History of Washington, Idaho, and Montana : 1845-1889, Part 71

Author: Bancroft, Hubert Howe, 1832-1918; Victor, Frances Fuller, 1826-1902
Publication date: 1890
Publisher: San Francisco : History Co.
Number of Pages: 880

USA > Idaho > History of Washington, Idaho, and Montana : 1845-1889 > Part 71
USA > Montana > History of Washington, Idaho, and Montana : 1845-1889 > Part 71
USA > Washington > History of Washington, Idaho, and Montana : 1845-1889 > Part 71

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

Up to this time the territory later called Montana was still within the limits of Idaho, which embraced the mining country east of the Rocky Mountains. On the 26th of May, 1864, congress passed an act providing a temporary government for a new territory to be called Montana, the boundaries of which em- braced 143,776 square miles, or 92,016,640 acres;1 commencing at a point formed by the intersection of the 27th degree of longitude west from Washington with latitude 45°, thence due west to longitude 34°, thence to latitude 44° 30', thence west along that line to the summit of the Rocky Mountains, and along their crest to its intersection with the Bitterroot Moun- tains, thence along the summit of the Bitterroot Mountains to its intersection with longitude 39°, thence along that degree to latitude 49°, thence east along that line to longitude 27°, and thence southward on that degree to the place of beginning .? It com-

' Zabriskie's Land Laws, 857.

? Id., 860-71; U. S. Acts, 91-7, 38th cong. Ist sess .; Camp's Amer. Year- Book, 1869, 497-500: Como Sentinel. Aug. 13, 1864.

( 642 )

643

TERRITORIAL ORGANIZATION.

prised the north-east part of Idaho, the south-east part being reattached to Dakota, from which it was taken when Idaho was first organized.

It will be remembered that in 1863 Sidney Edger- ton, formerly of Ohio, was appointed chief justice of Idaho, but that Governor Wallace of that territory, in laying out the judicial districts, assigned him to the district east of the mountains, in order to exhibit his dislike of imported judges. As the territory was not organized until September, and the Idaho legis- lature did not meet to lay out districts until Decem- ber, there was little opportunity for the exercise of judicial functions in Edgerton's district before Montana became a separate territory, and the former chief justice of Idaho was appointed governor of Montana. He was commissioned June 22, 1864, and the terri- torial secretary, Thomas Francis Meagher, on the 4th of August, 1865.3 The judges appointed were Hezekiah L. Hosmer chief justice, and Lorenzo P.

$ Two other men had been previously appointed who declined: Henry P. Torsey, June 22, 1864, and John Coburn, March 3, 1865. Edgerton was without a secretary for the first year he was governor. Sidney Edgerton was born in Cazenovia, Madison co., N. Y. His father was Amos Edgerton, who married Zevirah Graham, both educated in the best schools of their times. The father dying, the mother was left, while Sidney was but 6 years of age, to support aud educate the family of 6 children, with whom she removed to Ontario co., N. Y., where Sidney grew to man's estate, alternately following the avocation of a builder and attending the higher schools, or teaching village schools. For 2 years he was principal of the Genesee Wesleyan semi- nary at Lima, Livingston co. In 1840 he went to Akron, Ohio, to read law with the famous Rufus P. Spaulding. In 1842 he entered the Cincinnati law school, then under the charge of Timothy Walker, author of American Law, from which institution he graduated in 1844, returning to Akron to prac- tise, forming a partnership with Van R. Humphrey and William H. Upson. Edgerton was strongly anti-slavery in his convictions, and a leader of that unpopular party, finding no national organization to adhere to before the birth of the republican party in 1855. In 1858 he was elected a member of congress, and again in 1860. His appointment to the chief justiceship of Idaho, in 1863, followed, and on arriving at Bannack, then a part of that territory, and finding a large population there without law or officers, he reported to Gov. Wallace and awaited the designation of the courts, but no court was ap- pointed within the district to which he was assigned, nor was there any officer there to administer the oath of office. He was selected by the people to go to Washington to endeavor to have the territory of Montana organized, in which business he was successful, and was appointed governor. At the ex- piration of his term he returned to Akrou, Ohio, where he continued the practice of his profession. Owing to the turbulence of the times, Gov. Edger- ton did not receive the just meed of his qualities and services in Montana. Sanders' Notes, MS., 1-11.

644

POLITICAL AND JUDICIAL.

Williston and Lyman E. Munson associates.4 Ed- ward B. Neally was commissioned United States district attorney, and George M. Pinney marshal.6 Internal revenue officers appointed were Nathaniel P. Langford collector, and Truman E. Evarts asses- sor. None of the district judges were on the ground before late autumn. The first election was held on the 24th day of October, for the choice of a legis- lature7 and a delegate to congress. Samuel McLean was chosen delegate by a majority of thirteen hun- dred votes.8 The legislature met December 12th at Bannack, was sworn in by Judge Williston, and pro- ceeded harmoniously to business.9

The condition of politics in Montana was a repeti- tion, to a considerable extent, of the anti-administra- tion sentiment of Idaho, and for the same reason, that it was overrun by southern men, escaping from draft into the confederate army. But otherwise there was this difference between Idaho and Montana, that the former was founded by western men from Oregon,

4 Ammi Giddings was the first associate judge appointed, but declined.

6 O. F. Strickland was appointed A. A. atty-gen. in 1865, and William M. Stafford in 1866.

6 Cornelius F. Buck was the first appointed, but declined.

7 The legislature consisted of 20 members, 7 in the council and 13 in the lower house. The council was composed as follows: Beaverhead county, Frank M. Thompson and Ebenezer D. Leavitt; Madison county, Charles S. Bagg, Anson S. Potter, and Robert Lawrence; Jefferson county, Nathaniel Merriman; Choteau, Deer Lodge, and Missoula, Frank L. Worden. Law- rence was chosen president. Appointed by the council: George Heynes secretary; Frank H. Angevine assistant secretary; Robert Hereford engross- ing clerk: John C. Ryan enrolling clerk; Harrison G. Otis sergeant-at-arms; Harris Gilman door-keeper; W. P. Edgerton page. Mont. Jour. Council, 1864, 1, 6. The members of the house of representatives were: Beaverhead county, J. C. Faul, A. J. Smith; Deer Lodge, James Stuart; Jefferson, George Det- willer speaker, J. N. Buck, Milo Cartwright; Madison, Francis Bell, Wiley Huffaker, Alexander E. Mayhew; Washington, J. McCormick, J. H. Rogers, Patrick Ryan, John Owen (elected but not seated), E. B. Johnson.

8 W. F. Sanders was put forward as a candidate by the loyal population. James Tufts, who had been speaker of the Idaho legislature, also had aspira- tions. Portland Oregonian, Sept. 14, 1864.

" According to J. N. Bond, who has furnished me with a manuscript narrative of the early History of Colorado, Idaho, and Montana, in each of which territories he has borne a pioneer's part, not one of the members of the first legislature of Montana had ever served before in the capacity of law- maker, and the governor himself was ignorant of parliamentary rules. p. 61 of Bond's MS. It would seem, however, that this statement should be taken with allowance, particularly in regard to the governor, who was a graduate of a law school, and had been a member of congress.

645

NORTH AND SOUTH.

Washington, and northern California, who were chiefly descendants of men bred in the south-western and southern states, while Montana had a large per- centage of her first population from the northern states.10 That portion of the governor's message which related to the existing war, being referred to a committee of Bagg, Thompson, and Leavitt in the council, Bagg reported, as chairman, in language strongly anti-administration, while refraining from uttering sentiments openly disloyal. Leavitt, not being willing to indorse such a report, a few days afterward offered a resolution strongly loyal, which was adopted by a majority of the council, the whole

SEAL.

being done without any discourteous exhibition of political hostility. According to the requirements of the organic act, the legislature proceeded to locate the seat of government, which was fixed at Virginia City. A seal for the territory was adopted, which had as a central group a plough and a miner's pick and shovel;

10 There was strong political feeling in the first canvass. The leaders of the dominant party were Sample Orr, W. L. Ewing, Warren Toole, Alex- ander Davis, H. Y. Pemberton and Thomas Thoroughman of Missouri, W. B. Dance of Montana, W. L. McMath, N. J. Bond, and Samuel McLane of Colo- rado, and Ansell Briggs, whilom governor of Iowa, who was president of the first democratic convention of Montana in the autumn of 1864. The leader of the republican element was W. F. Sanders. Bond's Hist. Col., Idaho, and Montana, MS., 58.

646

POLITICAL AND JUDICIAL.

on the right the falls of the Missouri; on the left mountains; underneath the motto, Oro y Plata. Upon the margin surrounding the whole were the words, The Seal of Montana Territory.

There being no map of the territory by which the legislature could define the district boundaries, W. W. De Lacy was employed to make one for the pur- pose, to be further completed when the districts were laid off. Among the earliest acts was one incorpo- rating the Historical Society of Montana. Acts were passed repealing the statutes of Idaho, adopting com- mon law, and providing for the codification of the ter- ritorial laws.11 A common-school system was adopted, and an act passed to prevent carrying concealed arms.12 Acts were passed incorporating Virginia City, and the towns of Montana (the name being changed to Prickly Pear), Missoula, Marysville, Willow Creek, Ophir, North Ophir, Junction City, Jefferson, Gal- latin, East Gallatin, Brandon, Beaver, and Alki. Several of these had only an ephemeral existence, and were soon not to be found on the maps. A large number of mining, road, bridge, and ferry companies were incorporated, showing the activity of the popu- lation in seizing upon business opportunities.

But an error was committed by the first legislature, which practically disorganized the territory for two succeeding years. According to the organic act, the first legislature was to be apportioned by the gov- ernor; but thereafter the time, place, and manner of holding elections, and the apportioning of the repre- sentation in the several counties, were to be prescribed by law, as well as the day of commencing the regular sessions of the legislative assembly. The law-makers, instead of keeping within their privileges as granted by the organic act, of gradually increasing their num- bers to thirteen councilmen and twenty-six represent-

11 The code commissioners were William H. Miller, George W. Stapleton, and W. F. Sanders. Helena Montana Post, Dec. 4, 1868.

12 Where the majority were openly armed, such a law could effect little reform in the practice of shooting a man at sight.

647

THE LEGISLATURE.

atives, passed a bill defining the districts in the ter- ritory, apportioning the legislators among them, and included in the bill the substance of another, to in- crease the number of councilmen at once to thirteen, and the assemblymen to twenty-six. The governor returned the bill with his veto, and his reasons there- for. But the temper of the legislature being adverse to correction, it adjourned without passing any ap- portionment bill. The effect was to prevent an elec- tion of representatives in 1865. In the latter part of summer Edgerton returned to the east, and Meagher, the territorial secretary, arrived, on .whom devolved the functions of executive. There was a strong desire on the part of the democratic portion of the inhabit- ants of Montana to form a state constitution, which they affected to believe, from the population flowing in at this period, they would be justified in doing. In their extremity of doubt, they called upon Meagher to settle the question of his own authority to order a new election for the specific purpose of organizing a state convention.13

Meagher replied in a clear and logically written letter, that only an enabling act of congress could re- store to the territory the right to elect a legislative body, and advised them to appeal to congress for such relief. His views, however, underwent a change a few weeks later, when he published a proclamation recalling his first decision, declaring his authority to convene the legislature, and summoning the members of the council elected on the 4th of October, 1864, and the members of the house of representatives elected on the 4th of September, 1865, to meet at Virginia City on Monday the 5th of March, "for the transac- tion of business, as well as to give legislative sanction and validity to the convention," which had been called by another proclamation to assemble at Helena the

13 The inquirers were Thomas E. Tutt, R. W. Donnell, James T. Hodge, Mark A. Moore, Peter H. Rea, J. H. Shober, W. K. Roberts, Alexander W. Woolfolk, E. C. Moore, R. C. Ewing, and others. Montana Scraps, 20-1.

648

POLITICAL AND JUDICIAL.

26th of March. Meagher's change of opinion was of so radical a nature that he declared in a public address his intention to have the laws so framed by the legis- lature he had convoked that "no judge, whatever his powers or consequence, should dispute or disobey them;" and further, that he would enforce those laws "with the whole power of the county of Madison, and if need be, with the whole power of the territory." He said a good deal also about glorying in his de- mocracy, and having been deceived as to his true pre- rogatives by republican rascals. In short, he made it plain to the anti-administrationists that he should be upon their side in any political contests. He set at liberty a criminal under sentence of three years incar- ceration for manslaughter. Judge Munson requested him to annul the pardon, but he refused. The lib- erated desperado made use of his freedom by going to Helena with threats to take the lives of some of the witnesses against him, and while there was taken and hanged by vigilants.14 In these various ways the act- ing governor gave offence to the best sense of the community, which otherwise would cheerfully have acknowledged the talents and bravery of 'the Irish patriot.'

The first legislature, recognizing the insufficiency of the salaries of the territorial officers, had increased the pay of the governor and judges from $2,500 a year to $5,000,15 the deficiency to be made up by the territory, and at the same time increased their own per diem to twelve dollars.

The legislature summoned by the secretary repealed the law. So far as the chief justice and Williston were concerned, there was some appearance of pro- priety in refusing to give them double pay, inasmuch as they had, after the usual manner of territorial judges, absented themselves from the territory, leav-

14 The Virginia Montana Post, March 31, 1866, upheld the vigilants, say- ing they had hanged Daniels because of his erimes, and not because he had been pardoned, as the governor's party chose to construe it.

15 Mont. Jour. Council, 1864, 101.

649

STATE CONVENTION.

ing Judge Munson to perform the duties of all the three districts. A resolution was passed by the Helena bar, that in their opinion justice required that Judge Munson should be reimbursed the expense incurred by him in discharging the duties of the absent judges, in a sum at least equivalent to the com- pensation repealed.16 The resolution was treated with contempt, and the war upon a Connecticut judge by southern democrats continued unabated, resulting in the organization of the union party of Montana, at Virginia City, March 29, 1866.17 Meantime the legis- lature 18 legalized the existence of a state convention, and that body assembled on the 9th of April, at Helena. It was rather a meagre affair, Choteau and Beaverhead counties being unrepresented, and so many delegates being absent that a quorum could not be made out, and the convention resorted to the expedient of voting for the absent members! A memorial to congress was prepared, avowing the loyalty of the people of Montana, setting forth the resources of the territory, and asking for such congressional legislation as would be for the best interests of a mining com- munity, and also would prevent a reannexation to Idaho of that portion of Montana lying between the Bitterroot and Rocky mountains, which the former territory was then endeavoring to recover, in order to

16 Virginia Montana Post, March 31, 1866.

17 At the preliminary meeting, T. C. Everts was called to the chair, F. C. Deimling being appointed secretary. The committee appointed to report at the regular meeting March 31st was composed of Phelps, Strickland, Merriman, and A. J. Davis. The central committee was composed of, Madi- son county, F. C. Dcimling, A. J. Davis, R. H. Robinson; Edgerton county, R. P. Seely, E. W. Carpenter; Jefferson county, N. Merriman, Jacob Wettleson; Missoula county, F. C. Worden, Thomas Roop; Dcer Lodge county, O. G. Darwin, B. P. Johnson; Choteau county, H. D. Upham, G. E. Upson; Gal- latin county, R. C. Clark, R. C. Knox; Beaverhead county, E. D. Leavitt, A. J. Smith. President of committee, F. C. Deimling; vice-president, J. S. Lott; secretaries, O. F. Strickland, W. M. Stafford; treasurer, J. J. Hull. 18 The members of the council for the 2d term were Anson S. Porter, Charles S. Bagg, E. D. Leavitt, W. J. McCormick, Nathaniel Merriman, E. F. Phelps, J. G. Spratt. Potter president. Officers, R. J. Mitchell secretary, E. S. Calhoun assist secretary, William D. Leech and A. H. Barrett clerks, John Bigler sergeant-at-arms, George Reid door-keeper. Members of the house, A. J. Smith, H. D. Herd, A. V. Corry, G. H. Hanna, L. Daems, J. N. Rice, J. S. McCollough, James McElroy, A. E. Mayhew, J. La Fontaine, R. B. Parrott, A. S. Maxwell, R. W. Mimms.

650

POLITICAL AND JUDICIAL.

divide southern from northern Idaho, as I have else- where mentioned, with other matters of general interest; calling the attention of congress to the necessity of an early appropriation for public build- ings, to the desire of the memorialists for a branch mint, and to the discovery only just being made that cereals of all kinds, as well as gold and silver, might be reckoned among the productions of the country ; but nothing was said of a state organization,19 which in- deed was not justified by the condition of the ter- ritory in point of finance or population.20

A feeling of insecurity prevailed concerning the legality of the acts of the legislature, which soon forced that question into court. An attachment suit being brought in the third judicial district, the defend- ant set up in his defence the invalidity of the laws passed at the March session, and was sustained by the decision of Judge Munson, whose opinion was published at length for the benefit and at the request of the bar of Helena.21 An appeal was taken to the supreme court; but before that convened the comp- troller of the treasury had refused to honor drafts for money to pay the expenses of the legislature, and it became understood that congress would not recognize its acts. This gave the anti-administration party cause for indignant protests against the tyranny of congress and the administration. Open-air meetings to denounce Judge Munson and the government be-

19 The members of the convention which failed so signally in its purpose were: From Edgerton county, R. C. Ewing, J. A. Johnson, W. J. l'ember- ton, O. F. Hart, W. L. Steel, R. B. Parrott, A. S. Maxwell, E. B. Waterbury, A. M. Woolfolk, Thomas E. Tutt. From Madison county, Thomas Thorough- man, W. B. Napton, Geo. W. Hill, William N. Couch, J. T. Rucker, George Wilhelm, P. C. Evans, John P. Rogers. From Jefferson county, T. F. Boler, W. G. Barclay, J. C. Gillman, J. H. Shober, W. F. Evans. From Gallatin county, A. Metcalf, W. B. Morris, J. D. Davidson, A. J. Hunter, H. P. Downs. From Missoula county, John Pomeroy, C. E. Irwin. From Deer Lodge county, W. B. Irwin, A. E. Mayhew, James Stuart, Michael Holland, D. L. Irvine, W. J. McCormick, T. H. Buir, Reuben Borden, Blakely.

20 There had really been no census taken when the first apportionment was made; only an estimate by the United States marshal; nor had any yet been taken.

21 Virginia Montana Post, June 9, 1863.

651

INDIGNANT PROTESTS.

came the fashion with the democracy, at the head of whom was Acting Governor Meagher, reiterating his determination to enforce the laws enacted by the legislature he had called into being. Twenty-four hours later, in the same place, union orators denounced the course of the delegate in congress as a "wanton disregard of the interests of the territory," and the conduct of the executive for failing to file his official bond for a long period, thereby preventing the con- gressional appropriations from being made available; for illegal and extravagant use of the public money ; for neglect to settle with the accounting officers; for impudent denial of the powers and rights of lawyers, courts, and citizens to call in question the legality of his legislative bantling; "for his scandalous disregard of the common decencies of life; and above all, his in- fidelity to the institutions of liberty, and his wanton abuse of the American people, who have furnished him an asylum from the officers of the laws of his native land."

There was just ground for this outpouring of the vials of wrath and sarcasm on the heads of Montana's delegate and governor. McLean, in a speech on a bill before congress to amend the organic act of Mon- tana, which disallowed the powers of the late legis- lature, stupidly threatened that body with taking Montana over the line into British Columbia. "Do not," said this Solon, "by unwise and oppressive legis- lation, drive us over the border, while our love of country would actuate us to stand upon its outer edge, a living wall of strength in the defence of the land." As for Meagher, he could be eloquent, but he could not be honest.

On the 1st of August he issued a proclamation based upon the election act of the legislature of 1864, which called for a general election on the first Monday of September of each year, and also upon the appor- tionment act of the March session of 1866, notifying all county officers whose duty it was to appoint officers

652

POLITICAL AND JUDICIAL.

of election and to give notice in their several counties that a general election would be held on the 3d of September, 1866, for the choice of thirteen council- men and twenty-six representatives. Seeing that Meagher and his adherents were determined in their course, the union party put forth a ticket of 'anti- state and legislative' candidates, and the party jour- nals22 took up their arms for a campaign.

22 A history of the pioneer newspapers will not be out of place here. The Montana Post was the first journal started in the territory. In 1864 John Buchanan brought a press and material from St Louis to Fort Benton, with a view to locating at some point in the new commonwealth. He fixed upon Virginia City, where the first number of the Post was issued Angust 27, 1864. After printing two numbers Buchanan sold to D. W. Tilton and Benjamin R. Dittes. Dittes was a native of Leipsic, Saxony, born in 1833. He was for a number of years on the upper Missouri at the various trading posts, and in Colorado io 1863, when Alder gulch was discovered, to which he removed that year, building one of the first houses in Virginia City. The firm of D. W. Tilton & Co. continued to publish the Post at Virginia City until the winter of 1867-8, when Dittes purchased Tilton's interest, and in conjunction with Mr Pinney, removed it to Helena. The change was not favorable, and Dittes withdrew, the paper being suspended in the spring of IS69. Dittes died Nov. 6, 1879. Helena Herald, Nov. 6, 1879.

Another paper published by Tilton and Dittes was the Tri- Weekly Repub- lican, which was started the 7th of July, 1866, at Helena, and after printing 32 numbers was removed to Virginia City and published there as the Tri- Weekly Post. After the removal of the office of the Montana Post to Helena, a daily was issued, the first number appearing April 20, 186S.

The second newspaper in Montana in point of time was the Montana Dem- ocrat. Kirk Anderson, a reporter and correspondent of the St Louis Repub- lican, about 1857 established a ' gentile' newspaper in Salt Lake City, called The Valley Tan, which ran for a year and a half, or thereabouts, when An- derson returned to St Louis, and going sonth on the breaking-out of the war, died. The material of this first gentile journal in Utah was purchased in 1865 by John P. Bruce to start the Democrat in Virginia City. It sustained the action of the acting governor and the democratic party generally. It be- came a daily in March 1868.

In March 1866 T. J. Favorite removed the press and material of the Radi- ator from Lewiston, Idaho, to Helena, Montana, where it became the Mon- tana Radiator. In November of the same year it was sold to Posnainsky and House, who changed the name to Helena Herald, and employed R. Emmet Fisk to edit it. The Fisk brothers afterward purchased it. It was republi- can in politics, and became a daily in 1867.

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History of Washington, Idaho, and Montana : 1845-1889, Part 71

Author: Bancroft, Hubert Howe, 1832-1918; Victor, Frances Fuller, 1826-1902 Publication date: 1890 Publisher: San Francisco : History Co. Number of Pages: 880

Author: Bancroft, Hubert Howe, 1832-1918; Victor, Frances Fuller, 1826-1902
Publication date: 1890
Publisher: San Francisco : History Co.
Number of Pages: 880