History of Dakota Territory, volume I, Part 75

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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Contracts of this character by enlightened communities are justly considered, in my opinion, of the most sacred and binding character. The higher the civilization the more sacred are such contracts held. This being the case, such contracts should not lightly be interfered with, and especially should this view of the case be taken where there are reason- able grounds to doubt the authority over the question, of the power proposing to annul such contracts. I have carefully considered this question in connection with this subject, and have been led to the conclusion that inasmuch as the legislative assembly of this territory has heretofore enacted a law (chapter 18, laws 1853-4) providing a mode by which divorces may be granted by the courts of the territory (by any act of Congress delegating powers to the legislative assembly thereof) and there being no question as to the power of the Legislature to provide by law a mode by which parties deserving it may obtain relief from such contracts through the properly conducted courts of this territory, I feel it my impera- tive duty to return this bill without my approval.

I am, sir, very respectfully your obedient servant,

NEWTON EDMUNDS, Governor.

A joint resolution was passed by the Council requesting G. C. Moody, super- intendent of the Government Wagon Road from the Big Sioux River to Fort Randall, to furnish the Legislature with an itemized account of his disburse- ments on account of the construction of the Big Sioux bridge, and on the same clay the resolution was transmitted to the House and concurred in, and a com- mittee appointed to present the resolution to Mr. Moody, composed of Kellogg and McCarthy. Mr. Kellogg reported on the 23d day that he had presented Mr. Moody with the resolution, and that gentleman stated that he would furnish

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the Legislature any information calculated to assist them in the performance of their arduous duties which was in his power, and as soon as he could do so con- veniently. The committee was then discharged. A similar report was made to the Council by Mr. La Breche, who reported a written communication to the same effect as Kellogg's report to the House. Mr. Moody evidently considered the action of the Legislature unwarranted, as he was employed by the Federal Government and reported to the Interior Department, and while he did not refuse to communicate the information desired, he was so tardy about it as to arouse considerable feeling among some of the Legislative members who were jealous of the dignity of their body and charged that Mr. Moody had not prop- erly respected it.

Mr. Brookings introduced in the House a bill for an amendment to the ter- ritorial election law, striking the word "white" therefrom, which gave occasion for much debate before the Committee on Elections, to whom it was referred. Equal suffrage and negro suffrage were new issues and many men did not seem prepared to give a decisive vote or commit themselves on the issue. The House considered the bill in committee of the whole. but reported that the committee had reached no conclusion, and the bill was laid on the table. No vote had been taken by calling the roll, and therefore it could not be determined whether the sentiment was favorable to the proposition.

An effort was made early in the session to put through a bill authorizing the issue of territorial bonds bearing 10 per cent interest to be expended in the inter- est of immigration. It might have passed but for the belief that no authority existed under the organic act for such a measure, and its passage would prove detrimental to the territory as indicating a reckless disregard of the fundamental law on the part of the law-making body.

A memorial to the Secretary of War asking that a military post be located on the northern base of the Black Hills was passed. This post was finally con- structed and became Fort Meade.

An act for the establishing of a fence law and the appointment of fence viewers was among the important legislation of this session. The law was after- wards repealed and a herd law substituted. It was the conviction of the farmers that it would be cheaper and better to dispense with fences and compel cattle owners to herd their live stock, instead of requiring the corn and wheat grower to guard his cultivated fields with a costly fence. Fencing material was not abundant and was so expensive as to be practically prohibitive.

A memorial to Congress for an appropriation to meet the expense of a geological survey of the Black Hills and Bad Lands was passed.

A new and much improved general election law was enacted.

An act to establish a public school law, to take the place of one then in force. was passed ; also an act relating to territorial and county revenue: an act to prevent the firing of woods and prairies; an act for the admission of attorneys to the bar; an act prohibiting the furnishing of liquor to Indians; also an act authorizing a special election in Yankton County to vote a jail tax : an act author- izing the sheriff of Clay County to levy and collect taxes for the purpose of purchasing blank books in which to keep the county records; an act providing a bounty for wolf scalps, and an act prohibiting the harboring of Indians. A new civil and criminal code, called the "New York Codes" was enacted, and altogether this Legislature accomplished much that was commendable and improved the body of territorial laws in a marked degree.

Concerning these New York Codes, as they were called, it was stated on excellent authority that David Dudley Field, one of the eminent lawyers of the United States in that day, was the principal author of the codes. They were prepared under the authority of the Legislature of the State of New York, by a commission of which Mr. Field was chairman, and some seven years was given to that and other work of the commission. The codes were completed in Febru- ary, 1865, but had not been passed upon by the Legislature of the Empire State,

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when a printed copy of the report of the commission containing the civil and penal codes, and also the maritime code, came into the possession of the Supreme Court of the Territory of Dakota, then composed of Ara Bartlett, chief justice; Jefferson P. Kidder and William E. Gleason, associate justices ; all good lawyers, and all favorably impressed by the codes prepared by Mr. Field. The codes adopted by the Dakota Legislature in March at the first session, in 1862, had not proved satisfactory in every respect, and the bench and bar of the territory united upon recommending that they be repealed and the Field Codes substituted in their stead. This was done at this session, the Legislature of Dakota being the first legislative body to enact and put in operation these excellent laws. California adopted the same codes in 1872, six years later, and owing to the prominence of that state, the codes became popularly known as the California Codes. This error, however, was later corrected, and Dakota gave the tribute of authorship where it of right belonged.

A law was enacted establishing a bureau of immigration and authorizing the governor to appoint a board of immigration, who should select an immigrant agent.

A committee of one from each county represented in the Legislature was appointed to make a report on the mineral and agricultural resources of the ter- ritory.

A bill for an act to restrain swine from running at large engaged the earnest attention of the House for nearly one-half the session. It was an important measure of itself, and was opposed by those farmers who passed a herd law- the preponderating sentiment being in favor of compelling the live stock interest to herd all domestic animals and make it responsible for any damage done to growing crops by the depredations of live stock.

An act establishing the jurisdiction and defining the duties of justices of the peace was passed.

A memorial praying Congress to amend the Union Pacific Railroad bill, so as to require the building of the northern branch thereof from Sioux City on the north bank of the Missouri River to Niobrara, thence west along the valley of the Niobrara River to the 100th meridian, thence pursuing a general westerly direction to the mountains, crossing the divide through the South Pass, was passed.

A memorial to Congress asking for an appropriation for the construction of a capitol building, introduced by Representative A. M. English, was passed.

Mr. McCarthy gave notice of his intention to introduce a bill to create and empower the sheriff of Todd County to act as sheriff for the Third Judicial District of Dakota Territory.

It was a working body, and although the rupture in the national republican party had grown quite serious between President Johnson and Congress, and the adherents of each were strongly represented at this session, there was very little partisanship displayed. The resolution with reference to the seat held by W. W. Brookings, and the call for information regarding the Big Sioux and Fort Randall Wagon Road, of which Colonel Moody was superintendent, were not looked upon as instigated by partisan feeling. In the first case the inquiry, under the circumstances, of the eligibility of Mr. Brookings to a seat in the House while he held an appointment from the Interior Department as superin- tendent of the Big Cheyenne Wagon Road, was legitimate, and its decision by the court would have settled the important question of what constituted such a federal position in the meaning of the organic act as would disqualify a person from holding a seat in the House. That question was not determined.

In the case of Colonel Moody, there is little doubt that personal feeling and ill-founded public rumor had considerable to do with the proceedings in his affair.

The Congress-Johnson schism rendered the year memorable as one in which the political campaign continued unceasingly. Not only the male population

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but the fair dames were interested, and everyone seemed to have chosen a side, and was prepared to defend their choice. Personally, President Johnson was a popular man ; highly esteemed by the northern people for his many private and public virtues, and more than all for his chivalrous, able and courageous course during the rebellion, when he so valiantly and successfully contested against the secession of Tennessee, frequently endangering his personal safety and at times his life. It was his past career and record that appealed more forcibly to the northern people than his position in the contest with Congress. And it was because of this heroic record that his friends found abundant material to enlist their own and others' sympathies in behalf of his political fortunes.

IION. GEORGE H. HAND

George H. Hand, of Portage City, Wisconsin, reached Yankton in Novem- ber, 1865, having in view a location where he could establish a permanent home for himself and family, build up a law practice, and grow up with the country. He had been a Union soldier during the Civil war, which had then but recently ended, and a member of the Chicago Board of Trade Battery. Ile had been a faithful and efficient soklier and had earned and received moderate promotion. Mr. Hand was about twenty-eight years of age at this time, active, enthusiastic. and a most entertaining young man socially-an excellent companion. He brought with him letters from Wisconsin gentlemen that gave him ready entrance to the confidence of the Yankton people and he was not long in winning their esteem. It was then too late in the season for his wife and young children to make the journey to Dakota-something over two hundred and fifty miles of which would be through a country sparsely settled, while the so-called stage lines were not models of comfort, and winter was coming on apace. But he found Yankton suited to his favor, and this new land so promising of a glorious future that he concluded to cast in his lot with the others who had preceded him to the outpost of civilization on the northwestern border. Had he been inclined to remove his family at that time, he would have been unable to have found a suitable shelter for them in the embryo town. Every habitable structure was occupied, and two-thirds of the population were uncomfortably crowded during the fall and winter. There were not so many actual residents, but the sojourning class were numerous, and the most profitable tenants, for they were prepared to, and willing, to pay exorbitantly, if necessary, for accommodations. Expeditions were then fitting out at Yankton for the Black Hills, for Idaho, and the Mon- tana gold fields, and Yankton was "booming."

Mr. Hand remained at Yankton, and announced to the people that he was prepared to give attention to their law suits.

At the opening of the Legislature, in December, he was appointed by Gov- ernor Edmunds his private secretary, and managed to keep himself quite busy during the winter. The following spring he formed a partnership with Hon. S. L. Spink, the secretary of the territory, and also a lawyer, and the firm of "Spink & Hand, Attorneys at Law" was one of the earliest professional firms in the territory. But Dakota had not reached that stage where the lawyer finds a profitable field for his professional labors. Clients, like good spirits we find mentioned, were few and far between. It is related of a physician who settled in Yankton about this time that he wrote back to his friends in Canada, after being in Dakota a few weeks, that he "had had but one case and that was in dig- ging postholes." Mr. Hand kept busy, or kept up the appearance of being busy.

The following spring ( 1866) he removed his family to Yankton, making a trip to Portage for that purpose, and set up housekeeping in a comfortable hewn log residence that stood on Walnut Street, west side, between the river and Second Street, and here he resided a number of years, until he purchased the place in the northeast quarter of the town, where his numerous family of children were born, grew to manhood and womanhood, and where his esteemed widow still retains a residence.

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In 1866 Mr. Hand was appointed United States attorney for Dakota, a much more important office at that time than the salary would indicate. This office had been held by Hon. W. E. Gleason, who had been promoted to associate justice of the Third District ( Bon Homme, Charles Mix and Gregory counties and a number more unorganized), and the position of attorney had not been filled by a federal appointment until the selection was made of Mr. Hand, who became Dakota's second United States attorney, and discharged its duties ably and faithfully. A number of important cases originating in the Indian country gave him an abundance of employment at times, and also gave him a very thor- ough knowledge of the Indian intercourse laws.

THE TIMBER SUPPLY

There existed grave apprehension in the minds of the early settlers regarding Dakota's limited supply of timber. It was generally believed that the compara- tively small forests that fringed the Missouri and the lower Big Sioux, Ver- million and James would disappear within a few years, and the loss of it and the lack of it would prove a great detriment to the settlement and development of the country. No doubt this apprehension did retard the progress of settle- ment to some extent. The early settlers on the highlands comparatively remote from the timbered streams were put to great inconvenience and doubtless con- siderable suffering, owing to the difficulty of procuring fuel. Resort was had to burning the prairie hay, which was twisted similar to a rope as compact as possible, and while it burned rapidly and required to be fed into the stove at very frequent intervals, it created warmth and fire, and enabled hundreds of the pioneer farmers to keep their families comfortable during many winters prior to the advent of railways and coal. To such an extent was hay used for fuel that stoves were made with special adaptation to its use. . Experience, and the passing of years, has shown, however, that the territory was never destitute of timber in the sections where it was at first abundant. In fact, the people were never able to consume the original supply, although thousands of log cabins were built from it; it was drawn upon for much of the fuel used by the settlers during the first fifteen years of the territory's settlement ; a dozen sawmills have been at work in it and an immense amount of lumber has been furnished from it, and yet in the face of this consumption, the quantity and the wooded area has increased much more rapidly than it has been consumed and there are probably a hundredfold more growing trees in the older counties now than when the first settler came in; and the same is true throughout the Dakotas, averages consid- ered. There are many large groves of timber covering many acres in the south- ern counties of Dakota that were set out thirty and even thirty-five years ago.

These groves have been thinned out from time to time, furnishing a vast amount of fuel. In some instances the owners are cutting out trees that make excellent sawlogs and these with the aid of a portable sawmill are converted into building lumber and used in improving the farm. The timber grows much more rapidly than it is consumed, and farmers are compelled to thin it out every few years as an aid to the growth and symmetrical development of the younger trees. It is the uniform testimony of these farmers who have taken out large quantities of cordwood and sawlogs from their old groves that so far as the appearance shows, the grove does not suffer in the least; while on the other hand the remaining timber is vastly improved.

CHAPTER XXXIX POLITICS-BLIZZARDS-INDIANS HOSTILE 1866

A POLITICAL YEAR-PRESIDENT JOHNSON AND CONGRESS IN EMBROILMENT-NEW NA- TIONAL POLITICAL PARTY-DEMOCRATS CAPTURE REPUBLICAN ORGANIZATION IN DAKOTA-THE DELEGATE CAMPAIGN-DOCTOR BURLEIGH NOMINATED BY THE JOHNSON CONVENTION-NEW REPUBLICAN PARTY ORGANIZED-BROOKINGS NOM- INATED FOR DELEGATE-BURLEIGH ELECTED-MASSACRE AT FORT PHIL KEARNEY- INDIAN ACCOUNT OF THE TRAGEDY-BLIZZARDS IN 1866-COLONEL MOODY AND SECRETARY SPINK HAVE AN EXPERIENCE-LYNCHING OF HOGAN AT VERMILLION -THE MISSOURI BOTTOMS SUBMERGED FOR SIX WEEKS BY THE SPRING FLOOD IMMIGRATION ; THE MINNESOTA COLONY-DAKOTA BAR ORGANIZED-ANDREW J. FAULK APPOINTED GOVERNOR-A THANKSGIVING PROCLAMATION.

Though not particularly germane to the history of Dakota, but as bearing upon political matters in the territory, it is deemed best to make mention of one of the most extraordinary political conventions ever held in the United States. It assembled at Philadelphia on the 16th of August, 1866. It was termed by its opponents, in derision, a national "love feast." It was a convention of promi- nent Union men, both democrats and republicans, civilians and military heroes, and many ex-Confederates, mostly military, who had foresworn secession for all time, and returned to their allegiance to the old flag of their fathers. It was a national convention in a geographical sense, and was convened by the adher- ents of President Johnson's reconstruction policy, for the purpose of arousing a sentiment favorable to that policy among the people of the North, and to bring together in harmony and good fellowship the former secession leaders of the South and the Union leaders of the North, with the view of forming a national political organization in opposition to the Congressional plan of reconstruction, which was termed the radical republican policy. Leading republicans of the North were in the movement. Gen. John A. Dix, author of the famous expres- sion, "If any man attempts to haul down the American flag, shoot him on the spot." was president of the convention. Hon. Henry J. Raymond, editor of the New York Times, and one of the staunchest supporters of the war for the Union, was a conspicuous leader, and other equally celebrated Unionists were in the front ranks of the movement. The proceedings were conducted largely accord- ing to a prearranged program, and were very spectacular and interesting. A famous Union general and a famous Confederate general walked arm in arm down the long convention hall, signifying that the North and South were once more linked together in the bonds of amity and friendship. Other features were no less novel and significant, all emphasizing the restoration of the Union, and exoneration for all political offenses. This convention was the formal beginning of a serious breach in the political parties then existing and resulted in complete ruin of the political prospects and ambition of many prominent northern men, for although in its inception it seemed that it would sweep the country, the dis- position of the people was mistrustful of it, and when they had an opportunity to be heard at the Presidential election in 1868, they defeated it by an over- Vol. 1-28

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whelming vote. At this convention Dakota was represented by Gov. A. J. Faulk, John W. Turner, D. T. Bramble, M. K. Armstrong and T. W. Miner. A national executive committee was appointed and a new political organization was launched, which became the rallying organization of the democratic party for 1868.

In the beginning of the difficulty between the republicans in Congress and the President, their differences were largely and intensely personal-a mutual personal dislike that forbid such an intercourse as might have resulted in some amicable arrangement of their differences, for before there was any clash or disagreement about reconstruction the personal estrangement had forbid any harmonious intercourse between Johnson and the Congressional leaders. The President was dictatorial, imperious, headstrong, and to differ with him seemed to ineur his personal dislike, and he did not hesitate, in his public addresses, to name and denounce some of the leaders of the Congressional policy, preeminent among whom was Hon. Charles Sumner, senator from Massachusetts, and Hon. John W. Forney, a prominent journalist, whom the President stigmatized as a "dead duck." While the President held the veto power, and could dis- approve of the laws passed by Congress, the Congressional party had a two-thirds majority in each house and could override the veto, and did so frequently during Johnson's term.

The political situation in Dakota was very much obscured by these develop- ments in national affairs. There was no republican or democratic party under those titles. The republicans, following the name chosen by the national party in 1864, called themselves the national union party, and the democrats styled their party the union party. Hon. W. A. Burleigh had been elected delegate to Congress by the national union party in 1864. During the interval between Lincoln's assassination in 1865 and the summer of 1866 the breach in the repub- lican party had occurred, and new issues entirely were presented. Reconstruc- tion had superseded all former questions. The President and his supporters now favored a liberal and lenient policy toward the ex-Confederates, and desired to restore the seceding states to the Union at the earliest day practicable, and also favored allowing many of those recently in arms against the Government to have a voice and vote in this work of rehabilitation. On the other hand, Con- gress was determined to "make treason odious" (which phrase had been the shibboleth of President Johnson in the early days of his administration), by excluding all who had borne arms against the Government from any participa- tion in the first steps of reconstruction. Johnson desired only to rehabilitate; Congress was determined to reconstruct. As the former slaves of the South had been enfranchised, the policy of Congress placed the voting strength in the states to be restored largely with the black people, the great majority of whom could neither read nor write. There were comparatively few southern whites who had not borne arms against the Government, and could qualify as voters under the reconstruction acts, and also a number of northern men whom the fortunes of war had left in the South or who had gone there after hostilities ceased to engage in various industrial pursuits, and there were others who seem to have gone there to take advantage of the political situation and secure office under the new state governments. This last mentioned class the southerners called "carpet baggers."

The democratic party sustained President Johnson and a large number of republicans supported his policy, and united with the democrats on the national issue. It was claimed with substantial reason that the influence of Hon. William H. Seward, who had been Lincoln's secretary of state and held the same place under Johnson, and who has been called the father of the republican party, caused thousands of republicans to sustain the President ; reasoning that Seward must have known the policy Lincoln had in view, and which he would have pursued had he lived, and inasmuch as Mr. Seward gave his cordial support to Johnson, it was inferred that the latter was following a plan devised by the great

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History of Dakota Territory, volume I, Part 75

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