into the territorial legislature. It was virtually a license law, and prohibited the sale except a man first had a license. The law was pushed forward; it passed one of the houses and was on its third reading, and about ready for passage in the other house, when the bill was stolen from the clerk by a member, said to be saloon-keeper. This bill was brought up late in the session, and it was said the member ran off with it and went over into Missouri, so that the sergeant-at-arms could not reach him, so that he could not be called back. The introducer of the bill did not like to be beaten in this way, so he got a printed copy, which had the following probably typographical error. It gave a justice of the peace jurisdiction and said that if anyone arrested should be found guilty of selling any liquor without a license, the justice should render judgment, and pay a fine not less than five nor more than one hundred dollars. The bill was read by its title, rules suspended, passed both houses, received the signature of the governor, and became a law; but it was one of the license laws that was never enforced on account of the provision that required the justice to fine himself instead of the man that was guilty.

You will find by looking over the early journals of the two houses of Nebraska, the legislative bodies, that the legislature in those days divided the honor with the courts of granting divorces. In those days a man could get a divorce from his wife, or the wife from her husband, by legislative enactment, and you will find innumerable bills introduced; many of them granted. It was less strain on the conscience at that time to get a divorce from the legislature, but probably worse on the pocket book. The granting of divorces is properly a judicial question, and the granting of them by the legislature was a blow at the judiciary, besides being the worst and meanest kind of class legislation.

The present code of civil procedure was adopted in 1858. It is virtually what is known as the Ohio code. Of

the committee that framed it, the late Hon. O. P. Mason was chairman. There was a contest before the committee between the New York code and the Ohio code, and the committee stood two to two. The committee besides myself, stood two for each code, and I cast the deciding vote, and the code that we now have, with but very few amendments, is the code that was adopted on the 1st of November, 1858, though there have been many important amendments which affect vitally the rights of humanity since that period. When that was passed, the competency of witnessess was determined by the following section: "Section 310. Every human being of sufficient capacity to understand the obligation of an oath, is a competent witness in all cases both civil and criminal, except as hereinafterward declared; but an Indian, a Negro or mulatto or black person shall not be allowed to give testimony in any cause."

"Again, a person who has a direct certain legal interest in a suit, is not a competent witness, unless called for that purpose by the opposite party.'

At this time, I objected to these provisions, especially to that portion which made incompetent a mulatto, no matter how much of a white man or how little of a Negro he was, he was incompetent; but I was overruled. Some of them going so far as to say they proposed to have no mulatto or Negro in Nebraska, and were in favor of advocating a law prohibiting them from immigrating into the territory, and it was reported in that shape and passed. The effect on the courts of the provision which made parties incompetent witnesses in their own cases may be illustrated by a noted case reported, entitled, I think, Bonnell vs. Gilpin. The case arose in this wise: A tailor makes a coat and sells it to a party who pays for it and gets a receipt; the tailor again sues for the coat; the party has lost his receipt, and as he is unable to find it, the tailor collects his bill a second time. The man afterward finds his receipt; but the case is adjudicated.

I can further illustrate this by a case of my own. I think it was in 1858, a man came to me to get me to sue for a trespass. His neighbor's hogs had trespassed upon him, got into his corn field and destroyed a lot of corn. When I came to examine the case, I found out he could prove the destruction of the corn, or that some corn had been destroyed, but was unable to prove its value, so I advised him not to sue. But in the meanwhile the hogs that did the damage, had been set upon by dogs, or rather the dogs had been set upon the hogs, and the man that owned them believed that my client had done that, and he sued him for the hogs. But it turned out that it was not my client's dogs that killed the hogs, and the attorney on the other side found himself short of evidence to show that my client did the damage. In the meanwhile, when my client was sued, I brought in as an offset the destruction of the corn, and when the case was being heard, both sides found themselves without evidence to prove the amount of damage done. The law was that either side could call upon the opposite party, and so the other attorney called my client upon the stand, and he admitted that he had set the dogs on the hogs. That opened the way for me to prove my case, and I proved the value of the corn destroyed, and the jury gave me a verdict for $3.00. You can see the difficulty under which this system operated, and in the legislature, myself with other lawyers, commenced an attack upon it at an early day, and it was changed.

The provision that made all Negroes and mulattoes incompetent witnesses in any case was founded on a then deep-seated prejudice against the race, race prejudice. We will speak of this later.

You will find by examining the journals of both houses of the Territorial legislature, that a large portion of the bills of the legislature consisted in granting special charters for towns and building bridges across streams, running ferry boats across the Missouri and Platte, and so on.

In those days class legislation had its full sway, and the great battle was against legislation of that kind. To illustrate, that kind of legislation has been entirely done away with, and corporations can only organize under the general laws. The same law that governs one governs all of the same class. A charter that governs a city of the firstclass, must govern all cities of the first-class. A charter that governs a village must govern all of the thousands of villages in the State of Nebraska. So that a construction by the courts of the rights of one village under its charter determines the rights of the many thousands that are in the State; but under the old regime where each had a separate and distinct charter; the decision or the construction by the court of one, would be no criterion of what the decision would be in another.

Most of this change from class to general legislation has its beneficial effect upon the courts and upon the community. A single decision determines the rights of all of the similar corporations, and upon that proposition the lawyer knows how to advise his client, and a single case makes peace for a thousand others. In those days, special privileges to the few were the order; to-day no special privileges are granted. The law under which one railroad is inaugurated, is the law for all other railroads, and under that law any five persons, no matter who they are, can organize a railroad; so with all other corporations. But in those days, class legislation was not confined to things; it pertained to a person likewise.

In order to test the question whether it was the law that a man could own and hold slaves in Nebraska, in 1859, your speaker introduced a bill to abolish and prohibit slavery in Nebraska.1 This bill was immediately followed by one introduced, entitled “A Bill for an Act to Prevent Free Negroes or mulattoes from Settling or Residing in the Territory at all." If a mulatto was a

1 On the subject of Slavery in the Territory of Nebraska, see Neb, State Hist, Soc. Transactions and Reports, II., 68, 92-108; V., 72–73, 188-189. [ED.]

slave under that bill he had a right to live in Nebraska, the Negro as a slave, the master had a right to bring here; but no free Negro or mulatto should be allowed to live in the Territory. That bill was referred to the special committee, of which your speaker was the tail end, and I brought in a minority report upon it, and what I then said sounds strange. That bill was introduced, recollect, December 16th, 1859. This was over thirty-four years ago. Among other things in my report I said: "It is proposed by this act to drive mulattoes, no matter how near a white man they may be, out of this Territory. This bill goes further, and declares to these Negroes and mulattoes that if they dare live here for ninety days, that they are criminal, and sir, what is their crime? Is it a crime. to breath the air of Heaven? Why not crown the climax of folly and enact that it is a crime to be born a Negro, and they commit a crime in daring to live at all on God's bright and beautiful earth? Certainly the mover of this bill under consideration can claim no credit for originality, for the bill largely was taken from the slave driver's bill introduced in the legislature of some of the slave holding states. Gentlemen cannot be in earnest in passing a bill which subjects a colored person to fine and imprisonment merely because he is so unfortunate as to be a Negro and on Nebraska soil. To pass this bill would be to pander to the vitiated prejudices of those whose highest and holiest ambition is to perpetuate human slavery. We see here when a proposition is made to make the soil of Nebraska free, it is followed by one to persecute the few Negroes that may be so unfortunate as to be here." This prejudice had its effect. At that time the Negroes and mulattoes had no rights in court from the fact that none of their race, no matter how white they may have been, could be witnesses in any case. Their rights in court could only be determined by what some white man might swear to. Thirty-two years ago the rights of the colored race in court rested alone upon the white race.