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he doubted the expediency of taking away all the civil and all the criminal law of Nebraska and substituting nothing for it except that we would have to fall back upon the common law. I was very much surprised in reading the legislative assembly proceedings to find that Governor Furnas voted to override the veto. I see that the very next day, however, he moved to reconsider the vote. So doubtless that was the reason he voted to override the veto, in order that he might be in a position of advantage to move reconsideration, and on that vote he voted right, and doubtless intended to all the time. George L. Miller was the only member of the council who voted against the bill on its original passage, and evidently the bill was not well considered, and from its title you would see that it was introduced by an editor by the name of Bradford, who also was chairman of the judiciary committee. It seems not to have been read at length, so it appears probable that they did not understand it, but when it came to the governor's veto there were five men for reconsideration and seven against reconsideration, so of course reconsideration did not carry. So, having merely in a jocose way called attention to the fact that Governor Furnas voted for that measure, I think I have taken back the charge when I say he voted for reconsideration.
View of Judge S. B. Pound. Delivered before the Society January 13, 1897.
Mr. President, Ladies and Gentlemen: I assume that this is a discussion to the jury rather than to the court, and infer that you will not expect radical argument, but rather a few discursive remarks. I will say I am not prepared to agree with the gentlemen who have just preceded me in estimating the ability of the members of the first session of the legislature of Nebraska, in 1855. They have placed a very high estimate upon them. They claim they were original creatures, able to express themselves in strong, terse language, and in every way proved themselves very able men. Well, that might be. I am hardly disposed to say anything that would detract from their credit in
When you consider that a large portion of the legislation of that session consisted in adopting in bulk the code of another state, both the civil and criminal code, and that they lacked the knowledge and ability to frame laws of their own and express them in their own language, I think there is ground for suspicion that a large part of their legislation was borrowed. It has been said that the adoption of the criminal code was in this way: Be it enacted that one-fourth of the criminal code of Iowa, beginning on such a page, shall constitute the criminal law of the territory of Nebraska. I should say that is pretty crude legislation. I believe they made a party chief clerk to copy that portion of the code. But they did not say that the copy, or a certified copy, should be evidence of the law at all. In trying a lawsuit, how are we to know what the law was? Take the criminal law, and how were the people to know what it was and how could they find out? The law did not say that the certified copy of the clerk should be evidence of it at all. To illustrate my meaning somewhat, I heard a lamented member of this society say that he was attorney in a case arising under that law, which was tried before a very dignified magistrate, and after the case had been proved, as it was supposed, by the attorney on the other side, he made the point that the law itself had to be proved; that there was nothing in the statute as enacted by the legislature making the copy proof of the law at all. He insisted that the clerk should be produced as a witness to prove that the copy was a true copy of the act of Iowa, and he stated that that was the only way to prove it and that they must prove not only the facts of the case, but must prove the law, because the statute did not make the copy evidence of that fact, and he won his point before the magistrate. So much for that. That was queer legislation. Nothing more nor less could be said of it.
I have said this because we have been disposed to laud these men as superior to the men of the present time. I presume they were men of more than ordinary ability. Men who would come out in this western country at that early day and try to build
up a state, we might presume, were men of more than ordinary energy and enterprise.
I think it may fairly be claimed as one of the results of the legislation of the first session, in 1855, that we never have had any small towns or villages in this state. Our municipalities have all been cities. At that session there were some fifteen or twenty cities incorporated. That legislation has been explained on this theory: That the early inhabitants of this state were, at least one-third of them, distinguished and titled persons; they were majors, colonels, generals, judges, and governors, who preferred to live in cities rather than in small towns and villages, and the result was that the ratio between titled and untitled persons has been pretty faithfully maintained from that time to this. If you remember, a large per cent of our citizens to-day are titled persons; we are all colonels, or judges, or something of that sort, so that this may fairly be claimed as one of the results of this legislature. We all live in cities. We have the cities of Brownville, Nemaha City, Nebraska City, the city of Plattsmouth, Dakota City, the city of Carlisle, the city of Fontanelle, Republican City,-all these are cities.
It is not unlikely that the legislation of that session also gave point and trend to the public mind on the question of municipal corporations. At that session there were some thirty ferry companies incorporated, giving them exclusive privileges to ferry passengers over, and to charge a toll therefor. This, too, at a time when there was little or no travel, and when inhabitants were so few there were hardly enough to make a respectable town meeting; and then there were the incorporated banks, and railroads, and emigration societies, and seminaries, and insurance companies, and all sorts of corporations of that kind. This shows one thing, and that is that people at that time seem to have thought that the great source of wealth and prosperity was in legislation; that in order to obtain money all that was necessary was to incorporate banks; if they wanted a railroad, to incorporate a railroad; if they wanted salt, to incorporate a manufacturing company for salt. That is the way they seem to have
thought to be the way to get on in the world; that a private individual could accomplish nothing toward developing the resources of the state, but to carry on the great industrial enterprises of the state there must be a concentration and combination of skill and capital and enterprise. That seems to have been their idea. Legislation was a useful and necessary thing, and therefore they incorporated companies for everything they could think of. Nothing could be carried on by individual effort. I am afraid that sentiment is too much abroad in the country today. Whether we can trace this present sentiment to the impetus that was given to it at that time and in that session, I cannot say. But the fact is, that there is a prevailing sentiment of that kind abroad at the present time, in the minds of people, that individual effort cannot accomplish much; that in order to get on in the world and to develop the resources of our state it is necessary to form corporations, to concentrate, to combine. I think it is a false opinion-a false idea. Legislation can do something, but not much. Very much depends on the individual and very little on the legislation.
View of Hon. Samuel Maxwell. Presented at Annual Meeting January 13, 1897.
The impression prevails in some of the older states that a large proportion of the settlers of a new state have but little respect for law and order, and hence neither life nor property are secure. This may be true in some new mining camps and like places, where gamblers and prostitutes form the larger part of the population, but as a rule has no application to an agricultural community. And this is particularly true of the people of this state, who from the first have shown a desire for equal and just laws and a disposition to obey the same.
Nearly all of the first settlers were young in years, but full of enterprise, hope, and ambition, not only to succeed themselves, but to lay the foundation of a great state. The territory of Nebraska then was bounded on the north by British America, on
the east by Minnesota, Iowa, and the Missouri river, on the south by the 40th parallel, and on the west by the dividing ridge of the Rocky mountains.
The first session of the territorial legislature met in Omaha in January, 1855. The bill organizing the territory passed congress in May, 1854, and from that time until the close of the 1855 session, there was practically no statute law in force in the territory. The legislature of 1855 appointed Origen D. Richardson, of Omaha, a member of the council, and, I think, J. D. N. Thompson, of Falls City, a member of the house, as special commissioners to prepare a code of laws, civil and criminal, to submit to the legislature.
Mr. Richardson had been lieutenant governor of Michigan and was a capable lawyer and an honorable, upright, worthy gentleMr. Thompson was also a capable lawyer and every way worthy as an associate of Mr. Richardson. The statutes reported by these gentlemen were necessarily borrowed from other states. The Code of Civil Procedure was almost wholly copied from that of Iowa. I think the Criminal Code was also taken from the Criminal Code of that state.
The laws passed at that session, including those borrowed from Iowa, cover almost every question relating to rights and remedies in civil actions; and the Criminal Code provided for punishing almost every species of crime. In considering the general laws then passed, the student will be impressed with their simplicity, fairness, directness, and brevity.
The laws copied from Iowa continued in force until February, 1857, when, without providing any legislation to take their place, the legislature of that year, in its closing hours, repealed both the Civil and Criminal, and left the territory for more than a year without either a Civil or Criminal Code. In addition to this the legislature elected in August, 1857, when in regular session in December of that year, split on the capital removal question,-a part going to Florence,-hence nothing was done until a called session in the fall of 1858.
Our present Code of Civil Procedure, so far as it relates to ac