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"This gross income could only be secured after several years of business; but it is easy to see that the vast amount of trade and travel, which does not follow the tedious route by the ocean, would immediately pass through this new, safe, and speedy channel of commerce. The millions of Europe would be brought into contact with the hundreds of millions of Asia, and their line for quick transit would be, to a great extent, across our continent. Their mails, their ministers, their most costly and interesting travel and trade would take this route, and augment our business and multiply our resources.
"In view of the comparative cost, to the wonderful changes that will result, your committee cannot believe the period remote when this work will be accomplished; and with liberal encouragement to capital which your committee are disposed to grant. it is their belief that before fifteen years have transpired, the route to India will be opened, and the way across this continent will be the common way of the world." (68-69.)
Two months from the morning on which this prophecy was made, the man who made it ceased his labors here. In fourteen and one-quarter years, on May 10, 1869, the last spike was driven in the great transcontinental railway, and the East and West were united by the bands of steel for which that primitive railroad company had sought.
The indistinct and fragmentary picture that comes to me from that remote scene in our history, presents him to me as a sort of embodiment of the restless, energetic, progressive spirit of the early makers of the middle West, the actual development of which has far exceeded their brightest fancy.
THE RESULTS OF THE PIONEER SESSION FROM A LEGAL POINT OF VIEW.
By Hon. M. B. Reese. Read before the Society January 3, 1897.
It is decreed by the powers that be that the subject of this paper must be "The Results of the Pioneer Session from a Legal Point of View." From all appearances we should say that the first session of the territorial legislature was a busy one. That session convened at the city of Omaha, the then capital, on the 16th day of January, 1855, and so far as I have been able to learn, the last date of the approval of laws was on the 16th day of March of the same year. The method adopted for the enactment of laws was in some respects unusual, and shows that that body of statesmen, upon whose shoulders rested the burden of laying the foundation stone upon which to erect the structure of the state of Nebraska, was not averse to rest and probably having a good time, so that many of their laws were enacted by wholesale, and doubtless at wholesale rates. As an illustration of this we need but notice the act which first appears in the volume of laws issued as the result of that session. This act is entitled "An Act Adopting Certain Parts of the Code of Iowa." The act consists of two sections. The first section is "That the following chapters of the Code of Iowa, passed at the session of the general assembly of the state of Iowa in 1850 and 1851 and approved the 5th of February, 1851, be and are hereby adopted and declared to be in force as law in the territory of Nebraska, so far as the same are applicable and not inconsistent with any laws passed at the present session or with the organic law of said territory, to-wit:" Here follows an enumeration of the chapters which are adopted, but few of which need be here copied. They run as follows: Chapter 3, section 26, entitled "Constructions of Statutes;" ditto 58; ditto "Notes and Bills," etc. Section 2 is as follows: "Sec. 2.
This act to take effect from and after its passage." The whole matter of preparing the chapters referred to and publishing them as a part of the law of the territory devolved upon some functionary of the government, and they were copied into the territorial laws, occupying one hundred pages of that publication. Who did this, or by what authority it was done, it is not necessary now to inquire. It is quite plain, however, that the legislature spent none of its valuable time in trimming up and otherwise embellishing the laws of Iowa in order to render them applicable to territorial conditions. The territory then consisted of the counties of Burt, Washington, Dodge, Douglas, Cass, Pierce, Forney, Richardson, and probably Jones. However, it appears that on the 10th day of December, 1854, Jesse Lowe, deputy United States marshal, in obedience to a commission issued by Acting Governor T. B. Cuming, made a report that no person lived in the county of Jones, "unless a few living in the neighborhood of Belews precinct in Richardson county, and who would naturally vote at said precinct," and therefore he was of the opinion that no apportionment should be made to Jones county. With Jones county lost, or otherwise not accounted for, the council consisted of thirteen members, one from each of the counties, excepting Douglas, which had four, and Pierce, which had three. The house of representatives was composed of twenty-six members, two from each of the counties, excepting the counties of Douglas, which had eight, Cass, which had three, and Pierce, which had five. The legal effect of this enactment can only be considered with reference to the results desired, as we know this whole body of law, thus enacted, constituted a part of the law of the territory until the year of 1857. In this collection we find some provisions which to our minds have never been improved upon, and are much better and more reasonable than the laws enacted in their stead. The widow's dower in the real estate of her deceased husband was declared to be one-third in fee simple. This law was repealed by the act of 1857, and we now have a dower of one-third during the life of the widow. No improvement.
We notice in that law the qualification for jurors which has
been lost by the carelessness or ignorance of subsequent legislatures and the efflux of time, which we would do well to recapture. It was provided by section 211 of that act that "All qualified electors of the state of good moral character, sound judg. ment, and in full possession of the senses of hearing and seeing, are competent." Just think of it! Twelve men rounded up in one body, all of whom were of good moral character and sound judgment. Evidently, by the provisions of that act none else would do. "Sound judgment" was an essential element. Were it not that we are fully persuaded that the judges of those days were composed of an excellent quality of clay, we would be compelled to say that the jurors filling the measure of that section were upon a higher plane than the judges, for experience has taught those of us who have acted in judicial capacities, as well as those who have not, that "sound judgment" is not always attained, even upon the bench. However, let us be glad that in those days their juries were sound,—take courage and press on. By the act referred to the legislature adopted that portion of the Civil Code of Iowa which prescribed the manner of commencing actions or suits, and for one year, at least, the territory of Nebraska had a sensible law upon that subject. It has never had one since.
The process or writ by which jurisdiction over the individual was obtained was called an original notice. It was prepared by the party plaintiff or his attorney, and served upon the defendant either within or without the limits of the territory by reading it to the defendant and giving him a copy if demanded, or if not found by leaving a copy at his usual place of residence with some member of his family over fourteen years of age. It could be served by any person not a party to the suit. By it the defendant was informed that on or before a day named therein a petition would be filed in the court containing a prayer for the relief demanded.
Whether we can say that our present law upon that subject is the "Results of the Pioneer Session" may be a matter of doubt, but certain it is that if it is, the results have been bad. By our
present law, in order to commence an action in the district court, a petition must first be prepared. Then it must be sworn to. The clerk must then be found at his office and it must be filed. If a precipe accompanies the petition and there is money enough upon the person of the attorney to pay the fees for filing the petition a summons may be issued by the clerk. The next step is to find the sheriff, for no other person can serve that precious bit of paper excepting that functionary or some one duly appointed to do so under his hand and endorsed upon the summons. This all being done, we are ready for the service, but if the proposed defendant has conceived the idea of absconding he is perhaps a hundred miles away before this cumbrous machine can be put in motion. In this the wisdom of the present day is not made manifest.
The law of the foreclosure of real estate mortgages as contained in that wonderful bill provided no other proceeding than simple notice and sale, all procedure in courts of justice being entirely omitted. Upon this we have made "valuable," and it is to be hoped, "lasting" improvements by requiring a procedure in court and giving the unlucky mortgagor something of a chance for the redemption of his property.
The law as to the competency of witnesses in judicial proceedings was made after the good old democratic plan, and "an Indian, a negro, a mulatto, or black person" was not allowed to give testimony in any case wherein a white person was a party. This was a shadow of the American Dark Age, which was cast upon our fair territory.
The prohibitionist would say that the law enacted by that legislature upon the subject of manufacturing and selling intoxicating liquors was about right, for a very stringent prohibitory law of but few sections was enacted. By that act the manufacture, giving away, or by any manner of subterfuge trafficking, trading, exchanging, or otherwise disposing of intoxicating liquors within the territory, to be used as a beverage, was prohibited under severe penalties.
Among other things enacted by that legislature was a law for