History of Dakota Territory, volume I, Part 101

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198

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Railroads were extended to and across the great river and carried passengers and freight more expeditiously and at less rates if necessary than the boats could afford. The inevitable result was steamboats were compelled to abandon the river and seek employment where such keen competition did not exist, until such time as the demands of population and business may again require its use not only as a channel of commerce but as a regulator of rates. That time would seem to be approaching rapidly.

With the exception of 1863, which year was memorable as the dryest ever known in the northwestern country, steamboating was favored by a good stage of water each season and numerous fleets of steamboats were engaged in plying its waters. The traffic was uniformly good for fifteen or twenty years. In 1869 the river opened about the middle of March, and the spring freshets had given a good stage of water to the channel. By the middle of May the boats that had been registered at Yankton, the only commercial port at that time on the river in Dakota Territory were the Deer Lodge, Henry M. Shreeves, Antelope, North Alabama, Only Chance, Urilda, Big Horn, Ida Reese, Huntsville, Andrew Ack- ley, Peninah, Nile, Viola Belle, Silver Bow, Mountaineer, Lacon, St. Johns, Arkansas, Tempest, Sallie, Mollie Eberts, Bertha, Silver Lake No. 4, Columbia, Colossal, Hiram Wood, Utah, Ida Stockdale, Miner, Ida. War Eagle, Tacony, Colorado, Flirt, Evening Star, Emilie LeBarge, Admiral Farragut, Silver Bow, Nick Wall Evening Star, Minnie, Submarine No. 21, Sully, Cora, Fannie Barker, Big Horn, Ida Reese No. 2, Importer, Peter Bolen, and Nick Wall. During the entire season about seventy-five boats were engaged in the Missouri above Sioux City and forty to seventy-five were employed each year after the beginning of the emigration to Montana in 1863, until after the completion of the Northern Pacific Railroad to Bismarck in 1873-

GOVERNMENT SHOULD PROTECT AND PRESERVE THE RIVER BANKS

The day will come when our Government will extend its policy of "conserva- tion of our natural resources," to such an improvement of the Missouri River as will permanently protect its banks from the destructive effects of flood waters and prevent the waste of many scores of thousands of acres of our most valuable agricultural lands, which are now annually washed into the river to feed sand- bars and also to be carried away to the gulf. The Missouri, properly improved, together with the Yellowstone, would furnish rare pleasure to thousands of tourists who would find great enjoyment and valuable entertainment in a sum- mer's trip by waterway to the headwaters of the Yellowstone as well as the Missouri. This improvement should be constantly agitated by the people of the

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many states watered by these grand arteries, whose natural attractions viewed from the deck of a properly equipped vessel, are in many prominent features, unrivalled in any part of the world. In the upper reaches of these rivers, the scenery has been pronounced by cosmopolitan travelers, the most diversified and attractive that can be found in any portion of the eastern hemisphere. The Legislatures of the Missouri River states would do well to take the subject in hand.

CHAPTER XLVIII CHIEF JUSTICE TO NORTHERN DAKOTA 1870-71-72

THE SUPREME COURT-CHIEF JUSTICE ASSIGNED TO NORTHERN PART OF THE TERRI- TORY- FIRST SESSION OF COURT AT PEMBINA-DESCRIPTION OF COUNTRY- ARREST OF CENTRALIA LIQUOR DEALERS-GENERAL CONDITIONS-ARMSTRONG DELEGATE-RIGHTS OF A DELEGATE-EXTRA SESSION OF LEGISLATURE-DIS- TINGUISHED VISITORS TO NORTHERN DAKOTA-TEXT BOOKS-THIE INTERNA- TIONAL BOUNDARY LINE-REMARKABLE PRAIRIE FIRES-HANIBAL IIAMLIN VISITS THE TERRITORY-INDIAN HOSTILITIES-BELDEN KILLED-GENERAL ITEMS -TURNER COUNTY ORGANIZED- JOHN W. TURNER.

SUPREME COURT ASSIGNS JUDGES

The Supreme Court of the Territory of Dakota met in annual session at Yankton, the capital, on January 13, 1871, and passed an order locating the seats of the three District courts, the place and date where the sessions should be held, and assigning the judges, to-wit: French, Kidder and Brookings. Northern Dakota, for the first time was recognized in this order. The first District Court was appointed to be held in Vermillion on the second Tuesday of February and November of each year, and Hon. Jefferson P. Kidder was assigned as judge of the district. The Second District Court was appointed to be held at Yankton on the second Tuesday of April and October in each year : Associate Justice Wil- mot Wood Brookings was assigned as judge. The Third District Court was appointed to be held at Pembina on the first Tuesday of June and September of each year. Chief Justice French was assigned as judge. This removal of the chief justice from the capital, where this official had heretofore resided was said to have been at the earnest solicitation of Chief Justice French himself, who was adventurously inclined and anxious to get a glimpse of the wilds of the North then something of a topic because of the construction of the Northern Pacific Railway across the northern portion of the Dakotas. Invidious critics, however, set afloat a report that the true motive in inducing the chief justice to voluntarily exile himself to that remote region of dog trains and pemmican, where courts had been an unknown quantity, was that he might escape the responsibility of unraveling many of the intricate legal problems presented by the attorneys who practiced in the Second District Court. The capital city bar at the time was made up of many of the most able lawyers in the Northwest, including Hon. Bartlett Tripp, Col. Gideon C. Moody, Hon. Solomon L. Spink, Gen. William Tripp, Gen. W. H. H. Beadle, Hon. George H. Hand, E. H. Brackett, Esq., Calvin J. B. Harris, and litigation of cases of national importance was not infrequent in the court having jurisdiction not only of a portion of the settled part of the territory but of a vast region of Indian country which supplied cases worthy of the efforts of the most profound disciples of Blackstone. Judge French was said to have been a justice of the peace in Maine, and not familiar with our statutes regu- lating intercourse with the aborigines of the Northwest. The judge himself, how-

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Built in 1.6%

FORT TOTTEN, NEAR LAKE MINNEW AURAN DEVIL'S LAKE

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ever, assumed the full responsibility for the change, urging that an impairment of his health was one potent reason for desiring a more northern habitation ; and he was further moved to be insistent in the matter because of the feeble condition of Mrs. French who would accompany him in hopes that the invigorating climate and pure water of the far North would restore her.

It had furthermore been a debatable question with the judges since the or- ganization of the territory, whether the prerogative of assigning the judges and fixing the time of holding the courts was lodged in the Legislature or in the Supreme Court, and this step would furnish an opportunity to test the question, so far as the assignment of the judges was concerned. The Legislature paid no attention to this action of the court ; but the governor, two years later, during the pentlency of the Wintermute murder case, and the litigation arising out of the construction of the Dakota Southern Railroad, reassigned the judges by proclamation.

PEMBINA, SEAT OF THE U. S. COURT-RED RIVER SETTLEMENTS

Regarding the northern region wherein the chief justice would make his official residence, it was claimed that it was in the midst of a partially settled, fairly improved, and delightful part of the territory and was on the threshold of a surprising growth. The Pembina River from its mouth to St. Joseph, thirty miles, was well settled and improved with many excellent farms. The Gingras horse farm and villa was near St. Joe. Pembina had been the seat of an U. S. Custom House and postoffice for twenty years, but stimulated by a number of important recent events was making considerable advancement. It still retained the custom house and postoffice, and now possessed a U. S. land office, a fine hotel, a number of private residences, and was the seat of the U. S. Court for the Third Judicial District. Enos Stutsman, Judson LaMoure, Wm. R. Goodfellow, and George 1. Foster, formerly of Yankton and Union counties in the south, were among the leading men of Pembina, which at this time was the only permanent white settlement in Dakota north of the 45th parallel.

.\ steamboat, the Selkirk, commanded by Capt. Alexander Griggs plied between Pembina and some points above, and also with Fort Garry and Winni- peg. Manitoba. The distance by river from Pembina to Garry or Winnipeg was called 200 miles. The country bordering the Red in the Canadian province was quite well settled and improved. Fort Garry was the principal Hudson's Bay Company post, and used as a military rendezvous and trading center. It was substantially constructed, on an ample scale, and stored within its walls was an enormous amount of manufactured goods designed for the fur trade, and to supply the settlers in that province. It was garrisoned by two companies of Canadian volunteers under Captain Herkimer. The Riel Rebellion had but recently been quieted, and troops were held for the purpose of checking, in its incipiency, any further disorder. The United States consul at Winnipeg sus- pected that the fires of the malcontents were still smouldering though nearly ex- tinguished. Winnipeg was then a town of 600 inhabitants, and adjoined the fort on the north. Opposite Garry, on the east bank of Red River, was St. Boniface. where was located a convent, bishop's palace, and cathedral-all magnificent buildings. Father Tasche was the bishop. Fort Pembina, about two miles south of the town had been built in 1870; it was a two company post, commanded by Colonel Wheadon.

Frog Point, sixty miles above Pembina, south, was a small and unimportant settlement. Eighty miles by land south of Frog Point, Georgetown was reached. on the Minnesota side which contained a dozen houses including a Hudson's Bay Company store. Fifteen miles south of Georgetown was the proposed crossing of the Northern Pacific Railroad, where a village of tents was discovered in 1871. inhabited by scores of people who were waiting the coming of the iron horse. Hotels, stores, saloons, all in canvas houses, flourished and much money

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was in circulation. The country from Georgetown to Fort Abercrombie was fair. but the reputed annual overflow of the Red River Valley would seem to preclude the hope of its ever being even moderately well settled and improved. Such was the academic opinion of the time. The highlands back from the valley were very fertile and well watered. Timber existed in sufficient quantity for the necessities of pioneer improvement. Still further south up the Red River Valley was Breckenridge, Minnesota, where the St. Paul & Pacific Railroad (now merged with the Great Northern Pacific) reached the river and be- came the head of navigation.

COURT AT PEMBINA

The first session of the United States Court to be held in the northern por- tion of Dakota Territory, then the Third Judicial District was convened at Pem- bina in June. 1871. Chief Justice Geo. W. French presided. Warren Cowles was the United States attorney : Judson LaMoure was deputy United States marshal assisted by Deputy Luther. George I. Foster was clerk of court, and Enos Stutsman, foreman of the grand jury. At the October term following Norman Kittson was foreman of the grand jury. Indictments were found by these grand juries against a number of parties in the new settlement of Centralia (now Fargo), charging them with the illegal sale of intoxicating liquor.

On Saturday morning. the 17th of March, 1872, on the tenth anniversary of the meeting of the first Territorial Legislature, the United States Deputy Marshal McCausland, escorted by a company of federal troops from Fort Abercrombie, proceeded to arrest all parties at Centralia, now Fargo, who were engaged in sell- ing intoxicating liquors at that point. Although all had paid their internal revenue tax, the receipt for which was displayed in their place of business. it did not protect them. They were all charged with introducing and selling intoxicants on the Sisseton. Wahpeton and Sioux Indian reservation.

The parties arrested had a preliminary hearing before United States Commis- sioner Geo. I. Foster and were held to answer to the United States District Court, which held its sessions at Pembina, and would convene in June following. Their bond was fixed at $500 each. These liquor dealers had paid the special tax required by the Government, and were under the impression so claimed that this authorized them to engage in the retail liquor trade, which, however, was not the case neither there nor elsewhere. The payment of this special tax did not relieve them from liability under the territorial law, which required a license ; but in their cases there was also a treaty provision that inhibited the liquor traffic at that point and all along the valley of the Red River to the northern boundary. The country had ceased to be an Indian reservation, or Indian land more properly, by the treaty with the Chippewas, made in 1864; but there was a clause in that treaty that provided :

That the laws of the United States now in force, or that hereafter may be enacted. prohibiting the introduction and sale of liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded until otherwise directed by Congress or the President of the United States.

Under this provision of the treaty, which had all the force and effect of law, these trespassers at Fargo were all liable to severe punishment.

McCausland, the deputy marshal, undertook to escort a number of his prison- ers who failed to give bond to Pembina, where court would be held, and was found frozen to death near Frog Point, sixty miles north of Fargo, March 27, 1872. Two of his prisoners had escaped in the night and MeCausland started out to search for them. The weather was extremely cold. McCausland was not again seen until his lifeless body was discovered. He was thirty-two years of age and highly respected.

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GENERAL CONDITIONS IN 1871

The year 1871 was quite favorable for farming operations in the territory. The farming settlements, however, had not then extended beyond the boundaries of the Missouri, the Red River, Big Sioux and Vermillion River counties, limited on the Missouri to Charles Mix on the west, and on the Big Sioux to Minnebalia on the north. Immigration had begun to invade Brookings, Richland, Turner and Hutchinson counties, and two or three adventurers had settled as far north as Rockport in Hanson County. The settlements had, however, grown in popu- lation ; the Government land had been taken up quite compactly for from ten to fifteen miles back from the rivers mentioned, and a large amount of grain and vegetables were produced in the aggregate; twenty fold more than was needed for home consumption or that could be utilized in the territory. Dakota was just beginning to demonstrate its agricultural strength and prove the value of the resources of its soil.

There was considerable immigration to the territory, including farmers, me- chanics and trades people. so that the towns as well as the farming settlements flourished and grew in population and improvement. The Missouri River was, it might well be said, thronged with water craft, and hardly a day passed during the boating season that did not witness the arrival or departure of steamboats from the levees of Dakota's older towns. In 1871 was the beginning of actual work on our first railroad; immigration was encouraging, and there was an apparent awakening to the opportunities afforded in the territory to energetic and enterprising people. The area of cultivated acres was doubled. Four new counties were admitted into the small family of organized counties-Turner, Hutchinson, Hanson and Richland. It appeared that Dakota had arrived at the point where pioneer methods and customs were given a final farewell and the more modern, aggressive and enterprising life adopted.

The political feuds in the territory, the continual factional quarrels in the republican party which had characterized Dakota politics from the beginning of settlement, no doubt injured the standing of the territory at Washington and in Congress, and when these factional troubles resulted in the election of a demo- crat as delegate in a territory where the republicans outnumbered the opposi- tion more than two to one, which was the case in 1870, there were many forcible and disparaging epithets uttered by the Washington authorities who were look- ing ahead to the time when Dakota woukd add another republican state to the Union, and whose position depended upon the continued ascendancy of the grand old party, in giving expression to their opinion regarding Dakota and its repub- lican officials and politicians. A prominent citizen of the territory, writing from Washington in the early part of 1871, who had occasion to visit several of the departments and who was also interested in procuring from Congress land grants to aid in the building of Dakota railroads stated :

No territory in the Union has come before the general Government with so many inter- nal quarrels, troubles and disputes as Dakota since its organization. You meet with that charge in Congress and at the departments, and that want of harmony among federal officials and the people bas endangered and certainly postponed our advancement and estopped material aid.

It was further suggested that but for the feeling of indignation and resent- ment engendered in the minds of leading congressmen, favorable action might have been had upon one or more of Dakota's applications for land grants in aid of railroads. It will be noted, however, that these reprehensible conditions dis- appeared as industrial interests increased and gave the people something better to employ their time.

Hon. Moses Kimball Armstrong began his service as delegate to Congress from Dakota Territory, March 4, 1871. Ile was then in Washington.

A new administration of territorial affairs was inaugurated January 2. 18-1. the democrats having elected their territorial ticket with Armstrong as delegate

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in Congress. George W. Kellogg, of Union County, took the office of territorial auditor, relieving J. O. Taylor, also of Union. Thos. J. Sloan, of Clay County, relieved T. K. Hovey, also of Clay, as territorial treasurer ; and Hon. John W. Turner, then of Clay County, but about to remove to Turner County, succeeded James S. Foster, of Yankton, as superintendent of public instruction.

The year 1871 was an off-year in Dakota elections; the county officers, mem- bers of the Legislature, and the delegate to Congress and territorial officers being elected for two years in every even numbered year. There was a provision of the law, however, authorizing the holding of annual elections for the purpose of filling vacancies, and the election of a portion of the board of county commis- sioners, the term of one member expiring each year. The election of 1871 was held on the ioth of October, the second Tuesday, and as a rule no party lines were drawn : the officers elected represented the non-partisan spirit of the voters ; but the opposition, or what would have been the opposition, under normal political conditions to the republican organization, scored the larger number of successes.

RIGHTS OF A TERRITORIAL DELEGATE IN CONGRESS

The extent of the privileges and rights of a delegate to Congress from a ter- ritory were never clearly defined and settled until 1871. He was allowed the privilege of introducing bills and of speaking, and was restricted regarding the making of motions and other privileges. While James G. Blaine was speaker in 1871 (and S. L. Spink delegate from Dakota), the question came up on a bill relating to the Territory of Montana, at that time represented by Delegate Cavanaugh. The bill had been read a third time and was placed upon its final passage. The vote stood on a division, ayes, 66; noes, 22: no quorum voting.

Mr. Cavanaugh then said, "I call for tellers; I believe no quorum voted."

Mr. Garfield, of Ohio, afterwards President, then interposed with the question: "Can a delegate from a territory call for tellers on any question ?"

The speaker answered: "The chair would rule that he could not ; but as the vote on a division did not disclose the presence of a quorum, the chair thinks it would be better to have tellers in order that presence of a quorum may thereby be shown."

Tellers were accordingly ordered, the House again divided. and the tellers reported that there were ayes, 84; noes. 45.

Mr. Cavanaugh then called for the yeas and nays.

The speaker then said: "The point being raised, the chair must rule that the gentleman from Montana cannot demand the yeas and nays."

Mr. Cavanaugh then said: "I desire, if the chair will pardon me, to make a single remark upon this point. I would like to have the question settled that we may ascertain what is really the status of a delegate upon this floor. I wish to have it decided whether, when the House has under consideration a bill affecting directly a territory and pertaining to the people of that territory and to nobody else on earth, whether under such circum- stances the delegates have not a right to demand a vote by yeas and nays upon a question so important to his constituents."

The speaker replied: "The point is raised without argument and without much time to devote to its consideration, but the chair will very briefly give his views upon it. The delegate from a territory is the accredited agent of the territory, sent here to express by argument or by personal interviews with members the wants and wishes of his constituents upon bills which may affect them. But the moment the function of voting is reached the power of the delegate ceases. The right to object where unanimous consent is asked; the right to demand divisions or tellers; the right to call for the yeas and nays are very largely the functions of a voter in this House; and oftentimes the very largest function that the member can exercise is included in those particular demands. Of course the right to make such demands grows out of, and must inhere in, the function of voting. The delegate. not possessing the right to vote. cannot exercise any of those privileges which are a direct out- growth of the right to vote."

Mr. Cavanaugh: "One more question and I have done. Here is a measure directly interesting to my constituents. Have I not the right to demand the yeas and nays on this vote?"

The Speaker: "The chair will answer the gentleman. Ile will readily see that there is no need of a delegate having that right. The body that is to decide the question voted upon is the House of Representatives. The Constitution provides that the yeas and nays 'shall. at the desire of one-fifth of those present, be entered on the Journal.' If no member chooses to demand the yeas and nays, of course they cannot be taken; but if one-fifth of

GENERAL EDWIN S. MeCOOK Secretary of the Territory of Dakota Killed by Wintermute in 1873

THE GATE OF SPRINGFIELD

STRECK

SOICHOLAS HOTEL.

CAPTAIN NELSON MINER'S HOTEL, VERMILLION, 1-20

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the members desire the yeas and nays, some individual member will of course make the demand."

Mr. Eldridge : "I demand the yeas and nays."

Mr. Niblack: "Upon the question of order I would like to be heard for a moment. I believe that the rights of a delegate on this floor include the right to make motions. Is not that the fact?"

The Speaker: "That is so; but it would not be within the function of voting. A motion merely brings the question up for the decision of the House."

Mr. Niblack: "Then the question in my mind is whether the calling for divisions and other incidental matters connected with voting does not rest upon the same ground with motions."

The Speaker: "The chair thinks differently. These proceedings directly connected with voting cannot fall within the privileges of the delegate. The calling for a division belongs to the individual member, and is his absolute right. The calling for the yeas and nays is also the absolute right of one-fifth of the members and is guaranteed by the Con- stitution. The House cannot by any rule restrict or enlarge this privilege and the gentleman from Wisconsin. in the exercise of his right, now demands the yeas and nays."

Mr. Garfield, of Ohio: "As I raised this question, I hope the chair will indulge me in a single remark. When the delegate from Montana asked for a division I did not raise the question. I did raise it, however, when he demanded tellers. ! do not know whether there is any philosophical reason which might apply in one case more than the other. But it seemed to me that while delegates are allowed the right to make motions and offer amend- ments, while they have the right to be heard in debate, yet when we pass to action-when we come to voting, either by rising, by passing between tellers, or by a call of yeas and nays, the right of a delegate naturally then ceases ; and as he cannot take part in any vote, so he cannot demand that any of the rest of us shall vote in any particular form."

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History of Dakota Territory, volume I, Part 101

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1198

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198