THE EFFECT OF EARLY LEGISLATION UPON THE COURTS OF NEBRASKA.

T. M. MARQUETT.

The effect that legislation has upon courts is always a fruitful subject. This is made more interesting by the fact that we go back to that era of our country's history when the great questions before the people were those that affected the fundamental principles upon which our government rests. We are carried back to the period when the organization of the territories of Nebraska and Kansas was passed; to an era where the principles enunciated in the Declaration of Independence were attacked and defended. The Act itself became a law at the end of perhaps the most protracted and exciting debate that ever took place in Congress. It was an upheaval, or I might say, reversal of the policy of the United States from the day of its existence as a government up to that time. As it was afterwards interpreted by the supreme court in the celebrated case of Dred Scott vs. Sanford, up to that period, all laws and the constitution had been construed in favor of freedom as against slavery. Slavery had been looked upon as purely local, whilst everything National was freedom. And the principle that freedom was National, and slavery local had been the established policy of the United States up to that time. In the act itself, while it gave the territory the right to make laws, it threw around the people no safeguards in the making of these laws, and the act itself was only remarkable for the stump speech it contained, which read as follows:

It is "the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way." Like most other stump speeches it was capable of two meanings, and the two meanings were put upon it at once. One was that during the existence of the territory you might legislate against slavery, and legislate the territory to be free; the other construction was that the territory could not legislate upon the subject at all; the slave owner had a right to take his slave there as he saw fit, and in spite of the organic law make the territories slave territories, and that the only time that the people had a right to say whether it should be free or slave, was when they came to form a constitution for a state to be admitted into the Union.

The organic act threw no protection around the people from arbitrary acts of the legislature such as now hedges in our legislature by our admirable constitution, for instance a law could be enacted in this way, and this was the way the first criminal code was enacted:

"Be it enacted by the council and house of representatives of the Territory of Nebraska:

Sec. 1. That the fourth part of the Code of Iowa, beginning on page 349 as published in the authorized publication of said Code, as far as applicable and not inconsistent with the laws of this Territory, be and the same is hereby declared in full force and effect in this Territory. That it shall be the duty of the person or persons who superintend the publication and indexing of the laws of the Territory passed at this session, to number the sections in said Criminal Code consecutively through the same, beginning at No. I."

This was passed March 15th, 1855. March 13th, 1857, we see an act of this kind passed: that the act entitled an act adopting certain parts of the Code of Iowa, approved March 16th, 1855, and also an act entitled an act relative

to criminal laws, approved March 15th, 1855, be and the same is hereby repealed. This left the Territory without any criminal code. Being repealed without a saving clause it virtually released every criminal that had not been tried in the Territory, and perhaps that was the object. It was said at the time by some that the intention was to let loose a man by the name of Hargus, and it had that effect. Hargus was convicted of murder, or manslaughter, and in this way he was relieved from the penalty. The court convicted him, the legislature released him.

The Territory had no criminal code from this time on, until October, 1858, and during that period Judge Lynch was the principal officer that administered justice as far as crimes were concerned.

In the Hargus case the late O. P. Mason first brought himself prominently before the public as the manager of that celebrated case. I remember him as he was then. Young, and impassioned, and capable of any extreme in argument, he was wont to reach out and gather in the sympathy of the by-standers. It was said that he one time objected to a question propounded to a witness by an attorney on the opposite side; and when asked to state his objection-it appearing that the question was asked by Judge Kinney, who then had been appointed as Chief Justice of Utah,-Mason said: "If that is the kind of questions of law by which he, Kinney, proposes to free this criminal, no wonder Franklin Pierce banished him beyond the snow-capped mountains of Utah." The judge promptly decided the case, and said the objection was a good one, but was not the law. This decision was made by Black, who afterward became governor, a generous, brave man, and I hope you will excuse me, if I step aside to mention a single instance in his life that came under my observation.

In the winter of 1860, a few of us, I believe all belonging to the Republican party, we were called by our oppo

nents Black Republicans, had a banquet, and while it was going on, Governor Black and his private secretary came in upon us, and we invited them to partake. His private secretary, doubtless to compliment Black, gave the following toast, "Here is to Black, without the Republican." We drank to it. Immediately Senator Paddock arose to his feet and gave a counter-toast, "Here is to Republican, without the Black." That was drunk, and I remember at the end of the feast of shaking hands with Governor Black as he said, "I am pleased with the rebuke that was given to my secretary, we are all Americans." I realized fully the purport of what he said when in one year after the incident he resigned his office as Governor, went back to his former home at Pittsburgh, Penn., raised a regiment of men and proffered his services to Abraham Lincoln in the great cause of preserving this Union. And a little over one year from that date, in what was known as the seven days' battle before Richmond, in front ranks, amid the hurtling storm of war, he gave his life to his country. Well had he won this the proudest title among men, "An American Citizen."

Pardon me for going outside my subject to lay this tribute upon his grave.

The session of the legislature that met in December, 1857, passed a code of civil procedure; but this code was not published till some time in the following summer of 1858. The panic, the worst probably that the United States was ever visited with, unless it be the present one, came upon us in the fall of 1857, just before the meeting of the legislature. The legislature held till the latter part of January and adjourned. The code that was adopted was not published until some time in the summer, but in the mean while the merchants along the river, in Plattsmouth and elsewhere, had become large debtors, and found themselves unable to pay; in fact everybody in Nebraska, and all the creditors outside of Nebraska sent their claims at once to be sued. I, myself, just commenc

ing in practice then, found myself deluged with suits of creditors suing for their debts in Nebraska. I commenced during the winter and early spring of 1858, my recollection is, some seventy-five suits. A firm by the name of Elbert & Townsend, rivals of mine, commenced probably the same number of suits. We commenced them with the understanding that our code of practice was like Iowa's, requiring what was known as an original notice instead of a summons. The original notice could be served by any person; a summons required to be served by the sheriff or an officer. It turned out, however, that all of the suits that were commenced, were commenced wrong, and they commenced making motions to quash my summonses, and I made counter motions to quash their summonses. That would virtually end the case until a new service was made, and the first term of court that I attended in Plattsmouth, the principal work of the judge was to quash the summonses on each side; quashing some 100 to 150 summonses. The only consolation that I had in having my summonses quashed, was that the other attorneys fared no better. We tried to make an agreement to stop the havoc; but failed to do so. There was but one suit that survived the wreck and ruin of a lawyer's hopes, and that was where the party without taking exceptions to the summons, appeared and filed an answer. His answer was unique. The suit was on a promissory note. He admitted its execution, admitted the note was all right; but plead that his client did not have a dollar, and was not liable ever to have a dollar to pay it, and therefore it was useless, and only making expense for the court and county to bring suit upon it and asked for a judgment. The court decided that his answer coming after a summons, came too soon; he ought to bring in a plea after the execution issued, and it would in that case be an effective plea.

During the session of 1858, the first law to regulate the sale of vinous, malt and spirituous liquors was introduced