncheon floor and ignited the building. Mr. Lambert soon returned to find his dwelling in flames but succeeded in subduing them. The charge being preferred on the grounds of maliciousness, and there being no evidence to prove mal- ice they were of course acquitted.
JUDGE SLOAN AND HIS LAST DISTRICT COURT.
The third term of the district court, Judge Sloan presiding, convened October 20, 1851, at Sidney, the new county seat. There were present as court officials, besides the judge, Milton Richards, clerk, and T. L. Buckham, sheriff. The roll of attorneys comprised the names of Wm. L. Berge, A. C. Ford, L. Lingenfelter, George P. Stiles, J. L. Sharp, C. P. Brown, and James M. Dews.
The prosecuting attorney was Jacob Dawson, but he not being present the court appointed Wm. L. Berge as prosecuting attorney pro tem. There were but ten cases on the docket, one of which was a criminal suit -on an indictment for arson and burglary, elsewhere mentioned; five were civil causes, and three were suits in chancery-all of the latter being divorce cases. Judge Sloan resigned in 1852 and transferred his residence to Salt Lake.
FROM THE THIRD DISTRICT COURT TO THE PRESENT.
The resignation of Judge Sloan left the district court without a presid- ing genius. The next term of court convened at Sidney on Monday the 17th day of May, 1852. There were present T. L. Buckham, sheriff, and Milton Richards, clerk. No judge appearing the court adjourned until the following day at 10 o'clock. Again and still again-"no judge appear- ing"-did the court adjourn, and at 5 o'clock P. M., of Wednesday, the 19th day of May " the court adjourned until next term to be held on the third Monday in October next."
But this was not the only untoward event consequent on the resignation
387
HISTORY OF FREMONT COUNTY.
of Judge Sloan. The place of district judge was evidently one to which men, then as now, aspired. It is said that the resignation of Judge Sloan was brought about by interested parties who were striving to foist them- selves into public notice. One of the attorneys before the bar of Fre- mont, A. C. Ford, was to receive the resignation of Judge Sloan, secure the backing of his Whig friends, and Sloan was to present the claims of Ford to Governor Hempstead, at Dubuque, where he then resided Sloan had in some way become related, in business matters, to a certain Orson Hyde, who was editing a paper known as the Fremont Guardian. In consideration of any service that Hyde might render him Ford was to purchase the press of Hyde, and in connection with Dawson should use it as a campaign organ in support of Ford as a candidate for the district judgeship at the next election. Only one thing was lacking in the chain of events as just stated-the friends on whom Ford relied for recommenda- tions signally failed him. It appears that he had been a fugitive from justice from the State of California, and the fact was quite generally known among the citizens of the county. Indeed, the opposition took a stronger aspect than mere refusal to recommend his appointment-a meeting was called in Sidney, in February, 1852, at which were passed a series of resolutions denouncing Hyde, and not at all complimentary to Ford. Copies of the resolutions were sent to papers in the eastern portion of the state, in western Missouri, and to Governor Hempstead. Accompanying them was sent a recommendation to the Governor to appoint Allen A. Bradford as the successor of Judge Sloan. Their petition was heard and granted. Bradford received the appointment and entered upon the duties of his office. Before the expiration of his first term his official acts met with such general approval and his integrity of character was so well known that there was scarcely any opposition in electing him for the next term. But the matter did not end here. "Hyde employed Ford and A. W. Babbitt to institute a suit for libel against the ten citizens who reported these resolutions to the meeting. Ford brought the papers for the suit down to Fremont from Mr. Hyde, and filed them with the clerk, and had the sheriff to serve the parties defendant with notice of the suit. * But when the court was held in the spring of 1852, by Judge Bradford, a demurrer was filed to the state- ments in the petition, alleging that to charge a man with selling his print- ing press, and using his influence to have a man elected to an office, was not defamatory nor libelous, as the fact imputed was not a crime. The demurrer was sustained, the suit was ended, and everything went along smoothly after that."-Lingenfelter.
Judge Bradford was a worthy man, and merited the confidence re- posed in him by the legal fraternity and court officials generally. He was a native of Maine and retained very many of the peculiarities of his
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HISTORY OF FREMONT COUNTY.
native state. In court he was stately and dignified, permitted no gross violations of court decorum, was prompt in his decisions, and taken alto- gether was a worthy occupant of the bench of the district judgeship.
"Judge Bradford had some peculiarities-some eccentricities. His dress, though it might be made of the costliest broadcloth, hardly ever fit his person; his coat, pants and vest were nearly all the time either too large, too small, too long, or too short, and sometimes one garment might be too large or too short, when at the same time as to the fit of the others it was vice versa. He hardly ever combed his hair, and would frequently let his beard grow two or three weeks without shaving; and it frequently happened that when he had about half shaven himself he would suddenly stop, pick up a newspaper and read it, and then neglect to complete his toilet. And, when thus half shaven, one foot slip- shod, and otherwise slatternly attired, he would go to church, to court, or around amongst his friends. But with all his eccentricities he had many warm friends, for he was ever a true friend to the virtuous, the indus- trious, and the necessitous; no poor man ever went from his house hun- gry."-Lingenfelter.
Judge Bradford did not complete the term for which he was elected. In some difficulty with a man near Nebraska City he received a severe wound on the head by a club in the hands of the same, which necessi- tated his resignation of the judgeship. The difficulty seems to have been occasioned by the boundary lines of the respective claims of Judge Brad- ford and his assailant. It was during the judicial career of Judge Brad- ford that the first rules adopted by any district court in Fremont county were spread upon the proceedings and made a part of its record. They comprise eleven distinct specifications, and cover nearly all the ordinary business of a session of court. With the November term of 1854 the connection of Judge Bradford with the judicial history of the county ceases.
The successor to Judge Bradford was the Honorable E. H. Sears, whose first court in this district was opened the 19th day of February, 1855. There seems to have been a change in the policy of political parties since that date. Judge Sears, as had been his predecessor, was at that time a Democrat, but the application for his appointment was made by lawyers and others who were Whigs. The petition was presented to Governor Grimes, also a Whig, and the appointment was made on the basis of ability and moral worth. Judge Sears, in all his judicial career proved the correctness of the theory "the best men in the highest places." His first term occurred at a time well calculated to test his judicial powers and his legal ability. New laws-for the most part obnoxious in themselves to many-had been enacted, and the first causes in the county under these enactments were tried before him. They were causes relating to
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HISTORY OF FREMONT COUNTY.
the sale of intoxicating liquors, and others pertaining to the swamp lands, both, in their very natures, requiring the greatest judicial care and more than ordinary legal ability in the court before which they were tried. There was added another fact requiring good powers of discrimination,- that of the nature of the bar of the county, at that time composed of the strongest legal talent in western Iowa. Judge Sears gave such general satisfaction and proved so admirably his fitness for the judgeship that to his election the second time was presented no obstacle; which was accordingly done. He was a careful man and a wise Judge-taking the greatest pains to insure justice to all parties to a suit-civil or criminal. This careful- ness is evidenced by the following address to the grand jury, delivered in 1859, showing the measures he adopted to insure no errors on the part of the jurors.
JUDGE SEARS' CHARGE.
" Gentlemen :- Before entering upon the important duties which you are called upon to discharge, it may be well for you to make and answer the following inquiries: What are the uses of a grand jury? Why was it instituted? And did the people demand it?
" The people of England, our ancestors, did demand it, and thought they had made a great advance in personal security and individual liberty when they had obtained it from the reluctant and unwilling hands of des- potism. Prior to its institution the courts were looked upon by the mass of the people as engines of cruelty, injustice, and oppression, and not as the protectors of innocence and the punishers of crime. Who does not remember the history of the bloody assizes and the judicial act of a Jeff- reys? And it was to prevent fraud, oppression, favoritism, bribery, and all manner of corruption in the administration of criminal jurisprudence, that the grand jury was instituted. And how can you assist by your action as grand jurors, in the accomplishment of this great object? It can only be accomplished by laying aside every personal or party consid- eration; by rising above hatred or affection, and by knowing no person, friend or foe, in the discharge of your duties. To vindicate the law and mete out simple-handed justice, should be your only motive. No one can be arraigned before this court for a crime but on your presentment. You are responsible to your country and to your God for the wrongful arraign- ment of the innocent, and for the non-arraignment of the guilty.
" Courts and juries should never permit mere technicalities, evasions or subterfuges to pervert the truth or thwart the administration of justice. The temple of justice is no place for evasion and falsehood. And this remark applies alike to the bar, the jury and the court. The court, im- bued with the spirit of equity, should hold with even hand the scales of
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HISTORY OF FREMONT COUNTY.
justice. The jury, rising above every personal consideration and disre- garding every subterfuge and evasion, should find the simple truth. And the member of the bar who feels the responsibility and real dignity of his position, will have a stronger regard for the faithful administration of the law than successful evasion; and more pleasure in the triumph of truth and right than in falsehood and injustice. He will feel that his duty to himself as a man, to his country as a citizen, to his God and his own con- science, as a responsible being, are infinitely higher in their nature than the duty he owes his client. And when all of us feel our responsi- bility and act up to the high duties which it imposes, may we not hope that our courts (if it be true that they have lost it) will regain the public respect, and enjoy the public confidence; and that men will not feel called upon on account of any imagined inefficiency or uncertainty of the courts, to take what they deem justice into their own hands, and administer it summarily and in violation of all law. But are our courts wholly to blame for this loss of confidence and growing disrespect for their decisions? Has not the citizen a sacred duty to perform in relation to the courts and in maintaining their character and authority? A decision of a court hav- ing authority to make the same, is as much the law of the land as a statute can be; and until the same is reversed in a legal way and constitu- tional manner, should be respected and obeyed. He who creates a disre- spect for the courts of our country is doing an irreparable injury, by shaking the confidence of the people in the faithful administration of jus- tice. While the courts themselves should not only be pure, but should be above suspicion, and should avoid the least shadow of party or personal bias. They should also be respected and sustained by that confidence which alone can enable them to successfully perform the important function for which they were instituted, to mete out simple handed justice between man and man, protect the innocent and punish the guilty.
"Your attention is now called to some of the statutes of this State, by which crimes are created or defined, and into a violation of which it is made your duty to inquire.
"The new constitution and subsequent legislation under the same have, to some extent, abridged your duties. By Sec. 11 of the bill of rights of the constitution, all offences less than felony, and in which the punishment does not exceed a fine of $100, or imprisonment for thirty days, shall be tried summarily before a justice of the peace, etc. By an act of the last legislature, approved March 12th, 1858, a large class of offences of which you were formally bound to take notice have been placed within the ex- clusive jurisdiction of a justice of the peace and into which you cannot . now inquire. The section of the law thus modified will be pointed out as we proceed with our notice of the penal statutes of the state, as contained
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HISTORY OF FREMONT COUNTY.
in the fourth part of the code of Iowa,* commencing with chapter 137, which treats of offences against the sovereignty of the state, treason, etc.
"Chapter 138 treats of offences against the lives and persons of individ- uals-murders, etc., and sec. 2597 of this chapter, treating of assaults and assaults and battery, is now within the jurisdiction of a justice of the peace, and therefore not to be inquired into by you. But remember, gentle- men, that the first great object of law is to protect the lives and persons of the citizen; and if it fail in this it has proved a signal failure; and the administration of justice is but a solemn mockery. Guard then well by your action the lives and persons of individuals, and suffer not the viola- tors of either to go unpunished.
" Chapter 139 treats of offences against property, burning buildings, etc.
" Chapter 140 treats of larceny and receiving, stolen goods; of embez- zlement by officers, carriers and others. The 2612th section of this chap- ter is so amended that unless the sum stolen exceed $20 you are not to prosecute the offender. And remember that the second great object of law is to protect the property of the citizen. Chapter 141 treats of for- gery and counterfeiting ; and remains unaltered.
" Chapter 142 treats of offences against public justice; such as perjury, bribery of public officers, etc., and remains unaltered. Guard well, gen- tlemen, the administration of justice and suffer not its fountain to be cor- rupted.
" Chapter 143 treats of malicious mischief and trespass on property- such as injuries to beasts, dams, bridges, boats, trees, monuments, build- ings, etc. Sections 2685, 2687 and 2688 of this chapter, and treating of trespass on gardens and orchards, defacing public buildings, or public notices, are so modified as to be within the jurisdiction of a justice of the peace, and there- fore not cognizable by you.
"Chapter 144 treats of offences against the right of suffrage, and re- mains unaltered. Guard well the ballot box, for on it depends our per- sonal as well as our national freedom.
"Chapter 145 treats of offences against chastity, morality, and decency. And sections 2716, 2717, 2718, 2719 and 2723, of this chapter, and treat- ing of cruelty to animals, selling obscene books and pictures, disturbing worshipping congregations, and gaming and betting, are now placed within the exclusive jurisdiction of a justice of the peace.
"Chapter 146 treats of offences against public health, selling unwhole- some provisions, adulterating food or liquor, drugs or medicines. Section 2728 of this chapter, which makes it a crime for apothecaries to sell poison
*It is to be borne in mind that owing to the successive revisions of the code, the number- ing of the sections is changed, and their phraseology is also very considerably modified. -R. E. C.
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HISTORY OF FREMONT COUNTY.
without labeling it as such, is now so modified as to relieve you of any inquiry in relation thereto.
" Chapter 147 treats of offences against public policy, establishment of lotteries, banks, disposing of liquor to Indians or persons intoxicated, bringing paupers within the state, etc. Sections 2730 and 2737 of this chapter, which treat of lotteries transacting business without license, are now triable before a justice, and therefore not presentable by you.
"Chapter 148 treats of offences against the public peace; and sections 2738, 2739, 2740 and 2742, of this chapter, are no longer within the prov- ince of your inquiry, as affrays, unlawful assemblies, riots and exciting disturbances, of which these sections treat, belong now to the jurisdiction of a justice of the peace.
"Chapter 149 treats of cheating by false pretences, gross frauds and conspiracies, and remains unaltered, and into the violation of which it is your duty diligently to inquire and true presentment make.
"Chapter 150 treats of nuisances, and the abatement thereof; and still remains a proper subject for your investigation. In connection with this chapter it is proper for me to say that the violaton of the liquor law is now in the first and second instance within the jurisdiction of a justice of the peace. But the selling to an Indian or to a person intoxicated is still an indictable offense-the house where the liquor is kept and sold is declared to be a nuisance, and is therefore a proper subject for your pre- sentation, and it is your imperative duty under your oaths to present such an establishment if one exist in your county; that these moral pests may be dried up, and these seductive influences no longer felt within your county.
"Chapter 151 treats of libel and remains unaltered, and this closes up ! the penal statutes of the state as contained in the code of Iowa.
"Your attention is now called to chapter 167, which treats of the pow- ers and duties of a grand jury. You will here find it is made your sol- emn duty to disclose whatever you know of the commission of crime within your county and to become a witness in relation thereto. And that you will be yourself criminal if you fail to keep secret whatever may transpire before you in the discharge of your duties as grand jurors.
"But section 2902, makes it your special duty to inquire:
"1st. Into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted.
"2d. Into the condition and managment of the public prisons within the county.
" 3d. Into the wilful and corrupt mismanagment in office of all county officers.
" 4th. Into the obstruction of all roads and highways.
" But your special attention is called to your duty in regard to all county
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HISTORY OF FREMONT COUNTY.
officers. Gentlemen, let your inquiry into your county affairs and the man- ner in which your officers have transacted their duties, be strict, thorough and uncompromising; hold them to a strict account of their stewardship and this court will give you all the assistance in its power to enable you faithfully to perform this, as well as every other part of your duty. Pur- sue these investigations, gentlemen, with diligence, not urged thereto by a spirit of persecution or party prejudice, or personal ill-will, and not de- terred therefrom by favor, fear or personal friendship. Give to all com- plaints against your public agents a patient hearing; and let all come here with these complaints, if any they have, or hereafter hold their peace.
" And now, gentlemen, remember that the position you occupy, is one of vast importance to your county, and to the entire state. Interests as dear as life, as personal liberty, and on the right of property, depend upon your action. It is for you to say whether, the law shall be main- tained and enforced and its violator receive the reward he merits, whether human life and the person of the citizen shall be safe under its protecting care, whether the rights of property shall be inviolate and the sovereignty of the law maintained and order secured within your county, or whether the law shall be trampled upon with impunity, every principle of justice and good order outraged, and the violator with unblushing front and in open defiance of all law, go unwhipped of justice. And, gentlemen, is the oath you have just taken a mere form, a judicial farce, a solemn mockery before high heaven, or is it binding upon your conscience, im- posing the highest obligation under which the human being can act in the discharge of important duties, to himself, to his country and to his God. Acting then in view of these high and solemn responsibilities, enforced by an oath administered by the authority of law, in the temple of justice, to the searcher of all hearts, I cannot doubt but that you will so act as to redeem this, your solemn pledge, maintain the dignity of the law, secure its supremacy and give a sense of security to the citizen in all his rights of person and of property within your county."
Judge Sears always appeared to be dignified and equal to any emer- gency that might arise. He felt that the suffrage of his constituency called him to execute justice upon the guilty and to protect the rights and liberty of others. The following incident may serve to illustrate this fea- ture of his character, and the fidelity he exercised as a judge:
"I recollect," says Hon. L. Lingenfelter, "of a very exciting time in his court in this county in 1859. In 1857 the new constitution of Iowa pro- vided that a negro might testify the same as another person in all courts of judicature, federal or state. Under its provisions and the statute made thereunder it happened, at the September term of the district court for 1859 there were three free blacks, to wit: Green Garner, Henry Garner and Thomas Reid, subpoenaed, and were in attendance to testify in a cer-
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