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Autobiography of Charles Clinton Nourse
Autobiography of Charles Clinton Nourse
Prepared for use of Members of the Family
CONTAINING THE INCIDENTS OF MORE THAN FIFTY
YEARS' PRACTICE AT THE BAR IN THE STATE OF IOWA
PRIVATELY PRINTED
MCMXI
Copyright 1911
BY CHARLES CLINTON NOURSE
THE TORCH PRESS
CEDAR RAPIDS, IOWA
CONTENTS
I ANCESTRY AND EARLY LIFE 7
II EARLY EXPERIENCES IN IOWA 18
III REMOVED TO DES MOINES 38
IV RESUMES THE PRACTICE OF LAW 56
V SOME IMPORTANT LAW SUITS 79
VI VISITS VIRGINIA RELATIVES 95
VII PLEASURE TRIP TO COLORADO 99
VIII CENTENNIAL ADDRESS 104
IX TEMPERANCE AND PROHIBITION 109
X REGULATION OF FREIGHT AND PASSENGER TARIFFS 142
XI DES MOINES RIVER LAND TITLES 152
XII A. O. U. W. CONTROVERSY 163
XIII IMPORTANT EVENTS IN CAREER 165
XIV THE BROWN IMPEACHMENT CASE 171
XV MORE LAW CASES 185
XVI BIRTH OF A SON AND PERSONAL INCIDENTS 193
XVII BREEDER OF SHORT HORN CATTLE 203
XVIII B. F. ALLEN BANKRUPTCY 208
XIX ABOUT PROHIBITION 215
XX PERSONAL INCIDENTS 226
CHAPTER I
ANCESTRY AND EARLY LIFE
DES MOINES, IOWA, MAY, 1908
TO MASTER JOSEPH CHAMBERLAIN,
DEAR JOE:
I promised your father that I would write you a long letter containing
in detail something of a biography of myself. He assures me it is not
intended for publication, but only for your perusal and for such
friends of the family as may now or hereafter deem it interesting to
know something of those of the family who have preceded them.
In Washington county, in the state of Maryland, near the little stream
of Antietam creek, where was fought one of the memorable battles of our
Civil War, there is located a quaint, old fashioned village called
Sharpsburg. The inhabitants of the village and neighborhood were in a
large part Germans or of German descent.
On one corner of the public square there still remains, in fairly good
repair, an old fashioned stone dwelling house. In this house on the
first day of April, A.D. 1829, I was born, as were also my two older
brothers, Joseph Gabriel and John Daniel, born respectively June 25,
1826, and November 30, 1827. This stone house at one time belonged to
my grandfather, Gabriel Nourse, who was the son of James Nourse. The
ancestors of the latter are given in a book now in the possession of
your mother, entitled _James Nourse and his Descendants_.
In the basement or first story of this stone building my father taught
school about the time of the birth of his three boys, given above. At
that early day the people of the village and surrounding country were
not supposed to be very highly educated. If children were taught to
read and write indifferently and something of arithmetic, at least as
far as the single rule of three, their education was supposed to be
sufficient for the practical purposes of life. My father has related to
me that when he first commenced teaching in the village, in the
presence of such a company as usually assembles around a country store,
a wise man of the village explained to his admiring hearers that the
cause of the changes of the moon resulted from the fact that the earth
came between the sun and the moon and hence obstructed the light in
such a way as to produce the new moon and the various changes until the
full moon. My father rashly attempted to suggest that the wise man was
mistaken, for the obvious reason that the moon in its first quarter
could be seen in the heavens at the same time as the sun could be
observed, and it was impossible that the moon could be partially
darkened by the shadow of the earth. The wise man was rather mortified
by this exposure of his ignorance, but did not acknowledge his error,
but angrily reproved a young man for presuming to differ with him.
In this stone building also my grandfather, Gabriel, died in April,
1839, and was buried in the village churchyard. This stone house is
still standing at the date of this writing, and the basement room where
my father taught school is occupied as a store-room for vending relics
and curiosities gathered from the battle-fields of the neighborhood.
Three miles from the village of Sharpsburg, on the Virginia side of the
Potomac river, there is another quaint, old fashioned village called
Shepherdstown. Here my mother, Susan Cameron, was born October 25,
1803, and was married to my father, Charles Nourse, June 10, 1825. Here
in this village my mother died October 10, 1835. There is still
standing in this town the old Methodist church, surrounded by a village
churchyard, where will be found modest tombstones marking the graves of
my mother, and of many of her brothers and sisters, and also her
mother, Susan Cameron, who died at Shepherdstown, Virginia, July 20,
1855. My mother's father's name was Daniel Cameron, born in Scotland,
October, 1753. His wife was also of Scotch descent. Her family name was
Clinton, which name was bestowed upon me, and in honor of my
grandmother and to please her I have always been known in the family by
the name of Clinton, my first name being Charles, so named after my
father. My father, Charles Nourse, was born at Frankfort, Kentucky,
April 15, 1801.
Several years before my mother's death my father had removed from
Sharpsburg to Frederick City, Maryland, where he taught school for
several years, and while living there, to-wit, August 9, 1833, your
mother's mother was born.
My recollections of my mother are not very distinct, as I was only six
years old at the time of her death. Only one incident of my early
childhood I call to mind very clearly. I had been induced by my older
brothers and some neighbor boys, whilst playing in the market square at
Frederick City, to attempt to imitate them in the use of chewing
tobacco, which resulted in making me very sick. Whilst lying upon the
trundle bed in the room upstairs of the house where we resided, I
vomited very freely, and as I lay back upon my pillow, pale and weak
from the effort, I remember a kind face of one stooping over me and
sympathizing deeply, not knowing the cause of my illness, and I
remember how guilty I felt at being the object of so much undeserved
sympathy.
The last two years of our residence in Maryland we lived at a little
village at the foot of the Blue Ridge mountains called Burkettsville,
and during part of these two years my grandmother Cameron kept house
for us and had charge of her four grandchildren. I remember her very
distinctly, the most affectionate and patient woman it was ever my
fortune to know.
In February, 1841, my father, with his four children then living, took
the old fashioned stage-coach at Boonesboro, Maryland, crossing the
Allegheny mountains, coming on to Wheeling, crossing the Ohio river,
and thence via Zanesville and Somerset, Ohio, to the little village of
East Rushville in Fairfield county, Ohio. After teaching school in East
Rushville during the summer of that year, my father with myself and
sister Susan removed to Lancaster, the county seat of Fairfield county,
Ohio, leaving my two older brothers as heavy clerks in country
stores--my brother Joseph with a man named Clayton and my brother John
with a man named Paden, in two separate villages in the county of
Fairfield. My father taught school in Lancaster, Ohio, for four years,
I think most of the time for a compensation of $300 a year. As this sum
was hardly sufficient to support him and his two children at a
respectable boarding house, it became necessary for me to relieve the
situation and to start out in the world for myself. My first attempt
was in a country store at East Rushville with a man by the name of
Coulson. After four months heavy clerking with this man, he failed in
business and sold out his stock of remnants, and I returned to
Lancaster to my father. After a few months I again attempted to do
business in support of myself, and I hired out to another village
store-keeper, without any fixed compensation further than that I was to
have my board and clothes for my services. My duties consisted of
weighing out groceries, taking in eggs, butter, and feathers, and
packing and preparing for shipment the butter and eggs, for which there
was not sufficient local market. I also sold goods through business
hours, made fires both in the store and for the family, sawed wood,
milked the cow, and in the fall and winter fed, curried, and cared for
a half dozen horses that were shipped in the spring for the eastern
market. At the end of sixteen months of this kind of service my
employer advised me and also my father that I would never make a
merchant. I had positively refused to conform to his instructions in
doing business in the manner in which he thought was most for his
interest. He was engaged also at that time in buying leaf tobacco that
was raised in the Hocking hills, for which he paid about one-third
cash, one-third on short time, and one-third in goods out of the store.
He had three prices or more for nearly everything he had to sell,
depending, of course, on the character of his customer and the kind of
pay he was to receive. For instance: his cash customers, of whom there
were very few, received four pounds of coffee for a dollar. His long
credit customers, of whom there were many, received three pounds of
coffee for a dollar, whilst his trade customers, especially those who
took goods out of the store for tobacco, received two and a half pounds
of coffee for a dollar. It was not easy for a young boy, or as young a
boy as I was at that time, always to understand the exact standing of
the customers, and it was necessary to watch carefully the old man who
was proprietor of the store, who indicated by signs upon his fingers,
which I too frequently misunderstood, just exactly how much coffee for
a dollar a customer was entitled to. One remarkable incident of the
manner in which my employer did business I remember very distinctly.
During the day our little store was crowded with customers who had sold
tobacco to our employer and had to take their pay in part out of the
store. A young man by the name of Johnnie, who was a year or two older
than myself and a favorite with the proprietor of the store, had during
the day sold to a German woman a large red and yellow cotton
handkerchief for the sum of thirty-seven and a half cents that was
marked twelve and a half cents and had cost us eight and a third cents.
The next day she returned with one of her neighbors who also had to
take her pay out of the store for tobacco, and she wanted another of
those red and yellow cotton handkerchiefs, which Johnnie sold her of
course at the same price. In the evening Johnnie and myself had to go
over to the old gentleman's residence before we retired for the night
and attend family prayers. During the evening the old gentleman recited
Johnnie's exploits in selling those cotton handkerchiefs for three
times the marked price, and then chuckled gleefully, praising Johnnie
for his success and how he would make a merchant, but that I would
never learn; and then turning to his eldest daughter he said: "Hand me
the bible, dear, we will have prayers."
Whilst living with this old gentleman I became thoroughly disgusted
with mercantile life, as I then saw it and witnessed it, and cast about
in my own mind seriously to know what I should do for the future. I
realized that I neglected my opportunities whilst attending school
under my father's instructions, and I resolved, as far as I could under
the circumstances, to supply the omission. I got out my old Kirkham's
grammar and my arithmetic and algebra, and spent many of my nights
after the store closed in study. At the end of sixteen months of this
life I returned again to my father, who was still at Lancaster. During
the last year that I lived at Lancaster I assisted my father in his
school, teaching the younger children, and still to a limited extent
pursuing my own studies.
In the fall of 1844 my father determined to remove to Kentucky, leaving
my sister Susan, your mother's mother, with Mrs. Catherine Sumner, a
most excellent Presbyterian lady with whom my father had boarded for
several years during his stay in Lancaster. My father first stopped at
Millersburg, Bourbon county, and took up school, but only remained
there a few months, having in the meantime heard of a vacancy in the
position of principal of the public school in Lexington. Having secured
this position at a salary then of only $600 a year, we removed to
Lexington in the early part of 1845.
I became one of the assistant teachers in this school at a salary of
twenty dollars a month for the first year, but subsequently was
promoted to the position of first assistant at a salary of thirty
dollars per month, and continued to occupy that position until the fall
of 1849, when I secured, by courtesy of the city council of the city of
Lexington, the favor of entering the law school of Transylvania
University, the city having a number of scholarships in that
institution at its gratuitous disposal. During the four years that I
taught school as an assistant in the city school, I still pursued my
own private studies at night, reciting to my father in the morning
before school hours, until about the year 1848, when I had saved money
enough from my meager salary to procure some text books of the law, and
commenced reading law. In the meantime I had formed the acquaintance of
a young lawyer, Abraham S. Drake, who became a very devoted friend of
mine and superintended my reading, giving me such instructions as were
necessary. My situation as a teacher in the public school in Lexington
was very trying upon my health. I had an average of about fifty small
children in a small room not more than twenty feet square, about six
hours a day except Saturday, and had to occupy myself with my private
studies when I ought to have had the privilege of and needed exercise
in the open air. I had some satisfaction, however, in the success of my
scholars, making it a specialty to teach them the art of reading well
and reading aloud, an art which in the subsequent years I have found
our public schools are sadly neglecting. I hope, dear Joe, you will
succeed while you are going to school in learning to read, that being a
neglected and almost a lost art in this day and generation.
In August, 1846, my father returned to Lancaster, Ohio, and married
Miss Hetty Herron, an adopted child of Mrs. Catherine Sumner's with
whom my sister Susan had been living. Returning to Lexington, he
continued teaching until 1850, when he removed to Millersburg,
Kentucky.
In the fall of 1849 I entered the senior class of the law department of
Transylvania University, and in March, 1850, graduated and received my
diploma from that school. My preceptors were two very able judges of
the supreme court of Kentucky, to-wit, Judge Robinson and Judge
Marshall. I had first taken up the idea of becoming a lawyer during my
residence in Lancaster, Ohio, where I frequently spent my Saturdays in
attendance upon the courts, listening with great interest to the
speeches and discussions of the eminent men who constituted the bar at
that place, among them Henry Stansbury, afterwards Attorney General of
the United States, Thomas Ewing, afterwards Secretary of the Treasury
of the United States during General Harrison's administration, Hocking
H. Hunter, afterwards one of the judges of the supreme court of Ohio.
Whilst residing in Lexington, Kentucky, I pursued the same course,
visiting the courts whenever opportunity offered, hearing such men as
Henry Clay and Thomas F. Marshall, and other distinguished lawyers of
Kentucky, arguing their cases.
In the meantime I had joined the Methodist Episcopal church on
probation, and made the acquaintance of Miss Rebecca A. McMeekin.
In the spring of 1850, after my graduation in the law department of
Transylvania University, I determined to visit Ohio. I had some idea of
settling in that state, as my two brothers who remained in Ohio were
then in business in Fairfield county, my oldest brother Joseph having
commenced the mercantile business on his own account at New Salem,
Ohio, and my brother John had commenced the practice of medicine in the
village of New Baltimore in the same county. Before leaving Lexington,
however, I felt it due to myself and to Miss McMeekin to explain to her
my frequent visits to her house. I wrote her a letter telling her of my
hopeless condition financially and of the uncertain prospects of my
success in my profession, but protesting my affection for her and my
good faith in the attentions that I had paid her, and asking her to
decide our future for herself. She made no reply in writing, but in my
next visit to her she simply expressed her faith in my ultimate success
in my profession, and her entire willingness to risk the future, so
that when I left Lexington for Ohio, which I did in April, 1850, I was
simply engaged to be married.
When I arrived at Lancaster I entered the office of John D. Martin, an
eminent lawyer of that place, in pursuance of a previous correspondence
with him. He had been a particular friend of my father and an assistant
to him in his school during my father's residence in Lancaster in
1842-3. He already had his nephew, Charles Martin, as an assistant in
his office and could not offer me any compensation or any work. After
two months I found it necessary to do something to replenish my
exhausted finances. I first took a select school in Millersport a small
town on the canal a few miles north of New Baltimore. After teaching
here for three months I took the winter school in New Baltimore at a
salary of $30 a month. In the meantime, through the acquaintances of my
brother Joseph, located at New Salem, and my brother John, located at
New Baltimore, I became known throughout that part of the country as an
embryo lawyer. Although not admitted regularly to the practice of law,
in the courts of record, I had the right to practice before the
justices of the peace of the county, and during that summer I tried
some seventeen cases before these inferior courts. I still continued my
studies of the law, using very frequently a book known there as
_Swan's Treatise_, compiled for the benefit of the justices of the
peace of the state by Judge Swan, of Ohio. This book also contained
many references to the supreme court decisions of the state, and I was
accustomed after school hours to walk to Lancaster and borrow these
reports from my friend, Mr. Martin, frequently taking them home and
using them upon the trial of my cases, which always occurred on
Saturdays when I had no school.
During my stay in Ohio, I read carefully and with much profit to
myself, the daily reports of the proceedings of the state convention
that was then forming a new constitution for that state.
Many eminent lawyers were members of the convention, among them Mr.
Stansbury, afterwards Attorney General of the United States, and Mr.
Raney, afterwards Judge of the supreme court of the state of Ohio.
Occasionally the learned men of the convention indulged their sense of
humor, and among other incidents of the debates I recall the following:
Among other members of the convention there was an uneducated man by
the name of Sawyer. Mr. Stansbury, of the committee on the judiciary,
reported a provision relating to the powers of certain courts,
authorizing them to issue writ of habeas corpus, procedendo, quo
warranto, and mandamus.
Mr. Sawyer objected to these Latin terms being in the constitution on
the ground that many of his constituents could not understand the
meaning of such terms and he wanted the committee to put the words into
English language, and also asked for an explanation of the meaning of
these words.
Mr. Stansbury very courteously explained that the difficulty was not in
the use of the terms proposed, but it was because his friend did not
understand the nature of these writs. For the benefit of Mr. Sawyer he
explained their meaning, but suggested that the use of any English
terms or words would not make the character of the writs any better
understood to those who are not familiar with the law. He said that the
literal meaning of the words "habeas corpus" was to have the body, and
the writ was issued in case any one complained of being illegally
imprisoned, or restrained of their personal liberty, and was intended
for the purpose of having the body of the person in whose behalf the
writ was issued brought before the court, in order that the cause of
his restraint or imprisonment might be inquired into and its legality
or illegality be determined; that to call the writ, a writ to have the
body, would not make the term any more intelligent than to use the
words "habeas corpus."
That the word "procedendo" simply meant to proceed or go ahead, and was
a name of a writ that was issued by the appellate court to an inferior
tribunal, authorizing them to proceed in accordance with the opinion of
the appellate court. Out of respect to the character of a man who had
become famous in the west, of an early day, he would suggest to his
friend Sawyer that this writ might be called a writ of "David Crocket,"
as it was a favorite motto of that individual to "Be sure you are right
and then go ahead."
That the literal meaning of the words "quo warranto" was, "Why do you
do it?" It was a writ issued by some superior court to an inferior
court or tribunal, corporation or officer, to ascertain by what
authority they exercised certain powers; that the only term in English
that would express the particular character of the writ would be the
words, "Why do you do it?"
The writ of "mandamus" was a writ issued by the court commanding some
inferior tribunal or officer to do and perform certain duties which
were required by law and which he had refused to perform. That the only
words in the English language that would properly define the character
of this writ would be, "Do it, damn you."
It is not necessary to add that Mr. Sawyer gave the convention no
further trouble in regard to the Latin names of these writs.
CHAPTER II
EARLY EXPERIENCES IN IOWA
In the spring of 1850 I had determined to seek a location for the
practice of law in some western state. I first thought of migrating to
Oregon, but gave up that idea for the reason that I feared if I
traveled that far from my intended I might never have the means to go
back to Kentucky to claim her. So, finally, I fixed upon the idea of
removing to Iowa. Before deciding this important question, however, I
wrote to my intended wife explaining to her the situation and again
calling her attention to the uncertainties of the future. As she was
two years older than myself I felt that it was hardly justice to her to
insist upon our engagement if she felt that my future was too
uncertain. I received in answer to this letter a kind assurance that
her faith would not fail, and she cited that beautiful passage of
scripture containing the answer of Ruth to Naomi: "Entreat me not to
leave thee, or to return from following after thee: for whither thou
goest, I will go; and where thou lodgest, I will lodge; thy people
shall be my people, and thy God my God: where thou diest, will I die,
and there will I be buried: the Lord do so to me, and more also, if
aught but death part thee and me."
The spring of 1851 I returned to Kentucky for a short visit, my brother
Joseph having loaned me fifty dollars in money and trusted me for a new
suit of clothes. In the meantime my father had removed to Millersburg,
Kentucky, and commenced teaching there, a branch of what I think was
known as Johnson's Military Academy, the principal school being at Blue
Licks, Kentucky, in charge of James G. Blaine, afterwards a republican
candidate for President of the United States. The lady he afterwards
married also assisted my father, and received visits from Mr. Blaine on
Saturdays and Sundays. It was whilst residing here that my sister Susan
became acquainted with your grandfather, William Vimont, whom she
married in January, 1853.
[Illustration: _Old Stone House on Public Square,
Sharpsburg, Md._
Birthplace of Charles Clinton Nourse]
It was the latter part of May, 1851, when I started west "to grow up
with the country." We had then no railroads reaching the Mississippi
river from the east, and I took the steamer at Louisville, Kentucky,
for St. Louis, Missouri. At St. Louis I took the steamer for Iowa, not
yet determined as to my landing. The waters of the river were at flood
tide, and on our passage up we saw frame houses floating past us. I
landed in Burlington the last day of May, and stopped at the Barrett
House. I was not acquainted with a single person in the state of Iowa,
had no relative, kindred, or friend to whom I could apply for advice or
assistance. After a hearty dinner I retired to my room, took a chair,
put my feet up on my trunk, and held a consultation with myself. The
question before the house was, what to do next. I had with me a general
letter of recommendation from Professor Dodd, then president of
Transylvania University, and a particular friend of my father, and
another from Dr. T. O. Edwards of Lancaster, Ohio, an ex-member of
congress from that state, and also my letter as a member of the
Methodist Episcopal church, and my diploma signed by the law faculty
and trustees of Transylvania University. After proper consideration I
inquired of the landlord of the hotel where I could find a Methodist
preacher, as I was satisfied there must be such a person in the city.
He directed me to the parsonage. I called upon the minister and made
his acquaintance, the Reverend Mr. Dennis, who afterwards obtained some
notoriety as a pastor in Kansas at the time of the Kansas troubles. He
was a tall, white haired man of pleasant countenance and affable
manners. I showed him my papers and told him my object in calling upon
him was, through him, to make the acquaintance of some of the leading
lawyers of the city from whom I could obtain information and determine
what part of the state I would attempt to locate in. At that time the
supreme court of the state of Iowa was in session in Burlington,
consisting of Joseph Williams, Chief Justice, George Greene and John F.
Kinney, justices. Mr. Dennis informed me that the judges were boarding
at the same hotel, the Barrett House, and he made an appointment to go
with me to their consultation room that afternoon and introduce me. We
made the visit and I found the judges of the court very cordial, and at
their request I produced my diploma from the law school, told them who
I was and where I was from, and that I desired some information in
regard to the best possible location for a young attorney. They
requested me to call at their courtroom the next morning at the opening
of the court, and they would have me admitted to the practice of law in
their court and throughout the state. The next morning I went to the
court, and at the request of Judge Kinney, Mr. Dickson, of Keokuk, who
was then in attendance at the court, made a motion for my admission to
the bar, and suggested the appointment of a committee to examine me as
to my qualifications. The Chief Justice announced that an examination
was unnecessary--the court had already examined the applicant and was
entirely satisfied with his qualifications, and requested me to come
forward and take the oath of office, which I did. I made the
acquaintance of the clerk of the court, then "Old Timber," as we
afterwards called him, his real name being James Woods. That evening
Judge Kinney asked me to take a walk with him, and told me he had a
brother-in-law, Augustus Hall, living at Keosauqua, Iowa, who was
desirous of having a young lawyer associated with him in his office,
and if I would go to Keosauqua he would give me a letter of
introduction. I ascertained that the stage fare to Keosauqua would be
six dollars. Upon taking an inventory of my pocket-book I found I only
had about eight dollars left of the money my brother had loaned me. I
had with me two trunks, one full of my law books, the other containing
my clothing, etc. I interviewed the landlord and told him my situation
financially, and proposed to him that I would leave my books in his
custody as I was still uncertain where I should settle, and leave my
bill unpaid, if agreeable to him, until such time as I could send for
my books. He readily agreed to the arrangement, but proposed that I
should take my books and he would risk my sending the amount of my
bill, which, however, I declined to do. The next morning Judge Kinney
called me to one side, kindly suggesting that it was not unusual for
young men to visit Iowa for the purpose of locating who were short of
funds, and he would be glad to loan me a small amount if I would accept
it. This kindness I also declined. I had no doubt that he had been
advised by the landlord of my situation, and he was kind enough to
attempt to help me.
The next morning I took the stage-coach for Keosauqua, but owing to the
condition of the roads, and particularly of Skunk river, I was taken to
Keokuk where I had to stay all night. After paying my bill the next
morning I found I had only twenty cents left. The next day the
stage-coach took me to The Divide, as we called it, as far as Utica
postoffice in Van Buren county, and there left me. The hack that should
have taken me from there to Keosauqua had already gone before our
arrival. I could not stay here all night because I had no money to pay
any bill, so I left my one trunk in charge of the postoffice to be sent
to Keosauqua the next day on the hack, and I started to walk, then
about ten miles, to reach Keosauqua. I had not walked far before I
found that I had sprained my ankle slightly in jumping from the coach
that morning. The walking became very painful, but I managed to reach
Keosauqua about sundown that evening. The first building that looked
like a hotel or public house was a frame building that stood southeast
of the court house. The high waters of the Des Moines river had flooded
the lower part of the town, and I found this house was a boarding
house, at that time full of guests. I inquired for the lady of the
house and took my seat on a bench on the porch near the front door.
Presently the lady of the house appeared, and looking at me very
inquiringly wanted to know who I was, where I was from, what was my
business, and where I was going. I was a sorry looking subject, having
waded through the mud for ten miles, and I presume I looked as I
felt--very tired. I gave her my real name, told her I had no business,
that I did not know where I was going, and that I had come from Keokuk
that day. She told me her house was full and she did not believe she
could accommodate me with a night's lodging. I then asked her very
politely for permission to remain upon the porch until I was
sufficiently rested so I could go further down town and obtain lodging,
but I asked her about the town, its population, and about the high
waters. The lady turned out to be Mrs. Obed Stannard, the mother of Ed
Stannard, afterwards Lieutenant Governor of Missouri, and a very
successful business man of St. Louis. She was a good talker, and after
conversing with her about twenty minutes I got up to leave, thanking
her very cordially for her kindness in permitting me to rest on the
porch. She relented and told me she thought if I would stay that she
could find accommodations for me. I told her no, that I could not put a
lady to any inconvenience when it was unnecessary and I must go, so I
left and went down to the front street in the town to the Keosauqua
House, kept then by "Father Shepherd," as we always called him, with
whom I boarded until after I was married in 1853.
Keosauqua, at that time, as indeed it has been ever since, was a small
town of about 1,500 inhabitants, the county seat of Van Buren county,
located on the Des Moines river. It possessed one of the best bars of
the state, and among its inhabitants were men who afterwards became
distinguished in the history of the state. The men more actively
engaged in practice were George G. Wright, for many years afterwards a
judge of the supreme court of the state, Joseph C. Knapp, judge of the
district court of that district and afterwards United States District
Attorney, and Augustus Hall, afterwards a member of congress from that
district and appointed by Mr. Buchanan United States District Judge in
Nebraska. The courts of this county were also visited by J. C. Hall,
afterwards one of the judges of the supreme court. The pastor of the
Methodist church at that time was Henry Clay Dean, who afterwards
became chaplain of the United States Senate, and a notorious political
orator. One of his converts was Delizon Smith, who had been an infidel
lecturer and prominent politician in the state, and was afterwards
elected for a short term to the United States Senate from the state of
Oregon. The next year after I settled in Keosauqua, Henry Clay
Caldwell, then a student in the law office of Judge Wright, was
admitted to the bar, and after the Civil War was appointed United
States District Judge and afterwards United States Circuit Judge, being
located during his official career as judge at Little Rock, Arkansas,
now retired by reason of age and continued service, and residing at Los
Angeles, California.
The state of Iowa at that time in its politics was democratic, and the
democratic party numbered a majority of about two hundred in Van Buren
county. Delizon Smith, however, had failed to obtain a nomination by
his party for the office of Governor, and had organized what was called
"The Young Democracy of Van Buren County," numbering about two hundred
voters. This left the party badly demoralized in the county, and in
August, 1852, I had so far succeeded in making the acquaintance of the
people of the county that I was elected on an independent ticket to the
office of county attorney, which then paid a salary of about three
hundred dollars a year.
After I had boarded with Father Shepherd for a few weeks I received
from my brother Joseph a small remittance. I sent for my books that I
had left at Burlington and took Father Shepherd, the landlord, into my
confidence, told him my situation financially, and paid my bill up to
that date. Father Shepherd at that time was himself a justice of the
peace, and his hotel was the stopping place of most of the people who
acted as guardians and administrators, and who attended once a month
sessions of the county court that then had jurisdiction in probate
matters. I told Father Shepherd of my desire to make the acquaintance
of these officials as they visited his hotel from time to time, and
that his pay for my board depended largely upon my success in business,
and I asked him to be my friend, and at least let people know why I was
there and what my proposed business was. He became my fast friend and
helped me to make very many valuable acquaintances. Father Shepherd was
the father-in-law of Delizon Smith, and a leader of the faction known
as the "Young Democrats" of that county.
Early in the spring of 1853 I received a letter from my then intended
wife, suggesting that my success in business she thought gave
sufficient promise for the future, and that it was not necessary for us
to wait longer. Accordingly I got together one hundred dollars in
money, made a trip around the river to Louisville, Kentucky, and thence
via rail to Lexington for the purpose of realizing something of the
deferred hope. We were married on the 15th of April of that year, my
father in the meantime having removed from Millersburg to Winchester,
Kentucky. I made him a visit in company with my bride and had the
pleasure of meeting there my sister Susan and her husband, William
Vimont, your mother's father and mother. Before going to Kentucky and
claiming my bride I purchased from the Reverend Daniel Lane a house and
two lots in Keosauqua at the price of three hundred and fifty dollars,
and borrowed fifty dollars from Thomas Devon to make the first payment.
I had also attended several auction sales and bought some chairs and
tables, a cook stove and a few dishes. My wife's mother had packed a
feather bed, some pillows and bed clothes, and quilts of the old style
in a store box, and we returned to Iowa the latter part of April, 1853.
The expense of my trip and marriage left me only two dollars of the one
hundred dollars I had when I started for my bride. We arrived in
Keosauqua on Sunday in a slight April shower. On Monday we proceeded to
the house I had purchased, which was in need of repair. We whitewashed
the walls and my wife washed the windows. The next day we made a bill
of about forty dollars at the store for additional house-keeping
facilities. I bought a sack of flour and a ham of meat, and on Tuesday
evening we took tea at home. It was the first home I had had (in the
proper sense of the term) since we left Maryland, and when we sat down
at our own table to drink our cup of tea and eat the new made biscuit
baked by my own wife, I could not repress the tears that came to my
eyes, and I thanked God for the mercy that he had bestowed upon us.
In the fall of 1853 I made a trip west through the southern tier of
counties, attending the courts at Davis, Appanoose, Wayne, and Decatur
counties. I made the trip on horseback with a pair of saddle-bags that
contained my necessary baggage.
From Bloomfield I was accompanied by several attorneys of that bar, and
at Centerville two or three additional lawyers joined our party. The
counties west of Centerville were very sparsely settled and the road
consisted merely of two paths worn by the horses and wagon wheels on
the prairie grass. In Wayne county we applied at one settler's house
for accommodations for the night, but the housewife informed us that
her husband was away from home, had gone to mill, and that she had
nothing in the house to eat save a little bacon. She said if we would
remain she would entertain us with such accommodations as the place
afforded. The corn was hardly yet ripe enough to feed our horses, but
she told us if we would select the ripest and use some salt in feeding
we were welcome to do so. We also, at her request, plucked some of the
softer ears of the corn, and these she grated upon a large tin grater,
and frying some of the bacon in her skillet she made cakes of the
grated corn and fried them in the fat. She also gave us a cup of good
coffee, and with the appetites we had acquired in our day's travel we
made a very hearty and palatable meal.
When bedtime came she made some kind of a bed upon the floor. The next
morning we had a breakfast of the same corn and bacon and coffee. The
lady made a very reasonable charge for our entertainment, and she had
no reason to doubt the sincerity of our compliments upon our fare, as
the avidity with which we had eaten what she had supplied gave full
evidence that we had appreciated our entertainment. The next morning we
rode into Corydon, the county seat of Wayne county. The only hotel in
the place was a small one and one-half story frame house, with a shed
addition for kitchen and dining hall.
Our bed room was the upstairs, and our beds were in two rows, with our
heads under the eaves and our feet touching each other in the center of
the room. We had no separate apartment or separate beds, our wearing
apparel furnishing the pillows.
The court was held in a frame school house on the public square. The
boundaries of the public square were ascertained by a lot of wooden
stakes or pegs. There was no general store in the place for the sale of
goods. An enterprising peddler with two large peddling wagons came
through with us from Centerville and erected a large tent in the center
of the square for the display and sale of his goods, and whenever the
court was not in actual session his store was opened for business.
Judge Townsend, of Monroe county, was the judge of the court.
From Wayne county we went to Decatur, the peddler also keeping us
company with his itinerant dry goods establishment. During this trip I
made the acquaintance of very many young men who afterwards became
distinguished as lawyers, legislators, and judges. The only lawsuit in
which I was consulted was a slander case tried in Wayne county. The
suit was brought in behalf of a young woman for damages because of
words spoken against her reputation by the defendant. Amos Harris, a
lawyer from Centerville, was engaged as attorney for the defendant.
When the case was about to be called for trial Harris expressed his
wish to have my advice in regard to the course to be pursued, and at
his request I retired with him to the shady side of the school house
for consultation. He told me that his client was a man of some property
and that the plaintiff had some witnesses who would testify clearly and
positively to the slanderous words spoken by the defendant of and
concerning the young lady. He said his client really had not injured
the reputation of the young woman at all because nobody believed any
thing that he said as he had a very bad reputation for veracity. He
said they could make no defense whatever, as the girl's character was
good, and he was afraid of a large verdict for damages against his
client, and asked me if I could think of any way that he could help his
client out of the difficulty. I asked him if he could prove that nobody
believed what his client said on account of his bad character. He said
yes, there were plenty of persons that would testify to that, but he
could not see how that was any defense. I told him it was no defense
against the slander, but it might be proved with advantage in
mitigation of damages, provided his client would be willing that he
should undertake to do so. He called his client out and explained to
him the situation as I had advised, and asked him if he was willing to
save his money at the expense of his reputation. The fellow winced, but
finally consented that Harris might make the proof. I suggested that as
the plaintiff's witnesses were all friendly to the young lady Harris
might on cross-examination prove by them that they did not at the time
or ever believe the slander that the defendant had uttered against the
plaintiff, and that they had never repeated it to anyone except
accompanied by their statement of their belief that it was all false,
and Harris introduced several other witnesses to prove the bad
reputation of his client for truth and veracity. The plaintiff's
attorneys objected and the court first hesitated to allow the witnesses
to so testify, but upon the suggestion that it was the best thing for
the plaintiff's reputation, and that as nearly the whole population of
the county was there upon attendance of the court, it was better to
clear up her reputation by this testimony than to give her money to
heal her wounded feelings, the court finally took this view of the case
and permitted the evidence to go to the jury in mitigation of damages.
The jury found a verdict in favor of the plaintiff against the
defendant for the sum of only twenty dollars. The young woman went home
with her character thoroughly vindicated and her reputation restored,
and the only one unhappy over the result of the trial appeared to be
the attorney for the plaintiff, who was undoubtedly expecting a
handsome recovery as the only means of compensating him for his
professional work.
From Decatur county I returned home, having learned much of the country
and its people, and having made many interesting acquaintances among
the members of the bar.
And now I must tell you something of my political career, which
properly begins at about this date. I had been made chairman of the
county committee of the fast dissolving organization known as the whig
party. In the fall of 1854 I was a candidate for re-election as county
attorney. We had nominated a county ticket of two candidates for the
state senate and four representatives, what we then called the
anti-Nebraska whigs. James W. Grimes was the candidate for Governor of
the state. The democratic party had passed what was called the
"Kansas-Nebraska Bill," containing a clause repealing the Missouri
Compromise measure, adopted in 1820, that prohibited slavery and
involuntary servitude north of thirty-six degrees and thirty minutes of
north latitude in the territories of the United States, acquired by the
Louisiana Purchase. This had resulted in the partial disorganization of
the democratic party throughout many of the northern states. I had left
Kentucky because of my opposition to slavery, and especially to what I
regarded as the baleful influence of that institution upon the white
population. I had settled in Iowa because it was a free state and
because I felt that the opportunities for success in life would be
greater than in a slave state. I had observed whilst in Kentucky that
fixed conditions of political, social, and business life made the
success of the young man, depending only on his own energies and
abilities, always doubtful and difficult.
Upon my defeat as prosecuting attorney in 1854, at the suggestion of
the members elected to the legislature from Van Buren county I went to
Iowa City in their company at the beginning of the session, and through
their influence I was elected clerk of the house of representatives of
the state of Iowa. I found this position of great advantage and help,
not only pecuniarily, but I made the acquaintance of public men of all
parties during the session. Afterwards in 1856-7 I was elected
secretary of the senate of the state.
In 1854, at the dissolution of the old whig party there existed a
political organization in many of the states of the Union called "The
Know-Nothings." It was a secret political organization, having for its
principal doctrines opposition to the Roman Catholics and to the
foreign-born citizens of the United States. I refused to affiliate with
this "Know-Nothing" organization for the reason that I did not believe
in secret political societies or organizations in this country, and I
did not believe in making the religious faith or affiliations of any
man a test for office, neither did I believe that anyone should be
excluded from the confidence and respect of his fellow men because of
the place of his birth. As county chairman of the expiring whig party I
issued to the people of Van Buren county a circular stating my position
and declining to call any convention to coöperate with the
"Know-Nothing" organization. I did this for the further reason that the
opposition to the extension of slavery into the territories was
becoming every day more and more pronounced in the northern states of
the Union, and the nucleus of what was afterwards the republican party
had already been formed in many of the northern states.
It may be interesting to you to have the history of how Henry Clay Dean
became a democrat, and how a little thing may change the destiny and
fortune of a man in this life. In the fall of 1854 the Methodist annual
conference for Iowa met at the city of Dubuque. It was the custom at
that early day for the members of the conference to become guests of
the citizens of the locality where the conference had its meetings.
Dean was then a member of the conference, and had been receiving and
filling regular appointments as a pastor. At Dubuque resided Honorable
George W. Jones, then a democratic United States Senator from Iowa.
Jones maintained a good table and was a good liver, and his wife an
excellent, hospitable lady. In assigning the members of the conference
to the different citizens, Dean was assigned as the guest of Senator
Jones and his wife. After the conference had been in session a few
days, the "Know-Nothings" having been secretly organized in the city of
Dubuque became very active in obtaining the names of the Methodist
ministers attending the conference, and in initiating them into their
order. Among other names presented and favorably acted upon was that of
Henry Clay Dean, my former pastor and friend. After he had been elected
and the time appointed for his initiation a few nights hence, one of
the over zealous ministers represented to Brother Dean that as he had
now been elected a member of the "Know-Nothing" organization it was not
proper for him to continue to be the guest of and accept of the
hospitality of the wife of George W. Jones, who was a Roman Catholic.
Dean was an enormous eater, and the suggestion that he should give up
his nice boarding place greatly offended him, and he denounced the
suggestion as bigotry and presumption inexcusable. He at once went to
Senator Jones and told him of the proposition that had been made to him
and the cause of it, and denounced the "Know-Nothing" organization in
most uncompromising terms. The Senator was pleased with Brother Dean's
zeal in the matter, and induced him on the succeeding Sabbath to preach
a sermon on "Know-Nothingism" and to denounce it from the pulpit. Dean
was a man of more than ordinary ability, with a wonderful command of
language. Upon the adjournment of the conference Senator Jones wrote to
Judge Knapp at Keosauqua stating the situation and suggesting that Dean
be employed in the political canvass against the "Know-Nothings" that
fall, and be encouraged in his opposition to that order. Dean returned
to Keosauqua, and I had a long conference with him upon this matter. I
knew that he had been engaged several years before that in collecting
the most learned and effective arguments in favor of protective tariff
as delivered in congress from time to time, especially from whig
members from the state of Pennsylvania. I also knew that he had
preached some of the bitterest sermons against human slavery that I had
ever heard from the pulpit or from any source, and I urged upon him
that he could not consistently coöperate with the democratic party
because of his views in regard to the tariff and because of his
opposition to slavery. I pointed out to him that the organization of
the republican party was then proceeding in most of the states and that
his feelings, sentiments, and views would be better expressed by the
position of that organization; that the "Know-Nothing" party was a mere
temporary passion and would effervesce and disappear in a short time,
and that his efforts in opposition to them would be wholly unnecessary
and gratuitous. But he was too wroth and anxious for his revenge
against those who suggested that he decline the hospitality and good
dinners of Senator Jones. He accordingly entered the canvass, and that
fall there being the election in Virginia in which Henry A. Wise was a
democratic candidate for Governor and was opposed by the
"Know-Nothings," Dean with letters of recommendation from Jones and
Senator Dodge and other leading democrats of Iowa went to Virginia and
entered the political canvass in favor of Wise and in opposition to the
"Know-Nothings." Wise was elected, and Dean then went to Washington
City. With the influence of Dodge and Jones and the Virginia delegation
he was elected chaplain of the United States senate, and thereafter,
and especially during the Civil War, he made himself notorious as a
democratic orator.
Without observing the exact chronology of events, it would be well here
to recite certain facts and incidents that had a material influence
upon my mind, and determined my action in regard to the question of
human slavery. While residing in Kentucky and boarding in the family of
my friend, Abraham S. Drake, I had frequent conversations with him in
regard to the subject. He was at that time decidedly opposed to the
institution, regarding it as morally wrong and detrimental in its
effect upon the white as well as the slave population of the state.
Slavery at that time existed in Kentucky in its most modified and
humane condition, but the system itself and the law gave to the slave
owner a power over the slave that was too frequently abused. One
instance I recall that made a powerful impression upon my mind. On a
beautiful Sabbath morning in the early part of the summer I was taken
sick, while in attendance upon religious services at the Methodist
Episcopal church, and was compelled to leave the church and go home,
soon after the singing of the opening hymn. On the way to my boarding
house I passed near what was known as the "Watch-house" or headquarters
of the police, and was shocked to hear the cries of a negro woman who
was maid to some wealthy mistress, who had become offended at her that
morning, and had sent for the police and given orders that her servant
be taken to the police quarters and given a certain number of lashes,
administered in expiation of her offense.
The contrast between the quiet worshipers at the church and their
seeming devotion, and the horrible cries that filled the air from the
unfortunate negro slave woman was a comment upon the injustice and
brutality of the institution, that made an impression upon my mind that
has never been erased.
In 1853 when I went to Kentucky for the purpose of being married I was
the guest of my friend Drake for several days. While sitting upon the
veranda one evening one of his children was playing upon the lawn in
front of the house, with a little negro tot two or three years of age.
He called my attention to the colored child, stating that that was his
"carriage driver" and that he was a child of one of the negro women
that his wife had inherited a few years before, and he remarked that
the child was worth then $600. I reminded him of our former
conversation and discussion in regard to slavery and expressed my
surprise that he would have any pleasure in calculating the money value
of this child. He informed me that his views on the subject of slavery
had undergone quite a change, and upon investigating the subject he was
satisfied that the Bible fully justified the institution of slavery,
and he thought it was right morally as well as legally to own and enjoy
the possession of such property. I said but little in response to these
arguments, but could not but reflect and be convinced that it was
pecuniary investment that had its baleful influence upon the conscience
of my friend and perverted his moral sense, and this was only to me an
additional reason for hating the institution.
When returning from Kentucky with my bride we stayed over a day at
Louisville, as my wife desired to visit some old friends and former
neighbors who had resided near them in Lexington. We accordingly made a
call upon her friends, and while sitting in the parlor conversing about
old times a colored woman about the age of my wife came into the room,
and greeting us begged to inquire of my wife in regard to her husband,
it appearing from her story the family had moved from Lexington to
Louisville about two years before, and that the woman had been
separated from her husband, who still resided in Lexington and was the
property of another party. In the meantime the slave woman had given
birth to a child, and amid her tears told how she longed to see her
husband and have him see her young babe. The interview was cut short
when the slave woman was remanded to the kitchen, and the cheerful
recall of pleasant reminiscences became rather sad. The family insisted
upon my wife and myself remaining to dinner and pressed upon us with
great earnestness their hospitality. My wife was disposed to accept of
the invitation, but having only been married the week before, I was not
prepared to accept of the hospitality of people who separated a husband
and wife thus ruthlessly, and I retired with thanks, and we took our
dinner at the hotel.
After I settled in Keosauqua, Iowa, I became a subscriber to and a
constant reader of the New York _Tribune_, and in due time also read
with much interest that wonderful book written by Harriet Beecher
Stowe, called _Uncle Tom's Cabin_.
During the winter of 1857, whilst I was secretary of the state senate,
I enjoyed the pleasure of hearing Wendell Phillips deliver his lecture
upon the "Lost Arts." At the close of his lecture Hon. J. B. Grinnell,
then a member of the state senate from Poweshiek county, rose in the
audience and requested Mr. Phillips to give us his views upon the
subject of slavery, and especially called his attention to the fact
that Mr. Phillips had been represented by the public press as favoring
a dissolution of the American Union. Mr. Phillips courteously complied
with the request, and proceeded to say that when the constitution of
the United States was formed it contained within its provisions, as he
believed, the germ of human liberty. That the declaration of American
independence had declared that all men were entitled to the inalienable
rights of life, liberty, and the pursuit of happiness. He said that he
was in favor of the development of this germ to its fullest extent;
that the constitution of the United States might be compared to a box
in which was planted an acorn; the acorn would grow in the very nature
of things and become an oak, but whether or not the box in which the
acorn was planted was sufficient to contain the development and growing
germ, he could not say. He was not concerned in regard to the safety of
the box, but he was anxious that the germ should develop and that the
tree should grow. That whether or not the constitution of the United
States could survive the development and growth of this germ of human
liberty that had been planted therein, he could not say, and upon that
question he did not feel any very great anxiety; all he had to say in
regard to the matter was that he was in favor of the growth of the
germ, and he believed that the acorn would grow and ought to grow.
Wendell Phillips was one of the most eloquent and graceful public
speakers it was ever my privilege to listen to. I had expected from his
reputation as a reformer and abolitionist to hear a man with loud voice
and vehement gesticulation, but instead he proved to be mild, quiet,
self-possessed, delivering his utterances in the clearest, mildest, and
most persuasive tones, commanding the respect of his audience and
almost fascinating them with his words.
During the same session I also had the pleasure of hearing at
Davenport, Iowa, a lecture from Horace Greeley, the great editor of the
New York _Tribune_. I was greatly disappointed in Mr. Greeley's
lecture. As a writer I knew him to be the clearest and most incisive in
his utterances. His manner on the platform and his speech were those of
a drony, sing-song, intonating Episcopal minister, devoid of life and
spirit.
The general assembly of 1854-5 elected George G. Wright, then of Van
Buren county, Norman W. Isbell, and Wm. G. Woodard, judges of the
supreme court of the state to fill the vacancies caused by the
expirations of the terms of Judges Williams, Kinney and Greene. At this
session also occurred the first election of James Harlan as United
States Senator. Mr. Harlan was not permitted to take his seat under
this election, for the reason that at the adjourned joint session at
which he was elected the senate as an organized body with their
president, Maturin L. Fisher, had not participated in the election, but
had previously adjourned the session of the state senate. Mr. Harlan
was again elected in the session of 1856-7, and his right was
recognized by the senate.
In the summer of the year 1856 a republican convention was called for
the state to be held at Iowa City, for the organization of that party,
in sympathy with other state organizations of like name and principles.
As the sole surviving official of the old whig party of Van Buren
county, I called a county convention to meet at Keosauqua for the
purpose of appointing delegates to the state convention to be held at
Iowa City. I wrote a letter to my friend, H. C. Caldwell, asking him to
write a letter to Judge Wright and urge upon him the propriety, as he
could not be present at this county convention, of writing a letter
endorsing and encouraging the movement. Judge Wright declined to write
any such letter, and simply wrote to Mr. Caldwell that he hoped we were
doing right in calling the county convention.
I was present at the county convention and started the movement with
such enthusiasm as we were able to awaken. Delegates were duly
appointed, but the attendance at Iowa City required of them an overland
trip of some seventy-five miles.
I then owned what was called a "democrat wagon," having two seats, and
a small gray mare and mustang pony. With this team and wagon, when the
time came, I furnished the transportation for the delegation, and Van
Buren county was represented in the state convention by Abner H.
McCrary, our state senator from Van Buren county, Dr. William Craig,
George C. Duffield, and myself. I had the honor also to be appointed
one of the secretaries of this state convention. This was the first
republican state convention held in the state, and was the beginning of
the political organization that has ever since, with the exception of a
period of four years, controlled the legislation and policy of the
state of Iowa.
The first national republican convention met at Philadelphia in the
fall of 1856 and nominated General John C. Fremont as its candidate for
President. I took an active part in the campaign in Iowa that ensued.
At the request of the central committee of the state I spent several
weeks in canvassing Davis county. Many of the settlers in the southern
tier of townships, both in Van Buren and Davis counties, instead of
finding themselves in a slave state, in the state of Missouri, were
really citizens of the free state of Iowa. It was much easier to
ascertain the true southern boundary of our state than it was to remove
the prejudices of the benighted citizens who had by mistake settled in
Iowa, so when I went into Davis county in 1856 to make republican
speeches opposed to the existence and extension of slavery in our free
territory, I met with small encouragement. We were courteously called
"black republicans," and frequently designated as "damn black
republicans." At one point where I had an appointment to make a
political speech I found an audience assembled that had armed
themselves with rotten eggs, with the intention of driving me out of
their locality. It so happened that the year before most of these men
had been indicted for libel in accusing their school-master of burning
down a school house in the township, notifying him publicly to leave
the county or suffer mob violence. A civil suit was also instituted
against them for damages. I had been employed by them and succeeded in
getting them off with the reasonable sum of eight hundred dollars, for
which they were truly grateful, and when they found that I was to be
the "black republican" orator advertised for the occasion, they
generously assured me that if it had been anybody else they would not
have permitted him to speak, but as I had stood by them in their
trouble I might go on and say just what I pleased. They were a
warm-hearted, hot-headed, impulsive set of men. Just how many converts
I made during the two weeks that I was engaged in speaking in Davis
county I cannot say. We had no republican organization in the county,
and the leading men who took any active part in politics in opposition
to the democratic party were running Bell and Everett as their
candidates. Davis county, at the ensuing election, gave Fremont
electors only two hundred and fifty votes, and the vote in the state of
Iowa stood as follows: Fremont, 43,954; Buchanan, 36,170; Fillmore,
9,180.
CHAPTER III
REMOVED TO DES MOINES
The practice of law in Van Buren county did not prove very remunerative.
The district court met only twice a year. The business of the term
sometimes occupied only two or three days, seldom beyond one week, and
never beyond two weeks.
During the time I had continued to reside in Van Buren county one of
the most important cases in which I was retained was a contest over the
legality of a will in which the deceased had made a bequest of a small
tract of land to the Methodist Episcopal church, organized out on what
was called "Utica Prairie." The will provided that the land should be
sold by the trustees of the church and a fund created out of which
should be paid so much a year to the missionary cause and so much to
the support of the minister. The remainder should be expended by the
trustees in erecting a house of worship. The trustees of the church had
not been incorporated, and the heirs sought to set aside the will on
the ground that there was no legal capacity in the trustees to receive
the bequest, and on the further ground of the uncertainty of the
beneficiaries under the will. I was retained in the case in behalf of
the trustees, and had them immediately adopt articles of incorporation
and file the same as provided by the statutes of the state. I filed an
answer in the case, setting forth with particularity the character of
the Methodist Episcopal church's organization, with proper averments as
to the certainty of the continued existence of the beneficiaries under
the will. The case was tried upon demurrer to this answer, and upon
appeal to the supreme court of Iowa the will was sustained. The opinion
of the court is fully reported in the case of Johnson et al. vs. Mayne
et al., Trustees, 4th Iowa, 180.
[Illustration: _Charles Clinton Nourse_
From an air brush copy of an old photograph loaned by
D. W. Nourse, Kenton, Ohio.]
I charged and received from the trustees the sum of $200 for my
services in the case, being the largest amount that I received in my
practice from any one case during the seven years I remained in
Keosauqua.
The railroad up the Des Moines valley from Keokuk had been located some
three or four miles north of the town of Keosauqua, and I saw no
immediate prospect of any improvement or growth in the town. Added to
these discouragements, my wife and myself in the fall of 1857 were both
taken down with the fever and the ague. On advice of our physician we
made a visit to Kentucky and also to Ohio to visit our relatives,
hoping by some means to escape or shake off the dreaded disease, but
the more we shook the stronger the ague kept its hold. I had during
that year (1857) been employed by Edwin Manning, the commissioner of
the Des Moines River Improvement, to represent the interest of the
state in certain suits commenced against him by the Des Moines
Navigation & Railroad Company, for the purpose of compelling him to
certify to the company certain lands belonging to the state under the
grant of congress, made for the purpose of aiding in the improvement of
the navigation of the Des Moines river, the company claiming that they
were entitled to certain of these lands at the rate of $1.25 per acre
for moneys expended in the building of locks and dams upon the river,
which expenditure had been certified by the state engineer. The general
assembly of the state of Iowa was to meet for the first time in the
city of Des Moines on the first day of January, 1858, and I went to Des
Moines in company with Mr. Manning at that time for the two-fold
purpose of calling the roll of senators upon the organization of the
senate, that being my duty as the secretary of the past session, and
also to look after the interest of the state in the settlement that was
then to be made between the state and the Des Moines Navigation
Company, the supreme court having decided the suit, to which I have
referred, in our favor. I found Des Moines to be a thriving young city
of something less than five thousand inhabitants, but with great
expectation for the future as the permanent capital of the state of
Iowa. I was introduced after a few days' stay in the city to Judge W.
W. Williamson, an old time lawyer with a good collecting business, who
offered me a full partnership in his business, and I finally
determined, after transacting the business I had in Des Moines, to
return to Keosauqua and dispose of my affairs there and remove to this
city, which I finally did, and on the 6th day of March, 1858, with my
wife and household goods and the ague, we came to Des Moines.
About a year or more before we left Keosauqua I had traded off the
house I had first purchased in the village for a very beautiful home
that had been built by L. J. Rose. It had about a full block of ground
well planted with young fruit trees and vines and shrubbery and rose
bushes. The house was well located on the hill in the northwest part of
the village, and my wife as well as myself had become fondly attached
to the place. During our five years of residence we had many friends in
the town, and we found it hard to leave them. My wife shed many tears
at the thought of leaving the place, but the largest amount that my
practice had yielded in any one year whilst in Keosauqua was $800, and
I was satisfied that our best interests would be promoted by our new
location. The location of the permanent capital of the state at Des
Moines, and the fact that our supreme and United States courts would be
located there, and that it would necessarily become a railroad center
and build up and become one of the chief cities of the state, had
attracted many other young men of the profession. Within twelve months
before the time I settled in Des Moines probably a dozen well educated,
enterprising young lawyers had preceded me. The result was a fierce
competition and struggle for business, every young man realizing that
it was a question of the survival of the fittest, and that his success
depended upon himself. Before arriving in the city I had secured a
small house of two rooms and a shed kitchen on Sixth street, at a
rental of twenty dollars per month. We moved our goods into this house
on Saturday, and on Sunday morning after a light breakfast both my wife
and myself went to bed with the ague. The chill was succeeded, of
course, by the usual high fever, and in the middle of the afternoon we
were delighted by a call from an old acquaintance, a girl that had been
raised at Keosauqua and who had married Mr. R. L. Tidrick, of Des
Moines. She made us a cup of tea, and we came out of the fever
encouraged and contented.
The first two years of my practice in Des Moines were not remunerative.
In addition to our earnings we spent $1500 in our living, having saved
that amount from the proceeds of the property that we disposed of at
Keosauqua.
In the fall of 1859 I took an active part in the political campaign
that resulted in the election of Samuel J. Kirkwood for Governor and
the defeat of Augustus Ceasar Dodge, former democratic Senator from
Iowa. As I had become interested in and contemplated taking an active
part in the politics of the state and nation, I occupied my leisure
time in more serious and thoughtful consideration of the grave
questions that were soon to confront the nation. I read with great
interest and studied with great care the debates between Stephen A.
Douglas and Abraham Lincoln that had taken place in the state of
Illinois, and the struggle between those parties for a seat in the
United States senate. I also read with some care and great interest the
great questions that had divided those who had framed the constitution
of the United States. I became thoroughly grounded in the theory that
our fathers in forming our national constitution had established a
government with all the essential attributes of sovereignty. Whilst
there is a limitation upon the subjects over which the government
should exercise jurisdiction, yet within the sphere over which it might
exercise any power it was absolutely sovereign and supreme; that the
constitution was not a compact or treaty between sovereign states, but
that it was a government, deriving its powers directly from the people,
with power to make its own laws and through its courts to interpret and
administer its own laws, and through its executive and his appointees
had the power to execute its own laws; that the relation between the
national government and the individual was direct, with power over his
person and his property so far as it was necessary to assert and
maintain its jurisdiction; and that it collected and disbursed its own
revenues, enlisted and maintained its own armies, built and maintained
its own navies, and that its constitution and laws, by the very terms
of its organization, constituted the supreme law of the land. That the
assumption that it was a mere treaty between the sovereign states, from
which any state might at any time secede at its pleasure, was an
erroneous assumption, and inimical to our national existence and
prosperity. I found upon examination of the decisions of the supreme
court of the United States that these views of our national government
and its powers had been fully sustained by the supreme court of the
United States by the most eminent jurists of the land. Particularly I
studied with great care the decisions of the supreme court of the
United States, and the opinions of the Chief Justice Marshall of that
court, delivered in the early history of our government.
The same fall of 1859 I made a trip through Warren, Madison, Dallas,
Guthrie, and Union counties, at the request of the republican state
central committee. They furnished me with a covered buggy and pair of
horses, without any expense to myself, and loaded me down with a lot of
political campaign documents which I undertook to distribute, making
political speeches also at the county seats in each of the above named
counties.
In crossing from Winterset over to Redfield one afternoon I found the
road becoming very obscure, and a smoke arising from some burning
prairie northwest of me so darkened the way that I became apprehensive
of losing my road. There was no settlement in sight and no one from
whom I could inquire the way. While I was seriously pondering upon the
difficulty, a half dozen or more fine short horn cows crossed my path
ahead of my team and I thought the safest way out of the difficulty
would be to follow the cows, as they probably knew better than I where
we were going. I had not followed these cows more than a few hundred
yards before the owner of them appeared. He was a young Quaker about
thirty years of age, named Wilson. I told him who I was and what my
business was and he cordially invited me to go home with him. He lived
in a small board shanty, one large room and an attic, situated under
the hill. After sheltering his cows in a shed-barn covered with hay he
took me to his house. I thought the chances for accommodations rather
meager, but I noticed that he had a small yard fenced in front of his
house, with a path of flagstones from the gate to the door, and on
either side was planted quite a show of flowers and rose bushes. As we
neared the house a very handsome young Quaker woman, his wife, with a
little girl about three years of age, appeared at the door. Inside it
was neat and tidy. The little Quaker wife prepared us a supper of
snow-white biscuits and a plate of beautiful honey. She told me that
they had attended the county fair that day and had taken a premium upon
their honey. I spent a pleasant evening discussing politics with Mr.
Wilson and supplying him with political speeches and documents, which I
urged upon him to distribute among his neighbors. When bed-time came I
climbed a ladder to the attic in which there was just room enough under
the shingles for a clean sweet bed where I had a delightful night's
rest. After a good breakfast in the morning, Wilson accompanied me on
my way. We soon came to a well-beaten road and I found I was on what
was called "The Quaker Divide." Near a large Quaker meeting house we
met one of Mr. Wilson's relatives, a fine looking old fashioned Quaker
gentleman, to whom he introduced me, and I stated my business. I had an
interesting interview with the old Quaker and also supplied him with a
number of congressional speeches, and before I left him he looked at me
very earnestly and asked, how much pay I received for the work I was
doing. I told him nothing for my own services, but my team and buggy
were furnished by the state central committee free of charge to myself.
At first he appeared a little incredulous that I should be working for
nothing and traveling at my own expense, but after further talk with
him he seemed to have every confidence in me and remarked very
earnestly, "Thee must be a very good man to do this work without pay."
I told him we must all "cast our bread upon the waters," and possibly
it might return to us after many days; that this would indeed be a poor
world if none of us were willing to make some sacrifices for the good
of the country. I bid the two Quakers an affectionate good-bye and went
on my way much gratified. The prairie was dotted here and there with
comfortable, well kept homes. It was a beautiful October morning, what
we then and always called in Iowa "Indian Summer." A slight haze rested
upon the horizon, and here and there the ripening corn gave a glow and
variety to the landscape. I was deeply impressed with the beauty and
glory of my adopted state of Iowa, and I thought then, as I afterwards
expressed the thought in my centennial address at Philadelphia. "When
in the plentitude of His goodness the Divine Hand formed the great
meadow between the Mississippi and Missouri, and the finger of Divine
Love traced the streamlets and rivers that drain and fertilize its
almost every acre, He designated it not for the place of strife, but
for the home of peace and plenty, and intended that the ploughshare and
pruning hook should here achieve their greatest triumphs."
In the fall of the year 1859, I bought from Dr. William P. Davis a
quarter acre of ground just north of Bird's Addition in the city of Des
Moines, having upon it an old square frame house without foundation or
cellar, which I afterwards repaired and moved into with my family. My
wife's sister Julia had been with us during the summer and became
engaged to be married to Mr. John Alexander Woodard, a bachelor who had
been engaged in the mercantile business and failed in the hard times of
1856. He was then clerking and selling goods for Mr. Reuben Sypher. I
thought it prudent and made condition with Mr. Woodard that he should
make it a part of the marriage contract with my sister-in-law that he
would purchase from Mr. Sypher in part payment of his wages the lot on
the corner of Fourth street and Crocker, and build them a house
thereon. He readily agreed with this proposition, and the deed was made
to Julia E. McMeekin, and the marriage took place on the first of
December following, and a house was built on the lot the ensuing
summer, where they had their home for many years free from any
annoyance from his creditors. When the bankrupt law took effect after
that, I obtained for him a discharge in bankruptcy from his old debts.
In 1860 I was chosen by the republican state convention of Iowa one of
the thirty-two delegates that represented our state in the great
national convention that met at Chicago and nominated Abraham Lincoln
as its candidate for President. I attended that convention and had the
honor of being one of the eight original Lincoln men of the delegation,
and voted for Mr. Lincoln on every ballot. That convention was perhaps
the greatest and most important that was ever convened in the history
of our nation. The entire New York delegation was urging the nomination
of William H. Seward. I was opposed to Mr. Seward's nomination, first,
because I preferred Mr. Lincoln and had the most unbounded confidence
in his honesty and patriotism, and secondly, because I disliked many of
the men who were urging Mr. Seward's nomination. The reputation of
Thurlow Weed and that class of New York politicians created in my mind
a distrust, and I felt that we had arrived at a crisis in our national
history where we should take no chances.
After the nomination of Mr. Lincoln at Chicago the republican state
convention met at Iowa City. I was a candidate before the convention
for nomination for the office of Attorney General of the state. Only
three of the delegates from my own county voted for me in that contest.
My principal opponent was John A. Kasson of Des Moines. He had been
chairman of the republican central committee of the state for the
current year, and without my knowledge had been secretly corresponding
with various republicans of the state, soliciting their support for the
nomination, and secretly hiding the fact from me, and professing to be
my friend and in favor of my nomination. Mr. H. M. Hoxie, also one of
the delegates of that convention from Polk county, had been a secretary
of the state committee and was also secretly working for and with Mr.
Kasson for my defeat. I had many warm friends and supporters in the
convention, particularly from Lee and Van Buren counties and the
southern part of the state, and many from other parts of the state with
whom I had formed a personal acquaintance whilst filling the offices
respectively of clerk of the house and secretary of the senate. There
were three other candidates for the nomination besides Mr. Kasson and
myself, and I received the nomination on the third ballot.
After my return home I arranged my affairs so as to make an extensive
canvass of the state. I exchanged a small tract of land I had in the
western part of Van Buren county with Mr. Manning for a covered buggy
and harness and a pair of horses, and in the latter part of September
arranged a series of appointments, the first of which was at Newton, in
Jasper county. As my team was somewhat unaccustomed to the road I
started one Sunday afternoon and drove east as far as Mitchellville,
and stayed all night with my friend Thomas Mitchell of that place. On
Monday morning I started early for Newton. I filled my satchel with
political documents and occupied my time during the drive in trying to
arrange my speech. I never wrote out my speeches or attempted to commit
anything to memory. My plan was to study the subject thoroughly that I
proposed discussing, and simply arrange the order of its presentation.
While absorbed in this work I reached Skunk river, drove up on the
causeway to the bridge, which at the entrance of the bridge was about
six feet above the level of the surface of the ground. As my off horse
put his foot upon the first plank of the bridge it proved to be loose
and the plank flew up, striking the shin of the other horse. At this my
team became frightened and commenced backing to the south of the
causeway, and for a moment I apprehended that I should be precipitated
over the causeway with the horses and buggy falling upon me. I
collected the reins hastily in my left hand, seized the whip, yelled to
the horses, struck the off horse violently with the whip, using my left
hand at the same time to draw them around onto the road so that they
would not take me over to the other side of the causeway. I felt the
near hind wheel of the buggy falling over the embankment, but the
horses sprang forward, unfortunately breaking the axle, and as I
brought them around into the road I stepped out of the buggy, threw the
lines onto the wheel, and let them run. They did not run more than one
or two hundred yards before the lines, which had caught in the wheel,
wound them up, and the lines being strong it stopped them. I followed
hastily, detaching the horses from the buggy, tied them to the trees,
then walked about two miles to a farm house where I engaged a farmer
with his farm wagon to take my buggy to Newton and to lend me a saddle
upon which I rode one horse and led the other. In this way I reached
Newton for late dinner, and taking my broken buggy to a blacksmith
engaged for its immediate repair, as it was necessary for me to take
the road again early next morning to meet my next appointment, which
was at Grinnell, in Poweshiek county. I had a small audience that
afternoon at two o'clock in the court house, and made them a short
speech, appointing another meeting for 7:30 that night.
The next morning my vehicle was in good order and I took the road,
reaching Grinnell in good time for my meeting, which was at night.
In arranging my appointments I reached the Mississippi river at
Clinton. Crossing the river I drove over to Mt. Carroll, Illinois, for
the purpose of a day's rest and to visit my relatives at that place. I
found there my aunt, Ann Austin, and her two boys, also her oldest
daughter, married to a man by the name of William Brotherton. Mr.
Brotherton and the two boys were ardent republicans, and being advised
of my coming, they had advertised me for a speech on Saturday night. I
spoke to a crowded house for nearly three hours amid great enthusiasm.
The next day, Sunday, the county central committee waited on me and
insisted that I should arrange a week with them and speak at various
points in their county, which I necessarily declined to do.
On Sunday afternoon I drove north to a little mining village called
Elizabeth where my aunt, Sarah Nourse, a maiden sister of my father,
was then living and teaching school. I stayed all night at this town of
Elizabeth, and my aunt entertained me during the evening until nearly
eleven o'clock with an account of the various propositions of marriage
she had had from some half dozen bachelors and widowers, all of which
she had declined, giving as an all-sufficient reason for it that her
suitors were not men of education and sufficient intelligence to make
companions for her, and she suspected them of wanting what little money
and property she had.
The next day, Monday afternoon, I drove to Galena where I remained all
night and heard the cheering news of the result of the state elections
of Ohio and Indiana, both states giving handsome republican majorities.
This really assured the success of Mr. Lincoln at the approaching
November election.
The next morning, Tuesday, I crossed the Mississippi river at Dubuque,
having had an appointment to speak in Dubuque that day. It so happened
that the democrats had prepared for a grand democratic rally that day,
at which Mr. Douglas, their candidate for President, expected to be
present. At the suggestion of my friends I stayed over until the next
day. I was anxious to hear Mr. Douglas, and attended his meeting, which
was well attended by his followers and friends. I could not but feel
sorry for and have some sympathy with the man when he came upon the
platform to speak. He had of course heard the news of the result of the
elections in Ohio and Indiana, and knew that the hopes and aspirations
of his life were forever blighted. Douglas was called "the little
giant," and he truly was a brave man. He stood before the audience,
knowing that his fate as a candidate for the presidency was forever
sealed, but he never flinched or gave any evidence whatever of his
disappointment. I wished to hear Mr. Douglas, not because I expected to
hear anything new, for I had studied well his speeches and knew his
views upon the subjects about which he was to talk, but I wished to
study his method and manner, for I knew he was an experienced man upon
the platform. He never spoke a sentence without first inhaling a full
breath. He made his sentences short and never uttered a word when his
lungs were exhausted. He always expressed himself in clear and concise
language, and I think never changed the construction of his sentences
or attempted their construction after he had commenced their utterance;
hence there was no confusion, no hesitancy, and no exertion of the
voice beyond what he anticipated when he began his utterances. I
learned much from his manner of speaking, and after that tried to
practice his art and skill in the management of my voice, and I think
with some success, for during that canvass I frequently met our
republican speakers with their throats inflamed and bandaged and so
hoarse that they scarcely could be heard, whilst during the seven weeks
that I was engaged in speaking, I spoke on an average once or twice a
day without any difficulty or hoarseness or inflammation in my throat.
I frequently relieved my voice by dropping into a conversational tone,
finding this much easier for myself and much more agreeable to my
hearers. I indulged frequently in anecdotes and amusing illustrations,
and endeavored not only to convince the people by arguments but at the
same time to entertain them.
I remained at Dubuque and spoke in the German theater on Wednesday
night. The republicans, of course, were enthusiastic and joyous. The
result of the elections in Ohio and Indiana had aroused and confirmed
their hopes of success. I spoke from the stage of the theater for three
long hours. I interspersed my remarks with frequent anecdotes that were
received by the audience with shouts of applause. At one time after the
general applause had partially subsided, some gentleman near the
orchestra box was seized with a second paroxysm of laughter, and
actually rolled off his seat to the floor shouting and screaming with
delight. The entire audience arose to their feet, looking over the
heads of those in front to see what had happened. I beckoned to them to
please be seated, that it was only one of the new converts that was
shoutingly happy. This awakened another round of laughter and applause,
and I think everyone, unless it might have been some disappointed
democrat present, was uproariously happy.
It would not be profitable to undertake to give an account of my many
meetings during that canvass. I traveled about fifteen hundred miles,
spoke in more than fifty counties of the state, continuing my labors up
to the night before the November election.
One incident I recall that probably is worth recording: I spoke at
Glenwood, in Mills county, to a large audience of ladies and gentlemen,
and after discussing the political issues of the day I told them that
there was a matter of a personal nature that I had not yet mentioned
and that I would communicate to them in confidence: that I had been
nominated by the republican state convention as their candidate for
Attorney General of the state, that after my nomination I was somewhat
doubtful as to the course I ought to pursue, whether or not it would be
best to stay at home and trust to the strength of my party, or whether
I ought to go over the state and discuss the political questions of the
day and let the people know and hear for themselves what manner of man
I was, that they might judge for themselves as to my competency to fill
the important office for which I was a candidate. That in all cases of
doubt or difficulty I had made it a rule to consult my wife, and I laid
the matter before her, asking her advice as to what she thought it was
best for me to do; that she immediately decided that I must go and
speak to the people and let them see and hear me, adding that I could
trust the people, that the people of Iowa beyond question knew and
appreciated a good man when they could see and hear him. The audience
shouted their applause at this conclusion of my address, and when I
came down from the platform many friends came and shook hands with me,
and especially the ladies, assuring me that the decision of my wife was
correct.
The result of the election is a matter of history. Mr. Lincoln received
the electoral vote of Iowa by some fifteen thousand majority, as did
also every candidate on the republican ticket, including myself. At the
close of my first term I was renominated and re-elected without
opposition.
The duties of my office as Attorney General of the state consisted in
advising the Governor and state officers when called upon by either of
them for my opinion, and also when requested by that body to give my
opinion to the general assembly, also to represent the state in all
criminal cases appealed to the supreme court of the state. Our supreme
court at that time met twice a year; to-wit, in April and October, in
the city of Davenport, Iowa, and my duties required me to attend there
during the sessions of the court. The judges of the court, a reporter,
and myself, and most of the attorneys visiting the court from time to
time, boarded at the Burtis House, an excellent hotel kept by Dr.
Burtis at that time. It made up a pleasant party, and it was rather a
pleasant episode in my professional life. The only important opinion I
was called upon to give to the general assembly was as to the
constitutionality of the proposed law providing for the soldiers' vote.
The supreme court of Pennsylvania had held a similar statute under
their constitution to be unconstitutional and void. I examined the
question carefully, because it was one of great importance. So many of
our loyal voters in the state were absent from the state as soldiers in
the Civil War, and there was a great danger that those who sought to
embarrass the prosecution of the war might place in control of our
state affairs men inimical to the cause of the Union and nation. I gave
an opinion to the legislature that the proposed law was constitutional.
It was passed and afterwards sustained by the unanimous opinion of the
judges of our supreme court, and from that time forward there was no
question about the political status and conduct either of our state
legislatures or our representatives in the national congress.
Soon after the opening of the Civil War the legislature of Iowa was
called together in extra session, and enacted a law providing for the
issuing of $800,000 of war defense bonds to be sold for the purpose of
providing means to equip and muster into service the troops to be
furnished by Iowa for the national cause. It also provided for three
state commissioners with authority to put these bonds upon the market
and sell the same at the best rate they could obtain. A number of other
states in the Union had also provided for the issuing of bonds and the
raising of means to arm and equip their soldiers. Hence when these
commissioners went to New York for the purpose of putting our bonds
upon the market, no desirable bids could be obtained. Our Secretary of
State, Elijah Sells, had been ordered or requested by Governor Kirkwood
to take these bonds to New York in order that they might be ready for
delivery in case of sale. There was danger to be apprehended that the
commissioners might attempt to hypothecate these bonds, or pledge them
for a loan of money. The bonds bore eight per cent interest per annum,
and they would constitute a great prize if the money sharks could get
hold of them and sell them at any price they might bring in a money
market then flooded with similar paper. Being advised of the situation,
I accompanied the Secretary of State to New York, at my own instance
and expense, for the purpose of advising the Governor and commissioners
that under the law they had no authority to pledge or hypothecate these
bonds, but could only sell them in the manner expressly provided by the
statute. I had an opportunity of giving this advice, which I did very
readily in New York, and I had the satisfaction of seeing the bonds
brought back to our state and sold at a fair price to our own people.
My salary as Attorney General was one thousand dollars a year and a
contingent fund of four hundred dollars additional each year. My
official duties occupied about one-half of my time, and I continued in
the general practice, except as to criminal cases, which yielded me
about fourteen hundred dollars additional, making my income during
these four years about twenty-eight hundred dollars which was rather
more than any state officer or even judge of the supreme court received
at that time.
Upon the inauguration of Mr. Lincoln in 1860 John A. Kasson, the man
whom I had defeated for the nomination of Attorney General of the
state, went to Washington City and secured the appointment as Second
Assistant Postmaster General, which position he held until the fall of
the year 1862, when he secured the nomination for congress from the
republican congressional convention of this, the then fifth
congressional district.
Upon the election of Mr. Lincoln in 1865 for his second term, I became
an applicant for the position of United States District Attorney,
putting my application in the hands of Senator Harlan. I also had
letters from all of our members of congress and from Senator Grimes
favoring my appointment. Mr. Kasson claimed that the appointment fell
in his congressional district and he was entitled by courtesy to
nominate the person who should receive it. Mr. Withrow, who was still a
personal and political friend of Mr. Kasson, came to me personally and
stated that if I would write to Mr. Kasson and signify my willingness
to receive the appointment as coming through him, that Mr. Kasson would
have the appointment made. I accordingly wrote to Mr. Kasson, stating
that if he was disposed to recommend my appointment upon considerations
of my fitness for the office and without reference to any supposed
personal obligations to favor his political aspirations for the future,
that I would be willing so to receive it. Upon receiving this letter,
Mr. Kasson immediately went to the President and presented to him the
name of Caleb Baldwin, of Council Bluffs, stating that Senator Harlan
had been consulted and had agreed to Mr. Baldwin's appointment. Mr.
Harlan, upon being advised of what Mr. Kasson had done, immediately
went to the President, and at his request the appointment was
suspended. On the 14th day of April ensuing, Mr. Lincoln was
assassinated and Andrew Johnson, the Vice President, succeeded to the
presidency. I immediately requested Mr. Harlan to pursue the subject of
my appointment to the office no farther, and there the controversy
dropped. I have regarded my disappointment in this matter as rather
fortunate than otherwise, as I was not in harmony with the
administration of Andrew Johnson and should not have cared to have held
office under his administration.
Pending the presidential election the people of Iowa were fully advised
as to the threats that were made that in case of Mr. Lincoln's election
the southern states would secede from the Union. They were also fully
aware of the fact that the then national administration was doing all
it could to encourage the southern politicians who were uttering these
threats. The position of Mr. Buchanan's administration was that the
constitution of the United States conferred on the National Government
no power to coerce a state, or, in plain terms, to preserve the nation
and prevent its disintegration. The fact that civil war might be
inaugurated and was threatened in case Mr. Lincoln was elected was well
understood and duly considered. The people of Iowa indulged in no
feelings of hatred toward the people of any state or section of the
Union. There was, however, on the part of the majority a cool
determination to consider and decide upon our national relations to the
institution of slavery, uninfluenced by any threat of violence or civil
war.
After the election of Mr. Lincoln and the call for troops to aid in
putting down the rebellion, I visited Washington City for the first
time in my life. The rebel troops occupied the entire country between
Richmond and Manassas and menaced the national capital. On the Saturday
before the battle of Bull Run, so-called, I went in company with some
friends in a carriage as far as Fairfax Court House. I saw there a
number of Union soldiers that had been wounded the day before in the
artillery engagement with the rebel general, Beauregard. I returned to
Washington Saturday night and arranged with General Curtis, then our
member of congress from Iowa, to go out in the morning by rail to the
place of the anticipated battle. I remained at Alexandria until after
noon on Sunday with the hope of getting transportation on the railway.
We could hear the booming of the cannon during the afternoon. I
remained in Alexandria till about two o'clock. On finding the expected
transportation on the railway delayed and doubtful, I returned to
Washington. About midnight we received news of the disastrous results
of the engagement that day. The next morning, Monday, I started home on
an early train, as my professional engagements that week required my
presence in Des Moines. During the great struggle that followed for the
preservation of our nation I spent much of my time and all of my income
in traveling over the state and attending public meetings, and made
frequent addresses in behalf of the Union cause. I did not enter the
volunteer service as a soldier or officer of the Union army for the
reason that I was satisfied I could do more good to the cause in the
position I then occupied as Attorney General of the state. I did at one
time apply to Governor Kirkwood for a military appointment as a major
in the Third Iowa Cavalry. He very bluntly told me that he did not
think he could spare me from the place that I then filled, and he did
not think it good policy to spoil a good lawyer for the sake of making
a poor soldier. I had no military education and no knowledge of
military affairs, and my health was such that I could not have been of
any use to the service except in a position where I could take better
care of myself than was possible as a soldier in the ranks.
CHAPTER IV
RESUMES THE PRACTICE OF LAW
At the close of my second term of office, to-wit, January, 1865, I
resumed the practice of law. The firm of Williamson & Nourse, which had
existed since my settlement in Des Moines in 1858, had taken into
partnership Jacob M. St. John, formerly of Keosauqua, Iowa. As I now
had to depend entirely upon my practice for my income I dissolved
partnership with Messrs. Williamson and St. John and commenced to
practice alone.
In the fall of 1865 Judge Gray, the judge of our district court, died,
and Governor William M. Stone, without any solicitation upon my part,
at the request of a number of the members of the bar of Polk county,
October 16, 1865, appointed me to fill the unexpired term of Judge
Gray, deceased. The salary of this position at that time was only $1300
a year, and I accepted of it after considerable hesitation. At the
first term of court I held in the city of Des Moines it became my duty
to try a number of cases for a violation of the laws of the state
prohibiting the sale of intoxicating liquors, except beer or wine made
from grapes or other fruit grown in this state. This wine and beer
clause of the law had been adopted by the legislature by way of an
amendment to what was called the Maine law that had been enacted by the
legislature at its session in 1854-5. A number of saloons had been
established in Des Moines and licensed to sell native wine and beer,
but in fact they all sold whiskey and other spirituous liquors. The
grand jury had indicted some seventeen of these saloons as public
nuisances under the law. The courts in Iowa prior to this time had
adopted the policy of imposing slight fines upon these saloons about
once a year, thereby establishing the very worst and the most
reprehensible kind of a license. The sheriff and other officers of the
county, elected by the people from time to time, were largely under the
influence of these saloons and their patrons. When I called the first
of these cases for trial it became necessary to fill up the jury panel
from the bystanders, and when the sheriff called the name of a person
that he directed to take a place upon the jury, I accidentally noticed
that the next case for trial was a case against a defendant of the same
name of the person called into the jury-box. I privately called the
sheriff to my side and asked him if the person that he had placed upon
the jury was the same person as the defendant in the next case, accused
of a like offense of the one we were to try. After some hesitation he
said he thought he was the same person. I told him that was not a
proper discharge of his duties, that he must fill up the panel of the
jury with good, law-abiding citizens, and not from those who stood
charged with crime on the records of the court. He suggested that I
should excuse the juror. I told him no, the mistake was his and not
mine, and that he must correct his own mistakes, that he should go to
the juror himself and tell him and have him stand aside, and that he
must be very careful whilst I presided in that court not to make any
more such mistakes. The result was that he filled up the panel with
good law-abiding citizens, and that defendant and sixteen others were
tried and convicted within the next ten days. I did not pass sentence
upon any of the defendants until all the trials were completed. In the
meantime I was visited by a number of temperance men who felt anxious
to know what character of sentence I was going to give to these
persons. I told them it was not proper for me to receive any
suggestions out of court, and if they had any to make it must be made
in open court in the presence of the defendants themselves or their
counsel. I did, however, give the matter very grave and serious
consideration. This law in its spirit and in its letter was intended to
prohibit the sale or establishing or keeping a place for the sale of
intoxicating liquors, other than the wine and beer excepted by the
provisions of the law. The slight fines that had theretofore been
imposed for this offense had simply been tolerated, and amounted in
practice to a system of licensing these violations of the law. I felt
it my duty to do something that should prohibit what the law
prohibited. After the trials were all over I had the defendants all
brought into court and gave them my views concerning the law and
concerning the duty of every good citizen to obey and observe the law
strictly and in good faith; that this law existed upon the statute
books by the same authority as the law that protected them in their
persons and in their property, and that the disregard of it was simply
to set at defiance the authority from which all our laws eminated. The
man who kept the poorest and meanest of these saloons I fined only the
sum of one hundred dollars, stating as a reason therefor that the
witnesses upon the trial had said they were ashamed to be seen in his
saloon and hurried away as soon as possible; that probably the class of
men of whom he was making drunkards were not our most valuable
citizens. I graded the fines against the others of the sixteen
according to the class of persons I thought they were injuring, and the
highest fine I imposed was five hundred dollars, against the man who
had taken the trouble to prove in the trial that he kept a most
respectable resort and that none but the very best citizens of the city
were in the habit of drinking at his bar. This action upon my part not
only created an excitement locally, but the news of it spread rapidly
throughout the state and a number of our district judges followed my
example.
[Illustration: _Charles Clinton Nourse_
From an air brush copy of an old photograph loaned by
D. W. Nourse, Kenton, Ohio]
When I assumed the duties of judge of the district I found the dockets
much crowded with cases that had been delayed, chiefly because of the
unnecessary consumption of time by attorneys in the trial of their
causes. For instance, one case in Polk county that involved only the
question of the identity of a calf worth three or four dollars had
occupied two weeks of the time of the court in its former trial. When I
called the case for trial a number of attorneys suggested to me that
the case would probably consume the balance of the term, and they might
as well dismiss their witnesses and continue their causes. I told them
that they were probably mistaken as to the time that would be occupied
in the trial of that case. The first witness in behalf of the plaintiff
was a timid young girl about fourteen years of age, a daughter of the
plaintiff. She told in a simple straightforward way what she knew about
the marks on the calf that her father had claimed, and her belief that
it was her father's calf. The attorney for the defendant unfortunately
was somewhat under the influence of liquor, and putting both heels up
on the trial table, he leaned back and in a very rude, aggressive
manner addressed the young girl, saying, "I suppose you put in about
all of your time examining the calves on your father's farm, don't
you?" I immediately reproved the attorney and asked him if he had any
questions to ask the witness in regard to the marks upon the calf or
its identity. He replied in a haughty manner that he supposed he could
examine the witness in his own way and ask his own questions. I
immediately told the witness to stand aside and asked the plaintiff to
call the next witness. The attorney then said he had not cross-examined
the witness and wished to do so. I merely remarked that I had given him
an opportunity to do so and he had not improved it, and he could save
his strength for the next witness. The result of this kind of
discipline was that the case was tried within two days instead of two
weeks, and the great calf case was disposed of. I only give this as a
specimen of the reforms that I tried to introduce into our courts.
In the most of the counties of our district, which embraced seven at
that time, we had no court houses. My first court in Warren county had
to be held in the old Methodist church. It had been the custom to fill
the aisles and the space about the altar with saw-dust, with one table
as the trial table for the attorneys, and four or five rickety chairs.
This saw-dust when it became heated, as it did in the winter time from
the large stoves used in heating the room, filled the air with very
fine particles of dust that often settled upon the lungs of the members
of the bar and the court, and was itself injurious to health. After
impaneling the grand jury on the first day of the term at Indianola I
announced that the court would adjourn until Tuesday and that the
sheriff would clean the room of this sawdust and furnish matting for
the aisles and the place about the platform, and also furnish an
additional table for the use of the attorneys and a dozen good
substantial chairs. The sheriff informed me in open court that the
board of supervisors had refused to furnish such conveniences, and
probably would not allow the bills if he should purchase these
articles. I advised him that it was his duty to obey the orders of the
court, and to present his bill to the supervisors and if they failed to
allow the bill to take his appeal to the district court and I would see
that he recovered judgment and got his pay. Sufficient to say that the
next morning the matting was laid, the table and chairs were furnished
in good order, and I never heard of any difficulty about the allowance
of the bills by the board of supervisors. I pursued the same policy in
Madison and several other counties of the district, and never heard
that I lost favor with anybody because I insisted on having a decent
court.
On the 3d of March, 1866, at a subsequent term of the court held in
Warren county, Mr. Thomas F. Withrow, an attorney of the Polk county
bar and my neighbor, came into court one morning just before noon in
company with John A. Kasson, then a representative in congress from
this district and a resident of the city of Des Moines. Mr. Withrow
filed with the clerk of the court a petition for divorce in behalf of
Mr. Kasson's wife, and asking for a divorce on the grounds that Mr.
Kasson had been guilty of adultery. To this petition Mr. Kasson filed
an answer admitting his guilt, and both parties asked for an immediate
hearing of the cause. I dismissed the jury then impaneled and announced
that the court would not adjourn but remain open for business, asking
the clerk and sheriff to remain, and that the bystanders and others
were at liberty to retire. I read over the papers carefully and told
Mr. Withrow that I could not grant the petition upon the answer; that
if he had any evidence it must be produced in open court as I must be
satisfied of the existence of the facts alleged in the petition. Mr.
Withrow said he had the letters of the defendant written to his wife
from time to time, fully acknowledging his guilt, and he would return
to the hotel and get his satchel containing these letters and produce
them in open court if I required it. Mr. Kasson then begged of Mr.
Withrow not to produce those letters, and turning to me said he would
himself be a witness as to the facts and thought that ought to be
sufficient. I told him I could not grant a divorce that would have the
appearance of being granted merely upon the consent of the parties,
that I wished to be satisfied fully that there was no collusion in the
matter between himself and wife, and that he was in fact guilty as
charged. He assured me that there was no collusion, that the charge was
actually true and that the facts actually existed as charged against
him. At this he broke down and professed almost to cry, and I told Mr.
Withrow to prepare the decree of divorce. It was accordingly prepared,
reciting that it was granted upon evidence of the truth of the
allegations of the petition, and I accordingly signed the decree.
Upon my return to Des Moines at the close of the session, the
legislature then being in session, I was waited upon by one or more
members of the general assembly, suggesting that there was a rumor that
the divorce of Mr. Kasson's wife had been procured and granted simply
by consent of parties, and they proposed to introduce a bill for an act
to prevent such divorces in the future. I explained that the rumor was
entirely unfounded and that the divorce had been granted upon
satisfactory evidence offered in open court. I recite these facts at
some detail because of their importance with reference to results, and
what occurred that fall, 1866.
Mr. Kasson was a candidate for re-nomination to congress. The opposing
candidate was General G. M. Dodge, then a resident of Council Bluffs. I
did not take any active part in this contest further than to express my
preference for General Dodge, and that I could not consistently, with
my views of propriety, support Mr. Kasson under the circumstances. When
the conventions were held that fall for nominating delegates to the
convention that should nominate congressmen, district judge, and
prosecuting attorney, the Polk county convention, being under the
control of Kasson's friends, nominated the same set of delegates to
attend both the congressional and the district conventions. After very
heated contests in the convention for nomination of congressmen, Mr.
Kasson was defeated, and I was informed by the delegation that they
would not support me for the nomination for district judge because I
had refused to help them in the matter of nominating Mr. Kasson. The
next day when the convention met for the nomination of judge and
district attorney I went before the convention in person and withdrew
my name from the convention, stating as a reason therefor that I could
not with propriety be a candidate before that convention without the
support of the delegates from my own county. The convention nominated
Mr. Maxwell, then district attorney, for judge. My office did not
expire until the ensuing January, but I at once sent my resignation to
the Governor of the state, thus terminating my judicial career on
August 1, 1866.
In this contest for congress, Mr. H. M. Hoxie and Mr. Thomas F.
Withrow, formerly warm friends and supporters of Mr. Kasson, had
abandoned him and were active supporters of General Dodge.
Upon my retirement from the bench, the members of the Polk county bar
had a meeting and adopted very complimentary resolutions which they had
enrolled and were kind enough to present to me as a testimonial of
their approval of the manner in which I had discharged my duties as
judge of the court.
The salary of judge of the district court at that time was the meager
sum of thirteen hundred dollars a year, out of which I paid my own
expenses on the district. During my term of office as Attorney General
I had spent a considerable part of my income in attending public
meetings and traveling through the state, addressing public assemblies
upon the issues growing out of the war. I had not accumulated
sufficient means to pay for my homestead and I now determined, as far
as practicable, to devote myself to my practice as an attorney and
accumulate something for the future.
During the administration of Governor William M. Stone, his private
secretary had endorsed a number of warrants issued by the Treasurer of
the United States in favor of the state of Iowa, known as "swamp land
warrants." Governor Stone had entrusted the detail of the business of
his office to his private secretary. These warrants came into the hands
of the secretary and he assumed the responsibility of endorsing the
Governor's name upon them from time to time, and having them cashed at
the Second National Bank. At first he paid this money over to the State
Treasurer, but as no inquiry was made as to the transactions and
Governor Stone was paying but little attention to the details of
business in the office, he cashed a number of these warrants and
appropriated the money to his own use and purchased considerable real
estate in his own name.
On the first of January following, these transactions became public and
the Governor repudiated the authority of the secretary to make the
endorsements upon the drafts. He procured from the secretary mortgages
upon considerable of the property purchased by him to secure so much of
the proceeds of these drafts as remained unaccounted for. The grand
jury indicted the secretary for a number of these transactions for
forging the Governor's signature. This secretary applied to me through
Mr. Withrow, about the time of my resignation as judge, to employ me as
counsel to assist in his defense. The secretary had no money or means
to pay me for my services and as he already had able and efficient
counsel, I declined the employment.
About the same time suits were brought to foreclose these mortgages
given by the secretary, and also to hold the bank responsible for the
moneys that had not come into the hands of the State Treasurer. Pending
these suits of a civil character, by agreement of the parties and their
counsel, the case was referred to me as referee. During the summer I
occupied several weeks in taking the testimony carefully before a
stenographer and reported the same with my conclusions of fact and law
to the district court, which report was confirmed by the district court
and upon appeal to the supreme court by the secretary, that court also
affirmed my decision, and under these judgments the property was sold
and the state partly remunerated for the loss.
Governor Stone also solicited me to act as special prosecutor in
prosecuting the indictments against the secretary for forgery, but in
consideration of the fact that the secretary had failed to obtain my
services in his defense because of his poverty, I declined to take any
retainer or part in the prosecutions.
I only recite these matters here because the secretary for his own
purposes saw proper to make a number of virulent attacks upon me in
various scurrilous articles that he published. As he was a man of no
reputation and soon after left the state and died in obscurity and
poverty, it is not necessary here to notice them.
The indictments against the secretary were never tried, I think, for
the reason that the trial would necessarily have exposed the fact of
the Governor's carelessness and inattention to the detail of his
official duties. The Governor was otherwise not to blame for these
unfortunate results and was himself free from any taint of dishonesty
or corruption.
Notwithstanding my determination to retire from politics and devote
myself entirely to the practice of law, the republican state
convention, in the fall of 1867, without any procurement or
solicitation upon my part, selected me as chairman of the state central
committee. I conducted the canvass that resulted in the election of
Colonel Samuel Merrill. The entire cost of this canvass, including the
employment of a secretary to the committee, was only the sum of $800,
one-fourth of which the candidate for Governor contributed. I make note
of this, for the reason that in later years, and at the time of the
present writing, these central committees of the states and of the
nation, are expending thousands and hundreds of thousands of dollars
upon the election of the candidate of their party.
I also at the time I was chairman of the state central committee,
furnished a team to Messrs. Thomas F. Withrow and F. W. Palmer, the
latter then editor of the _Register_, to make a political canvass
through the western half of the state. The very next year, 1868, Mr.
Palmer became a candidate for congress in this district, Mr. Kasson
being again a candidate for a seat in congress and again defeated in
the nomination. I attended the congressional convention which was held
at Council Bluffs that year, and was well satisfied with the result.
In the summer of 1869 Judge George G. Wright, before that time one of
the judges of the supreme court of the state of Iowa, and who had
removed from Keosauqua and become a permanent citizen of Des Moines,
called upon me to confer with me upon the subject of his election to
the United States Senate. He was fearful that Mr. John A. Kasson, who
had been a member of the house of representatives of the state the last
previous session, would be a candidate for the state senate. He
expressed himself as having no confidence whatever in Mr. Kasson's
friendship toward him, and he desired me to be a candidate and seek the
nomination for the position of state senator. I peremptorily declined,
for the reason that I did not want to engage in any political fight or
difference with Mr. Kasson, and I could not afford at that time to
leave my practice for a place in the state senate. Judge Wright
insisted that he must have a friend in the senate from Polk county upon
whom he could rely, and urged me to name some one who could be
nominated and elected. After canvassing the names of several gentlemen,
I suggested the name of B. F. Allen, then the leading banker in western
Iowa, giving as my reason for urging Mr. Allen's name that the friends
of Mr. Kasson would not present Mr. Kasson's name in opposition to Mr.
Allen at that time, and the further reason that the people of Des
Moines would at the then coming session of the general assembly ask for
an appropriation to commence the building of a permanent capitol, and
that Mr. Allen by virtue of his influence through the western part of
the state especially could probably do more than any other man to
secure such an appropriation. Judge Wright replied that the name of Mr.
Allen had been suggested, but that he was satisfied that that gentleman
would not accept of the nomination because his business required his
undivided attention. I suggested to Judge Wright that I thought I was
better acquainted with Mr. Allen than himself, and that if a number of
our friends would call upon Mr. Allen, one at a time, suggesting and
urging him to be a candidate for the senate, in less than ten days he
would not only be willing but anxious to receive the nomination. We
accordingly pursued that course, and my prediction was verified. Mr.
Allen became a candidate and received the nomination, but this did not
prevent Mr. Kasson from again being a candidate for the nomination to
the lower house.
At the ensuing session of the legislature the desired appropriation for
a permanent capitol at Des Moines was secured and Judge Wright was
elected to the United States Senate, defeating William B. Allison who
was then, for the first time, a candidate for that position.
Mr. Kasson worked diligently to secure the appropriation for the
capitol, as did also Mr. Allen in the senate and George W. Jones, Mr.
Kasson's colleague, in the house.
The citizens of Des Moines were very deeply interested in this
appropriation for the permanent capitol, and every one, including the
ladies, brought to bear all proper influence upon the members to secure
their votes for it. The great event of the winter socially was a grand
party given by Mr. Allen in the splendid mansion which he had just
finished, situated on Terrace Hill, now the property of Mr. F. M.
Hubbell. The ladies of the town also gave an old fashioned concert at
Moore's Hall, and an amateur theatrical performance at its close, of
which I had the honor to be the author. The play was a farce
illustrating the absurd features of a general assembly of the state of
Iowa whose members were one-half ladies and the other half gentlemen.
The play represented a session of the general assembly of the state of
Iowa in the year 1900. The old capitol building, then occupied by the
legislature, was supposed to have fallen down and to have killed a
number of the members of the sitting general assembly, and one of the
bills discussed by the mock legislature was a proposed appropriation
for the benefit of the surviving families of the members who had lost
their lives in the destruction of the old capitol. The great discussion
arose upon a motion to strike out the sum of sixty-two and one-half
cents, and many of the speeches that had been made against the
appropriation for the new capitol upon the question of economy were
largely quoted from, by those opposed to the sixty-two and one-half
cents.
Another point made in the play was that upon the question of woman's
rights. Dubuque county was supposed to be represented by a lady
weighing over two hundred pounds, and her husband, a dwarf, then
residing in the city, who weighed about seventy pounds. Whenever a vote
was taken upon any question respecting the rights of their sex the
legislature divided, the men voting on the one side and the women
always on the other. The lady who was supposed to be the wife of the
dwarf, whenever a rising vote was taken upon a question of this nature,
seized her supposed husband by the coat collar and tried to compel him
to stand up and be counted on the side with the ladies. The frantic
efforts of the little fellow to desist and to vote with those of his
own sex created uproarious applause and amusement for the audience, as
did also the following part of the play:
The lady supposed to be the wife of the dwarf arose and addressed the
speaker upon a question of privilege. She said she had just received a
telegram from home, stating that her youngest child was taken suddenly
ill, and she requested the house to grant leave of absence for her
husband, as it was very desirable that he should return home and care
for the sick child. Another member of the house, a gentleman, arose and
inquired whether the sick child was a boy or a girl. The lady responded
with some acrimony that all her children were girls of whom she boasted
she had seven, and was proud of it.
The ladies of the city entered into this play with much spirit and
performed their parts so admirably that it furnished a very rich
entertainment for the winter.
The bill making the appropriation for the erection of the permanent
capitol finally became a law, and Mr. Kasson attempted to monopolize
for himself all the glory of the achievement. He had a brass band
serenade him at his house, and John P. Irish of Iowa City make a
congratulatory speech to him as the hero that had accomplished so much
for the city of Des Moines.
In the year 1874 Mr. Kasson was again nominated as the republican
candidate for congress and was successful in the election. In this
contest he was opposed by the then editors of the _Register_, a
newspaper at that time published by the Clarkson brothers.
In the early part of September, 1874, Mr. J. C. Savery, a citizen of
Des Moines at that time, and for several years a client of mine, called
upon me and showed me several letters in manuscript, relating to Mr.
Kasson's conduct while a member of the legislature of Iowa, and while
a member of congress, and stated that he proposed to publish those
letters as he was opposed to Mr. Kasson's election. He asked my advice
as his attorney as to whether or not there was anything in the letters
that would make him liable to a civil suit for damages in case of their
publication. I advised him that if the letters were published and any
suit was brought against him it would be necessary to show either the
absolute truth of them or that they were published from proper motives
and that he had a good reason to believe that the statements were true.
As Mr. Savery had been my friend and client, and had not been at all
prominent in political life, I advised him as a friend not to mix up in
the contest and not to publish the letters, as he was a private citizen
having no special interest in the question as to who would or would not
be elected to congress. He, however, determined that the letters should
be published and he gave them to the _Register_ for publication. These
letters were a very severe arraignment of Mr. Kasson's political
career, and he thought proper to commence suit in the district court of
Polk county against Mr. Savery and the editors of the _Register_ for
libel. Such a suit was brought October 21, 1874. Mr. Savery requested
me to meet Mr. Clarkson for the purpose of consultation and with a view
to my employment, in connection with Colonel Gatch, to defend the suit.
I stated to them that the trial of the cause would involve a good deal
of labor and time, that in the then state of political excitement, it
would be very difficult to obtain a favorable result as the partisans
of Mr. Kasson, if they secured a place upon the jury, would hardly give
much weight to the testimony that might be produced. I signified,
however, that I was willing to take the employment, provided I was paid
liberally for my professional services. To this Mr. Richard Clarkson
demurred very strongly, insisting that as Mr. Kasson was at least a
political opponent and enemy of mine I ought to be willing to defend
their case for an opportunity to ventilate the character of the
plaintiff in the suit. I stated to Mr. Clarkson that if I engaged in
that suit it would be for the purpose of performing my duty as an
attorney and officer of the court, and that I should under no
circumstances allow any personal matters of my own to influence what I
might have to do or say in regard to the case; that the court room was
not the place for a lawyer to gratify his personal feelings toward any
of the parties to the litigation. This conference terminated without
any agreement as to my employment. Afterwards, Mr. Savery came to me to
see me alone and stated that Colonel Gatch had named a very small sum
that he was willing to accept as compensation for assisting in the
trial of the case. Mr. Savery urged upon me that he was then in poor
circumstances financially and not able to pay any large fee; that he
had been my client and paid me considerable sums of money in times past
and urged upon me that I ought to stand by him now in the time of his
trouble; that if I would accept of a like amount that Colonel Gatch had
agreed to take for his services, he, Mr. Savery would pay half, and the
Clarksons would pay the other half. I finally agreed to these terms. I
tried the case. It consumed very considerable time in its preparation
and trial. I copy here for information as to the character and scope of
this case the opening statement that I made to the jury in regard to
the issues involved, and the evidence that the defendants would offer
in support of their defense. I always regarded the opening statement of
a case as very important and that it should give to the jury a clear
idea of the case they were to try, and of the facts upon which my
client relied. I always believed strongly in the importance of first
impressions, and I give this as a specimen of my skill in that behalf
and for the further purpose of showing that it is utterly free from
personal feeling or ill will toward the plaintiff. The following is the
opening statement as made and reported and published at that time:
With permission of the Court, Gentlemen: In a case like this, it is
hard for jurors to divest themselves entirely of their relations,
politically and socially, to parties, and come to the consideration
of it as a dry question of fact under the instruction of the court.
The petition that has been read to you selects from certain
articles that were published during the political canvass last
fall, three certain items of charges made against Mr. Kasson that
it is supposed by Mr. Kasson and his friends cannot be proved. Why
those three particular charges out of quite a number should have
been selected and the others passed by, I do not know. Probably any
one of the other charges damaged him as much as any one of these.
But for some reason best known to the plaintiff, he has been
willing to stand all the injury and all the damage they did;
because he didn't care about having them investigated in court. (He
has a right to pick out and say this one is not true, and the other
is not true, I put you on the proof of this.) These three
particular charges are set out, and they claim so much damages for
saying these particular things about this particular individual.
The answer I will read to you and then try to give you some idea of
the evidence that will be introduced on the part of the defendants.
[Here Mr. Nourse read the answer relating to the first charge, and
continued.]
The facts are, these articles were written by Mr. Savery, and
published in the _Register_, which was conducted and published
by the defendants, Mr. R. P. Clarkson and Mr. J. S. Clarkson.
[Reads from petition again, beginning with the words: "Now, sir,
this was the way you played your hand."]
Mr. Nourse continued: That is the answer we make to the first
charge, relating to what is called the Smoky Hill route. I will
say, in order that you may understand the evidence, and the facts
in reference to that business, that Mr. Kasson was our member of
congress in 1866, as will appear by the testimony, living and
residing in this town, having for his colleagues Messrs. Price,
Wilson, Allison, Judge Hubbard, and Mr. Grinnell. At that time one
of the most vital questions to the people of Iowa, especially to
the people of this congressional district, was whether or not the
roads running east and west through Iowa should connect with, and
become a part of the great Pacific route, extending from the
Atlantic to the Pacific ocean. Prior to 1866 congress had passed a
law to aid the construction of the Pacific Railway. That law
provided for several Iowa branches, and provided for a branch
connecting with the St. Louis roads through Kansas, and provided
that all these branches should unite at what is known as the one
hundredth meridian, some distance west of Omaha. And a further
provision in that bill was that the Union Pacific Railroad Company
should build from the one hundredth meridian westward, meeting the
road that should be built from California eastward. That was the
Union Pacific Railroad proper. It will appear in evidence,
gentlemen, that Mr. Kasson, up to the very moment, the very day and
hour on which he gave this vote in congress, had publicly and
privately expressed himself in favor of the Omaha route, and
delivered a public lecture against the Smoky Hill route, and
explaining to the people of this locality the great advantages they
were to derive from being upon the main line of this great
thoroughfare. It will further appear in evidence, gentlemen, that
the Kansas company, with the Pennsylvania Central road--in
combination with the St. Louis interests--devised a scheme, in the
winter of 1866, whereby they proposed to make the Kansas road,
connecting with St. Louis, the main branch of the Pacific road, and
thus entirely defeat the building of the roads westward to the
hundredth meridian, connecting with the Iowa roads. That was the
scheme that was undertaken, and a bill having that object was
rushed through the senate and came to the house of representatives,
when Thaddeus Stevens took charge of it. The friends of the bill
made a strong combination, refused to let it be referred to a
committee, and refused even to allow it to be printed for the
information of the house, and put it upon its passage under the
spur and whip, crushed out debate, and crushed out explanation
and discussion. Mr. Kasson was the only member of the house of
representatives from Iowa that was permitted by Thaddeus Stevens,
who had the floor, to occupy the time of the house, and to the
surprise of everyone Mr. Kasson was found to have gone over to the
enemy. We have the depositions of Hiram Price and James F. Wilson,
and the _Congressional Globe_ that will explain to you his false
position. Mark the explanation Mr. Kasson attempted to make on the
floor of congress. He based his defense simply on the claim that
the Kansas branch road would make a _rival road_ and afford
competition.
This, gentlemen, will appear in evidence when we come to
investigate this matter. It does not answer the proposition and but
for the fact that the money was speedily raised and the road built
from Omaha to reach the hundredth meridian, before the Kansas
branch got their road built there, we would have lost everything;
we would have lost all that congress had granted to us, to build
the road up the Platte Valley. This has been carefully concealed by
Mr. Kasson in all his explanations and in all his discussions and
he has, with his oily, deceptive subterfuges, tried to hide this
enormity of his past life from his constituents. We hope,
gentlemen, aided by the evidence of these members of congress,
intelligent men, honest men, who have stood by the people of
Iowa--we hope, with their depositions and the circumstances, and
the evidence contained in the _Congressional Globe_, to show this
matter up to you. We will prove to you by men who were on the
ground that no sufficient motive could honestly have induced that
man to have cast his vote in the way he did; that it was a surprise
upon every intelligent man that knew what his pledges and promises
and professions had been up to that time. Now, when this man
offered himself as a candidate for congress last fall a year ago,
one of the defendants in this case, who never was a candidate for
office in his life, who had no interest in politics whatever,
except as a citizen interested in our material interests, in our
city, in our state, took the responsibility upon himself to ask Mr.
Kasson through the public press to explain this, his extraordinary
conduct and his treachery to his constituents; he got no answer
except the insufficient one, the deceptive one, that Mr. Kasson
wanted a rival railroad. Again, gentlemen, it will further appear
in evidence that this was an additional subsidy of lands, that
instead of connecting with the main line at the one hundredth
meridian, this Kansas company was authorized to change its route
and build the road to Denver, from Denver up to Cheyenne, and
receive all the lands on either side of whatever route they may fix
upon, and not requiring them to unite with the main line until they
got fifty miles west of Denver. That they received on the line from
Denver to Cheyenne the heart of the Territory of Colorado. That was
a subsidy, and that the road got that subsidy, and that the parties
who passed the bill undertook to deceive the members of congress in
regard to it.
Now, gentlemen, this is all there is on this first matter. This
publication was made, public attention was called to the fact that
one of our members of congress, when asked how he would explain Mr.
Kasson's vote, said he didn't know; but he could have taken
twenty-five thousand dollars for his vote. That statement was made
public by Mr. Savery in this communication to the citizens of this
congressional district. Now this is the first matter which Mr.
Kasson has chosen to bring before you, and to make an issue, and
claim for damages to his character. Now we cannot prove--Mr. Kasson
knows--we have no facilities for proving who was around there, or
what money they had, or the means by which that bill was passed by
congress. We can show you, gentlemen, only this one thing, that as
a citizen of Iowa and as a representative of Iowa he betrayed his
constituents wantonly; that he was in a scheme in which there was
money; that is all; that this communication was made to the public,
stating the bare facts at a time when it was necessary for the
public to know them and by a man who had no interest in maligning
Mr. Kasson, or injuring him. Savery had no personal feeling, and
had no personal animosity towards him, but he felt, as a citizen,
some indignation towards the man for the course he had pursued in
congress. So much, gentlemen, for the first charge that was made.
You are to judge whether that communication at the time it was
made, and under the circumstances it was made, was justifiable. You
are to take all the facts, and all the testimony with regard to it.
Now as to the second matter that is set out in the answer.
Mr. Barcroft: Will you just tell the jury whether the bill that Mr.
Kasson voted for under the Iowa Railroad were not built on the
continuous line?
Mr. Nourse: I have already stated, that but for the extraordinary
efforts by which money was raised, and the road pushed to the
hundredth meridian first and this scheme defeated, we would never
have been on the main line. But no thanks to Mr. Kasson for it. We
are on the main line because these men went to work with superhuman
energy to get to the hundredth meridian first, and they got there
first, and that is the reason we are on the main line. If we had
not reached it before they did, we would not have had a dollar of
money with which to have built our line, and the other would have
been the main line. That is the fact as it will appear conclusively
from the testimony in this case. Gentlemen, I invite your special
attention to the second charge, for if I can succeed in getting the
jury to understand this question it is the end of the plaintiff's
case. Fortunately for us on this question we have pretty conclusive
proof, and with all the gentleman's ingenuity and that of his
counsel, he will not be able to escape. We will show you,
gentlemen, that in the year 1868 the old Des Moines Valley Railroad
Company had forfeited her rights to the grant of lands that had
been granted to her in the year 1858, by reason of not building the
road as the original act required. The people of Boone county were
dissatisfied because the Des Moines Valley Railroad Company had
surveyed their road west up by Grand Junction, instead of going up
the Des Moines river. Mr. Orr introduced a bill called the
resumption bill, No. 139, in the house of representatives. That
bill was read the first and second times, was ordered to be
printed, and was referred to the railroad committee, of which Mr.
Kasson was a member. The railroad committee prepared a substitute
for that bill, as is set out here, in which they provided for a
release of the company from all forfeitures and still allow them to
have the lands and to build their road upon certain terms and
conditions, and reported that bill back to the house of
representatives as a substitute for house file No. 139. That
substitute, gentlemen, is in Mr. Kasson's own handwriting, and we
will be able to produce it here and show you the bill as he
reported it originally to the house of representatives.
The records will show you, gentlemen, that after that bill came in,
after this substitute was reported, Wilson of Tama county, with
another gentleman constituting a minority of the committee on
railroads, made a minority report in which they recommended what
was called the "Doud amendment," or the Granger clause of that
bill, in which they provided as set out in the answer: "that the
company accepting the provisions of this act was at all times to be
subject to legislative control." I will give you the very language
of the amendment as it now appears in the law, so you may get the
idea fully. [Reads.] "The company accepting the provisions of this
act shall at all times be subject to such rules, regulations and
rates of tariff for transportation of freight and passengers as may
from time to time be enacted by the General Assembly of the State
of Iowa." The minority of the committee recommended that amendment,
and it was adopted; and it was the only amendment that ever was
adopted by the legislature.
We will prove to you, gentlemen, that a forgery was committed, and
the following words interpolated into that bill: "But the
non-acceptance by the Des Moines Valley Railroad Company of this
act shall not prevent all the foregoing provisions thereof from
having the same operation and effect as if the same had been
accepted by said company;" and we will prove to you that these
words were agreed upon between Mr. Kasson and the railroad
company's attorney, in a private room in the Savery House, and that
he agreed to put them in the bill, and the attorney testifies that
the provision escaped criticism. And this is the second charge: We
charge him with so manipulating that bill as purposely to defeat
the will of the legislature. That he did it fraudulently, and that
he did it corruptly will be proved to you beyond a doubt; that this
charge was made, honestly believing it to be true, in order that
the people of this congressional district might know the character
of the man that was asking for their suffrages. After he voted
against Wilson's amendment, and failed to honestly defeat it, we
are prepared to show that by an agreement between him and the
general attorney of the road, he undertook to get this nullifying
clause into the bill, and that he did get it in the bill, and that
he did not get it there by the vote of the house.
Mr. Barcroft: You do claim that you have any such allegation in
your answer?
Mr. Nourse: I claim that what we charge Kasson with was that he
manipulated that proviso through the legislature, and we propose
to prove it. We propose to prove that it came _from him_ and
originated _with him_. We may have other evidence on this point
more full and complete that it is not necessary now to take the
time to detail.
The third specification, gentlemen, relates to the vote of Mr.
Kasson and his conduct with reference to the C., R.I. & P.R.R.
Co. And here, fortunately, I can say to you that we are not without
direct and satisfactory testimony. We thought that we could prove
that he had taken money on both sides from both parties in the
case, but we haven't succeeded fully. We have evidence, however, of
this state of facts: That Mr. Kasson in the early part of that
session voted for a bill that had for its purpose and object the
helping of Tracy, who was then the president of the road, to retain
his power and his place as president, and to complete the road from
here to Council Bluffs; that a bill for that purpose was passed in
the early part of the session and approved on the 11th of February,
and that Mr. Kasson voted for it. Thus far all was right. It will
further appear by the evidence that the legislature had a recess of
a few weeks after that, and that Kasson disappeared from here and
turned up in Wall street, New York; that he was found in conference
with the men connected with the Northwestern Railroad and who had
bought up the stock of the Rock Island road, with a view of
obtaining control of it, who were anxious to secure the repeal of
the Tracy bill. We will prove to you that Kasson promised these men
his influence to have that bill repealed; that he came back to Des
Moines and was in conference with them, promising them his aid,
that he subsequently changed his mind and abandoned them, that they
didn't succeed; and that Mr. Tracy out of sheer gratitude, as
Kasson claims, offered him five hundred dollars in money; that he
(Kasson) took the money, but stipulated that it should be called a
retainer.
In his own deposition Kasson swears he got the money. But he says
he didn't get the money until after the legislature adjourned, and
when it was offered to him as a present, he said he couldn't accept
of it unless it was offered to him as a retainer; and that Mr. B.
F. Allen, who offered him the money, went away and came back again,
and said that he could take it as a retainer; and that he supposed
that Allen had seen Mr. Tracy. This is the way Kasson gets out of
this. We will prove to you by Mr. Tracy that he never had retained
Mr. Kasson, or authorized anybody else to retain him for the
company; that he never requested Kasson to perform any professional
services for that road; that he never performed any professional
services for the road, and that he had been out of the practice of
the law for years. It will further appear in evidence that Mr.
Kasson has not practiced law since 1860; that this attempt to make
it a retainer is simply a subterfuge to cover up the taking of pay
for his services in the legislature, to a railroad corporation.
Now, this all came to the knowledge of these defendants, and they
proposed, in good faith, to publish to the community the facts in
regard to Mr. Kasson's conduct. It is said by plaintiff's attorney
that they will show to you that the Clarksons were the personal
enemies of Mr. Kasson. I will say to you, gentlemen, that it is not
true, and that I don't believe they will prove it; I don't believe
in this community they can prove a thing that is not true. On the
contrary, the Clarksons never had any personal or political
difficulty with Mr. Kasson whatever. Every motive on earth that
could induce men to act through favoritism was upon the other side
of the question.
Mr. Kasson had no desire to face his accusers, or subject himself to an
examination before the jury. He was not present at the beginning of the
trial and had taken the precaution to have his own deposition taken in
New York upon interrogatories doubtless prepared carefully by himself,
as the interrogatories disclosed nothing as to the explanation he had
invented for the purpose of rebutting the testimony against him. This
would avoid any cross-examination.
After the defendant's testimony had been introduced in part, however,
the evidence seemed to make quite an impression against the plaintiff's
cause and his counsel in desperation telegraphed to him requiring him
to come at once to Des Moines. After a few days, he put in his
appearance and I immediately had a subpoena issued and served upon him,
requiring his attendance as a witness. After we closed our evidence,
Mr. Kasson disappeared between two days and we searched for him in vain
in the state. His counsel, Mr. Barcroft, offered his deposition taken
in New York, then as rebutting testimony, when the following colloquy
occurred, which I here quote from the notes of the official reporter:
Judge Nourse, for the defense, asked to have Mr. Kasson brought
into court, stating that a subpoena had been issued for him, and as
he was not present, asking an attachment for him. Mr. Barcroft
replied: "Whether he will be here or not, I don't know. I think he
is out of the state. I don't know that he will be here, and I don't
know that he will not, but think the probabilities are that he will
not. We don't claim the right to read his deposition if he is
present. He is not present, and is not in the state. I don't expect
him to be here."
The deposition was then read.
As already anticipated, the jury could not agree upon a verdict. Six of
Mr. Kasson's political friends upon the jury insisted on finding in his
favor, and six who were not his political supporters and friends, some
being democrats and some republicans, insisted on not finding a verdict
in his favor. The case went over the term and was afterwards
compromised upon what terms I never understood, except that the
plaintiff dismissed his suit and probably paid the costs, and Mr.
Savery advised me that as part of the terms upon which the suit was to
be dismissed, Mr. Kasson was to make a political speech at Moore's
Opera House and Colonel Gatch and the Clarksons were to occupy the
platform as indicative of their friendly appreciation of that
gentleman, and I also with Mr. Savery was entitled to a like honor. Mr.
Savery did not appear upon the platform and I utterly refused to
recognize the right of anyone to contract for my appearance there, and
I was conspicuously absent.
Mr. Savery paid me his half of the fee that I was to receive for my
services, and upon presenting my bill for the other half to Mr. Richard
Clarkson, I found he had charged me up for printing the speech I had
made to the jury, having at my request printed the revised copy of the
speech in pamphlet form, and thus he squared the account, never paying
me one cent for my services in the case.
[Illustration: _707 Fourth Street, Des Moines_,
For twenty-seven years the home of Charles Clinton Nourse]
CHAPTER V
SOME IMPORTANT LAW SUITS
It is not within the scope or purpose of this writing to enter into or
discuss the merits of the various suits in which I was employed. I
cannot, however, give any idea of the fifty years of my life during
which I was engaged in a number of important suits, without reference
to their nature and character, and the management to which I attributed
important results.
In the latter part of the year 1864, whilst in attendance at the
supreme court at Davenport, I was retained by the Chicago &
Northwestern Railroad Company, in company with Mr. Thomas F. Withrow,
to assist the general counsel of that corporation in a suit, then
recently brought in the United States circuit court for the southern
district of Iowa, enjoining the company and its agents and employees
from putting a certain span of their bridge across the Mississippi
river at the town of Clinton, Iowa. Mr. James Grant of Davenport and a
Mr. Lincoln of Cincinnati had been employed by the river interests to
prevent the completion of this bridge on the ground that it would prove
an obstruction to the navigation of the river. Mr. Withrow and myself
spent a day in examining the alleged obstruction to navigation, the
company furnishing us a steamboat in which we passed through the piers
on which the drawbridge was to be placed. We returned to Des Moines
late Saturday evening. The United States circuit court at Des Moines
met the following Monday. On Sunday Mr. Withrow went to his office and
carefully examined the statutes of the United States relating to the
powers of the court in granting injunctions. He sent for me in the
afternoon. On examination we ascertained that the statute of the United
States contained a peculiar provision, not known to the practice in our
state courts. It provided that when an injunction was granted in
vacation by the judge of the district court of the United States, it
should remain in force only until the close of the ensuing term of the
circuit court; that if the injunction was granted by one of the judges
of the supreme court or a judge of the circuit court of the United
States, it should remain in force until it was dissolved by the order
of the court. We immediately opened telegraphic communication with
General Howe, who was then attorney of the Chicago & Northwestern
Railroad Company, and had in charge the defense of the case. He and
Judge Grant, it seems, had been engaged in taking depositions and
procuring evidence with reference to the question of obstruction of the
navigation by the existence of these piers in the river, and both
General Howe and Mr. Grant appeared to be acting upon the hypothesis
that it was necessary for the defense to make a motion and showing for
the dissolution of the injunction. We called the attention of General
Howe to the provisions of the United States statute, and as we were
well acquainted with the peculiarities of Judge Grant we advised that
if we did nothing upon the part of defense at the ensuing term of
court, it was probable that Grant would take no action in the matter
and the injunction would stand dissolved at the close of the term by
operation of law. On examination of the question General Howe agreed
with our conclusions, and we then arranged that he take the train on
Monday morning and come as far as Ames, Iowa, bringing with him all
evidence, depositions, and papers that we might need in case there was
to be any hearing before the court; that General Howe should occupy a
boxcar at Ames and not subject himself to personal observation, whilst
we would take charge of the interests of our client at Des Moines and
do nothing save to let the law take its course, and we would advise
General Howe by telegram if Judge Grant woke up and attempted to obtain
any order of court continuing the injunction. Judge Grant was in
attendance upon the court, and several times inquired after General
Howe, stating that he was expecting him daily. Day after day of the
term passed and nothing was done. Finally, the business of the term
being disposed of, Justice Miller, then justice of the supreme court of
the United States and presiding, announced that if there was no further
business before the court the term would be adjourned. Judge Grant
addressed the court and stated that he had been waiting during the
entire term expecting the appearance of General Howe; that he
understood that Messrs. Nourse and Withrow had been employed in behalf
of the defendants, but no motion had been filed with reference to the
injunction in the case against the bridge company or railroad company,
and he wished to know whether or not we intended to do anything. Mr.
Withrow looked at me and placed upon me the responsibility of replying
to judge Grant's remarks. I said that it was true that Mr. Withrow and
myself had been employed in the case, but only as local counsel and the
only authority we had was to act under the instructions of the general
counsel of the railroad company, General Howe; that we had no authority
or direction to file any motion in the case, and I added very meekly
that if any harm should come to our clients by reason of any neglect in
the matter the responsibility would rest entirely with General Howe and
not with my Brother Withrow and myself. Upon this Judge Grant announced
that he had to go to Washington City upon professional business
immediately upon adjournment of the court, and he would not consent
that any motion would be heard in regard to the injunction matter in
vacation. This closed the event and the court adjourned sine die. As
Judge Miller passed out of the court house down the stairs, Judge Grant
having previously left the room, Mr. Withrow could hardly contain
himself and burst into uproarious laughter and attracted the attention
of Judge Miller, who looked over his shoulder and remarked
good-naturedly that he supposed Judge Grant did not understand us. As
previously arranged, the mechanics engaged in the bridge construction
had carefully prepared their timber and every bolt necessary for the
span that should make up the drawbridge between these two piers. Judge
Grant went his way to Washington, and upon his return to Iowa three
weeks afterwards he found the cars in operation crossing the bridge. He
immediately went to Judge Love, and making the necessary affidavits for
contempt of court, obtained warrants for the arrest of the parties
engaged in constructing the bridge. Without disclosing what our
knowledge and view of the law was upon the subject, the parties at once
gave bond and security for their appearance at the next term of court
to answer the charge of contempt. When the next term of court convened,
Justice Miller and Judge Love presiding, I made the necessary motion to
discharge the defendants upon the ground that the injunction had been
dissolved by operation of law immediately upon the adjournment of the
prior term of court, and there being no injunction in force, the
completion of the bridge did not constitute any contempt of court. The
motion was sustained and the defendants discharged.
Judge Howe and Judge Blodgett of Chicago were so delighted with the
result, that they telegraphed to Chicago for a case of wines and
inviting Judge Grant and Mr. Lincoln of Cincinnati, who represented the
plaintiffs in the case, into our room, we spent a very merry evening
together and all seemed to enjoy the evening save Judge Grant who could
hardly forgive himself for his over-confidence which had resulted
fatally to his clients.
During the evening many excellent anecdotes were indulged in: among
others was one by Judge Blodgett for the benefit of plaintiff's
counsel. He said in the early history of the lawyers who were in the
habit of traveling the circuit in Illinois, they had a gentleman come
among them who would never admit that he had made a mistake. The
attorneys were accustomed to amuse themselves in the evening at the
hotel, and among other amusements they had a game called "kicking the
slipper," which consisted in inducing some green victim to put a
slipper upon one foot and attempt to throw it into the air and kick the
slipper with the other foot before it reached the floor. One evening
they induced the over confident attorney to undertake the experiment,
with the result that he came flat upon the floor in the attempt to kick
the slipper with the other foot. The other lawyers thereupon greeted
him with a hearty round of laughter, but he sprang to his feet and said
to them, "Now, gentlemen, you needn't laugh, you needn't think you
fooled me, for I want you to understand that I had no sooner struck the
floor before I understood that it was a trick." Mr. Lincoln was a
merry, good-natured man and enjoyed this anecdote at his expense very
much, but Judge Grant hardly saw the application of Judge Blodgett's
anecdote.
At the next session of congress the railroad company obtained the
passage of a law constituting the bridge a part of the mail route of
the United States, and the court subsequently dismissed the plaintiff's
case. Thus we were successful in gaining our case by knowing when it
was best to do nothing. The use of the bridge was invaluable to our
clients, and the railroad company sent me a draft for two hundred
dollars as compensation for the short speech I had made advising Judge
Grant in the court that we had no instructions to do anything in the
case, and the responsibility of our failure to do anything, if
injurious to our client, would rest with General Howe, attorney in
chief of the road.
Whilst upon this question of management I will give you an account of
another case of some importance that resulted in our complete success
because we did something that we did not learn out of any of our law
books.
A certain young woman in the last stages of consumption had been turned
out of the house of her near relatives, and compelled to take up her
quarters in a second-class hotel in Des Moines during her last
sickness. She had made a will in which she willed to the Catholic
priest of the city, Father Brazil, a valuable tract of land for the use
and benefit of the Catholic church. After her death her relatives, who
had neglected her shamefully during her sickness, brought suit to
contest the validity of this will upon the ground of undue influence on
the part of Father Brazil, and mental incapacity on the part of the
deceased. Judge Kavanaugh, a young bachelor then about thirty years of
age and a member of the Catholic church, and since then judge of the
court in Chicago, Illinois, had been employed by Father Brazil to
defend the suit, and he subsequently came to me and retained me to
assist him in the trial of the cause. During the sickness of the
deceased she had employed a professional nurse, a young woman about
thirty years of age. We were informed before the trial came on that the
relatives who were contesting the will had been very courteous and kind
and generous toward this young nurse woman, and during the holidays had
made her valuable presents in consideration of her kindness to the
deceased. At the opening of the term I noticed this young woman came
into court, receiving the courtesies and attention of Judge Cole, who
was counsel for the relatives that were contesting the will. She was
rather a handsome woman, evidently intelligent and quick-witted, rather
fond of admiration, and as she was to be the star witness for the other
side of the case, I at once made up my mind that the whole case must
turn upon her testimony. As the deceased had been frequently under the
influence of opiates, administered by the physician for the purpose of
relieving her suffering from time to time, it would be a very easy
matter for a young woman gifted as this one was with facility of
speech, to make the most of the incoherent utterances of the patient
while under the influence of opiates. I foresaw that it would not do to
subject this young woman to a severe cross-examination or say anything
that implied that we doubted her honesty or veracity, and yet something
must be done or we were sure to lose our case. I took my young bachelor
friend, Judge Kavanaugh, to one side and told him wherein we were in
danger, and as he was a member of the same church and was himself an
Irishman, and had no doubt "kissed the Blarney stone," it was
absolutely necessary for him to cultivate the acquaintance of this
witness, even to the very verge of proposing matrimony. I told him I
could easily attend to the law of the case, the cross-examination of
the witnesses, but this witness was outside my jurisdiction. He readily
agreed to undertake the part of the case that I assigned to him. He
accompanied the lady to and fro from her hotel at every adjournment or
sitting in the court, and she evidently was very much pleased with his
attentions. I cautioned him not to talk too much about the case, but
talk of other things that he would find probably more agreeable
subjects of conversation to the witness and to himself. He performed
his part so admirably that when Judge Cole called upon his star witness
she proved a flat failure upon his hands. She said yes in answer to his
questions, that when the deceased was under the influence of her
opiates she was a little flighty, but that amounted to nothing, that
when the influence of the opiate was gone she was perfectly rational
and capable of understanding what she was doing at all other times. The
result was that the jury found a verdict in our favor and the will was
sustained. Judge Given, however, who was a member of the Presbyterian
church, seemed to be disappointed at the result of the suit, and set
aside the verdict and granted the parties a new trial. From this action
of the court we took an appeal to the supreme court, and the supreme
court reversed Judge Given's decision, holding that there was no
evidence that would have justified the jury in finding against the
validity of the will, and they remanded the cause with orders to the
district court to render judgment in our favor. In conversation with
Father Brazil after the case was over we were discussing the probable
reasons that induced Judge Given to set aside the verdict of the jury.
I suggested that perhaps he had been reading Eugene Sue's remarkable
work called _The Wandering Jew_. I asked Father Brazil if he had
ever read that book. He smiled pleasantly and said yes, and when I
expressed my surprise that he should indulge in such literature, he
remarked very calmly that he always thought best to know what the world
was saying about his church and people.
I will give here also next an account of the most important criminal
case I ever defended. A man by the name of Yard had shot and killed a
party by the name of Jones. He claimed that he pointed a shotgun over
the shoulder of his wife at the time Jones was approaching his wife
about to commit an assault upon her for an illegal purpose, when he
fired the gun and Jones fell dead as a result. Jones had come onto the
premises where Yard and his wife resided, having in each hand a bucket
with which he was supposed to be intending to go to a well for water.
The buckets were found some distance, probably twenty-five or thirty
steps from the door, and the prosecution claimed that the buckets
indicated the place at which the deceased was at the time he was fired
upon and killed. Yard and his wife were both in jail at the time I was
sent for, and the first thing I did was to enjoin upon them the
necessity of absolute silence and refusal to answer any questions or to
communicate with any party or parties who might possibly thereafter
testify against them. Upon a preliminary trial before the justice I
waived an examination of the case and had the defendants enter bail for
their appearance at court. A man by the name of Smith, who was the
owner of the gun with which the deceased was shot and who had loaned it
to Yard only a few days before, was indicted with Yard and his wife as
accessory to the crime. As the defense in this case would depend
entirely upon the testimony of Yard and his wife I at once appreciated
the absolute importance of having these parties tell the exact truth
without equivocation or invention. My experience as a lawyer had taught
me that persons deeply interested in the result of the trial,
participating in a transaction such as the killing of another, are
subject to such a state of nervous excitement that they frequently do
not remember with any degree of accuracy the collateral facts and
circumstances attending the more important events, and persons of
ordinary intellect imagine it is important that they should be able to
recollect and answer accurately every question that is made in regard
to the collateral facts and circumstances attending the principal
event, and almost invariably they invent answers to such questions and
pretend to know what really they do not know and do not recollect. The
result is that they involve themselves in contradictions and
impossibilities, and let confusion destroy even the reliable and
truthful parts of their evidence, and this was what I feared in this
case. I was accused by some members of the bar and outsiders of
training these parties as witnesses in their own behalf, and in one
sense of the word it was true, but I only trained them to tell the
truth, carefully eliminating from their story and had them eliminate
everything that I was satisfied upon thorough examination was the
result of their invention instead of their recollection. I first
examined each of the parties separately and took down their statements
carefully, and after comparing them tried to make up my mind as to what
was absolutely true and as to what part of their story was invention. I
then brought the parties together and discussed with them such parts of
their story as I was satisfied had been supplied by them and had them
admit and concede that they did not distinctly recollect the matter as
stated. I repeated this process the third time. In some manners the man
and his wife differed as to their recollections as to some things that
had happened, and when I was satisfied that the difference was honest I
made no effort to correct or to reconcile their statements, for my
experience also taught me that absolute coincidence in every particular
of their statements would tend rather to discredit than to confirm the
truth of what they related. Another difficulty in the trial of the case
was the excitable temperament of Mrs. Yard, and what I feared most was
that the prosecutor by severe cross-examination might make her angry
and she would display some temper and make some statement that would
injure her case. When she was upon the stand under cross-examination by
Judge Given, who was then the prosecuting attorney, I kept my eye upon
the woman carefully. She was under examination at least three hours,
and only once did the prosecutor succeed in exciting her so that she
developed any passion. He said to her in a very abrupt and preëmptory
manner, "Now please turn and face that jury and tell them that you
removed those buckets from the doorstep to the place where they were
found." As she turned in a passion to face the jury, flushed with
excitement, I was fortunate enough in catching her eye and fixing her
attention a moment, when her passion subsided, and in a very calm
lady-like way she said, "Gentlemen, I did remove those buckets from the
doorstep and place them out in the yard just as I have heretofore
related." She said this in such a calm lady-like way that I was
satisfied we had gained our case. I proved, of course, the bad
character of the deceased and that he was a bad and dangerous man, and
also the good character and reputation of the husband, which indeed had
been and was unimpeachable up to that time. I examined in this case
over seventy witnesses in behalf of the defense. The jury retired and
were only out an hour or less, when they returned a verdict of not
guilty.
In the latter part of the administration of Cyrus Carpenter as Governor
of the state, the State Treasurer was also treasurer of the Board of
Trustees of the Agricultural College. The two offices had no legal
connection, and it was merely an incident that the same man had been
elected to both positions--the one by the people of the state, and the
other by the Board of Trustees of the college. The Trustees of the
college in making their annual report to the legislature reported that
their treasurer had proved a defaulter to the sum of about $27,000, and
that they had, in order to secure the college, taken from him deeds for
all his real estate including his homestead--all of the property save
his homestead having, as they understood, been purchased by their
treasurer with funds belonging to the college. About nine o'clock one
evening I received a visit from the deputy treasurer of state who
informed me that the legislature, then in session, had passed a joint
resolution, appointing a committee for the purpose of investigating the
question as to what funds of the Agricultural College had been used,
and also as to the proper administration of the funds belonging to the
state in the state treasury; that the Treasurer of State and of the
Agricultural College, being the same person, was about to be examined
the next day by this committee of investigation, and upon advice of his
friends he wished to employ counsel, and wished that I would act as his
counsel in the matter, and particularly the deputy wished me that night
to go with him and have a consultation with the treasurer. I
accordingly accompanied him to the house of the party. I found him to
be an old man probably between sixty and seventy years of age, white
hair and beard, blue eyes, a fine stalwart frame, but laboring under
intense excitement. I listened carefully to his story, in which the
deputy frequently interpolated or supplemented the statements. The care
with which both parties persisted that the funds were not state funds,
but it was only the funds of the Agricultural College that had been
wrongfully used or appropriated, made me fear that neither the
principal nor his deputy were telling me all that they knew. I felt as
Shakespeare says in one of his plays, "Methinks the person doth protest
too much." We were standing in front of the fireplace and the light of
the fire threw a peculiarly bright light upon the countenance of the
treasurer, and the deputy remarked, "Now you understand these funds
were in the hands of the treasurer of the Agricultural College, and
that he did not use the state funds. If he was defaulter as Treasurer
of State he could be punished by imprisonment in the penitentiary, but
if he was only defaulter as treasurer of the Agricultural College that
would be a different affair. Is it not so?" The State Treasurer was
eyeing me very earnestly and watching carefully for my answer to the
deputy's question. My answer was that I was not prepared to say that
that was true, and the State Treasurer turned still paler and more
nervous because my answer was not satisfactory. My conference lasted
until after midnight. I returned home feeling very anxious for the old
man, but still satisfied in my own mind that I had not heard the entire
truth. The next day the committee of investigation, consisting of
members of the house and senate, convened, and I was present when the
State Treasurer was examined by them. The story was told very much as
it was told to me the night before, some questions of a general nature
were asked, but nobody seemed to understand the importance of knowing
when and what particular fund had come into the hands of the treasurer
as custodian of the funds of the college, or when or what particular
amounts had been used or confiscated by him. The committee adjourned
until next morning. That afternoon the house of representatives had
passed a joint resolution requesting the Attorney General to give an
opinion as to whether or not a defalcation by the treasurer of the
Agricultural College funds constituted a crime, and also instructed him
that in case it constituted an offense he should at once commence a
prosecution against the party in question. Fortunately, this action of
the house of representatives offered me a good excuse or pretext at
least, to have the treasurer refuse to answer any further questions by
the investigating committee, and we accordingly withdrew him from the
witness stand. Within the next day or two the deputy came to me and
showed me a lot of memoranda made on slips of paper in his handwriting,
containing certain figures, the aggregate of which amounted to the sum
for which it was claimed the treasurer of the Agricultural College
funds was in default. The deputy advised me that these slips had been
kept in the state treasury vault and had been counted as cash items
from time to time. Within a few days after that I had an interview with
Dr. Welch, the president of the Agricultural College, and he stated to
me that he was not satisfied that the funds that had been used by the
treasurer were Agricultural College funds at all, and that the loss was
saddled onto the college very much to the embarrassment of that
institution, as they now had to wait for their money until such time as
the property which had been turned over to the trustees could be turned
into cash. He said he had a letter in his possession written by the
deputy stating that the treasurer was away from home at that date and
that he had not drawn the $30,000 theretofore appropriated by the
legislature for the benefit of the college, but that the treasurer
would return in a short time and that he would advise the president on
his return. At my request the president furnished me this letter and
its date, and I found upon comparing it with the date of the warrant
drawn in favor of the treasurer of the Agricultural College for the
$30,000 and the cancellation of that warrant; that is, when it was
marked paid, that there was a wonderful correspondence between the date
of the letter and the date when the warrant was marked paid. The
deputy, at my request, had given me these slips of paper containing
this memoranda and I had carefully locked them away in my iron safe,
thinking that possibly they might be of future use. At the next term of
the district court of Polk county the grand jury found two indictments
against the State Treasurer, one as defaulter to the state of Iowa as
Treasurer of State, and the other as defaulter to the State
Agricultural College, but examining the minutes of the grand jury, I
found that there was no evidence whatever before the grand jury that
the State Treasurer had used any state funds at any time for any
purpose, and the indictment of him as such a defaulter was not
justified by any testimony taken by the grand jury. I immediately
suspected that there was a secret hand at work intending that this old
man should be convicted, if not of one offense, then of the other. Upon
investigation I found that there had been some informality and
illegality in drawing and impaneling the grand jury that found these
indictments. On proper motion in court I had both indictments quashed
and the matter continued for the action of the grand jury at the
succeeding term of court. At the next term of court a new grand jury
was impaneled, the foreman of which was a personal friend of the
treasurer and a very honorable gentleman. He took occasion to suggest
to me that it was very painful to him to have to find indictments
against my client, the treasurer, but that he should certainly perform
his duty in that respect. I said to him that that was all right, but it
was not right for a grand jury to find an indictment against any man
without some evidence before it, tending to show he was guilty of the
particular crime for which they found their indictment, and told him
that the former grand jury had indicted my client for defalcation as
Treasurer of State without a particle of evidence, save and except that
as treasurer of the Agricultural College board he had made default as
to that fund. The result was that this grand jury brought in an
indictment only against my client as defaulter as treasurer of the
Agricultural College, and for unlawfully using and converting to his
own use the funds of that institution. The case was continued from term
to term for several years, and in the meantime the property that had
been turned over to the trustees had been converted into money, and the
loss of the State Agricultural College had been made entirely good.
Still the indictment remained against my client and had to be tried and
disposed of. The old man had given up his house and his home and there
was much sympathy existing in the community for him, and a general
impression got abroad that he was the victim of others who had unloaded
some very unprofitable property upon him and induced him to invest in
it with the expectation that it could be re-sold to advantage and the
money refunded before it should be called for. Whether this was true or
not and who the parties were that had induced the old gentleman to
betray his trust, I do not know and have never tried to ascertain. The
time came finally that the man was to be put upon his trial. He came
into my office the day before the case was to be called for trial,
looking pale and haggard, told me he had bid his wife good-bye and his
boys and that he was prepared for the worst, that he supposed there was
no hope for him, that he could endure it but it was hard on the family
at home. I invited him into my private room and seating him at the
opposite side of my table I said to him that for the sake of his wife
and children I had made up my mind that he should be acquitted. He
looked at me incredulously and asked what I meant, and how it was
possible for him to escape conviction. He said he had already confessed
his fault and they had his confession all taken down in writing before
the investigating committee. I stepped to my safe and took out the
memoranda that I had obtained from his deputy and laid them down before
him. Looking him fully in the face, I said, "Tell me what those papers
mean?" He asked me where I got them, and said he supposed they had been
destroyed long ago. I told him no, that I carefully preserved them
because it might be, as I thought, for his interest at some time or
other to tell the truth, that there had been enough lies told about the
business, and now probably the truth might save him. He asked what I
meant. I said to him, "Here is a memoranda of the amounts that you took
out of the safe that belonged to the state of Iowa. They never were in
your hands as treasurer of the Agricultural College and you know it and
you have known it all the time. You thought I was deceived, but I was
not. I have known the truth and I hoped the time might come when the
truth might benefit you more than the falsehood." I showed him the
letter written by the deputy to President Welch. I had a memoranda of
the date of the cancellation of the $30,000 warrant issued to him as
treasurer of the Agricultural College. I looked him fully in the face
and said, "You never had that money in your hands, you never received
it, you were not at home when that warrant was cancelled, and you know
it." He sighed deeply and said, "That is true, but I told a different
story and now what am I to do?" I said to him, "All you have to do is
to tell the truth." The old man took courage and told me that I had
guessed the truth and it was true that he had never used a dollar of
Agricultural College funds. Upon the trial I introduced in evidence the
memoranda that had been kept in the safe of the State Treasurer, I
introduced the warrant that had been issued by the auditor to the
treasurer for Agricultural College funds, I proved by Dr. Welch the
letter that had been written him by the deputy and the date of the
transaction, and I satisfied the jury beyond a doubt that my client was
not guilty of the only crime for which he then stood indicted, to-wit,
defaulter to the Agricultural College funds. Judge Leonard, then upon
the district bench, had been former prosecutor in the district and did
not listen with complaisance to any defense which tended to acquit an
accused person, but after wrestling with him for quite awhile he
finally admitted my defense and the testimony sustaining it, and
instructed the jury flatly that the defendant was not on trial as
defaulter to the funds of the state of Iowa, but as defaulter as
treasurer of the Agricultural College funds, and they must find him
guilty of the latter or they must acquit him, and the jury brought in a
verdict of not guilty. This result created quite an excitement in the
community and throughout the state, and I acquired some reputation as a
criminal lawyer, but few persons understood the real nature of the
defense that was made or how it was that the defendant was acquitted in
the case, and attributed it to some extraordinary ability upon my part,
whereas in truth and in fact I only gained my case by insisting upon my
client telling and proving that which was true and abandoning a
falsehood that I suspected then and have ever since believed was
invented for him in order that other persons should not be suspected of
any guilty knowledge of what had really occurred. My client returned to
his home, to his wife and children, at least free from a record of
conviction for a felony.
CHAPTER VI
VISITS VIRGINIA RELATIVES
Soon after the close of the Civil War I went to Washington, D.C., for
the purpose of arguing a case then pending in the supreme court of the
United States. The court made an order advancing some important cases
in which I think the government was interested, and this necessarily
delayed the hearing of the cause in which I was engaged and left on my
hands a week or more of leisure. I determined to improve the
opportunity by going to Harper's Ferry and to Shepherdstown, West
Virginia, for the purpose of finding and visiting some of my mother's
relatives. I had an uncle, Charles Cameron, who had lived at Harper's
Ferry when we left Maryland in 1841. I took the train to Harper's
Ferry, and upon my arrival there ascertained from the hotel clerk that
my uncle Charles had died a short time before the Civil War and that
his family had removed to Washington. I asked the clerk if he could
point out to me some old resident of the place from whom I could obtain
information. Whilst talking with him a man entered the office to whom
he recommended me as a person that could tell me all about Harper's
Ferry before the war. From this gentleman I learned that my uncle, John
Cameron, was living with a married daughter several miles over on the
Maryland side, just under Maryland Heights. I walked out to the place
and had a most delightful visit with him and his daughter, and
son-in-law and family. My uncle was a tall, splendidly framed man, a
fine specimen of the old Virginia gentleman, over six feet in height,
with his faculties unimpared, a fine physique, and was then
ninety-three years of age. He went with me the next day over to
Shepherdstown, West Virginia, where we found still living and in fine
health my uncle, Daniel Cameron, and wife, their daughter, their
granddaughter, and their great-granddaughter, all living under the same
roof. When Sunday came I went with my cousin to church and she took me
to the Methodist Church South. At dinner that day I asked my uncle John
if he had been to church. He said, "Certainly, sir." I asked him what
church he attended. He answered, "The Methodist church." I turned to my
cousin Susan and asked her if we had been to the Methodist church. She
said, "Yes, _the_ Methodist Church South." I said to my uncle, "Then
you were at the Methodist Church North?" "I attended, sir, the
Methodist church of the United States of America." My cousin stepped
upon my toes about this time under the table, from which I took the
hint that the question of church north and _the_ Methodist church
was rather a delicate subject to discuss in the family. I was pleased
to find that my relatives had all been true to the cause of the United
States and were earnest Union people, except the sons-in-law, who,
being young men, were compelled to go into the rebel army.
I visited some of the old places where my father had formerly resided
and where he had taught school, and I also visited the grave of my
mother and grandmother Cameron in the village churchyard adjacent to
the old brick building where I had attended Sunday school when a child.
I had arranged with a gentleman who had married my cousin, Ann Cameron,
to go with him the next day by way of Sharpsburg, over to Boonesboro,
Maryland, but that evening I received a telegram from the clerk of the
supreme court advising me that my case would probably be called Monday
or Tuesday, and I hastened back to Washington. After disposing of my
business in Washington I made a visit to my brothers at Rushville,
Ohio. Whilst here we received news of the nomination of General George
B. McClelland as democratic candidate for the presidency in opposition
to Mr. Lincoln, who had been nominated for his second term. An old
acquaintance, Charles Wiseman, who was postmaster at Lancaster, came to
see me at Rushville and told me they had posted me for a political
speech that night, and he compelled me to go with him and fill the
appointment. I found in Lancaster many old friends and acquaintances,
boys who had been with me at school, and they gave me a hearty
greeting. The old court house was filled to overflowing that night and
I dispensed to them for over two hours the gospel of true Republicanism
and loyalty to the country. We had a very enthusiastic meeting, and my
old friend, John D. Martin, especially gave me a very hearty
commendation.
Before my return home I also visited Millersburg, Kentucky, to see my
sister Susan and her family. Her husband, William Vimont, had suffered
some during the war. His negro cook and her grown boy had been
emancipated by their own will, the fugitive slave law being then
practically inoperative. Morgan, in his raid through the country, had
also stolen Vimont's fine horse, which served somewhat as an antidote
for the wrong that he felt had been visited upon him by the Union
people. In passing over from his house to the village of Millersburg
two incidents occurred which served to illustrate the state of affairs
at that time in Kentucky. Upon reaching the turnpike near Mr. Vimont's
house we met one of his uncles riding in a buggy, just coming out of
the gate which led to his residence, and he informed us with much
feeling and passion that when he woke up that morning he discovered
that there was not a nigger on his place, that he had no nigger at home
to cook his breakfast for him, and that he had to "hitch up his own
horse, sah." This last item appeared to be the culmination of his
grief. A few hundred yards further we passed a blacksmith shop, and
upon the large door that constituted the entrance to the shop we found
in red chalk the image of a man drawn, and the door within the lines of
this image was full of bullet holes. Mr. Vimont informed me that the
blacksmith, who was a violent secessionist, had been accustomed to
amuse himself by drawing upon the door of the shop the outline of a
person, calling it Lincoln, and then standing a short distance away,
revolver in hand, gratifying his rebel heart by filling the image full
of bullet holes.
It was during this visit to my brother-in-law that I urged upon him the
propriety of selling his little farm and purchasing land in some
western state and removing his family thither, which he finally did a
few years later, when he removed to Tuscola, Illinois.
I attended religious services in the village on the Sabbath, and was
much interested in hearing a sermon from the text, "Be not deceived,
God is not mocked, for whatsoever a man soweth that shall he also
reap." The sermon that the minister preached was by no means the same
as my thoughts framed from this text when I thought of the desolation
that I had witnessed through this state, and the effects of the dark
shadow that was just then lifting from one of the fairest lands that a
benevolent Creator had ever prepared for a people, but which the
stupidity and cupidity of man had cursed with human slavery. The
preacher appeared to be perfectly blind as to the crop that his
audience had reaped from the fearful sowing of their fathers, or dared
not mention even had he thought of it.
CHAPTER VII
PLEASURE TRIP TO COLORADO
In the summer of 1872 I joined a party of friends for the purpose of
visiting Colorado. The party consisted of Judge Byron Rice, Doctor
Ward, Alexander Talbott, Mr. Weaver, a druggist, and Monroe, a clothing
merchant, and myself. We went by rail to Denver. We took with us a tent
cloth, some blankets, buffalo robes, and bedding. At Denver we
purchased a three-seated spring wagon and a pair of good mules. We also
hired a teamster with another pair of mules and wagon, and bought a
camping outfit, cooking utensils, and provisions. From Denver we went
south to Colorado Springs. Our first camp south of Denver was at a
place called Haystack Ranch, so called because there had never been a
haystack on the ranch, but three immense boulders bore a striking
resemblance to three haystacks, in the vicinity of which a settler had
erected his buildings. A small mountain stream supplied him with the
facilities of irrigating his land. He had built a fine large milk
house, paved with flagstones and so arranged that he could turn the
mountain stream of ice cold water on the floor of the building and thus
regulate its temperature. He also had built an overshot water wheel
with a small trough or flume and through this trough he turned the
water onto his wheel from time to time as he wished it, and utilized
its power to churn his butter. He milked about thirty cows, which he
told us were fed entirely upon the buffalo grass in the valley near by
among the foothills, and that he sent his butter twice a week to the
city of Denver. The man was evidently living an easy, pleasant life,
and getting rich without any severe toil or drudgery. The town of
Colorado Springs was then a single street with a few straggling houses.
Within a few miles of it we found the newly laid out city of Manitou.
The surveyors were still at work surveying the streets. One large hotel
was in course of erection and the valley up Cheyenne canyon contained
about two hundred tents filled with invalids and health seekers. In
this canyon could be found mineral waters of any temperature and almost
any ingredients; principally iron, sulphur, lime, and soda. On a
beautiful plateau of ground near where the hotel was being erected we
pitched our tent and made our camp for several days. We finally
concluded to make the ascent of Pike's Peak. Besides the two mules that
we had bought, we hired some ponies accustomed to the trail, except
that Mr. Monroe, one of our party, declared that he was able to walk,
and refused to be provided with other transportation. We proposed to go
up the mountain to the timber line the first day, and stay all night,
and the next morning attempt to reach the summit by sunrise, for the
purpose of enjoying what we were assured would be a most magnificent
view of the country. Judge Rice and myself were a little late in
procuring our ponies, and the other four of the party started in
advance of us, Monroe on foot. "Halfway," as it was called, up the
mountain, we stopped for rest and refreshment at a little log shanty
erected by two enterprising young men, who there supplied luncheon and
sleeping accommodations to the traveling public. The trail at that time
was barely visible to the naked eye, and the climbing was difficult and
somewhat dangerous even with our trained animals. Several hundred yards
before we reached the timber line, so-called, we found Monroe lying in
the path and apparently almost lifeless. The rare mountain air had
scarcely left him oxygen enough to preserve life, and he had succumbed
to the inevitable. We found near the timber line a shelving rock or
rather a large cavity in the rock, where we took up our quarters for
the night. Carrying Monroe to this place and wrapping him in blankets,
we infused life into him by administering several doses of brandy, of
which Judge Rice fortunately had a small flask. A large pine tree had
fallen across the outer edge of this rock against which we could place
our feet to prevent slipping over its edge, and here we all tried to
sleep. A fearful thunder storm came up in the night, but fortunately
the storm was below us. It was indeed a grand sight to see the forked
lightnings darting through the clouds below us, without any
apprehension of their finding our retreat. Our sleep, however, was very
indifferent. We had been in the territory only about ten days and our
breathing apparatus had not adjusted itself to the necessities of a
life in these altitudes. We fairly gasped for breath. In the morning
when we awoke we found that we could take our ponies no farther on the
trail, for there was none visible to the eye. The remainder of the
journey to the top of the peak was necessarily a climbing over huge
rocks scattered here and there without reference to the convenience of
adventurers. We could walk or rather climb about one hundred feet
between rests and then fall down under the shadow of a great rock to
recuperate enough strength for a venture of perhaps a hundred feet
more. After climbing about four or five hundred feet or more in this
manner we each began to feel a roaring in the ears and a nausea of the
stomach, and at last had the discretion to call council in which we
unanimously concluded with old Falstaff, one of Shakespeare's heroes,
that the better part of valor was discretion, and we concluded to
return to the valley below and forego the magnificence of a sunrise
view from the top of Pike's Peak. When we got back upon our way as far
as the timber line where we had hitched our ponies, I found my pony had
taken "French leave" and gone down on the trail without waiting for my
valuable company. I was doubtful at first whether I should be able to
walk to camp, which was then over eight miles from the place of our
night's adventure, but I had not proceeded down the mountain a mile
before my strength returned to me and my lungs filled with sufficient
oxygen to restore my vigor. We all got back to camp safely, even
including the dilapidated Monroe, and the consensus of opinion was that
we were glad we went up Pike's Peak, but were more satisfied with the
reflection that we did not have to go again. After another day's rest
we took to the road with our mule teams and wagons, passing over a
beautiful mountain road up Cheyenne canyon. Every few hundred yards we
passed some beautiful cascade or water fall, formed by the dashing
waters of some mountain stream supplied from the eternal snows that
crowned the mountain peaks around us. Our road lay through the
so-called South Park. On the high table lands before we reached this
park we passed through a forest of petrified wood. At one cabin,
occupied by a gentleman who kept a small hotel, we found the foundation
of his house made of this petrified timber, and his chimney and
fireplace of the same material. We gathered a few specimens that we
afterwards brought home with us. In South Park we passed what was
called the salt works. Here some English capitalist had built an
immense plant for manufacturing salt. A natural spring that threw a
constant stream of salt water, probably ten or twelve inches in
diameter, supplied the water from which the salt was to be made. Large
and commodious buildings with evaporating apparatus had been erected.
An expenditure of probably fifty or one hundred thousand dollars had
been made. There was only one difficulty about this Utopian enterprise
and that was that the salt had to be manufactured so far from
civilization that it cost more to transport it than it would be worth
when it reached the market, hence the enterprise had been an
ignominious failure and had been abandoned.
Leaving this point we passed through the South Pass of the Rockies and
on to the headwaters of the Arkansas river. We went up this river to
the town of Granite, that had been a thriving mining village when
placer mining in these parts was profitable; thence we went to Twin
Lakes, two small beautiful lakes of water among the mountains, where we
camped and supplied ourselves with mountain trout. On the way we
frequently shot mountain grouse. With our breakfast bacon and most
excellent flour and potatoes, and our own improvised cooking and our
excellent appetites, we all fared sumptuously every day. We returned
via another route, passing through Fairplay. Returning to Denver we
sold our team and wagon for just its original cost, and paid our
teamster with his outfit four dollars a day. We had kept an accurate
account of our expenditures and found that $1.50 a day for each of us
had paid all of our expenses, including our transportation, for our
three weeks' trip. We made a trip then by rail and stage line, going
first over to Idaho Springs, visiting that beautiful little valley, and
some of our party going as far as Georgetown. Returning to Denver, we
all came home by rail well satisfied with our trip, but when we struck
the blue grass regions of Iowa and its fields of ripening corn, with
the memories of the homes that we were nearing our hearts were made
glad that we lived in a land of civilization and plenty.
CHAPTER VIII
CENTENNIAL ADDRESS
In the year 1876 the patriotic citizens of the state of Pennsylvania,
and especially of the old city of Philadelphia, had conceived the idea
of a world's fair to commemorate the great event of the world; to-wit,
the declaration of the independence of the American colonies from the
mother country. In planning this great exhibition the managers had
invited the governors of the several states of the Union to appoint,
each, one of their citizens to deliver an address in behalf of their
state, giving something of its history and settlement, its resources
and possibilities. In pursuance of this plan Governor Samuel J.
Kirkwood of Iowa did me the honor to appoint me to make the address in
behalf of Iowa. I prepared such an address with considerable care, and
delivered the same upon the exposition grounds on the 7th day of
September, 1876. My cousin, Henry Clay Cameron, who was then professor
of Greek at Princeton University, did me the honor to visit me at
Philadelphia at this time and took luncheon with my wife and myself
upon the exposition grounds; also Samuel F. Miller, justice of the
supreme court of the United States came from Washington and was present
on that occasion, and many other distinguished men. Among other
gentlemen present were official representatives of a number of the
governments and nations of Europe. The legislature of Iowa printed at
the state expense some twenty thousand copies of this address, that
were thereafter distributed among the people of the state. I have sent
at their request to a number of the libraries in the different states
printed copies of this address, and now the supply has been about
exhausted and the document is about out of print, and I think I should
give here a short synopsis of it.
[Illustration: _Charles Clinton Nourse_
From Photograph by W. Kurtz,
Madison Square, New York, 1876]
The following is the introductory matter, stating something of the
discovery of the territory that now constitutes our state:
Mr. President, and Ladies and Gentlemen: On the 13th of May, A.D.
1673, James Marquette and Louis Joliet, under the direction of the
French authorities of Canada, started from the Straits of Mackinaw,
in their frail bark canoes, with five boatmen, "to find out and
explore the great river lying on the west of them, of which they
had heard marvelous accounts from the Indians about Lake Michigan."
From the southern extremity of Green bay they ascended the Fox
river, and thence carried their boats and provisions across to the
Wisconsin. Descending that stream, they reached the Mississippi on
the 17th of June, and entered its majestic current, "realizing a
joy," wrote Marquette, "that they could not express." Rapidly and
easily they swept down to the solitudes below, and viewed on their
journey the bold bluffs and beautiful meadows on the western bank
of the stream, now revealed for the first time to the eyes of the
white man. This was the discovery of Iowa.
The address then proceeds to give a short account of the first
settlements in Iowa at Keokuk, Burlington, Davenport, and Dubuque, and
also the settlements afterwards made at Council Bluffs and Sioux City,
and cites the various treaties made from time to time between the
government of the United States and the Indians, extinguishing the
Indian title. It also gives something of the topography of the country,
and in regard to its resources and the natural fertility of the soil it
contains the following:
We have now on exhibition in the Centennial buildings 15,000 pounds
of Iowa soil, selected from forty-five different counties of our
state. This exhibition shows a vertical section of the natural
formation of the earth to the depth of six feet from the surface.
The selection has been made from _five_ several _groups_ of _seven_
counties each. The counties have been classified according to their
contiguity, or natural location, as the northwest, northeast,
southwest, southeast, and central. These specimens of strata are
exhibited just in the condition they existed in the earth. The
strata, undisturbed, have been transferred to glass tubes six
inches in diameter and six feet in length. These tubes are encased
in black walnut, and each labeled with the name of the county from
which the strata have been taken. The object has been in good faith
to show the world what Iowa really is, without exaggeration, and
without room for cavil. Here is the formation from nature's own
laboratory. Behold, what hath God wrought!
The address also particularly gives an account of our school system,
our state university and agricultural college, our benevolent
institutions for the unfortunate classes, also the extent of our
newspaper publications. It discusses to some extent the questions
arising out of the Civil War and the heroism of our troops. On this
subject the address contains the following:
It is impossible, in the reasonable length to which this paper
should be limited, to write even a summary of the battles in which
Iowa soldiers took part. The history of her troops would be
substantially a history of the war in the south and west. To
recount a portion of those battles and sieges would be to give a
partial history to the neglect of others, equally deserving of
honorable mention. A task alike impossible would be to give here
the names of the heroes, living and dead, who distinguished
themselves by their courage and valor. Our efficient Adjutant
General has preserved in the archives of his department, the
material from which this glorious history will one day be written,
for the honor of the state and the inspiration of the generations
that shall come after us. In the adjutant's department at Des
Moines are preserved the shot-riddled colors and standards of our
regiments. Upon them, by special authority, were inscribed, from
time to time during the war, the names of the battle fields upon
which these regiments gained distinction. These names constitute
the geographical nomenclature of two-thirds of the territory lately
in rebellion. From the Des Moines river to the Gulf, from the
Mississippi to the Atlantic, in the mountains of West Virginia, and
in the Valley of the Shenandoah, the Iowa soldier made his presence
known and felt, and maintained the honor of the state and the cause
of the nation. They were with Lyon at Wilson's Creek, with Tuttle
at Donelson. They fought with Siegel and with Curtis at Pea Ridge;
with Crocker at Champion Hills; with Reid at Shiloh. They were with
Grant at the surrender of Vicksburg. They fought above the clouds
with Hooker at Lookout Mountain. They were with Sherman in his
march to the sea, and were ready for battle when Johnston
surrendered. They were with Sheridan in the Valley of the
Shenandoah, and were in the veteran ranks of the nation's
deliverers that stacked their arms in the national capital at the
close of the war.
The address concludes as follows:
Iowa hails with joy this centennial of our nation's birth. She
renews her vows of devotion to our common country, and looks with
hope to the future. The institution of slavery, that once rested as
a shadow upon the land, that was fast producing a diverse
civilization dangerous to our unity and nationality, has been
forever abolished.
This centennial exhibition of our national greatness and material
progress must re-awaken in the mind and heart of every American
emotions of profound love for his country, and of patriotic pride
in her success. Surely no American would consent that such a
civilization as is evidenced here should perish in the throes of
civil war. If there be anything in the history of Iowa and its
wonderful development to excite a just pride, the other, and
especially the older states of the Union may justly claim to share
in it. Such as we are, the emigration from the other states made
us. Our free soil, free labor, free schools, free speech, free
press, free worship, free men and free women, were their free gift
and contribution. Iowa is the thirty-year old child of the republic
that celebrates the first centennial of its birth. Our state is
simply the legitimate offspring of a civilization that has found
its highest expression in building up sovereign states. Iowa was
not a colony planted by the oppressions of the parent government,
and that threw off her allegiance as soon as she gained strength to
assert her independence; but she was the outgrowth of the natural
vitality and enterprise of the nation, begotten in obedience to the
divine command to multiply and replenish--born a sovereign by the
will and desire of the parent, and baptized at the font of liberty
as a voluntary consecration of her political life. Not a sovereign
in that absolute sense that would make the federal government an
impossibility, but sovereign within her sphere and over the objects
and purposes of her jurisdiction, with such further limitations
only upon her powers as render an abuse of them impossible, to the
end that the personal liberty and private rights of the citizen
should be more secure.
This wonderful exhibition of mechanical skill, of cunning
workmanship, and of the fruits of the earth, is but the evidence
of the existence and character of the people that have produced
them. The great ultimate fact that America would demonstrate is
the existence of a people capable of attaining and preserving
a superior civilization, with a government self-imposed,
self-administered, and self-perpetuated. In this, her centennial
year, America can exhibit nothing to the world of mankind more
wonderful or more glorious than her new states--young empires,
born of her own enterprise, and tutored at her own political
hearthstone. Well may she say to the monarchies of the old world,
who look for evidences of her regal grandeur and state, "Behold,
these are my jewels." And may she never blush to add: "This one in
the _center_ of the diadem is called IOWA."
CHAPTER IX
TEMPERANCE AND PROHIBITION
In giving a further account of the activities of subsequent years it
will be almost impossible to preserve anything like a chronological
order of events, and it will be necessary to take up certain subjects
or topics that employed much of my time and energies, and probably as
important as any other part of my life was my connection with the
subject of temperance and prohibition.
The code of Iowa enacted in 1850 took effect July 1, 1851. Under the
head of "Intoxicating Liquors" it enacted as follows: "The people of
Iowa will hereafter take no part in the profits of the sale of
intoxicating liquors." It then provided that the establishment of any
place for the sale of intoxicating liquors to be drank on or about the
premises should constitute a public nuisance, and enacted penalties
against the sale of intoxicating liquors to be drank on or about the
premises, and provided for the abatement of such nuisances and the
punishment of all persons violating the provisions of this statute.
This code was very excellent in the principle upon which the law was
based; to-wit, that the people and government ought not to be a party
to or share the profits of the sale of that which was the cause of so
much poverty and crime, and the statute aimed at the destruction of the
places of resort where the habit of drinking such liquors was
contracted and promoted; but in its practical operation the law itself
and its provisions were a failure. The words, "To be drank on or about
the premises," involved two uncertainties--first, as to the meaning of
the words "on or about," and secondly, as to the guilty knowledge or
intent of the vendor of the liquors when he made his sale, as to the
manner and where the purchaser intended to drink. Courts and juries
gave very different and very liberal interpretation in the application
of this law to different cases, and many of our judges and justices
were not well educated in the idea that the sale of intoxicating
liquors as a beverage was really a crime against the community and
against humanity. As a result of these uncertainties of the law, the
people of the state in 1854 elected a legislature, the majority of the
members of which were pledged to enact a statute of absolute
prohibition. Such a statute passed both branches of the general
assembly, and was approved by Governor Grimes. The settlements in the
larger towns along the Mississippi river and in several of the interior
counties embraced very many Germans and other persons of foreign birth,
accustomed to the use, not only of intoxicating liquors, but to places
of resort where the same could be drank at their leisure and pleasure.
The result of this foreign demand was a fatal amendment to the statute
of 1854-5 known as the "Wine and Beer Clause," which permitted the
licensing and sale of beer and native wine made from the grapes or
other fruits grown within the state. The practical result of this law
was the establishment of the saloon in charge of keepers who paid no
respect to the law and sold all kinds of intoxicating drinks under
pretense of beer and native wine.
During our Civil War the people of the state were so absorbed in the
progress of events that involved the existence of our nationality that
they gave but little attention to local state and police legislation,
but soon after the close of the war, the thought of the people was
directed to the great curse of the licensed saloon and its effects upon
the morals and habits of our people. In order that the policy of the
state with reference to this matter might not be subjected to the
caprice of political party conventions and elections, the people
demanded and sought to enact an amendment to the constitution of the
state that should embrace to its fullest extent a provision prohibiting
the sale of intoxicating liquors as a beverage within the state,
including not only alcoholic liquors, but also malt liquors. In order
to secure such a provision by way of amendment to the constitution it
was necessary to secure the election of two successive general
assemblies to pass upon such an amendment, and to secure a vote of the
people endorsing and adopting the same at a subsequent election. The
provisions of our constitution on the subject of amending the same were
as follows:
Any amendment or amendments to this constitution may be proposed in
either house of the general assembly; and if the same shall be
agreed to by a majority of the members elected to each of the two
houses, such proposed amendment shall be entered on their journals,
with the yeas and nays taken thereon, and referred to the
legislature to be chosen at the next general election, and shall be
published, as provided by law, for three months previous to the
time of making such choice; and if, in the general assembly so next
chosen as aforesaid, such proposed amendment or amendments shall be
agreed to by a majority of all the members elected to each house,
then it shall be the duty of the general assembly to submit such
proposed amendment to the people in such manner, and at such time
as the general assembly shall provide; and if the people shall
approve and ratify such amendment or amendments by a majority of
the electors qualified to vote for members of the general assembly,
voting thereon, such amendment or amendments shall become a part of
the constitution of this state.
In pursuance of the provisions of this constitution the eighteenth
general assembly of the state of Iowa, to-wit, in the year 1880,
adopted as an amendment to the constitution of the state the following:
"No person shall manufacture for sale, or sell, or keep for sale as a
beverage, any intoxicating liquors whatever, including ale, wine and
beer. The general assembly shall by law prescribe regulations for the
enforcement of the prohibition herein contained, and shall thereby
provide suitable penalties for the violation of the provisions hereof."
This amendment, by omission of the clerk of the house of
representatives, was not entered in full upon the journals of that
body. It was, however, embraced in a joint resolution of the two houses
and fully identified by its title upon the journal of the house and
senate, and the vote adopting the same was duly recorded by yeas and
nays as required by the constitution. The publication of this action of
the eighteenth general assembly was duly made in the newspapers prior
to the election of the nineteenth general assembly, and at the session
of that body another joint resolution was passed in both houses
embracing the amendment and reciting the action of the eighteenth
general assembly thereon, and this joint resolution passed both houses,
and the yeas and nays were fully recorded, and proclamation was made by
the Governor of the state, and the people of the state at a subsequent
election held on June 27, 1882, after a vigorous canvass of the merits
of the question, endorsed and adopted the amendment by nearly thirty
thousand majority.
On the 26th day of August, 1882, a pretended suit was brought in the
district court of Scott county by a brewing establishment owned and
operated by Koehler & Lange against a saloon keeper by the name of
Hill, in the city of Davenport, upon an account for beer sold by the
brewer to the saloon keeper, and the saloon keeper set up by way of
defense that he bought the beer and it was sold to him for the purpose
of being sold as a beverage and that the sale was unlawful and contrary
to the provisions of the amendment to the constitution. That this suit
was a mere conspiracy for the purpose of having the amendment to the
constitution declared void there can be no question. The judge of the
district court of Scott county was opposed to the amendment personally
and politically, as were also the attorneys that conducted these
proceedings. The principal answer of the saloon keeper was to set up
the constitutional amendment and the brewer replied stating that the
constitutional amendment was not legally adopted, especially because
the amendment had not been spread upon the journals of the house of
representatives of the eighteenth general assembly verbatim, but that
it had only been embraced in a certain joint resolution of the two
houses. The judgment of the district court was against the brewer for
the beer, and he took a pretended appeal therefrom to the supreme court
of the state. When the case reached the supreme court J. A. Harvey,
Esq., who had been an active man in the general assembly in favor of
the amendment, and who was also an avowed prohibitionist and friend of
the amendment, was employed by the Women's Temperance Union of the
state to appear in the case and argue the matter before the supreme
court, involving the legality of the amendment. The Women's Temperance
Union also employed Judge William E. Miller, an ex-judge of the supreme
court of our state, who prepared and filed in the case a printed
argument. I was at that time absorbed in my own private practice and
had a case on trial in the district court, and was unable to attend the
session of the court at which the case was argued. I had been very
active in the canvass pending the adoption of this amendment at the
popular election, and had spent much time in making speeches before the
people in its behalf. I had promised Mr. Harvey that if my other
professional engagements would admit of it I would assist him in the
oral argument before the supreme court. To my great surprise, and to
the surprise and consternation of the people of the state, the majority
of the judges of the supreme court decided that the amendment had not
been legally adopted, giving as their chief reason therefor the failure
of the eighteenth general assembly to have spread upon the house
journal a verbatim copy of the constitutional amendment at the time it
was adopted by that house. As soon as this decision was made known I
prepared and filed in the supreme court of the state a petition for a
re-hearing of the case. This re-hearing was granted. The Governor of
the state employed Senator James F. Wilson of Fairfield, and Hon. John
F. Duncombe, of Fort Dodge, to appear and make oral argument in behalf
of the amendment. I also appeared in the case at my own request and
upon my own motion and argued the case orally at Davenport on the final
hearing. Two of the judges of the supreme court; Judges Seevers and
Rothrock, were not friends of the amendment, and I think, in sentiment,
were opposed to it. Judge Day's action in the matter in agreeing with
Messrs. Seevers and Rothrock was a surprise to his friends, but I have
no doubt his decision was honestly made. I think this re-hearing might
possibly have resulted in a favorable opinion from a majority of the
court had it not been for the intemperate zeal of a portion of the
public press, particularly the Des Moines _Register_ edited by the
Clarksons in which the majority opinion of the supreme court was
denounced. The judges who constituted the majority of the court could
scarcely be expected to change their views and opinions under the
pressure of the brutal attacks that were made upon them through the
press. Judge Beck, the fourth judge of the court, had delivered a very
able dissenting opinion sustaining the constitutional amendment. That
the decision of the supreme court upon this question was radically
wrong, I have never entertained the least doubt in my own mind. The
supreme court in its majority opinion recognized the fact that the only
proper and legal evidence of the final action of the legislative body
in the enactment of its laws must be found in its enrolled bills, duly
certified by the presiding officers of the senate and house of
representatives respectively. The authorities were uniform, and no
court had ever before undertaken to examine the journals of a
legislative assembly for the purpose of contradicting and falsifying
the duly certified action of the legislature by its presiding officer.
Every bill that passes the general assembly of the state is duly
enrolled by the clerk elected for that purpose by the house in which
the bill originated. It is then supposed to be carefully examined by
the committee on enrolled bills and reported in open session of the
house, and is then presented by the clerk or secretary to the several
presiding officers in open session for their signatures, and thence in
the care of the proper committee on enrolled bills is presented to the
Governor for his approval. To go behind this official action of the two
branches of the legislature and undertake to examine and criticise the
action of the clerk in recording or failing to record any part of its
proceedings, by the courts of the state, is simply to destroy the
independence of the law-making power, and is nothing more or less than
usurpation on the part of a coördinate branch of the government. The
constitution of Iowa in its provisions in regard to an amendment of
that instrument selects, first, the two houses of the general assembly,
secondly, the executive of the state, and thirdly, the people of the
state, the source of all political power, and entrusts to them and them
alone the power to amend its organic law. This amendment originated
with and was carefully prepared by and approved by both branches of the
eighteenth general assembly, and subsequently by the nineteenth general
assembly, there can be no question; that it was then submitted to a
vote of the people, voted and approved by the people by a large
majority, was then proclaimed by the Governor of the state in his
proclamation as part of the organic law of the state, there was no
question, and I do not hesitate to say, after years of thought and
deliberation upon this matter, that the decision of the supreme court
of the state in the case of Koehler & Lange against Hill was simply
usurpation. During the pendency of this re-hearing and before the final
arguments in the case Mr. Hill, the saloon-keeper of Davenport,
attempted to defeat the re-hearing by asking the court to strike from
the files the petition for rehearing and denying the authority of the
attorneys who had filed the same to act in his name. The Governor of
the state, after the final disposition of the cause, appropriated $750
to the three principal counsel engaged in the re-hearing, and sent me
one-third of the amount; to-wit, $250 for my services in the matter.
The constitutional amendment thus attempted to be rendered null and
void by the opinion of the supreme court in the case of Koehler & Lange
against Hill was really only an amendment to the constitution enjoining
upon the legislature the duty of enacting a prohibitory liquor law, and
forbidding the enactment of any statute authorizing the license and
sale of intoxicating liquors as a beverage. The immediate effect of the
decision of the supreme court was to arouse the people of the state to
an assertion of their rights in regard to these matters; consequently
they elected a general assembly in the fall of 1883, a large majority
of whose members were pledged to give the people, by legislative
enactment, a law such as the constitutional amendment required, and in
pursuance of that purpose the twentieth general assembly enacted the
prohibitory law, chapter 143, page 146 of the laws of that session.
This law was popularly known as the Clark law, taking its name from the
fact that it was introduced into the senate by Senator Clark of Page
county. He was not, however, the author of the law, and was only
entitled to the credit of having introduced it as a member of the
senate.
Some time before these events there had been organized in the state of
Iowa a temperance league, with its headquarters at Des Moines. Mr. J.
A. Harvey, before referred to, and myself, with Louis Todhunter of
Indianola, had been appointed by the Temperance League a committee to
draft a prohibitory law and secure its passage by the twentieth general
assembly. Another effect of the decision of the supreme court in the
Koehler & Lange case was the retirement of Judge Day from the supreme
bench of the state, and the election of Judge Read of Council Bluffs in
his stead. I was a delegate to the republican state convention from
Polk county. I did not sympathize with the idea of the defeat for
renomination of a judge of the court on the simple ground that his
decision or action as judge did not meet with the approval of the
people, but I could not, with my ideas of right and justice, approve
of the renomination of any judge of the court that had assumed the
prerogative attempted to be exercised by the majority of judges in the
Koehler & Lange case, and I cordially supported Judge Read for the
nomination. I had assisted Mr. Harvey in framing the prohibitory law
that was enacted by the twentieth general assembly, part of which was
written by myself. I did not entirely agree with the committee,
however, in providing as that statute does that the prosecuting witness
or party filing informations for a violation of the law should take to
his personal use any part of the fines or penalties provided for in the
statute. I disliked that feature of the law for the reason that I
anticipated that bad men, for the sake of personal profit and gain,
would bring the law into disrepute. The State Temperance League
undertook to provide, to a greater or less extent, for the prosecution
of offenders under this law of the twentieth general assembly. I was on
the committee appointed by the League and was chairman of the committee
that had advisory powers in regard to prosecutions undertaken or
promoted by the officers of the League, and as chairman of that
committee I had occasion, a number of times, to defeat the purposes and
plans of those who sought to use the authority of the League for some
ulterior purpose. The most serious case of this kind that arose during
my administration related to the effort of a certain whiskey trust to
use the prohibitory law as a means of destroying an industry
established in Des Moines by invitation of its business men just prior
to the taking effect of this prohibitory law of 1884. One of the chief
men in encouraging the establishment of the International Distillery in
Des Moines, so-called, was J. S. Clarkson, editor-in-chief then of the
Des Moines _Register_. This International Distillery was an alcohol
manufactory, established by a man by the name of Kidd. Before he
invested his money in the plant he had taken the precaution to consult
with a number of prominent citizens and prohibitionists of the city of
Des Moines, to know whether or not his enterprise would at all be
affected by the constitutional amendment or the statute that might be
passed in pursuance thereof. Pending the action of the general assembly
upon the constitutional amendment, the Des Moines _Register_ had
insisted upon some legislative interpretation of the meaning and effect
of the proposed amendment upon the question of the manufacture of
alcohol within the state as an article of commerce, for the purpose of
shipping the same to the markets abroad and not to be sold within the
state. In pursuance of the suggestion of the Des Moines _Register_, the
state senate of Iowa in 1882 adopted the following explanatory
resolution as to the meaning and intent of the amendment then pending,
and thereafter to be voted upon by the people, as follows:
Whereas, doubts have been suggested as to the true intent and
meaning of the joint resolution agreed to by the 18th general
assembly, and by this general assembly, as proposing to amend the
constitution of the state so as to prohibit the manufacture and
sale of intoxicating liquors as a beverage within this state; and
Whereas, it is desirable that such doubts should be removed as far
as practicable before said proposed amendment is voted upon by the
people; therefore,
Be it resolved by the senate, that said proposed amendment was and
is designed and intended to prevent the manufacture within this
state, for sale within this state, as a beverage, all intoxicating
liquors, including ale, wine and beer, and to prohibit the selling
of such liquors within this state for use as a beverage, and to
prohibit the keeping of such liquors for sale as a beverage within
this state; and was not designed to prohibit the manufacture for
sale, or keeping for sale, of such liquors for any or all other
purposes.
A short time before this resolution was passed a meeting of the board
of trade of the city of Des Moines was held with reference to the same
matter. It was attended by many of the most prominent prohibitionists
of the city, and all concurred in the view of the amendment afterward
taken by the senate. The sense of the meeting was expressed by a
resolution reported by a committee, consisting of T. S. Wright, J. S.
Polk, and J. S. Clarkson, and adopted with but one dissenting vote. The
resolution is as follows:
Whereas, the agitation of the proposed amendment to the
constitution of this state, prohibiting the manufacture of
alcoholic liquors for sale, is creating doubt and uncertainty in
the minds of capitalists proposing to invest a large amount of
means in the manufacture of alcohol in this city; and
Whereas, we are satisfied the great majority of the people of the
state do not construe such amendment as prohibiting the manufacture
of alcohol for exportation, but that it simply prohibits its
manufacture for sale as a beverage in the state, a view in which
the leading friends and the most of the supporters of the amendment
concur; and
Whereas, we are sure the people of the state would vote down
overwhelmingly any amendment absolutely prohibiting the manufacture
of alcohol; therefore be it
Resolved, that the Des Moines Board of Trade accept the
interpretation of the leading friends and supporters of the
amendment, that it intends only to prohibit the manufacture for
sale of alcoholic liquors in the state as a beverage, pledges
itself to the support and defense of capitalists investing in such
manufacturing as against all doubts as to the real meaning of the
amendment, and further, that we will lend our active influence
toward securing such legislative expression as will put upon the
amendment the construction that it will only prohibit the
manufacture of such liquors for sale as a beverage in the state.
This meeting of the board of trade, which was attended by many of the
prominent prohibitionists of the city and of the state, I did not
attend, though invited to be present.
In pursuance of the encouragement thus given to Mr. Kidd, and prior to
the taking effect of the prohibitory law of 1884, Mr. Kidd expended
several hundred thousand dollars in the building of his plant for the
manufacture of alcohol at the city of Des Moines, Iowa, and continued
such manufacture without interruption until certain prosecutions were
commenced against him at the instance of the Western Export
Association, a whisky trust organized by the distillers of the United
States to prevent an excess of alcohol being manufactured, and by this
means to regulate and keep up the price of the article. After the
decision of the principal suit undertaken in this behalf, in which I.
E. Pearson and a man by the name of Loughran were nominal plaintiffs
and the International Distillery and Mr. Kidd were defendants, a
decision adverse to the distillery was obtained and the defendants took
an appeal to the supreme court of the state. Mr. Kidd and his attorney
called upon me and reminded me of the fact that our firm, consisting of
B. F. Kauffman and myself, had given them a written opinion to the
effect that the law of 1884 did not make it unlawful to manufacture
alcohol in this state as an article of merchandise, to be shipped and
disposed of beyond the limits of the state, and Mr. Kidd appealed to me
to know if I was willing to accept of a retainer to argue that question
in the supreme court of the state on his appeal, suggesting that he
thought it my duty to do so as a lawyer, and asked if I was afraid to
perform my duty in that behalf. I told him that I was not afraid and
accepted of the employment.
As soon as this became known to the Des Moines _Register_, its editors
commenced a series of abusive articles against me, containing
misrepresentations and insinuations, and for some reasons best known to
the editors of that paper and of which I am not advised, they became
very active in trying to promote the success of this prosecution
against the distillery and to destroy the same. These articles of the
State _Register_ created, of course, quite an inquiry among the friends
of prohibition in the state, and they wrote a number of letters to Mrs.
A. E. McMurray, secretary of the State Temperance League, making
inquiry in regard to the matter of my employment. She accordingly wrote
a letter to me upon the subject and I answered the same very fully,
giving a history of the whole controversy, and particularly the motives
of the men that were trying to destroy Kidd and his enterprise. Though
the letter is somewhat in detail, yet, as it is a complete answer to
all of the criticisms that have been made of my professional conduct in
this matter, I give it here in full:
DES MOINES, IOWA, MARCH 19, 1887.
Mrs. E. A. McMurray, Secretary of Iowa State Temperance Alliance:
I have your communication of the 17th inst., and appreciating the
motives that have prompted it, I take pleasure in responding to
your inquiries.
The case of I. E. Pearson and S. J. Loughran against John S. Kidd,
now pending upon appeal in the supreme court of the state, and in
which I have been retained for the defendant, involves only the
question as to the right of the defendant to manufacture alcohol in
this state, under the permit granted him by the board of
supervisors of Polk county, for the purpose of export. There is no
pretense that Mr. Kidd, since the taking effect of our present
statute, has ever sold any intoxicating liquors, or alcohol, within
the state of Iowa, for any purpose whatever. The only evidence
offered to sustain the petition is contained in the official
reports of Mr. Kidd to the auditor of the county, by which it
appears that he has manufactured alcohol and shipped it out of the
state. The article manufactured by Mr. Kidd and put upon the market
is not itself a beverage, and is not and cannot be used as such in
the form in which he has produced and sold it. The case was first
tried in the circuit court of Polk county, before Judges Given and
Henderson, upon an application for a preliminary injunction. In
December last those two judges delivered an opinion in the case,
deciding that Mr. Kidd had not in any manner violated the
prohibitory law, and they refused an injunction. At the present
term of the district court Judge Conrad, our newly-elected district
judge, put a different construction upon the law and held, that by
the amendment made to the prohibitory law by the legislation of
1884 it was unlawful to manufacture alcohol in the state for
export; and this is the sole question to be determined by the
supreme court upon the appeal. This answers the first inquiry in
your letter, as to what is involved in the case.
Your next question is whether or not my employment in this case is
consistent with my past record; and whether or not it is calculated
to impair my influence and usefulness for the cause of prohibition
in the future.
I was one of the committee appointed by the State Temperance
Alliance to prepare a bill to be presented to the legislature for
its consideration, in 1884, that should carry out the will of the
people of Iowa, as expressed in the amendment to the constitution,
which amendment the supreme court of the state had then decided was
not operative, by reason of the failure of the eighteenth general
assembly to properly enter the same upon their journals.
As early as the 31st of May, 1881, I prepared and delivered
before the Methodist state convention that was held in Des Moines
at that date an address on the legal phase of the prohibitory
amendment. This address was afterwards printed in pamphlet form
by the _Prohibitionist_, and was circulated during the amendment
campaign as a campaign document, and seemed to meet with the
views of the friends of prohibition at that time. In that address
I took occasion to discuss the meaning and scope of the proposed
amendment, and in it occurs the following passage, defining my
view of the legislation that would be required by that amendment,
if adopted. I quote:
We have, in regard to spirituous liquors, laws upon our statute
books designed to prohibit their manufacture or sale, except
for medicinal, mechanical, culinary and sacramental purposes.
For these lawful purposes certain persons are authorized to
sell. They must obtain a permit, give bonds, keep books, etc.,
and are subject to the supervision and control of the
authorities. The manufacturer could be required to sell only to
persons thus authorized to sell for lawful purposes; if sold
_within the state_, otherwise than as permitted by the
statute, the act could be punished by fine or confiscation.
May 12, 1881, I attended a meeting of the State Bar Association of
Iowa, the proceedings of which are reported in the Des Moines
_Register_ of May 13, 1881. That meeting discussed the meaning
and interpretation of the proposed prohibitory amendment to the
constitution. Mr. Cummins, an attorney of this city, offered a
resolution at that meeting as follows:
Resolved, That the proposed amendment prohibits the manufacture
of intoxicating liquors within the state for sale as a beverage
without the state.
The _Register's_ report says that "Judge Nourse arose and stated
that Iowa had no control over the liquor after it left the state."
From the above it will appear that my interpretation of the
constitutional amendment and of the efforts that we were about to
make at that time to control the manufacture of intoxicating
liquors within this state, did not contemplate any interference
with the manufacture of alcohol for the purpose of export. That
this view was in entire harmony with the views and opinions of the
great mass of the people then favoring legislation upon this
subject, is conclusively shown by the following extracts taken from
the _Iowa State Register_ of the following dates:
THE AMENDMENT'S MEANING
(_Iowa State Register_, February 3, 1882)
Nine-tenths of the mass of the supporters of the amendment that
we know of hold the view that it is to deal with liquors only
so far as forbidding their sale for use as a beverage in this
state. So it is not a "Des Moines idea" at all, but the view of
the great body of supporters of the amendment itself.
The truth is, then, as shown by the records of the supporters
of the submission of the amendment in the legislature, and by
the testimony of nine-tenths of the supporters of it among the
people who have publicly expressed themselves, that the
amendment was not intended to prohibit manufactures for export.
The State Bar Association at its last meeting discussed the
meaning of it, and failed to agree upon it, opinion being about
equally divided as to whether it means absolute and total
prohibition or only as to manufacture and sale as a beverage in
this state. We do not doubt that the original friends of the
amendment intended to have it go no further than to make it
deal with liquor as a beverage in Iowa. Nor do we doubt that
the great body of them hold to the view now that it is intended
to go no further than that. They know that the state has no
power to go beyond that, and they realize that to attempt to
carry the amendment, with the interpretation of total
prohibition or manufacture given to it, it would be defeated.
For the people of Iowa will never consent, in our judgment, to
prohibit the manufacture of their greatest staple into alcohol
for export. In that form Iowa corn can be sent into South
America and to the ports of the Mediterranean Sea, while in its
raw form it can only go there by taking from five to ten
bushels to pay the freight on one. This alcohol trade must be
supplied, and will be supplied, and Iowa corn will inevitably
supply a good deal of it, whether it is made up into alcohol
for this purpose in Iowa, to the profit of the Iowa farmer, or
whether it be shipped to Chicago and St. Louis, or elsewhere,
at the loss of the Iowa farmer, and made into form there.
We do not ask that the amendment itself shall be tinkered with.
But we do ask that the same majority which shall vote to submit
it to the people shall put on record the true interpretation of
its meaning. From this position we do not intend to be driven
either by the ridicule of whisky rings or whisky papers, nor by
the sneers of temperance papers, which have not yet examined
into the question themselves, and would have every body else as
stupid about it as they are themselves.
THE AMENDMENT'S MEANING
(_Iowa State Register_, February 7, 1882)
The truth is, and all who have watched the progress of this
contest know that it was never intended to make this amendment
aim to do more than it was possible to do, namely, to exercise
police power in its own state, and not aim to attempt to stop
inter-state commerce, nor try and prohibit the use of liquor in
other states.
(Appended is a letter from Hon. L. S. Coffin, supporting the
_Register's_ view.)
THE AMENDMENT'S MEANING
(_Iowa State Register_, February 21, 1882)
We plainly told members of the convention before it met, in
order that they might be warned in time, that thousands and
thousands of voters were waiting for the true interpretation
of the amendment before deciding as to their position toward
it--_The Register_ as a paper, among them. When they
adjourned, evading and ignoring a question on which probably
hung, and still hangs, the fate of the amendment at the polls,
we held that the legislature should take some action to
ascertain the real meaning of the amendment before ratifying
it. This we held could be done by asking the attorney general,
the lawyer and adviser of the state, to give his views as to
its actual meaning.
These stills, encouraged by the government laws and by the
people of Iowa, have begun their manufacture in the state. If
Iowa is ever to be anything of a manufacturing state, it can
hope to be so mostly, and will be profited mostly by
manufactures from its own staple crop. This can go into
alcohol, and always be sold, and yet rarely if ever, be used as
a beverage. For alcohol is used in thousands of mechanical
ways. It is made into varnish by putting gums and resins with
it. It is mixed with spirits of turpentine, and makes camphene
and burning fluids in endless quantities, used all over South
America and Europe. It is made into cologne and other perfumed
spirits by flavoring it with different kinds of oil, and all
over Europe, when fuel is scarce, it is used in vast quantities
for cooking and heating stoves. Millions and millions of
gallons of it are used for other mechanical purposes. Very
little of it in this form is ever used for a beverage. To say
that Iowa corn should be made into this form in Illinois, or in
Cincinnati, or New York, or Liverpool, but not in Iowa, is to
still leave it to be so converted, and with Iowa bearing the
whole loss and reaping none of the gain.
So we say, let us have the amendment's real meaning, so that it
may be fully understood by the people, and voted up or down as
it shall deserve to be.
As a member of the committee appointed to prepare a bill for the
action of the general assembly of 1884, I can say that there was at
no time any thought by the majority of that committee of asking any
legislation that would prohibit the manufacture of intoxicating
liquors for medicinal and mechanical purposes or for export and
sale beyond the jurisdiction of our laws. That committee was
composed of lawyers who fully understood that any legislation that
we could obtain must be based upon the police power of the state to
regulate the sale of intoxicating liquors within its jurisdiction.
The Utopian idea that the legislature of Iowa could control the use
to which intoxicating liquors, manufactured and sold as an article
of commerce in the markets of the world, might be applied in
another state, I do not think was at all entertained by the members
of that committee, save perhaps one of them, Mr. Todhunter. The
bill that was prepared by the committee and presented to the
legislature was not enacted into a law in the form in which we
originally presented it; but house file No. 516-1/2 was reported by
the committee as a substitute for that and other bills that had
been introduced on the subject and was passed in both the house and
the senate in the form in which it came from the committee, and
constitutes chapter 143 of the acts of the twentieth general
assembly. And it is this law upon which Judge Conrad bases his
opinion. That the friends of this law never intended or believed
that it would prohibit the manufacture of alcohol in this state for
export clearly appears from the record. Pending the vote upon the
passage of this bill in the house the friends of the bill indulged
in very little speech-making, and Governor Carpenter and Mr. Kerr
were the only members who undertook to reply to the assaults of its
opponents. The first effort of the opponents of the bill was to try
and load it down with amendments and thereby secure its defeat. An
amendment was offered by Mr. Bolter, of Harrison, making the bill
an absolute prohibition of the manufacture of intoxicating liquors
in this state, and this amendment came within one vote of being
adopted. The vote stood fifty votes against the amendment and
forty-nine for it. The entire fifty members that voted _against_
this amendment of Mr. Bolter, voted _for_ the passage of the bill
the next day, while of the forty-nine that voted for Mr. Bolter's
amendment nearly all of them voted against the passage of the bill.
The _Iowa State Register_ the morning after this vote was taken
contained the following leading editorial giving an account of this
attempt to kill the bill. I quote from the _State Register_ of
February 29, 1884, as follows:
The house spent the day yesterday on the prohibition bill. Our
report in detail shows how desperately the democrats are
fighting the inevitable.
The spectacle of the democrats voting at one time yesterday,
for dishonest purposes, for absolute prohibition, and next
ranging themselves on the side of the low license or
practically no temperance law at all, is a vivid illustration
of the insincerity of that party on the temperance question.
Their attitude is insincerity itself, and they are ready to do
anything to defeat honest temperance measures. The only test
vote had yesterday was on the Bolter absolute prohibition bill
(amendment) which was defeated by forty-nine yeas to fifty
nays; all the democrats and all the greenbackers and one
republican, Mr. Schee, voting for the amendment. Fifty
republicans voted in the negative.
During the pendency of the discussion the _Register_ of the
same date contains a report of the speeches of Governor Carpenter
and Mr. Kerr in favor of the bill. The following is the full text
of Mr. Kerr's speech as reported in the _Register_ of February
28, 1884. Mr. Kerr said:
The opponents of the bill were wonderfully afraid it would not
prohibit. There had never been any question as to the
constitutionality of the amendment passed in 1882. It was only
the manner of its enactment by the nineteenth general assembly
that had rendered it invalid. He agreed with Mr. Dabney that
the manufacture of liquors for any purpose was wrong. What was
it the people of the state wanted to prohibit? The saloons;
those hot-beds of infamy that were constantly bringing disgrace
upon the state and misery upon the people. Any representative
who fails to crystallize into form of law the will of the
people fails to do his duty. How are we to know this sentiment,
if not by the votes of the people? There is no better way. Mr.
Bolter was eloquent in his denunciations of the evils of
intoxication and he agreed with that gentleman and hoped when
the time came the man from Harrison would vote in accordance
with that sentiment. There are no interests in the state,
vested or otherwise, that are higher than the interests of the
whole people of the state, and it was better for a few to lose
a few dollars than to entail and fasten upon the state an
industry that directly or indirectly injures every man in it.
It is best for all to have the business wiped out. Mr. Merrill
asked Mr. Kerr if the bill permitted the manufacture of liquors
for export. Mr. Kerr replied that the bill had been prepared by
its friends and it was not intended to have it loaded down by
its enemies. _The intention of the law was not to prohibit
the manufacture for exportation, as there were some doubts as
to whether that could be done._
This law as it passed the house was published in full in the
_Register_ of the 28th of February, and on the 29th of February
wehave this leading editorial in the same paper:
The _Iowa City Press_ tries to prove the impossible thing
that the proposed prohibitory law in Iowa will discriminate
against Iowa brewers and in favor of Iowa distillers. The same
stale cry of the democratic campaign. We have heretofore shown
that the proposed interdiction treats distillery and brewery
alike _and leaves both free to manufacture for export_.
As to the vineyards of Johnson and other Iowa counties, their
products ought to be able to ship as far and sell as well as
the product of the Iowa distillers, and it will do so if it is
a good article; if it is not a good article it will find no
buyer at home now or abroad hereafter.
I have quoted the above remarks of Mr. Kerr, for the reason that
Mr. Kerr was one of the most staunch and extreme prohibitionists on
that he was in favor of absolute prohibition; but at the same time
he distinctly repudiates the idea that the legislation which he was
then advocating was intended to accomplish any such end. The state
temperance convention had simply demanded of the legislature that
the will of the people of Iowa as expressed in the vote upon the
constitutional amendment should be embodied in a law of the state.
Or as Mr. Kerr very significantly remarks, should be "crystallized
into law." It is well known as a part of the history of this
temperance movement that the _Iowa State Register_, the leading
journal of the state that advocated the constitutional amendment,
demanded of the nineteenth general assembly, as one of the
conditions upon which it would support the amendment, that it
should adopt a joint resolution defining the meaning and intent of
that proposed amendment, and that it should declare that it was not
intended to prevent the manufacture of intoxicating liquors for the
purpose of export and sale beyond the state boundaries. That
resolution, with the vote by which it was adopted, is on page 501
of the senate journal, 1882, and is as follows:
Whereas, doubts have been suggested as to the true intent
and meaning of the joint resolution proposing to amend the
constitution of this state, etc.; therefore be it
_Resolved by the senate_, that said proposed amendment was and
is designed and intended to prohibit the manufacture within
this state _for sale within this state_ as a beverage, of all
intoxicating liquors, including ale, wine and beer, and to
prohibit the selling of such liquors _within this state_ for
use as a beverage, and prohibit the keeping of such liquors,
for sale as a beverage _within this state_; and was not
designed to prohibit the manufacture, sale or keeping for sale
of such liquors for any or all other purposes.
The yeas were: Senators Abraham, Arnold, Boling, Brown of
Keokuk, CLARK OF PAGE, Cotton, Dashiel, Gillet, Greenlee,
Huston, Hartshorn, HEMMINGWAY, Johnson, Kamrar, Logan,
Marshall, Nichols of Benton, Nichols of Guthrie, NICHOLS OF
MUSCATINE, Parker, Patrick, Poyneer, Prizer, Russell of Greene,
Russell of Jones, Sudlow, Terrill, Wall, Whaley, Wilson,
Wright--31.
All republicans and all _prohibitionists_, except Wall, who was a
greenbacker. Those who think that it is disloyalty to the cause in
me to advocate this same doctrine now should reflect that Clark of
Page, and Hemmingway, and Pliney Nichols, are all in the same
boat--to say nothing of the _Iowa State Register_, at whose
special procurement this resolution was passed. The next morning
after this resolution was adopted, March 18, 1882, the _Register_
contained the following editorial:
The senate defined the meaning of the proposed prohibitory
amendment and gave to it the beverage interpretation for which
the _Register_ has so steadily and persistently contended. So
that now the people of Iowa have the true definition of the
amendment, which is, that it is to deal with liquors in
manufacture and sale only as a beverage _in the state of
Iowa_. It was this interpretation that the _Register_ asked
for in order to support it.
But the meaning of this law is, in my judgment, clear, from the
text of the act itself without reference to this legislative
history. This law left in full force section 1542 of the code,
which defines the offense of keeping intoxicating liquors with
intent to sell the same in the following terms:
No person shall own and keep, or be in any way concerned,
engaged or employed in owning or keeping intoxicating liquors
_with intent to sell the same within this state_, or
permit the same to be sold therein, in violation of the
provisions hereof.
This is in entire harmony with two decisions of our supreme court
rendered prior to 1884, declaring that alcohol was an article of
commerce that might be lawfully held and owned and kept within this
state and for sale and export beyond the state. The prohibition
contained in this section, 1542, against keeping intoxicating
liquors with intent to sell the same within the state, is a clear
declaration of the legislature that to keep or own the same with
intent to sell it beyond the bounds of the state is not a violation
of the law. And the amendment of 1884 in regard to the
transportation of liquors, an amendment which I prepared myself and
which was incorporated in the law in the very language in which I
wrote it, prohibits any railroad company or common carrier from
knowingly "bringing into the state" or "transporting intoxicating
liquors between points within the state" without first having been
furnished with a certificate from the county auditor certifying
that the consignee or person for whom the liquor is to be
transported is authorized to sell the same within the state. It is
very evident, that if this provision of law, which is section 1553,
was intended to prohibit the export of intoxicating liquors, it
would not have been so careful to limit the prohibition to
importation and to transportation between points within the state.
The section was written with express reference to the theory that
the manufacture of intoxicating liquors in this state for purposes
of export was not prohibited by law.
After this law of 1884 took effect, it will be remembered, that we
organized in Iowa county alliances for the purpose of prosecuting
offenders and enforcing its penalties. Such an organization was
effected in Polk county, and I had the honor of being nominated as
the chairman of the judiciary committee of such organization, which
committee was charged with the duty of employing attorneys and
enrolling prosecutions under the law. In May, 1884, Judge C. C.
Cole, of this city, received from the Western Export Association of
Distillers in the United States a claim against the International
Distillery for $17,499.68, which it was claimed Mr. Kidd owed the
pool, on account of over-production. It will be necessary to give
some explanation of the character of this claim. The Western Export
Association is an association of the alcohol distillers of the
United States, chiefly located at Peoria, Illinois, whereby they
undertake to control the manufacture of alcohol and limit its
production in relation to the demand, and thus control and keep up
the price of the article. The entire scheme is an unlawful one as
against public policy, in that it establishes a monopoly and
prevents competition in the production of a legitimate article of
commerce and sale. Judge Cole was too good a lawyer to go into
court with a suit upon such a demand, and he conceived the idea of
using the criminal processes of the law against Mr. Kidd for the
purpose of extorting from him this demand of the whisky pool. In
accordance with this purpose Mr. J. S. Clark, his partner and
afterwards one of the plaintiffs in this present suit, Mr. S. J.
Loughran, was induced to appear before the county alliance and
offer the services of Mr. Cole free of any charge to the alliance,
for the purpose of prosecuting the International Distillery and
harassing them with prosecutions upon alleged violation of the law,
and asking that the secretary of our association, Mr. Littleton,
give the use of his name for the purpose of filing complaints. The
proposition was referred to the judiciary committee of the county
alliance, of which I was chairman, and was duly presented to me by
the secretary. It is hardly necessary for me to say that I refused
to enter into such a conspiracy or to favor the use of the alliance
for any such purpose. We had organized in good faith in this county
for the purpose of enforcing the prohibitory law in the interest of
the cause of temperance, and not for the purpose of collecting the
illegal demands of the whisky pool and the distillers of Illinois.
The following is a literal copy of Judge Cole's letter to Mr. John
S. Kidd, in relation to this claim:
DES MOINES, IOWA, MAY 24, 1884.
John S. Kidd, Esq., President International Distillery Company,
Des Moines, Iowa.
Dear Sir: The Western Export Association has placed in my hands
for collection by immediate suit a claim of $17,499.68 against
the International Distillery Company, and you as its president.
My pleasant personal associations with you have prompted me to
ask and obtain permission for my client to delay the actual
bringing of the suit till noon of Monday next, May 26th. I
could not obtain leave for further delay because certain
members of the association, who also have retained me to bring
suit if this is not settled, claim that they are being further
damaged to the extent of thousands of dollars daily, by the
course of your company. Hoping to see you and to receive
payment of the claim before Monday noon, I remain as ever
Very truly yours,
C. C. Cole
To this very remarkable epistle Mr. Kidd made response of the same
date as follows:
Permit me to suggest that you should not allow personal
considerations to interfere with professional duties. This bit
of advice is given gratis and by way of friendly return for the
favor of your grace over Sabbath on the modest demand you make.
Yours truly,
John S. Kidd
It is unnecessary to say in this connection that Judge Cole never
filed any petition in court on this modest demand. After the county
alliance refused the use of its name or influence for the purpose
of extorting this money out of Mr. Kidd, a clerk in Judge Cole's
law office filed complaint against Mr. Kidd and procured warrants
for the seizure of alcohol manufactured and shipped for export
beyond the bounds of the state. All of these prosecutions proved
ignominious failures. The present suit against Mr. Kidd was
commenced in December, 1885, Lewis Todhunter appearing of record as
attorney for the plaintiff, and I. E. Pearson and S. J. Loughran as
the nominal plaintiffs.
In October, 1885, Mr. Loughran, at a meeting of the county
alliance, offered a resolution instructing its officers to commence
suit against the International Distillery, _provided evidence
could be found against it_. I was not present at the meeting,
and on motion of Mr. Lee the resolution was referred to the
judiciary committee.
Upon inquiry of Mr. Harvey, the then president, and Mr. Littleton,
the secretary, I found that neither of those officers had any
information upon which a suit could be predicated, and neither
would advise a prosecution. Mr. Loughran nor any one else ever
approached the committee on the subject, or furnished the alliance
any evidence.
The statement has been made that I was at this time the attorney
for Mr. Kidd. This is wholly untrue. It is true, however, that
early in 1884 the firm of Nourse & Kauffman was called upon by Mr.
Kidd, for a consultation with the attorneys, Messrs. Lehmann &
Park, in regard to his business affairs, and upon the matter of the
construction of the act of 1884, Mr. Kidd advising us at that time
that he desired strictly to observe the law in the manufacture of
alcohol. We gave him our opinion at the time, and he paid our firm
a fee of fifty dollars. I have had no business connection with Mr.
Kidd or the International Distillery since that time, until my
employment in this case, after the decision of Judge Conrad a few
weeks ago.
Early in the year 1886 the secretary of the Polk county alliance
reported that the funds of the organization and the available
subscriptions were exhausted, and that liabilities had been
incurred that we were unable to meet. Several unsuccessful efforts
to have the subscriptions to our funds renewed were made. Mr.
Harvey, on account of other engagements, declined a re-election as
president of the county alliance in June, 1886. It seemed
impossible to get a responsible person to accept of the position.
Under these circumstances I. E. Pearson succeeded to that office.
Though a gentleman of elegant leisure, he has never, since his
election, been able, by his influence or exertions, to put a dollar
into the treasury of the alliance.
He has, however, been operating quite extensively on "his own
hook," as he says. His principal enterprise, apart from his present
suit against Mr. Kidd, has been to watch the incoming of the
monthly reports that the law requires the druggist to make to the
county auditor, and whenever, by any misadventure, their reports
have been delayed a few days beyond the time fixed by the law,
Pearson has brought suit against them for the one hundred dollars
penalty provided by the statute, and then compromised for the
largest amount he could get out of the defendant. In this way he
has made hundreds of dollars for himself and has been able to
support such an improved style of personal appearance that it has
attracted public attention and newspaper comment.
In this new _role_ of "affidavit maker" to the _State Register_ he
has already attained distinction. Whether this enterprise will
prove a financial success I do not know, as I am not advised as to
the terms of the new partnership. It is not yet known whether
Pearson has taken the _State Register_ into partnership, or
whether the _Register_ has taken in Pearson.
It has always been my fortune in life to antagonize men of this
stamp. If I have not as many friends as some men of less positive
opinions, I have the consolation to know that I have reason to be
proud of the character of my enemies.
By what means he has induced eminent counsel, backed by the active
influence of the _Iowa State Register_, to prosecute this case
against Mr. Kidd, remains a mystery. To the oft-repeated inquiries
of members of the alliance for information on this subject his
answers have been evasive and entirely unsatisfactory. Judge Cole
in his letter to Mr. Kidd mentions that certain members of the
export association were being damaged "to the extent of thousands
of dollars daily" by the course pursued by the International
Distillery. "Thousands of dollars daily" is a large amount of
money, and a very grave apprehension exists in the minds of many of
the temperance men of this community that these "certain other
individuals" are not idle spectators in this contest. When or how
Judge Cole and Mr. Runnells or the _Iowa State Register_ came
into the case I do not know--I only know that they "got there."
"... he has no wings at all,
But he gets there all the same."
Judge Cole and Mr. Runnells are also defending Hurlbut, Hess & Co.,
and the six thousand dollars of intoxicating liquors condemned by
the jury in that case. They are also attorneys for Rowe, the man
who shot down Constable Logan. No one, I believe, has questioned
their right to act as counsel for the defense in these matters or
even suggested the impropriety of their employment. I certainly
would not do so. The _Iowa State Register_ has besought the
public to suspend any judgment as to the guilt or innocence of
Rowe, but to await the judicial investigation of the case. This is
certainly commendable forbearance, but why the same spirit of fair
play should not be manifested toward Mr. Kidd pending the judicial
determination of his rights, I cannot understand. Does it make any
difference because Mr. Runnells is defending in the one case and
prosecuting in the other? Surely a man who has invested two hundred
and fifty thousand dollars in manufacturing in our city, by the
advice and encouragement of the _Register_, is entitled to as
much consideration as the man who takes the life of a public
officer whilst in the discharge of an official duty. The statement
that the State Temperance Alliance has ever favored or endorsed the
prosecution of Mr. Kidd is wholly without foundation.
I have now answered very fully all of the inquiries in your letter
save, perhaps, the last, and that is as to the relation and effect
of the present suit to the cause of prohibition in Iowa. Permit me
to say to you, and through you to the true friends of prohibition
in this state, that we have now upon our statute books a most
excellent law, that is every day gaining favor with the people, and
that has survived all open warfare upon it. In my humble judgment
the most we now have to fear is not the open opposition of its
enemies, but the follies and indiscretions of its friends. As I
have already conclusively shown in this communication, we procured
the enactment of this law by assuring the people of this state that
we did not intend to interfere with the manufacture of alcohol or
intoxicating liquors for medicinal or mechanical purposes, nor as
an article of commerce for export. The question is, have we
anything to gain by duplicity and insincerity, and by now claiming
for this law what we did not claim for it when we procured its
enactment by the general assembly? Above all things, have we, as
prohibitionists, anything to gain by entering into an alliance with
the distillers of other states who are making war upon a productive
industry in our own state, for the sole purpose of promoting their
own pecuniary interests in destroying competition in their
business? Have we anything to gain by turning aside from the great
work that we have undertaken of destroying the saloon as a place of
resort where our young men are taught the habit of intoxication,
and engaging in the Utopian scheme of regulating the supply of
alcohol in the markets of the world, the use of which it is
impossible for us to control after it passes beyond the
jurisdiction of our laws?
There is another very grave and important question that the true
friends of prohibition in Iowa should stop to consider. The courts
of the United States have more than intimated that if the
prohibitory law of Iowa does in fact destroy the value of property
built for a use which was lawful at the time of its erection, that
such a law is a violation of the constitution of the United States,
unless it also makes provision for compensation to the owner.
This International Distillery was built and in full operation
before the amendment of 1884 was enacted. By virtue of its
provisions a limitation only, in my humble judgment, was placed
upon the uses for which alcohol might be sold within the state. The
answer to the position that our law is unconstitutional because it
affects the value of this property is, that it does not prevent the
manufacture of alcohol for export or for sale within the state for
lawful purposes. But if we propose to destroy the value of this
property by this new interpretation of our statute, and say that it
is our purpose and intent to prevent its use for the manufacture of
alcohol for export, then may we not seriously apprehend that our
law will be held unconstitutional, and may we not, in attempting
too much, lose all? The fable of the dog crossing the log over the
stream, that dropped the meat from his mouth in order that he might
grasp the shadow, I would recommend to the careful study and
perusal of some of our pretended friends.
But there is still another political phase of this question that we
ought to carefully consider. Heretofore we have put the opponents
of this law upon the necessity of defending the saloon as an
institution; we have made the suppression of these places of resort
the war-cry of our campaign. Is it the part of wisdom to change
this issue and assume the affirmative of the proposition that the
good order and peace of society requires that we should ship our
corn to Peoria to be manufactured into alcohol rather than have it
manufactured in our own state, either for medicinal or mechanical
purposes or for export? For one I fail to see any wisdom in such a
proceeding. I am not prepared to join in or acquiesce in such a
folly. In accepting a retainer from Mr. Kidd in the case now
pending in the supreme court I did so because it was my plain duty,
as a lawyer, to defend the legal rights as I believe them to be, of
a man whose property was unjustly and illegally assailed. I was not
employed in the case until after Judge Conrad's decision. That the
temperance people of Iowa will find any fault with me for
presenting to the supreme court the question of law involved in
this appeal I cannot well believe. How will these questions be
answered?
_First._ Do they ask or desire that the property of any citizen
shall be destroyed and condemned without a fair and full trial
before the appellate court?
_Second._ Does not a fair trial also involve the right of the
citizen to have the aid of a counsel?
_Third._ If the defendant is to have the aid of counsel, can my
employment be any more objectionable than the employment of one
who is an enemy of the law?
_Fourth._ Is it not true that the view of the statute that I
propose to present to the court, is the view that we nearly all
_pretended_ to have when we procured the passage of the law?
The decision of Judge Conrad, though made no doubt with the utmost
sincerity and good faith on his part, I regard as a mistake, and an
unfortunate one for the cause of prohibition. In the interview
published by the _Register_ I said that neither the decisions
of courts nor the conduct of lawyers or newspapers would defeat the
ultimate triumph of prohibition. I still have faith in that
proposition. If I have erred, or if the courts shall decide too
much or too little, yet legal prohibition as a principle is right,
and I believe will ultimately triumph. I do not believe the present
prosecution of Mr. Kidd is justified by the law or the facts, and
injustice and illegal prosecutions are not in my judgment the means
of success in a good cause. Whatever personal malice may originate
of misrepresentation or abuse of me in this matter, gives me no
concern. I am used to this kind of thing and have never turned
aside from my professional duty because of attempted newspaper
intimidations. I am now in the thirty-sixth year of my practice in
Iowa, and can afford, I think, to perform a plain professional
duty. Asking pardon for the extent of this communication, which I
have necessarily made somewhat in detail in order that your
questions might be fully answered, I remain as I have ever been, an
earnest friend and co-worker in the cause of prohibition, and
Most truly your humble servant,
C. C. NOURSE
The case of Pearson & Loughran against the International Distillery and
J. S. Kidd was submitted to the supreme court upon oral and printed
argument at the June term, 1887.
The republican state convention that was to nominate a supreme judge
met at Des Moines, August 24th of that year. The supreme court at that
time consisted of W. H. Seevers, Joseph Reed, Jos. M. Beck, James H.
Rothrock, and Austin Adams. The latter named judge's term expired the
first of January, 1888, and either his renomination or the nomination
of some one in lieu of him came before the republican convention to be
held in August. J. S. Clarkson, the editor of the _Register_, and
Mr. John Runnells, Esquire, the attorney of record nominally of Pearson
and Loughran, but in fact acting for the whisky trust; to-wit, the
Western Export Association, secured their nomination as delegates to
the republican state convention. During the sitting of the court and
before any opinion was announced it was well understood in the
community that Judges Seevers and Reed had written an opinion reversing
the decision of Judge Conrad, and that Judges Beck and Rothrock had
written an opinion affirming the case, and that the fifth judge;
to-wit, Judge Adams, had not yet officially concurred in either opinion
and that the result of the case would rest with Judge Adams as he might
concur with one or the other of these opinions. J. S. Clarkson and Mr.
John Runnells, just prior to the meeting of the state convention, asked
for a private interview with Judge Adams, which was accorded them. Just
what was said or done in that interview and what subjects were
discussed between these gentlemen and Judge Adams I do not know. It is
possible they talked about the weather and that the question of the
renomination of Judge Adams, and his views and opinions or inclinations
with reference to the distillery, may not have been mentioned between
them. Very considerable opposition to Judge Adams's renomination had
developed throughout the state, principally upon the ground of his
alleged favoritism to the railroad interests, and his renomination was
in great doubt; indeed, when the convention met Judge Adams failed to
get the nomination, and his friends, Clarkson and Runnells, only
succeeded in controlling thirteen votes in his favor in the Polk county
delegation. After the convention and the defeat of Judge Adams, Mr.
Clarkson wrote a very mournful howl over Judge Adams's defeat,
exceedingly regretting the result. Still there was no opinion filed in
the distillery case until the night of the 10th day of September
following, when Judge Adams's name appears as concurring in the opinion
written by Judge Beck. These two opinions are very remarkable. The
opinion written by Judge Beck and concurred in by Rothrock and Adams
assumes the extraordinary position that inasmuch as the law in
expressed terms permitted the manufacture of alcohol within the state
for medicinal, mechanical, and sacramental purposes, and did not in
terms provide for the manufacture within the state for export,
therefore it was prohibited by the law.
The opinion of the minority of the court written by Judge Seevers, and
concurred in by Judge Reed, assumes the position that inasmuch as the
manufacture for the purpose of export was not prohibited, therefore, it
was lawful. The opinion of the majority of the court, it was claimed,
was contrary to the language and decision of our supreme court in the
cases theretofore decided by the court in Niles v. Fries, 35 Iowa, 41,
and Becker v. Betten, 39 Iowa, 668. In the former case in 35 Iowa,
Judge Beck himself in delivering the opinion of the court uses the
following language: "Intoxicating liquors in the possession of a
citizen who holds them for the purpose of selling them lawfully,
_within the state_, or for transporting them without the state for
lawful traffic, are not, under the statute, subject to seizure." Judge
Beck gets rid of the force and effect of his prior decision by saying
that his language was "obiter dicta." When, however, the opinion comes
to wrestle with the question as to confining the police power of the
state, to matters that concern the good order of society and the health
of the people of the state, but did not extend to the inhabitants of
the other states of the Union, Judge Beck gets rid of this suggestion
by claiming that there is a sort of comity between the states by which
the legislature of one state ought to consider the well being and
happiness of the people of the other states. This suggestion is rather
fanciful than otherwise, particularly as applied to this case, for that
the other states, particularly New York to which this alcohol was
exported, have never undertaken to control either the manufacture,
sale, or use of alcoholic spirits. In the interpretation of all
statutes and in case of doubt it is a well recognized rule of
interpretation that the court must consider what evil it was existing
prior to the enactment of the statute that the statute was intended to
correct or remedy. The idea that the people of Iowa were seized with a
desire to limit the manufacture of alcohol in order to prevent it being
taken to New York was simply Utopian and had no real existence. The
real parties that were attempting to limit the manufacture of alcohol
in Iowa for export was the whisky trust that desired to keep up the
price of the article in the New York market, and this fact was well
known to the supreme court and to the three judges that concurred in
the opinion of the majority. Judge Beck's opinion, aside from the
question of law involved, was a very excellent temperance speech
against the use of alcohol as a beverage, but had no relation whatever
to the case. I write thus freely upon this subject for the reason that
Mr. Kauffman and myself had given a written opinion as to the
reasonable construction of this law, relying upon the former decisions
of our own supreme court and the language of Judge Beck himself. Mr.
Kidd had made his investment in good faith in a manufacturing industry,
manufacturing an article that was recognized as useful for many
purposes, both as a medicine and for mechanical purposes, and there was
nothing in the article itself to determine the use for which it was
intended when it was manufactured. Whilst it might be used for the
purpose of making a beverage destructive to human life and happiness,
yet, so far as the law was concerned, it was only by restricting the
sale of it for the destructive uses to which it might be applied that
any remedy could be made effectual.
The effect of this decision politically, as a means of destroying the
faith of the people in a law that the legislature had wisely passed,
was soon made manifest. There was at this time in the city of Des
Moines a young lawyer, then attorney for the Chicago and Rock Island
Railroad Company, ambitious for political preferment, by the name of A.
B. Cummins. His partner in business was Mr. Carroll Wright, the son of
ex-Chief Justice Wright who was attorney for Koehler & Lange in
securing the opinion of the supreme court that destroyed legally the
constitutional amendment. A meeting of anti-prohibition republicans was
called and held at the city council chamber in the city of Des Moines
about August 25, 1887, in which certain resolutions were adopted
denouncing the prohibitory law and favoring local option and licensing
of the sale of intoxicating liquors. The resolutions of that convention
were signed by ninety-two nominal republicans, and they nominated as
their candidates for the legislature A. B. Cummins and Adam Baker. Mr.
Cummins accepted the nomination in a letter dated August 25, 1887,
writing a letter joining in the denunciations against the prohibitory
law of Iowa and the fraudulent practices of the constables who had
taken advantage of the law to make profit to their own use.
In addition to this work of the enemies of prohibition in Iowa,
performed as its pretended friends and advocates, there were several
other causes at work to weaken the confidence of the people in the
statute. Two constables of the city of Des Moines set about to make
money out of the enforcement of the law. They entered into a conspiracy
with the persons who were selling intoxicating liquors, inducing them
to put one or two bottles of liquor in a convenient place in their
establishments, and then filing information under the law against the
place, procuring a search warrant, searching the place and finding
these few bottles, prosecuting and destroying the two bottles, no one
appearing to claim the same, and then having the costs of the
proceedings all taxed up against the county. These bills ran up to
hundreds of dollars, and the enemies of the law were loud in their
denunciations of the statute, but had little to say against the
criminal practices of those whose duty it was to observe and enforce
the law.
Mr. Cummins made a vigorous canvass of the county, receiving in
addition to the nomination of these so-called republicans, the
nomination of the democratic convention, and by the aid of the
democratic party and the whisky interests of the county he succeeded in
being elected a member of the next general assembly under his
oft-repeated pledge during the canvass to secure if possible the repeal
of the prohibitory law, and the enactment of the license law.
With all these influences, however, operating against the law, the next
general assembly made no serious attempt to repeal the act. By an act
approved January 29, 1857, the legislature had attempted to establish
what was known as local option in Iowa. The act of 1857 provided for
the license and sale of intoxicating liquors in any county of the state
where the people by majority vote of the electors adopted the same, and
by such adoption that the provisions of the act of 1854 would stand
repealed as to that county. Our supreme court held this act of 1857 to
be unconstitutional for the reason that our constitution required that
all laws should be of uniform operation, and upon this subject of
uniformity the court uses the following language:
The sixth section of the bill of rights declares, that "all acts of
a general nature shall have a uniform operation." Constitution,
Article I. Recognizing as we do the distinction between laws of a
general nature and those of a special or local character, we
understand by the "operation" of a law is meant its practical
working and effect. It is not, in our opinion, a sufficient
compliance with the requirements of the constitution, that under
the provisions of the act of the 29th of January, 1857, the
question of licensing the sale of spirituous liquors is to be
submitted to the vote of the qualified electors of all the counties
of the state. Something more is contemplated by the constitution,
in the words "uniform operation." We must look further, and to the
effect of such submission to the vote of the people, and to the
consequences to result from the adoption of the law. The
prohibitory liquor law is a law of a general nature, and its
operation must be uniform throughout the state. Can we say that
such is the case, if it remains in full force in one county, while
it is repealed in others by a vote of the people, and a license law
adopted in its stead? And is the act of 1857, if the effect of it
is to bring about this want of uniformity in the operation of a law
of a general nature, to be deemed constitutional and valid? We
think not.
The vote authorized to be taken upon the adoption of the act, while
it is objectionable in a constitutional point of view, as
transferring the law-making powers from the legislature to the
people, is further objectionable in view of the possible, not to
say the probable, result of such vote. We cannot undertake to
determine, nor can it, under any circumstances, be foreseen, that
the result of the vote will be uniform in all the counties of the
state, either in favor of license or against it. In some of the
counties the vote may not be taken; in others, the majority may be
against license; while in others, the majority may be in its favor.
Unanimity of sentiment, either one way or the other, can hardly be
reckoned upon. These views, we think, add weight to the argument
against the constitutionality of submitting the act to a vote of
the people. We do not, however, base wholly upon them our
conclusion against the validity of the act in question, nor upon
the fact that the result of the vote upon the question of adopting
it may not be uniform throughout the state. Upon this latter branch
of the subject, the members of the court are not unanimous in
opinion.
The majority of the court are of the opinion, that while the act
must without doubt be deemed to be a law of a general nature, it is
liable to objection, as prescribing no uniform rule of civil
conduct to the people of the state, and as not providing of itself
for its uniform operation. The legislative power must command. It
must not leave to the people the choice to obey or not to obey its
requirements. It is not a law enacted according to the requirements
of the constitution, if there is left to the action and choice of
the people upon whom it is to operate the determination of a
question which may result in a want of uniformity in the operation
of a law of a general nature.
I shall take occasion to refer to this decision of the supreme court
hereafter when I come to notice the passage by the legislature of the
miserable subterfuge now known as the "mulct law."
CHAPTER X
REGULATION OF FREIGHT AND PASSENGER TARIFFS
Leaving the subject of temperance and prohibition for the present, the
next important question of a public nature in which I became interested
professionally was the question of the regulation of freight and
passenger tariffs by the general assembly of the state. The general
assembly of 1888 enacted a law providing for the election of three
Railroad Commissioners, and gave them authority to prepare schedules of
rates that might be charged by the railroads of the state for the
transportation of freight and passengers.
[Illustration: _Charles Clinton Nourse_
From Photograph by Pearson.
Des Moines]
Under this statute the people elected as Commissioners Frank T.
Campbell, Peter A. Dey, and Spencer Smith. In pursuance of the
authority of the statute these Commissioners proceeded to formulate
schedules of rates to be charged by the several railroads of the state.
The law required the Commissioners to publish for three successive
weeks in certain newspapers the date at which these rates should take
effect. Before the third publication was made the attorneys of the
Northwestern Railroad Company telegraphed to the Railroad Commissioners
requesting a change of the date of the taking effect of their proposed
schedule of rates, and received from the secretary of the board, under
the instructions of Mr. Dey, an answer that the time of the taking
effect would be changed accordingly. A new advertisement was prepared
and published, but before the three insertions were completed three of
the principal railroad companies operating in the state; to-wit, the
Northwestern, Chicago, Burlington & Quincy, and the Milwaukee & St.
Paul filed their petitions with the circuit court of the United States
for an injunction against the further publication of the notice, on the
ground that the rates fixed by the Railroad Commissioners were not
_compensatory_. The hearing of this application was had before
Justice Brewer at his residence in Leavenworth, Kansas. I was employed
by the Railroad Commissioners to appear in their behalf, and Mr. James
T. Lain, of Davenport, was employed by certain shippers of that place
to appear with me in the case. We argued the case before Justice
Brewer, and he granted the injunction on the 28th of July, 1888. This
injunction in large part was based upon the evidence of the
complainants' general manager to the effect that the Commissioners had
adopted a classification known as the western classification, which, as
compared with the classification known as the Illinois classification
made a difference against the railroads of fifty per cent. Subsequent
to the granting of these injunctions, upon complaint of certain
shippers the Railroad Commissioners, after a hearing before them,
proceeded to formulate new schedules, and in pursuance of what appeared
to be the principal objection at the former hearing they adopted a
classification more favorable to the railroad companies known as the
Illinois classification. Immediately upon this action of the Railroad
Commissioners the railroad companies filed a supplemental bill asking a
further injunction to restrain the Railroad Commissioners from putting
into effect these new rates with the new classification. Mr. Campbell
of the Railroad Commissioners immediately waited on me asking my
further appearance in the cause to argue the question of a further
injunction as against their new schedules and classification. He
expressed a doubt as to whether or not it was worth our efforts to
defeat this new application as he was disposed to think that Judge
Brewer would grant whatever the railroad companies might ask in this
behalf. I told him that he had a duty to perform as a public officer,
in my opinion, and if the Commissioners did their duty in making the
proper resistance to this new application, the responsibility would
rest with Judge Brewer if he failed in his duty. We accordingly made
the necessary preparation for a hearing, which was finally had at St.
Paul, Minnesota. In the argument of this case the attorneys for the
three railroads applying for the injunction made a very formidable
array of distinguished counsel embracing the ablest lawyers of Chicago
and Milwaukee. A. J. Baker was then Attorney General of the state of
Iowa and nominally appeared with me for the Commissioners, but gave me
no assistance whatever. We had for an audience in the argument of the
case many leading men of Minnesota, members of the State Grange of that
state, which association was then in session at St. Paul. I took into
the court-room a blackboard that I extemporized for the occasion and
taking several copies of the official reports of the railroads in
question, I put one copy in the hands of Justice Brewer, holding
another copy in my hand and putting the figures upon the blackboard,
showing the earnings of these railroads and what they were pleased to
call their fixed charges, and demonstrating beyond question that the
complaints made of the proposed railroad rates were without foundation.
The same person who had made an affidavit in regard to the difference
between the Illinois and the western classification had made a new
affidavit stating that there was an error in his former computation. I
criticised with some severity the reliability of the affidavits in
which mistakes occurred according to the convenience and exigencies of
this litigation. I had not much confidence in the result, however, but
I felt quite complimented when a number of the leading men of the
Minnesota Grange, who were present at the argument, made me a
complimentary visit at the hotel that evening. The attorney for the
railroad company who was expected to make the closing argument in the
case complained that he did not feel very well and only spoke about
fifteen or twenty minutes in a general way, without going into the
facts or figures in the case. My supposed assistant, the Attorney
General of the state of Iowa, took no part in the argument, and on my
way home that night I learned that he had been in conference with Mr.
Stickney of the Chicago Great Western Railroad Company, and had made an
arrangement with that gentleman for employment as attorney for that
corporation, to take effect at the close of his then official term
which was to occur in a few months. On the 2nd day of the ensuing
February, 1889, Justice Brewer filed in the circuit court his opinion
refusing the injunction on the supplemental bill and entering an order
dissolving the injunctions theretofore granted, at the cost of the
complainants. The railroad companies made no further fight against the
action of the Railroad Commissioners but acquiesced therein, and found
the earnings of their several roads "compensatory."
Concurrent with this proceeding on the part of the Northwestern
Railroad Company and the Chicago, Burlington & Quincy, and Milwaukee &
St. Paul, the Chicago, Rock Island & Pacific Railroad Company and the
Burlington, Cedar Rapids & Northern applied to and obtained from Judge
Fairall, of Iowa City, district judge of Johnson county, an injunction
against the Railroad Commissioners to the same effect as that issued by
Justice Brewer. I appeared with Mr. Lain before the district court and
argued a motion to dissolve this injunction before Judge Fairall, which
was refused, and from his order refusing to dissolve the injunction we
at once took an appeal to the supreme court of Iowa. This appeal was
heard and submitted to the supreme court by both printed and oral
argument, but after the action of Justice Brewer upon the supplemental
bill in the federal court, the attorneys for the Chicago, Rock Island &
Pacific Railroad Company and the Burlington, Cedar Rapids & Northern
dismissed their suit in the district court of Johnson county, and then
applied to the supreme court for an order dismissing the appeal in that
court. We resisted this application, but the court held that as the
original suit was dismissed the injunction itself necessarily was
dissolved, and as the appeal was only from an interlocutory order, the
court had no occasion to deliver an opinion upon the merits of the
controversy. The opinion of the court permitting these parties to
dismiss their suit in this manner will be found in 76th Iowa, 278.
Mr. A. B. Cummins, since Governor of the state of Iowa, has lately been
posing as the original friend of the people in this fight against
railroad injustice. It would be well to state here that I do not know
when he became a convert to the importance of regulating the action of
railroads in justice to the people, but as the foregoing was the first
great contest we had in Iowa on this subject, I give here a speech
delivered by that gentleman as late as December 22, 1891, at a banquet
of the Railroad Employees' Club, as follows:
It is the railroad, it is the spirit that has moved and stimulated
that property which has made it possible to people in the valley of
the Mississippi, which has made it possible to create within the
limits of the United States a greater wealth than has any other
nation on the face of the earth. I speak of the transportation
industry as limited to railways, and so limited, it is instructive
to reflect that the railways of the earth are now of the value of
something near $33,000,000,000, an appalling sum that no human mind
can appreciate, save when compared with some other species of
property. The railways of the earth, without reckoning either "wind
or water," are equal to one-tenth of all the property of the world.
The railways represent substantially one-third of all the invested
capital of mankind; and if all the currency of the civilized world
and its gold and all its silver and its currency in paper; all its
precious stones, its diamonds and rubies were heaped together in
such places as would contain them, they would still represent less
than one-half of the railway property of the world. The comparisons
indicate in what a stupendous enterprise you are now engaged. I
have no disposition, whatever, to convert a single sentiment
suggested by my brother Wallace, I do not recognize a conflict
between the farmers of the nation or the state of Iowa and the
railways. No fair man ought to recognize any such conflict, but
THAT THE STATE OF IOWA OR THAT HER ORGANIZED TRIBUNALS HAVE DONE
INJUSTICE TO THE RAILWAYS AND THROUGH THEM TO THE RAILWAY
EMPLOYEES, NO FAIR MINDED MAN CAN DISPUTE. These systems grew up;
they most naturally fall into the hands best adapted to organize
and handle them, and I would be the last man in the world to claim
that, as they grew up, as they were systemized and organized, that
wrong was not done here or wrong was not done there. I know too
well that there were grievous complaints justly made against the
management of railways not only in this state, but in many others.
But I beg the people of Iowa to remember, and the railway employees
to remember that, although railway managers and railway presidents
may sometimes be unjust, that affords no excuse whatever for the
sovereign power of the state of Iowa in being unjust. The wrongs of
capital produce, it is said, the anarchist--so it is with respect
to the wrongs perpetrated by the railway companies, the railway
organizations. They created a prejudice which, in its impetus, has
carried the attack made upon the railway property far beyond what
is justified by the sober second thought and judgment of those who
instituted it, and far beyond the limits which the fair-minded
people of Iowa now justify.
The constitution of the United States in express terms gives to the
congress of the United States the power to regulate commerce between
the states and with foreign nations. In pursuance of this power and
duty imposed by the constitution, the congress of the United States in
February, 1887, enacted a statute defining the duties and obligations
of common carriers engaged in the transportation of freight and
passengers between the states, and by express terms gave to the people
a right of action in the federal courts against any railroad company
violating its duty as defined by the act. This right of action was by
civil suit for such damages as inured to the party by reason of a
wrongful act of a common carrier.
The Chicago & Northwestern Railroad Company had a main line of road
extending from Chicago, in the state of Illinois, located through the
state of Iowa to Council Bluffs on the Missouri river. From the main
line of this road at Carroll, in Carroll county, this company had
constructed a number of branches running northwest from that point,
known as the Sac City Branch and the Sioux City and Mapleton Branch.
During the year 1890 we brought a number of suits against the Chicago &
Northwestern Railroad Company for unjust discrimination and overcharge
for shipments of corn and oats from various points on these branch
roads to Chicago, and also a number of suits for shipments made at
Carroll and points west on the main line of its road. The cases for
shipments on the branch lines of its road were settled by the company,
and we collected for our clients about $75,000. Suits for shipments on
the main line of its road were contested by the railroad company. We
tried two of these cases before the United States circuit court at Des
Moines, Judge Shiras presiding, and obtained verdicts and judgments in
the causes. The railroad company took a writ of error to the United
States court of appeals, and these causes were submitted to that court
upon both oral and printed arguments at the May term, 1892, of that
court, sitting at St. Louis, Missouri. After the causes had been so
submitted, Judge N. M. Hubbard who had made the argument in behalf of
the railroad company, left St. Louis and went to Chicago for
consultation with the general solicitor of that road, Mr. Goudy. After
a few days, the court of appeals still being in session at St. Louis,
Judge Hubbard appeared before the court, without any notice to me, and
had the order submitting the causes set aside and dismissed his appeal
or writ of error. After a few weeks had elapsed he sued out another
writ of error in the same cases to the United States court of appeals,
which, according to the arrangements for the sitting of that court,
would be held at St. Paul in the state of Minnesota, and Justice Brewer
of the supreme court of the United States would be in attendance as the
presiding judge of that court.
It would be too long and too tedious a story to enter into particulars
in regard to these suits, and the questions of fact and law involved in
them. The unusual and unwarranted conduct of the attorneys for the
Northwestern road in getting these cases before Justice Brewer for his
decision and determination was by no means a compliment to the judge
for whom they manifested such a strong partiality. Neither would I
indulge in any surmise as to the grounds for their partiality. It is
sufficient to say they were not disappointed in the result and that
Judge Brewer reversed both of these judgments.
I afterward determined if possible to obtain the opinion of the supreme
court of the United States upon the questions of law involved in these
cases. I accordingly brought another suit for another client; to-wit,
one E. M. Parsons, in a case involving an amount sufficient to entitle
me to an appeal directly to the supreme court of the United States,
having previously attempted to get the supreme court of the United
States to review the decision of Justice Brewer in the former cases
upon writs of certiorari, the same being denied by the supreme court.
Judge Shiras, presiding in the circuit court at Des Moines, in view of
the action of the circuit court of appeals in the other cases,
sustained a demurrer pro forma to my amended petition filed in the
Parsons case, and it was upon demurrer admitting the averments and
allegations in this petition that the case was heard before the supreme
court of the United States. Justice Brewer delivered the opinion in the
Parsons case in which he held that the statements of the petition did
not entitle the plaintiff to recovery. The opinion discloses the fact
that Judge Brewer was somewhat offended at my attempt to have the
supreme court pass upon the questions of law involved in the cases that
he had disposed of as the presiding judge in the court or appeals. I
had supposed that a judge of the supreme court of the United States
would regard it rather as a compliment than otherwise to his sense of
fairness to believe that he was capable of impartially and without
prejudice, sitting with his brother judges, to review one of his own
decisions, but the opinion shows plainly that I overestimated that
distinguished jurist, and that he thought more of his infallibility
than I did of his impartiality. This opinion of the court will be found
in the case of Parsons vs. The Chicago & Northwestern Railroad Company
in volume 167, _United States Reports_, 324. The court in this
opinion asserts the very extraordinary position that the Interstate
Commerce Law in providing a remedy whereby a shipper of grain might
recover his actual damages for a refusal of the railroad company to
comply with the law which was enacted for his protection, was in the
nature of a penal statute, and that the petition of the plaintiff in
such a case must expressly aver and negative the existence of any
possible excuse for the wrong committed by the railroad company.
One great benefit to the public of these suits against the Chicago &
Northwestern Railroad Company was to arouse public attention to the
necessity of further legislation by congress in order to carry out the
design of the original act for the protection of the public. Congress
had already by amendment to the act provided for penalties against any
parties violating its provisions, but the suits that I brought were
simply for actual damages and injuries, and not for any penalty
whatever under the law. The penal clause in the act as amended March 2,
1889, reads as follows: "That any common carrier subject to the
provisions of this act, or, wherever such common carrier is a
corporation, any director or other officer thereof, or any receiver,
trustee, lessee, agent, or person, acting for or employed by such
corporation, who, alone or with any other corporation, company, person,
or party, shall willfully do or cause to be done, or shall willfully
suffer or permit to be done, any act, matter, or thing in this act
prohibited or declared to be unlawful, or who shall aid or abet
therein, or shall willfully omit or fail to do any act, matter, or
thing in this act required to be done, or shall cause or willfully
suffer or permit any act, matter or thing so directed or required by
this act to be done not to be so done, or shall aid or abet in such
omission or failure, or shall be guilty of any infraction of this act,
or shall aid or abet therein, shall be deemed guilty of a misdemeanor,
and shall, upon conviction thereof in any district court of the United
States within the jurisdiction of which such offense was committed, be
subject to a fine of not to exceed five thousand dollars for each
offense: Provided, that if the offense for which any person shall be
convicted as aforesaid shall be an unlawful discrimination in rates,
fares, charges, for transportation of passengers or property, such
person shall, in addition to the fine herein provided for, be liable to
imprisonment in the penitentiary for a term of not exceeding two years,
or both such fine and imprisonment, in the discretion of the court."
The charge of Judge Shiras to the jury in the two cases tried before
the United States circuit court, before referred to, will be found in
full in volume 48 of the _Federal Reporter_, commencing on page 50,
and the opinion of Justice Brewer, presiding in the circuit court of
appeals, before referred to, in which he reverses these judgments,
will be found in the 10 U.S. court of appeals on page 430.
It may be interesting to any law student and to anyone who desires to
determine where right and justice should have prevailed, to compare the
charge of Judge Shiras to the jury and the principles of law recognized
by Judge Shiras, with the opinion of Justice Brewer. It is not within
my purpose to re-argue any of my causes in this paper.
It is sufficient to say that the supreme court held the provisions of
the inter-state commerce law, that gave to shippers a remedy for unjust
discrimination by a civil suit for damages, to be a penal statute upon
the ground that if the railroad company discriminated by charging one
person ten dollars for a particular service and charged another person
twenty dollars for a like service, then a suit to recover back the ten
dollars thus unjustly demanded and received by the railroad company was
in the nature of a statute to recover a penalty. Upon this mode of
reasoning a suit against any person or corporation who unjustly and
unlawfully gets possession of my money, for the purpose of recovering
back what they illegally obtained, would come under the head of a suit
to recover a penalty. The trouble with the supreme court of the United
States has been that they have uniformly regarded this legislation by
congress to protect the people against unjust charges and
discriminations as intended to punish the railroad companies of the
country, and the court has felt called upon to protect the railroads
from legislation interfering with their absolute control over their
freight and passenger traffic. The court has assumed the role of a
conservative element in the government, intended for the protection of
railroad property against the legislative power of the country.
CHAPTER XI
DES MOINES RIVER LAND TITLES
The next important litigation in which I was engaged during my
professional career, of public interest, was my engagement by Roswell
S. Burrows, one of the original stockholders of the Des Moines
Navigation Company, in suits growing out of his ownership of certain
lands belonging to the Des Moines river grants, so-called. I will not
undertake in this paper to go into a detailed history of the Des
Moines river titles, so-called. Colonel C. H. Gatch some years ago
prepared for publication a series of articles that were published in
the _Annals of Iowa_, Volume I, that gives a detailed account and
history of the land grant by congress, and the various decisions of
the United States land department construing the original grant of
1846, and also the decision of the supreme court of the United States
in the numerous cases from time to time decided by that court. I deem
this the most correct and just account of this important litigation
that has ever been given to the public. Honorable B. F. Gue also
published in his _History of Iowa_ what purports to be an account of
the various decisions and rulings of the land department and of the
actions of the courts with reference to these lands. A part of his
history is correct, but in treating of the rights of certain of the
settlers he has done great injustice to the stockholders of the Des
Moines Navigation Company who furnished the money to the company for
the purchase of these lands. The first unwarranted statement contained
in Mr. Gue's history is that persons who brought and maintained suits
for possession of their lands against certain settlers were mere
speculators who had bought a doubtful title to these lands for a song.
The contract between the state of Iowa and the Des Moines Navigation
Company, whereby that company became interested in certain lands of
this grant, was made in 1853, after the state had disposed of the
larger part of the lands lying below the Raccoon fork of the Des
Moines river, and was made at a time when there was no question as to
the right of the state to the lands above the Raccoon fork to the
northern boundary of the state. Under this contract the company paid
to the state, upon the execution of the agreement, over $60,000 in
cash for the purpose of enabling the state to pay the indebtedness
that had been incurred by the board of public works up to that time.
The contract provided that the company should continue the work under
supervision of a state engineer and commissioner, chosen by the state
of Iowa, and should advance the money to pay, as the work progressed,
a specific amount per cubic foot for stone work, excavation, timbers,
and other material furnished in the construction of the locks and
dams. Estimates were to be made from time to time by the engineer of
the work of the amount expended by the company at the prices named in
the contract, and as fast as $30,000 was so expended the company was
to receive lands at $1.25 per acre. At the time this contract was made
it had been found impossible to sell and dispose of the lands by the
state commissioners rapidly enough to get money to pay the contractors
who theretofore had been doing the work under contracts with the
commissioners. The only difference between the Des Moines Navigation
Company and the contractors engaged in this work was that the former
now agreed to furnish money in advance to pay off the old unpaid
obligations of the commissioners, and agreed to advance money as it
was needed and take the lands in gross at $1.25 per acre as fast as
each additional $30,000 were advanced and expended on the work. In the
summer of 1857 the company made a demand on Mr. Manning, commissioner
of the Des Moines River Improvement, to certify to them additional
lands on certain estimates made by the engineer, which Mr. Manning
refused. They accordingly brought suit against the commissioner asking
of the court a writ of mandamus to compel him to certify the lands
shown to be due them by the certificate of the engineer. I have
already referred to this suit in the former part of this paper. I was
employed by Mr. Manning and defended against it upon the ground
chiefly that before the company could maintain suit for specific
performance it was necessary for them to show that they had in all
respects complied with their various contract obligations toward the
state. The main provision of the contract that the commissioner
claimed had not been complied with related to the progress of the
work; that is to say, one-fourth of the entire contemplated
improvement between the Raccoon fork of the Des Moines river and the
Mississippi river had not been completed. The company, being defeated
in this application for mandamus, ceased work upon the improvement,
and in the winter of 1858 a settlement was made between the state and
the company. This settlement was more especially brought about by
those who had organized a railroad company for the purpose of building
a railroad from Keokuk up the valley of the Des Moines river. This
organization was known as the Keokuk, Fort Des Moines & Minnesota
Railroad Company, and they desired a grant from the state of the
remaining lands of the grant to aid them in the construction of their
railroad. The basis of the settlement between the state and the Des
Moines Navigation Company was simply that the company should receive a
conveyance from the state for the lands that had been certified to the
state under the grant up to that time, and that had not been
heretofore disposed of by the state, or certified to the company,
amounting to about 37,500 acres, and should pay to the state $20,000
in addition to the money already paid and expended on the improvement,
and should surrender and cancel their contract and right to any
further lands of the grant. (The terms of this settlement are
contained in a joint resolution of the seventh general assembly, found
on page 425 of the acts of that session.) At the time of this
settlement there was no question by anyone as to the extent of the
grant and the validity of the title of the state to the alternate
sections five miles on either side of the river up to the northern
boundary of the state.
In pursuance of the settlement proposed by the joint resolution which
was accepted by the company, Governor Lowe on May 3, 1858, executed
fourteen deeds or patents to the Navigation Company, conveying by
particular description the lands to which the company was entitled
under the resolution of compromise; and on May 18, 1858, a general deed
conveying the same and any previously omitted lands by general
description.
Another disturbing element in regard to the title to the lands arose
under the grant of congress made in 1856 to the state of Iowa, to aid
in the construction of certain lines of railroad crossing the state and
having their initial point at the Mississippi river, and crossing the
Des Moines river at various points between the Raccoon fork and the
northern boundary of the state. These railroad companies raised the
question as to the validity of the title of the Des Moines Navigation
Company to the lands they had purchased from the state north of the
Raccoon fork of the river. The Dubuque & Sioux City Railroad Company
brought suit, or rather induced Litchfield to bring suit against them
for lands lying within the line of their grant under act of 1856, or
rather that would have been within their grant if not reserved from its
operation or that had not been granted for the improvement of the Des
Moines river. This suit was adroitly managed on the part of the
railroad company so as to avoid testing any question of its title, and
contained a stipulation that the company was in possession of the land
under their grant and the court was only called upon to decide the
extent of the grant under the act of 1846 to the state for the
improvement of the river, and the supreme court of the United States
decided that the act of 1846 did not grant to the state for the
improvement of the river any lands north of the Raccoon fork. This
decision was made at the December term, 1859, and is found reported in
23 Howard, S.C.U.S., page 66. The act of 1856, making the grant to the
state for the purpose of aiding in the construction of these railroads,
in express terms reserved from the operation of the grant any lands
that had been theretofore reserved by any competent authority under any
other grant of congress. The announcement of this decision created
considerable excitement in the Des Moines valley, and the river lands
above the Raccoon fork that had theretofore been deeded by the state to
the Des Moines Navigation Company and had been by that company divided
among its stockholders in consideration of the moneys that they had
advanced to the company, and had been paid by the company to the state
as before stated, were considered the lawful prey of every adventurer
who could induce the local land offices to allow them to locate a land
warrant upon any of these lands.
Another class of persons, however, were deeply interested in the
question of this title. Prior to the contract made with the Des Moines
Navigation Company the state of Iowa had sold some fifty thousand acres
or more of these lands located above the Raccoon fork of the river, and
many of these lands were occupied by actual settlers who had made
improvements thereon and had paid the state valuable considerations for
their title. To avoid the hardships that must otherwise have resulted
from the decision of the supreme court, congress on March 2, 1861,
passed the following joint resolution: "Resolved, that all the title
which the United States still retain in the tracts of land along the
Des Moines river, above the mouth of the Raccoon fork thereof, which
have been certified to said state improperly by the department of the
interior as a part of the grant by act of congress approved August 8,
1846, and which are now held by bona fide purchasers under the state of
Iowa, be, and the same is hereby relinquished to the state of Iowa."
The congress of the United States further on the 12th of July, 1862,
passed an act in express terms extending the grant to the northern
boundary of the state, and providing that such lands "be held and
applied in accordance with the provisions of the original grant, except
that the consent of congress is hereby given to the application of a
portion thereof to aid in the construction of the Keokuk, Fort Des
Moines & Minnesota Railroad, in accordance with the provisions of the
act of the general assembly of the state of Iowa, approved March 22,
1858."
At the December term, 1866, the supreme court of the United States, in
the case of Samuel Wolcott vs. The Des Moines Navigation Company,
reported in 5 Wallace, page 681, made a further decision confirming the
title of the Des Moines Navigation Company under the acts of congress
of 1861-2, to the lands that had been deeded to them by the state of
Iowa as before recited, and further deciding that the lands within the
five mile limits of the Des Moines river had been reserved by competent
authority for this work of internal improvement at the time of the
passage of the railroad grant of 1856.
Mr. Gue in his history of Iowa unfortunately attempts to disparage the
title of the stockholders of the Des Moines Navigation Company by
stating they were mere speculators who had purchased an impaired title,
and were therefore entitled to no consideration. On the contrary, the
men who received these deeds directly from the Des Moines Navigation
Company were stockholders who had advanced their money in payment of
their stock, which money had been paid over by that company directly to
the state.
Soon after the decision of the supreme court in the Litchfield case in
1859, a suit was brought in the circuit court of the United States for
the southern district of Iowa, asking an injunction against the local
United States land officers at Fort Dodge and at Des Moines, to prevent
them from receiving and recognizing any location or purchase of these
reserved lands. The reservation of the land affected not only the lands
within the railroad grant, but affected the right of any person to
locate upon or purchase these lands from the United States, as they
were not lands subject to settlement or entry. Justice Miller heard
this application for an injunction, and an argument was filed by the
authorities in Washington claiming that the proper officers of the land
department had the sole authority to determine the question as to
whether or not these lands were subject to location and entry, and that
the question of the effect of such location and entry could only be
decided by the courts, after entries were made and patents granted;
that if the lands were not legally subject to entry as to any person
claiming them, the action of the land officers would be void, and a
court, if called upon by the owner, could cancel any patent or other
evidence of title illegally issued. Justice Miller, after the full
argument of the case, sustained this view of the case and held that the
only remedy for parties claiming these lands under the act of 1846, and
the subsequent act of 1861-2, was to apply to the court for the
cancellation of any titles wrongfully issued by the land department or
by the President. In accordance with this view of the case a number of
suits were brought by the grantees of the Des Moines Navigation
Company, who received their titles from the company in consideration of
the moneys they had advanced as stockholders, and the supreme court of
the United States, upon appeal to that court, cancelled a number of
entries and patents that had been wrongfully issued. An attempt was
made to make a distinction between the Des Moines Navigation Company
and individuals who had purchased the lands from the state of Iowa, and
settled thereon.
Mr. Gue in his history of Iowa claims that the act of congress of 1861
was only intended for the protection of those purchasers from the state
who had actually settled upon their lands and made improvements
thereon, and that congress in using the words "bona fide purchasers
from the state of Iowa" did not include in those words citizens or
residents of the state of New York who had bought their lands in good
faith from the state of Iowa. The supreme court of the United States in
the very purpose of its organization was intended by the constitution
to organize a judicial body or tribunal before which all citizens of
the United States should be equal before the law, without regard to the
state in which they had their residence or location. There was no
question about the fact that the Des Moines Navigation Company was a
bona fide purchaser of these lands. At the time that they paid their
money and took a conveyance from the state of Iowa, the stockholders of
that company honestly believed they were getting a good and perfect
title and were paying out their money for same in the utmost good
faith. The statement of Mr. Gue in his history before referred to, that
the persons who received deeds for these lands from the Des Moines
Navigation Company were mere speculators, purchasing for a song a
doubtful and disputed title, is wholly without foundation and fact, and
the denunciation of the supreme court of the United States because the
court made no distinction between bona fide purchasers because of their
location or residence, very greatly mars the reliability and
impartiality that ought to have been characteristic of this history of
Iowa. Mr. Gue was a resident of Fort Dodge, where for years the
atmosphere of that locality was permeated by the passion of men who had
been disappointed in their attempt to secure a title to lands that they
all knew before and at the time of the location and attempted entry on
the same, had already been sold for a valuable consideration by the
state of Iowa. The opinion of the supreme court, delivered by Justice
Miller in the case of Williams vs. Baker, reported in 17 Wallace, 144,
contains an accurate and clear exposition of this entire controversy,
which fortunately was settled by the supreme court of the United
States, and to which they have continuously and consistently adhered.
Long after the diversion of the remaining lands of this grant to the
Keokuk, Fort Des Moines & Minnesota Railroad Company, the Iowa
Homestead Company, grantee of the Dubuque & Sioux City Railroad Company
brought suit for a portion of these lands embraced in the river grant
above the Raccoon fork, and attempted to disturb the title. In the
meantime the Keokuk, Fort Des Moines & Minnesota Railroad Company had
mortgaged these lands for the purpose of continuing their road from Des
Moines to Fort Dodge. On the foreclosure of this mortgage these
remaining lands were sold to a company known as the Des Moines & Fort
Dodge Railroad Company, organized for the purpose of owning and
operating that portion of the old Des Moines Valley road that had been
constructed between Des Moines and Fort Dodge. On the foreclosure of
this mortgage I had represented Martin Flynn and a number of the other
contractors, for whom I had filed a mechanics' lien for work done and
material furnished in the construction of the road north of Gowrie. I
succeeded in obtaining a provision in the decree of foreclosure making
these liens paramount to that of the mortgage, and when the road was
purchased by the new organization called the Des Moines & Fort Dodge
Railroad Company they were compelled to pay off Flynn and these other
lien holders in order to secure their title. This new railroad
organization elected Mr. Charles Whitehead, an attorney of New York
City, its president, and I received from Mr. Whitehead a telegram
asking if I could be retained as general attorney of their road. I
replied that upon the receipt of a draft for five hundred dollars I
would accept of the same as a general retainer. One object, I think,
that the company had in desiring my services was to secure some one
familiar with the question of the title of these Des Moines river lands
that the new organization had bought in connection with this other part
of the road.
The last contest over the title was the case of the Iowa Homestead
Company claiming the title under the railroad grant of 1856. It was the
case of the Iowa Homestead vs. The Des Moines & Fort Dodge Railroad
Company, reported in 17 Wallace, 84. Mr. Gue, in his history of Iowa,
makes a special point as to the hardship visited on one of the settlers
by the name of Crilley. I was attorney for Mr. Burrows in that case.
Mr. Crilley first attempted to locate a warrant upon a tract of land
near Fort Dodge prior to the decision of the supreme court of the
United States in the Striker case. He was refused permission to make
any such location or entry and was distinctly informed by the local
land officers that the lands belonged to the Des Moines river grant.
After the decision in the Striker case in 1859 and after the settlement
between the state of Iowa and the Des Moines Navigation Company and the
payment of the last $20,000 of the consideration, and after the
execution of the deeds and patents by the state to the Des Moines
Navigation Company, Crilley succeeded in inducing the local land
officers to allow his location, and ultimately obtained a patent
through their influence, signed by the President. The circuit court of
the United States declared his patent void and decreed cancellation of
the same. He took his appeal to the supreme court at Washington and
that court affirmed the decree. The judges of the circuit court at Des
Moines permitted Mr. Crilley, by his attorney, then to file a claim for
his improvements under the occupying claimant law of Iowa.
Commissioners were appointed and his improvements were valued at a very
liberal amount, far in excess of their real value or cost. Mr. Burrows
paid the money into court and Crilley received the same, but after he
received pay for his improvements he still refused to vacate the land.
A writ was issued to dispossess him, and upon the service of the writ
by the United States marshal, Mr. Crilley presented a loaded revolver
to the deputy marshal and threatened his life. The marshal thereupon
returned to Des Moines and secured authority to arrest Mr. Crilley,
which he did, and Mr. Crilley was actually detained in prison for
several weeks and until he agreed peaceably to surrender possession of
the land. This is the whole story of the inhumanity out of which Mr.
Gue's history of Iowa makes a case of such extreme cruelty and
hardship.
That this controversy over the title of the Des Moines river grant was
a most unfortunate one, both for those who purchased the lands from the
state and those who attempted to purchase them from the general
government after the state had sold them, there can be no question. It
was also very detrimental to the settlement of that part of the state.
The squatters or settlers made very indifferent improvements and very
indifferent cultivation of the land, and seldom if ever paid any taxes.
After the title of the Des Moines Navigation Company and its
stockholders and grantees had become fully settled, the counties where
these lands were located levied taxes upon the same, and suits were
brought against the Des Moines Navigation Company and its grantees. The
supreme court of Iowa held that from the date of the joint resolution
of 1861 the title to these lands inured to and became perfect in those
who had purchased and taken their deeds from the Des Moines Navigation
Company, and held them liable for the taxes that had been assessed from
the date of that joint resolution of 1861.
I continued to act as attorney for the Des Moines & Fort Dodge Railroad
Company for about ten years. I was not, however, employed upon a
salary, but only after my general retainer charged that company from
time to time for services actually rendered, and charged them as I did
any other client.
CHAPTER XII
A. O. U. W. CONTROVERSY
One other case of some notoriety and public interest in which I was
engaged in the latter years of my practice was the controversy between
the two branches of the Ancient Order of United Workmen. It seems that
the Grand Lodge of this organization had adopted an amendment to their
plan of organization by which in case of extraordinary loss and
liability occurring in any locality, and within the jurisdiction of
some subordinate state lodge, the members of lodges in other states
might be assessed and required to contribute for the payment of such
extraordinary losses. A portion of the members in the state of Iowa
refused to recognize this requisition and seceded from the organization
as a national body, and organized another state lodge by the same name,
Ancient Order of United Workmen, and incorporated themselves under the
general provisions of the law of Iowa for the organization of
benevolent societies, repudiating any connection with the national
lodge. Those who adhered to the national organization still continued,
however, to do business by their old name and under their former
organization as adherents of the national body. The new organization,
relying upon their incorporation as giving them some special advantage,
brought suit in the district court of Dubuque county for an injunction
against this old organization adhering to the national body, and sought
to perpetually enjoin them from the use of the name "Ancient Order of
United Workmen," or the initials "A.O.U.W." Upon the trial of this
case on demurrer in the district court in Dubuque, I sought to obtain a
continuance of the hearing on the ground of my ill health, having been
confined to my room and my bed for some three weeks. The judge of the
district court granted a continuance only for a few days. I went to
Dubuque, however, and made a three hours' argument in the case, sitting
in my chair, not having strength to stand upon my feet. The court
granted a perpetual injunction against my client. An appeal was taken
immediately to the supreme court and an interlocutory order obtained
staying the injunction until the case could be heard in that court. On
the final hearing and trial the injunction was dissolved, and the right
of my client to use and do business under the title of "Ancient Order
of United Workmen" was successfully maintained. This decision is fully
reported in supreme court reports, 96 Iowa, 592.
CHAPTER XIII
IMPORTANT EVENTS IN CAREER
It will be necessary now to go back a few years in order to record
certain events important in my personal career.
In the summer of 1880 James A. Garfield received from the republican
national convention at Chicago the nomination as candidate for
President of the United States. At that time the states of Indiana and
Ohio continued to hold their state elections early in the month of
October, and the result of the elections in those two states in October
had a most important and almost controlling influence upon the result
of the presidential contest at the ensuing November election.
Early in September of that year I received from the state central
committee of the state of Indiana an invitation to accompany
ex-Governor Kirkwood of Iowa in a canvassing tour of two weeks, which
invitation I accepted. We had a very agreeable and enjoyable trip.
Governor Kirkwood was a very companionable man and was received with
much honor and enthusiasm, and our meetings were largely attended and
were quite successful. Part of the time we did not speak together at
the same meetings, but had separate appointments assigned us. At one
point where there existed a considerable manufacturing industry, the
local committee waited upon us at our hotel before the speaking, and
suggested that they desired us to especially discuss the tariff
question and its effect upon our American manufacturers. After the
committee had retired Governor Kirkwood walked the floor of the room
for a few minutes, and turning suddenly upon me he said, "Charlie, do
you understand this tariff question?" I told him no, I knew very little
about it. "Well," he said, "I was raised a democrat and am not much of
a tariff man anyhow, and I want you to take up this tariff question if
either of us must." I told him that I could talk about the general
effect of protecting American labor and the duty of the American
congress to so arrange the tariff upon imports as to relieve our people
from competition with the low wages paid in Europe; that the American
laborer must receive higher wages than the European laborer for he must
educate his children and must enjoy better conditions in life, and as
our free institutions were based upon the intelligence of the voter, we
could not afford to allow the laboring man to occupy the position
socially or politically of the European laborer; that I could talk
along that line all they wanted, but when it came to discussing
schedules or specific duties I should not venture upon any such
discourse; in fact, I was satisfied that few people understood the
subject sufficiently to discuss the detail of tariff duties with
intelligence. I filled the bill accordingly, as Governor Kirkwood
placed that part of the program in my charge, but he himself did not
say "tariff" once.
At Indianapolis we attended a grand rally at which Roscoe Conkling, of
New York, was the principal orator of the day. The managers had
arranged for a grand parade, and the Governor with myself and several
other gentlemen were assigned to a carriage that was to take prominent
part in the procession. Conkling had arrived, it seems, early in the
day, and the procession was delayed for over an hour waiting for that
distinguished gentleman to complete his toilet before making his
appearance in public. The streets and the balcony of the hotel were
lined with ladies in their holiday attire, and as the procession passed
by we heard frequent inquiries from the finely dressed maidens as to
which was Conkling, and when he was pointed out to them they were
enthusiastic in their declarations that he was a handsome man. I was
introduced to Mr. Conkling in the corridor of the hotel, after his
speech, and was shocked and surprised at his want of courtesy and
decent manners. He was there for the purpose of advocating the election
of Mr. Garfield, and adding if possible enthusiasm to the occasion, and
yet openly in the hearing of the crowd he was cursing the folly of the
convention in nominating Mr. Garfield instead of renominating Grant for
the third term. A more arrogant and conceited public man it has never
been my misfortune to meet.
An incident occurred the following Sunday morning more pleasant to
record. I got up very early, and going down to the lower portico of the
hotel I found a few persons astir. I felt somewhat lonesome and seeing
a well dressed, intelligent looking colored man on the pavement, I
entered into conversation with him in regard to the political
situation, and asked him whether or not the colored men of the city
would not all support Mr. Garfield, the republican nominee. To my
surprise he said, "No, sah, some of them will vote the democratic
ticket." I said to him, "How is it possible for a colored man to
support the democratic ticket in view of the history of the past
twenty-five years? The colored race have been emancipated and
enfranchised and made equal before the law through the efforts of the
republican party of the nation. How, then, can any of your people
support the democratic party?" "Well, sah," said he, "in some respects
a colored man is very much like a white man." Said I, "What do you mean
by that?" "Well, sah," said he, "I'll tell you. Occasionally, sah, you
will find a colored man that is a damn fool." I saw a twinkle in his
eye and realized that he was intending his reply for a joke. I
immediately offered him my hand and shook hands with him heartily,
telling him that since there were so many white men of that kind I
supposed it would be unreasonable not to expect occasionally a colored
man that was a fool.
Upon my return to Iowa after the October election in Indiana I made a
speech in the opera house at Oskaloosa, Iowa, and the gallery was
filled with colored men, many of them from What Cheer, a mining
district near Oskaloosa. I related to them the particulars of my
interview with the colored gentleman of Indianapolis. They enjoyed it
hugely and gave me rounds of applause, and I told them I hoped that in
some respects they would not be like the few that were back in Indiana.
After the election of Mr. Garfield, Governor Kirkwood was appointed
Secretary of the Interior, and as I had official business before the
supreme court that summer I visited Washington City in company with my
wife, and spent a pleasant two weeks admiring the wonders of the
national capital. Bishop Andrews, of the Methodist Episcopal church,
had been for a number of years a resident of Des Moines and our near
neighbor on Fourth street, and in company with his excellent wife Mrs.
Nourse had a very enjoyable time. Governor Kirkwood also arranged that
we should attend a private reception of the President and his wife, and
Mrs. Nourse enjoyed the privilege of quite a tete a tete with the
President's lady, officially known as the first lady of the land. When
my wife bid her good evening she shook hands with her and expressed the
hope that she would be very happy in her new position. Mrs. Garfield
was rather a sad faced person and responded in a tone almost prophetic,
"I hope so. We do not know." Afterwards upon the assassination of Mr.
Garfield I was called upon to take part in a meeting held in the
Baptist church in Des Moines, commemorating the memory of that
excellent man. I found in my wife's scrap book some years afterwards a
newspaper clipping containing a report of the remarks I made on that
occasion which I here insert:
For the past five days our nation has been in mourning and the
Christian civilization of the world has sympathized with us in our
bereavement. By official proclamations, by public meetings and
resolutions, by draping our homes and places of business and houses
of worship with the emblems of mourning, we have sought to give
expression to our sorrow and to testify our appreciation of our
noble dead.
Tomorrow the whole nation is to attend upon his burial and the day
is set apart as sacred to his memory. And yet with all this we
cannot restore the life that has been so wantonly destroyed. Death
is inexorable, and we can do nothing for him who has gone out from
the shores of time forever.
But in a better sense of the word Garfield is not dead. So long as we
cherish the manly virtues of which his life was the exponent, so long
as we remember the trials and sacrifices of his boyhood, the labors and
successes of his riper years, the heroism, faith, fidelity of his life,
and the calm triumphant heroism of his death, so long will he live to
us and to the nation, and so long may we be profited by his life.
I can think of no better text this morning for profitable consideration
than one of the many rich gems of thought he has left us out of the
storehouse of this great heart and intellect. At the graves of the
fallen heroes of the late war he expressed this sentiment, "I love to
believe that no heroic sacrifice is ever lost, that the characters of
men are molded and inspired by what their fathers have done, that
treasured up in American souls are all the unconscious influences of
the great deeds of the Anglo Saxon race, from Agincourt to Bunker
Hill."
In the oldest book of the Book of Books the patient man in his deep
affliction asks the question, "If a man dies shall he live again?" This
question refers primarily to man's immortality, but we may dwell upon
it in its other meaning, this morning, as relating to the silent and
unconscious power and influence of the life and example of the one whom
we say is dead.
And think what a treasure we have in the memory of this man. Others
have challenged the admiration of the world because of their great
abilities. Others have been brave in war and wise in counsel. Others
have been heroes and statesmen, and we have honored them and done
homage to their greatness, but this man was not only great and wise and
brave, but a good, true and pure man also, and the nation loved him. We
give honor to his greatness, we give the tribute of praise to his great
abilities and his great achievements, but we bring tears and heart
throbs to the tomb where manly virtue, purity, and faith are to be
enshrined. How much there is in the life of this man that we would wish
to bring into the everyday life of our homes. Here is the model of a
life from which we would have our children mold their own future, no
blemishes to record, nothing to apologize for, nothing to cover up--it
stands out in its moral perfection and beauty--in its intellectual
strength and greatness--in its religious faith and fervor, a fully
developed manhood--a complete character--a perfect pattern.
Do you want an inspiration for your child? Repeat to him the story of
this man's youth, of his struggle with poverty and adversity, without
influential friends or fortune. Do you want to teach the young men of
the nation the value of sincerity, honesty, earnestness, and
truthfulness in the affairs of life? Here is the demonstration and the
proof that even in American politics and American statesmanship,
dishonesty, deceit, and duplicity are not necessary to success. Do you
want to rebuke the conceit of the would-be learned who teach our young
men that the religious faith that their mothers taught them is somehow
a reproach to their intellectual progress--we have here a man of the
broadest culture, of the strongest intellectual grasp and development,
whose religious faith was the very basis and strength of his greatness
and intellectual power.
CHAPTER XIV
THE BROWN IMPEACHMENT CASE
The discussion of law cases and the questions of fact and of law that
they involved may be a little tedious to a non-professional reader, but
they constituted so large a part in my life that it is impossible to
give much of an account of myself and what I have been doing for so
many years past, without at least a brief account of the nature of the
suits in which I was engaged as counsel.
Probably the most important case in which I was engaged during my
professional career was the celebrated impeachment case against John L.
Brown, Auditor of the state of Iowa.
Mr. Brown was first elected to the office of Auditor of State in
October, 1882, and took his office the following January. One of the
important duties of this office was the duty of having the insurance
companies, organized under the laws of Iowa and doing business in the
state, examined from time to time to ascertain if they complied
strictly with the law, and if their reports made to his office were
just and true, and their business conducted in such a manner as to
insure their solvency and ability to pay the losses of their policy
holders. There had been in the state of Iowa for a number of years a
number of failures of companies that were organized without capital and
without experience or strict integrity upon the part of those who
sought to insure the property of others, some of them having none of
their own. I remember one insurance company organized in Des Moines by
an enterprising young lawyer, without means, who obtained the names of
a number of persons that he claimed had subscribed stock to his
company. The law required twenty-five per cent of this stock to be paid
up before the company was entitled to do business. The gentleman, of
course, elected himself president of the company, and he drew his
drafts upon the supposed subscribers to stock for the twenty-five per
cent that the law required should be paid up, to constitute the capital
of the company. He took these drafts to B. F. Allen, then a prominent
banker in western Iowa and doing business in Des Moines, and deposited
his drafts and obtained from Allen a certificate of deposit for so much
money. This he exhibited to the Auditor of State, and upon the faith of
this certificate of deposit obtained authority to transact business.
His drafts were all dishonored so that he was proceeding to do business
without any capital whatever, and actually issued some policies. It was
only necessary to incur a loss to complete the bankruptcy of the
concern. Of course the foregoing is an extreme case, but it illustrates
how easily the law was evaded and how absolutely necessary it was to
have a strict supervision of these companies that could incorporate
themselves under the general insurance company laws of the state.
Mr. Brown had been a soldier in the Civil War and had lost an arm in
its service, was very upright, and a downright man, and did not depend
upon his suavity of manner for his success in life. He was a man of
quick temper and abrupt manners, but was sensitive of his honor and at
all times conscious of his integrity of purpose. In pursuance of his
official duty he felt the necessity of strict supervision and a
thorough examination of the insurance companies of the state, that had
sprung up in almost every important town and city in the state, and the
officers and directors of the different companies were not paying much
attention to the detail of the affairs of their companies and would
generally entrust the business to the persons who had organized the
company and become its president and secretary. In selecting a person
who could make these examinations with fidelity and thoroughness he
deemed it necessary to engage some one who was not a resident of the
state and who would not probably be influenced by local or political
consideration in the discharge of his duties. He employed as chief
examiner of these companies a gentleman who resided in Chicago, and
whose reputation was beyond question as an expert, by the name of H. S.
Vail. This gentleman charged for his services twenty-five dollars a day
for the time actually engaged, and in addition thereto some five to ten
dollars for assistant accountants. The law provided that the expenses
of these investigations should be approved by the Auditor, and upon his
certificate the several companies examined were required to pay the
bill. These examinations proved to be very expensive in some cases, and
perhaps in a few cases an unnecessary burden and expense to the
companies, but the real cause of complaint was that the expert found
many irregularities, and without fear or favor, reported them in
writing to the Auditor for his action. In one case the president of an
insurance company had been electing his board of directors by stock
issued to himself, upon which he had not paid a dollar into his
treasury, and was paying himself out of the limited income of the
company the handsome sum of ten thousand dollars a year as president,
and his son-in-law three thousand dollars a year as attorney of the
company. In a number of cases the president of the company was found to
have issued to himself stock upon which he had not paid a dollar, and
the Auditor required all of these and many other like delinquencies to
be corrected.
He was visited by the friends and attorneys of these officers who were
thus disturbed in their operations, and the Auditor was not found to be
a very complacent or accommodating individual, but on the contrary an
outspoken, determined, and unyielding man in the discharge of what he
conceived to be his duties. The last resource of these afflicted
insurance officers was an appeal to Buren R. Sherman, then Governor of
Iowa, formerly filling the office of Auditor of State and under whose
administration these insurance men had been undisturbed. He found Mr.
Brown equally obdurate and unwilling to palliate or in any way overlook
the delinquencies of these insurance companies, but he determined to
afford his friends some relief, and upon the re-election of Mr. Brown
as Auditor of State in the fall of 1884, he sought an excuse for
refusing to approve of the official bond that Mr. Brown presented to
him and which was necessary to the qualification of the Auditor for his
second term of office. The first pretense of Sherman for refusing to
approve the Auditor's bond was that Mr. Brown had not complied with the
law in making report to the Treasurer of State as the law required of
the fees of his office. As it turned out in the evidence on the trial,
and as Sherman well knew the fact to be, the fees of the office had
been reported and accounted for as the statute required, save only that
the aggregate amount of the fees as shown by the fee-book in the
Auditor's office had been reported and accounted for at the end of each
month, and the details specifying from what source each item was
received was not copied from the fee-book in the Auditor's office and
filed with the State Treasurer. In addition to this the Governor also
obtained information from a discharged clerk in the Auditor's office
that the clerks in the office frequently received compensation of small
sums for giving information and collecting statistical matter at the
request of individuals where no official duty was enjoined by law upon
the Auditor or his assistants and no fee was prescribed. As no account
was kept of these small sums of money and they were paid to the clerk
who did the voluntary work for persons requesting it, no statement
could be made of the amounts or dates, or the services rendered.
In the meantime the controversy spread, the insurance companies through
their officers and agents taking an active part as against Mr. Brown,
and Mr. Sherman becoming more and more arrogant. He finally determined
to remove Mr. Brown from office.
We had upon the statute book a law whereby the Governor of the state
was authorized to suspend a subordinate officer, if indeed there was
any such thing as a subordinate officer under our constitution, by
appointing a commission to examine his books and papers and the affairs
of his office, and if, upon making such report to the Governor, it was
apparent that the public safety required a suspension of the officer
from official duties, he might issue such order of suspension. Sherman
found three men willing to do his bidding in this respect and appointed
them commissioners to examine the affairs of all the state officers.
The commissioners understood that this meant only Brown and meant only
that they should put into form Sherman's side of his controversy with
the Auditor. The committee accordingly performed what was required of
them and reported to the Governor that the public safety and public
good required the suspension of the Auditor. They reported no facts in
addition to those already recited in regard to the money received by
the clerks in the office for matters outside of their official duties,
save and except fees paid by certain banks for bank examinations under
the law, for which no fee was provided by law, and which they advised
the Governor that the Attorney General claimed did not belong to the
state treasury, but were illegally charged and paid. They also informed
the Governor that in the year of 1883, the correspondence notifying the
Auditor of the requirements of the insurance companies in regard to the
appointment of agents had been destroyed. As all of these appointments
were matters of record and the fees for their issuing were also
regularly entered upon the books of the Auditor, this was one of the
extraordinary finds of this extraordinary committee. They also advised
the Governor in this report that the law required the reports of fees
should be sworn to, and their interpretation of the law was that the
Auditor himself should have made the affidavit, and instead thereof it
was made by a clerk in the office.
Upon this remarkable report of this remarkable commission Sherman at
once made an order, not suspending but removing Mr. Brown from office,
and appointing J. W. Cattell, formerly Auditor of State, to take his
place. Mr. Cattell was in no very great haste to do this, but after the
order was served by the sheriff upon Mr. Brown he very wisely entered
into a negotiation with Brown to see if the difficulty could not in
some way be adjusted, and have Brown make such reports to the Governor
as would be satisfactory. Mr. Cattell was an honorable and honest man,
and really desired that these matters should be satisfactorily
arranged, but this was not the purpose of the Governor as manifested by
his conduct, and he determined to have his own way. He accordingly
filed information before a justice of the peace accusing Brown of a
misdemeanor in holding the office after his order of suspension or
removal, and upon this affidavit he obtained a warrant for the arrest
of Mr. Brown. The constable served the warrant upon Brown, and Mr.
Brown was about to give bond for his appearance to answer the charge,
when the Governor, having previously ordered and arranged with the
Adjutant General so to do, appeared with an armed force of the
Governor's Guards, so-called, who, with set bayonets and loaded muskets
took charge of the Auditor's office. Hearing that something of an
extraordinary nature was transpiring at the capitol, I left my office
and went over to the state house to see what could be done for my
client, and was proceeding to the Auditor's office when I was stopped
by two of the soldiers crossing bayonets in front of me, one of them
cocking his rifle and threatening to shoot me if I proceeded any
further. Fortunately the captain commanding the squad had a little
sense left and told the soldier to put up his gun, and so my life was
saved. The Governor in addition to the use of the militia as above
recited, also employed ex-Governor William M. Stone to assist Mr.
Galusha Parsons, and they filed a petition in the name of Jonathan W.
Cattell against John L. Brown in the district court of Polk county
under the provision of the statute for proceedings in "quo warranto" by
which the right and title to an office could be tested. We were
fortunate in having for district judge at that time William Connor, a
good lawyer and an honest man. Mr. Parsons and Governor Stone attempted
upon the presentation of their petition to get some peremptory order
for the removal of Mr. Brown from office, but the court called their
attention to the express provision of the statute that he had no
authority to make any order in the premises until the final trial, and
that the case must go upon the docket and be tried upon its merits
before any order or removal could be made. Upon the impeachment trial
Sherman under oath denied that he had employed counsel to commence this
suit, and Mr. Cattell testified that he had nothing to do with the
employment of any counsel to bring the suit. The suit was finally
dismissed, nobody appearing to care about any investigation of the
merits of the proceeding. We accordingly had Mr. Brown, who had given
bail, surrender himself to his bondsmen, and we applied to the supreme
court of the state, then sitting at Davenport, for a writ of habeas
corpus to test the constitutionality of the statute under which,
without trial and without investigation and without hearing, the
Governor had attempted to deprive Mr. Brown of his office. The supreme
court decided this case at the Dubuque term in 1885, Seevers, judge,
delivering a dissenting opinion, and Beck, judge, taking no part in the
decision as he was not present at the submission of the cause. Adams,
judge, delivered the opinion of the three remaining judges; to-wit,
himself, Rothrock, and Reed. The majority of the court held that the
law under which the Governor acted did not authorize any removal from
office, and that it was only constitutional upon the hypothesis that
Brown should have a hearing and trial. The dissenting opinion of Judge
Seevers holds that as the law made no provision for any hearing or
trial, and the suspension was for an indefinite time and might at the
pleasure of the Governor be perpetual, it was therefore void and did
not authorize the proceedings. Thus matters stood until the fall of the
year 1885, when the people elected William Larrabee as Governor instead
of Sherman, whose term of office would expire on the first of January
ensuing.
The presumption indulged in by the majority of the court in its opinion
that Mr. Brown's removal from office was only a temporary suspension,
and that the Governor certainly would give him a hearing as to the
matters complained of and found by the special commission, is made to
appear more absurd by the subsequent action of Mr. Sherman himself,
who, on the 9th of December, 1885, made the following entry in the
executive journal, and assumed to appoint J. W. Cattell to fill what he
was pleased to call a vacancy in the office of the Auditor of State.
The entry is as follows:
DECEMBER, 9, 1885.
Whereas, at the general election held on the 4th day of November,
1884, J. L. Brown was re-elected to the office of Auditor of State;
and
Whereas, the said J. L. Brown, re-elected as aforesaid, neglected
and refused to qualify as such re-elected officer, and because
thereof his official bond as such officer was not approved nor
filed, and continued in such refusal until the 3rd day of March,
1885, and unto this time, and on account thereof on the day last
aforesaid Jonathan W. Cattell was duly appointed as Auditor of
State and immediately qualified by giving bond and taking the oath
of office as required by law, which said bond was duly approved
according to law; and
Whereas, at the general election held on the 3rd day of November,
1885, there was no person elected to the said office of Auditor of
State, as ascertained by the official canvass this day concluded by
the state board of canvassers; and
Whereas, it is incumbent upon me to fill the vacancy in said office
now held under appointment; therefore
Jonathan W. Cattell is hereby appointed Auditor of State, to have
and to hold the same until the next general election in November,
1886; and upon his qualifying thereto by giving bond and taking the
oath of office, as required by law, he will be obeyed and respected
accordingly.
BUREN R. SHERMAN
A legislature was elected that fall, and as the only opportunity for a
hearing and a vindication of Mr. Brown, he sent a communication to the
house of representatives requesting an investigation and an
impeachment, to the end that he might have a trial before the senate.
The insurance agents of the state who had been wounded by the
investigation of their affairs, Sherman and his political adherents
filled the lobbies of the legislature, and were anxious also for
Brown's impeachment. Finally the house of representatives brought in
articles of impeachment, containing thirty counts, and the senate
ordered Mr. Brown arrested and brought before them for trial. As I had
been Mr. Brown's counsel throughout all of these difficulties, he came
to me for aid and wished me to act as his counsel. In the meantime he
had received a number of letters from "Tom, Dick, and Harry" throughout
the state, lawyers who wished to do some cheap advertising of
themselves, offering to attend to his case without compensation. I told
Mr. Brown that I would undertake his case on condition that I might
select my own assistants. I realized that the court, to-wit, the fifty
senators then entitled to seats in the senate, was of rather peculiar
construction. We had in the first place a large majority of
republicans, but we also had a number of very able and influential
democrats in the senate. We had some Germans and some opposed to
prohibition. It was necessary, in selecting attorneys, to consult the
peculiar constitution of the senate and its make-up, and political
partialities and proclivities. Mr. Brown agreed to my terms and I named
Mr. J. C. Bills, of Davenport, and Mr. Fred W. Lehmann, of Des Moines,
as the attorneys I desired to assist me in his defense. Mr. Lehmann was
an excellent lawyer and a rising young man, very popular at that time
with the democrats of the state. Mr. Bills was then nominally a
republican, but had opposed the prohibitory law and stood well with
that political element, besides being a good lawyer.
Acting upon my theory as to first impression, I made an opening
statement to the senate giving them a very careful and detailed history
of the case, and of the facts that we expected to prove upon the
several counts of the indictment or impeachment. In addition to these
two counsel we also had the assistance of E. S. Huston, of Burlington,
a relative of S. F. Stewart, the deputy auditor. Mr. Huston especially
looked after and cared for the interests of the deputy during the
trial. The managers upon the part of the house of representatives were
Messrs. S. M. Weaver, John H. Keatley, L. A. Riley, G. W. Ball, J. E.
Craig, R. G. Cousins, E. C. Roach. The trial continued about three
months. I found I had made no mistake in selecting my assistant
attorneys. We had a room set apart for us in the capitol, where we were
in counsel arranging the program for the day's work before the senate,
and assigning to each attorney his particular share of the work of the
day. I always dreaded in coöperating with attorneys in the trial of
causes, having some one to assist me who would be an annoyance and a
drawback rather than a help, but I found in Mr. Lehmann and Mr. Bills
two good lawyers and men of good judgment and discretion, and we had a
most agreeable as well as a successful time of it on our side of the
trial table.
The trial had not progressed more than a few weeks before we were able
to turn the tide of feeling and sentiment in our favor, or rather in
favor of our client, and the case, instead of being a prosecution of
John L. Brown, actually became an exposure of the petty tyranny and
foolishness of Buren R. Sherman, and the managers on the part of the
house were forced into the position of recognizing Sherman as their
client and recognizing the necessity of defending his conduct rather
than of convicting Mr. Brown of any serious offense against the law.
It also was apparent before we had proceeded very far in the case that
the managers of the prosecution did not entirely agree from time to
time between themselves as to the part that each should take in the
proceedings. Some of the men had evidently hoped to make a great
reputation for themselves as lawyers, and were being disappointed in
the result as to that particular.
We had one serious hindrance and drawback in our case. F. S. Stewart,
the deputy auditor, proved a very heavy load to carry. He had many
winning ways by which he made no friends, and his conduct proved him to
be a greedy, grasping man, and if the impeachment had been against him
instead of Mr. Brown we should have found "Jordan a hard road to
travel." In addition to his regular salary he had drawn a very
considerable sum of money for extra pay and compensation for work he
had done in the Auditor's office, as he claimed, out of regular hours.
He had also collected as bank examiner from the various banks he
examined a considerable amount of fees for which there was no provision
or warrant of law, and had taken the money to his own use. The only
serious charge against Mr. Brown and the only one from which we
apprehended any danger, grew out of the examination of the Bremer
County Bank, situated in Waverly, Bremer county, Iowa. That bank had
for its rival another bank in the locality, that probably would have
profited by having it go out of business, and they were entirely
disappointed and dissatisfied because the examination of the bank by
Mr. Brown in person and by an assistant proved the bank to be a solvent
concern. After the examination of the bank and after Mr. Brown had
given in for publication a certificate of their solvency, and without
any previous request for compensation or suggestion of payment from any
source, the cashier of the bank had paid to Mr. Brown voluntarily the
sum of one hundred dollars as compensation for his extra services and
expenses during the investigation of the affairs of the bank.
The charge in the articles of impeachment was that this was a bribe to
Mr. Brown that had induced him to certify fraudulently and falsely to
the solvency of the bank. We proved beyond controversy that the bank
was solvent and continued to be so for several years after the
investigation, and that the certificate of solvency given to it was
just and right and proper, and there was no foundation for the charge
that it was given from any corrupt motive. This matter of the Bremer
County Bank did not constitute any part of the original trouble or
accusation against Brown by the Governor, but it was trumped up by
Brown's enemies and was soon gathered in by the Governor's "muck-rake."
After all the evidence had been put in, both upon the part of the
prosecution and the defense, there remained one important question for
us to decide--as to whether or not we would put Mr. Brown upon the
stand as a witness in his own case. The only thing we had to fear from
our client as a witness was his sensitiveness and pride and his
determination to resent any insult or imputation against his honesty
and integrity in office. We knew he had some enemies in the senate who
were at the same time his judges and were to vote upon the question of
his guilt, and these senators had the right to ask him any questions
upon cross-examination they might see proper. It would not do for his
counsel to object to the relevancy or propriety of any questions that
might be asked, as it might appear if we did so that we had something
to hide or from which to shield our client. We had a long conference
with Mr. Brown before we decided what course to pursue upon this
question of making him a witness. He continued to vow to us that he
would not consent to submit to any insulting interrogatories, no matter
from whom they came, and that he would talk back if any such were
propounded. I finally had a private conference with Mr. Brown and urged
upon him the absolute necessity that if he went upon the stand as a
witness, of being perfectly cool and dispassionate and not manifesting
any passion or resentment toward any of the senators who might question
him. After a long conference upon this point, he finally promised me
that he would do his best to suppress his indignation and his feelings,
and would quietly answer any questions that might be asked him. The
next day we put Mr. Brown upon the stand as a witness, and to his
credit it may be said that he behaved himself most admirably, and won
the respect and esteem of the senate by his dignified and courteous
behavior.
The constitution of the state required, in order to convict the
defendant, a vote of guilty by two-thirds of the members of the senate.
Instead of this the highest vote against the defendant upon any article
was fifteen votes, or less than one-third, and upon the first, second,
third, fourth, and fifth articles that embraced the original
controversy with Governor Sherman, upon which he refused to approve the
Auditor's bond and appointed his subservient commission, there was not
a single vote of guilty against the Auditor, but he was unanimously
acquitted. Upon several of the articles it appears that some of the
senators voted "guilty" upon a very slim and unwarranted basis. For
instance one of the articles of impeachment was against the Auditor for
drawing a warrant in behalf of his clerk for the month's salary, the
warrant specifying the particular section and chapter of the law that
made an appropriation for the purpose of paying this clerk. The fact of
the service being within the personal knowledge of the Auditor, and the
receipt of the clerk being upon the stub of the warrant issued, and yet
the managers insisted that there ought to have been a paper filed
stating the account as between the clerk and the Auditor, and because
it was not drawn out and filed among the papers of the office, six of
the senators voted to find him guilty and to impeach him. It was a mere
technicality, extremely, finely drawn out, and showed a disposition to
try and ruin a man and his reputation without conscience or any regard
to their duty as men and their oath as senators. The vote of fifteen
upon the Bremer County Bank question against the Auditor may be
justified upon the theory that a public officer situated as the Auditor
was, having an important duty to perform, should not accept of any gift
or favor or money that might be construed as something he had hoped for
or expected when he performed his official duty. The act of receiving
the money under the circumstances, though not criminal, was one of
those acts of doubtful propriety that could scarcely be justified in a
public officer.
The acquittal of Mr. Brown was beyond question a righteous and just
act. Governor Larrabee, the newly elected Governor, had already
restored Mr. Brown to his office and discharged the appointee to fill
the created vacancy, and the people of the state retired Mr. Sherman
from public employment permanently. After retiring from office he
engaged in managing an insurance company at his former place of
residence in the state, in which he was unsuccessful.
The state of Iowa paid to the attorneys in the case selected by Mr.
Brown the sum of six dollars a day. I charged Mr. Brown, however, one
thousand dollars for my entire services in connection with his
impeachment, and he gave me his note for the balance, deducting the
amount I had received from the state. This note was signed by S. F.
Stewart. Some months afterwards I received from Stewart's wife a very
remarkable letter, full of tears and sympathy for Brown, begging me to
remit the amount on the note as Mr. Brown was poor and had been much
wronged and abused. I ascertained that Stewart at or about the time he
signed the note, had obtained from Mr. Brown a transfer to some
valuable stock in the _Iowa Homestead_ newspaper at much less than
the real value of the stock, and that they had counted the amount due
me on this note as part of the consideration of the transfer.
Estimating Mrs. Stewart's sympathy for Mr. Brown at its true value, I
insisted on my note being paid in full, which Mr. Brown cheerfully did.
Mr. Brown was further vindicated by the subsequent action of the
general assembly of the state in making a reasonable appropriation to
reimburse him for his expenses and attorney's fees paid out in making
his defense against the articles of impeachment. The result of the
investigation before the senate also had a very beneficial effect upon
the home insurance companies in that it gave public confidence as to
their solvency, and gave assurance that the proper department of state
would make the investigation of their transactions from time to time
thorough and real, and not as before merely nominal.
CHAPTER XV
MORE LAW CASES
In the summer of 1874 the city of Des Moines was thrown into a state of
considerable excitement by the fact of finding the body of a murdered
man on the sidewalk near the corner of Walnut and Second street. There
was a house of bad repute in the vicinity, and the coroner's jury made
a thorough investigation, seemingly as far as practicable, as to the
cause and origin of the death. The inhabitants of the house referred to
were examined under oath, and the women who boarded there denied any
knowledge whatever of the cause of the man's death. The Governor of the
state offered a reward of five hundred dollars for the discovery and
conviction of the murderer. At the next session of the grand jury of
Polk county two of the women boarders at the house of bad repute
referred to, and who had denied all knowledge of the murder, appeared
before the grand jury and testified with much detail that Charles
Howard, a man who had frequented their house, had been guilty of the
murder and had carried out the dead body and laid it upon the sidewalk.
The grand jury indicted Howard accordingly for murder in the first
degree. The trial came on at the December term of the Polk county
district court, and in view of the public excitement, which was largely
kept alive by the daily press, Howard, by his attorney, made a motion
for a change of venue on the ground of prejudice of the inhabitants of
the county. Under the peculiar provisions of our statute, counter
affidavits were permitted for the purpose of showing that there was no
feeling in the community that would prevent Howard from receiving a
fair trial. The sheriff informed me that in walking two squares from
the court house he had met two hundred men who were willing to sign
such counter affidavits, and had obtained a large number of them, which
were filed accordingly. The district judge, H. W. Maxwell, overruled
the motion for a change of venue, and the trial proceeded. The only
testimony introduced in the conviction of Howard was that of the two
bad women who had testified before the coroner's jury that they had no
knowledge whatever in regard to the killing of Johnson. I was not
personally engaged in any way as an attorney in this case, but about
ten o 'clock at night after the jury had retired to consider their
verdict, Judge Maxwell sent for me to come to the court house for
consultation. I found he had also sent for a like purpose for Mr. D. O.
Finch, one of the oldest members of the Polk county bar. The judge
advised us that the jury had not agreed upon their verdict, but that
some one had through the bailiff sent a note in to the jury room
threatening the jury with violence in case they failed to convict the
defendant. Judge Maxwell was much excited and asked Mr. Finch and
myself what he ought to do under the circumstances. We advised him by
all means to have the defendant conveyed for safe keeping to some place
outside of the county, in charge of the sheriff, and to have it done
secretly and immediately lest the mob might seize the accused and
commit violence. We also advised him to discharge the jury from a
further consideration of the case, as their verdict found under the
influence of threats would be worthless, and that he ought also in
vindication of his own court to thoroughly investigate the question as
to who was guilty in sending or permitting a threat to be communicated
to the jury. Instead of being influenced by our advice Judge Maxwell
had the jury brought into the courtroom for further instructions, and
told them that great excitement and feeling prevailed in the community
in regard to the case, and that it was important that the jury should
not disagree but should find a verdict in the case. The next morning
the jury brought in a verdict of guilty, and the defendant waiving time
for sentence, Judge Maxwell had the prisoner brought into court. The
courtroom was crowded by an excited mob, and the judge took occasion to
harangue the prisoner, denouncing his conduct in the most vehement
manner. He then sentenced the prisoner to imprisonment in the
penitentiary for life. That night the excited mob broke open the jail,
took the prisoner from his cell with a rope tied around his neck, and
hung him to a lamp post in the court house square. The opinion of most
of the persons who paid any attention to this trial was that there was
no reliable evidence of Howard's guilt, and that the probabilities were
that the whole case was manufactured for the purpose of securing the
reward offered for his conviction. Whether or not the reward was ever
paid I have not been able to ascertain, but certain it is that the
cowardice of the court and the indiscretion of the public press were
responsible for the murder of a man who, to say the least of it, was
never proved guilty by any competent evidence.
We had among the distinguished judges that acted as teachers in our law
school at Transylvania University a very eminent jurist who sometimes
when he felt merry treated the class to that which was not only
instructive but also entertaining. On one occasion he delivered to the
class the following:
Young Gentlemen: You will find that the general principles of the
law are few and easily comprehended, but in their application to
the ever-varying transactions of human life the best of minds will
differ, hence arises what we denominate the glorious uncertainties
of the law whereby we have our bread.
The case that I am about to cite would satisfy the most credulous that
there are other causes that produce uncertain results besides the
difference in applying the general principles of the law to different
cases.
Section 3, article XI of the constitution of the state of Iowa,
provided as follows: "No county or other political or municipal
corporation shall be allowed to become indebted in any manner or for
any purpose to an amount in the aggregate exceeding five per centum on
the value of the taxable property within such county or corporation, to
be ascertained by the last state or county tax list previous to the
incurring of such indebtedness." In November, 1870, the taxable
property, real and personal, within and subject to taxation by the said
city of Des Moines, as ascertained by the last state and county tax
list, amounted to the sum of $3,140,805 and no more, and that five per
centum on said amount was only the sum of $157,040.25. In the month of
May, 1869, the city had by ordinance authorized the issuing of bonds to
the amount of $50,000 for the purpose of funding outstanding warrants,
and afterwards in May, 1870, they had enacted a further ordinance
authorizing the issuing of bonds for funding outstanding warrants on
the city treasurer to the amount of $75,000, all of which bonds had
been duly issued and were outstanding at the time of the commencement
of the suit hereinafter mentioned. In addition to these bonds
aggregating $125,000 there were also outstanding warrants upon the
treasury to the amount of $55,000, making an aggregate indebtedness of
the city $180,000. On the 7th of July, 1870, the city passed a further
ordinance authorizing the issuing of bonds to the amount of $130,000
for the building and repair of certain bridges across the Des Moines
and Raccoon rivers, thus exceeding the constitutional limit upon the
city's indebtedness.
George Sneer, a citizen and taxpayer of the city of Des Moines, applied
to me to bring a suit to test the validity of this last bond issue of
$130,000, informing me that the bonds had been placed in the hands of
B. F. Allen, then a banker of the city of Des Moines. I informed him I
was willing to take the case provided that the suit should be
maintained in good faith, that I was satisfied that the bonds were
absolutely void whether in the hands of Allen or any other person,
being issued in plain violation of the constitution of the state, and
that every person purchasing any evidence of indebtedness against the
city was bound to take notice of the existing indebtedness of the city
and was charged with knowledge thereof, as it was a matter of record
and easily ascertained. Mr. Sneer informed me that he desired the
question of the validity of the bonds tested in good faith, and that if
I undertook the case I might prosecute it to the end. He contracted to
pay me the sum of two hundred dollars for my services, and I
accordingly prepared the bill for a perpetual injunction against the
city council, city treasurer, and B. F. Allen. No one was made
defendant to the petition except Allen and members of the city council
and the city treasurer. Answers were filed by Mr. Withrow for B. F.
Allen and by Seward Smith, his partner, for the city of Des Moines and
members of the city council, and the case was submitted on bill and
answer. There was no denial of the facts set forth in the petition in
regard to the indebtedness of the city, nor did anyone appear in the
case claiming to be bona fide purchasers of the bonds, but the answer
of Allen was to the effect that he acted as agent for the city and had
sold the bonds to one George P. Opdike & Co. of New York City. Maxwell
was judge of the district court, and to my surprise entered the
following decree in the case:
This cause coming on for final hearing on the plaintiff's petition,
and answer made thereto, and the defendant's answer and cross
petition, and thus heard upon the pleadings alone, and the court
having heard the argument of counsel, inspected the said record and
being fully advised in the premises, doth order, adjudge and
decree, that the plaintiff's bill be dismissed; that the bridge
bonds described therein be treated as in every respect binding
obligations of the city of Des Moines according to the tenor
thereof, and that the parties thereto and those in privity with
them be forever concluded from asserting or maintaining any defense
against the payment of said bonds, and the interest thereon, on the
grounds that the same were irregularly issued in excess of the
constitutional limitation upon the power of the said city to become
indebted; that the money now in possession of the defendant Allen,
be applied by the proper officers of the city of Des Moines to the
purposes for which the same was raised; and that the defendant have
and recover the costs herein taxed at ---- dollars, and that
execution issue therefor. To which plaintiff excepts.
Upon the rendition of this decree I immediately entered an appeal in
behalf of George Sneer, and perfected the same by filing the proper
abstract of record in the supreme court of the state. The cause was
submitted to the supreme court on printed arguments on April 4, 1871.
At the October term of the supreme court, being an argument term held
at Davenport at that date, the supreme court really decided the case by
an opinion written by Judge Beck in behalf of a majority of the court,
and the opinion was sent by Justice Day to the clerk about the time the
court was to adjourn, with orders to file the same, and Mr. Charles
Linderman, the clerk of the court, informed me that he had actually
marked the opinion "Filed," and that about the time that the filing was
completed Judge C. C. Cole, then one of the judges of the supreme
court, entered the clerk's office and filed with him a paper signed by
George Sneer dismissing his appeal, and that he entered upon the
records of the court the following entry: "On application of appellant,
it is ordered by the court that the appeal herein be, and the same is
hereby dismissed."
At the ensuing regular term of the supreme court held at Des Moines,
December 5, 1871, the following entry was made in the case: "At the
argument term held at Davenport in October last, on application of
George Sneer per se, appellant herein, the court ordered that the
appeal be dismissed." Before this dismissal either at Davenport or at
Des Moines Sneer had settled with me and paid me the fee agreed upon,
and I had nothing further to do with the case except to reproach him
for violating his agreement with me that I should prosecute the case to
a final result.
It appeared from the sequel that Judge Cole had also prepared a
dissenting opinion in the case, and these two opinions, that written
by Judge Beck as the opinion of the court, and the one written by
himself were both published in the _Western Jurist_ the ensuing
January, the one marked "B" and the other marked "C," but suppressing
the fact that the opinion marked "B" was the opinion of a majority of
the court, and that none of the judges, except Judge Cole, agreed with
the opinion marked "C;" and having the following extraordinary note
printed in connection with the opinions, Judge Cole being then the
editor of the _Western Jurist_: "These two articles, this and the
following which advocates a different view of the same question, are
from members of the profession in Iowa occupying equal prominence
before the public, and whose opinions are entitled to consideration."
Whilst these opinions do not give the detail of the case that was
submitted to the court and to which they relate, yet by carefully
reading them you can easily see that they refer to an actual
controversy that had been pending before the supreme court. The
supreme court of Iowa subsequently decided the question that was
involved in the case of Sneer vs. the City of Des Moines, establishing
the principle as applied to this transaction to the effect that the
bonds were absolutely void in the hands even of an innocent purchaser
if such had been the case. See
McPherson vs. Foster, 43 Iowa, page 48.
Mosher vs. Independent School Dist., 44 Iowa, page 122.
French vs. Burlington, 42 Iowa, page 614.
Andrews vs. Orient Fire Ins. Co., 88 Iowa, page 579.
Holliday vs. Hildebrandt, 66 Northwestern Reporter, page 89.
The dismissal of the appeal by Sneer left the decree entered by Judge
Maxwell in full force as though no appeal had ever been taken, and the
parties procuring this result, after they had full knowledge of the
fact that the majority of the judges of the supreme court held the
bonds void, are fully entitled to all of the credit that their conduct
merits, and I only record the matter here as a matter of history and as
vindication of myself and to exonerate myself from any responsibility
for the final result, as I had no knowledge of the dismissal of the
appeal until long after the thing was done.
I have within the past few weeks examined the archives of the supreme
court, and find that the original opinion of the court written by
Judge Beck signed "B" and printed in the _Western Jurist_ (see Vol.
VI-1872) cannot be found, and also the paper signed by George Sneer
dismissing the appeal is missing from the files of the court. I
presume the city council, as they had by their attorney asked to be
enjoined from disputing the validity of these bonds, had obtained a
decree against themselves to that effect, very willingly paid the
bonds when they matured, but of this I have no actual knowledge.
CHAPTER XVI
BIRTH OF A SON AND PERSONAL INCIDENTS
Leaving the history of political and professional for the present, it
will now be necessary to revert and give in some detail matters more
personal and affecting more nearly my own private life. I have already
given an account of my marriage and removal to Des Moines.
On the 18th of February, 1863, my wife and myself were made happy by
the birth of our only child. This hope deferred came after ten years of
waiting. Whilst the child was still an infant I was compelled to be
absent on professional business at Indianola in Warren county. I
concluded my business as soon as possible and hurried home, feeling an
unpleasant premonition that everything was not all right with the
mother and the child. Heavy rains had swollen the streams between
Indianola and Des Moines, and as I approached the small bridge crossing
the creek about four miles south of Des Moines, I found the water
running several feet deep over the floor of the bridge. I knew this
made the passage very dangerous because frequently such floods took
away the flooring and made it probable that the horse and buggy in
which I was riding might be cast into the flood of the stream. After
some hesitation, however, I determined to take the risk and plunged
into the stream accordingly. I got safely over and was much relieved
when I found myself again on solid ground. I got home a little after
dark and found an old lady who had been employed as nurse to the little
one, who was squalling violently, engaged in trotting the infant upon
her knee, as my wife lay on the bed on the very verge of hysterics. The
next morning early I put out to find a nurse woman possessed of more
flesh and patience, and the domestic trouble subsided. The first six
months after the arrival of the little stranger my wife could scarcely
obtain an hour's consecutive rest. The normal condition of the child
appeared to be colicky. As I had to be engaged throughout the day in my
business we finally established a second bedroom and I divided the time
at night as well as I could with my wife, taking my turn at walking the
floor at "half dress." The child, however, proved a great comfort to us
and a pleasure, though for many months it was the pursuit of pleasure
under difficulties.
At the approach of the following year we were surprised by a visit from
the wife of Mr. Charles McMeekin, my wife's brother, who then resided
at Cincinnati, Ohio. His wife brought with her two children, a boy and
a girl, she herself being something of an invalid. It was very
difficult at that time, as it has been ever since, to obtain competent
domestic help, and after entertaining this lady and her two children
for several months I found it necessary to notify my brother-in-law
that situated as I was it was no longer convenient for me to entertain
his family, and they accordingly left us and went to live at a boarding
house kept by Mrs. Washburn on Fourth street. The next summer, at the
request of my wife, I consented to take one of the sons of her sister
Eliza, and I furnished the means for his transportation from Newport,
Kentucky, to Des Moines. I tried to give this boy instructions in
reading, writing, and arithmetic, but found him not inclined to study,
and especially disinclined to afford any help or assistance about the
house. He had been raised under the shadow of a peculiar institution
and had imbibed a strong prejudice against anything like work. After
worrying with him for three or four months and being unable to make
anything out of him, I sent him home to his mother.
In 1849 I purchased two lots on the northeast corner of Center and
Fifth streets and removed my old buildings from my place on Fourth
street to the lots so purchased, making some improvements on the
buildings. These lots and buildings I afterwards sold and built a new
house on the old place on Fourth street.
In the fall of 1877, whilst on a visit to Ohio, my half-brother,
Charles R. Nourse, invited me to a private interview in which he
disclosed the fact to me that he was engaged to be married and wanted
me to do something to help him start in life in some kind of business.
The young man had not improved his opportunities for an education and
had spent several winters doing farm work. Before I had left home on
that occasion Sylvanus Edinburn had proposed to exchange a small farm
that he had in the suburbs of the city, of eighty-eight acres, for some
property I had acquired in town. It occurred to me that I might help
the boy by making the trade for this farm, and I accordingly told him
if he would have his mother send an invitation to his intended to come
and take dinner with us, and I liked the looks of the proposed wife I
would do something for him. He readily consented to this arrangement,
as did also his intended, and as she appeared to be an industrious and
bright young woman I came home and completed the purchase of the farm
which I obtained a deed for in March, 1878. There was no building on
the farm fit to live in. I had the old house moved onto the barn-lot
and fixed up for a granary, and built a new house at the expense of
about fifteen hundred dollars. In the following spring Charles R. with
his bride put in an appearance and I settled them in their new home,
where they lived happily for a number of years, but finally after about
fifteen years that most fatal of all curses, strong drink, got
possession of the young man and he went to the bad.
In the year of 1875 while visiting my sister at Tuscola, Illinois, I
found her in possession of a very large and increasing family. I was
especially pleased with her second daughter, Rose, then a young lady
about twenty years of age, and suggested to my sister that if she would
consent I would take Rose home with me and help her to an education.
Accordingly in 1876 Rose came to Des Moines and made her home with us.
My oldest brother, Joseph G. Nourse, had died at Cincinnati, Ohio, in
March, 1863, and about the year of 1876 I had induced his widow with
her three boys to remove to Des Moines, her oldest daughter Susan
having previously married to Mr. J. A. Jackson. I had before that time
induced Mr. Jackson and his wife also to remove to Des Moines and had
given Mr. Jackson employment in my office as an assistant. I had also
built on Fourth street a one story cottage of three rooms and a
kitchen, which they occupied for a year or two.
After my niece, Rose Vimont, had been with us for probably a year I
became satisfied that she had not succeeded in winning the affections
of my wife. Dr. C. R. Pomeroy had been our pastor at the Centenary
Methodist church for several years and had removed to Emporia, Kansas,
and taken charge of the State Normal School at that place. As Rose
desired to prepare herself for a teacher I went with her to Emporia in
the spring of 1877 and placed her at the institution under the care of
Dr. Pomeroy and his wife, where she remained for twelve months, when
school was suspended by reason of a fire which destroyed the buildings.
Rose returned to Des Moines and the following year, 1878, she taught a
small school in the brick schoolhouse on the northwest corner of my
farm, and had a room and boarded with my half brother, Charles R.
Afterwards she obtained a situation in the public schools of the city
of Des Moines and became a very successful teacher, remaining in the
city some fifteen years or more.
Soon after the purchase of my farm, in order further to promote the
interests of my brother and give him employment, I became interested in
the purchase and raising of pure bred short-horn cattle, committing to
my brother the immediate supervision and care of them on the farm, and
building some extensive barns and other out-buildings. I subsequently
bought from George Sneer 126 acres of valuable land in section 20,
township 79, range 24, and afterwards in July, 1879, bought
thirty-seven acres adjoining the tract that I had purchased of
Edinburn, making a part of the home farm. I also bought adjoining the
same original tract eleven acres from a man by the name of Parks.
Subsequently I contracted with a man by the name of Miller to put down
a bore hole on my land near the barns, with the hope of procuring
artesian water for my cattle and a flowing well. In this I was
disappointed, but I required the man to keep an accurate journal of the
different strata through which he bored, and at the distance of about
140 feet below the surface he went through a valuable strata of coal
averaging from four and one-half to six feet in thickness. I
subsequently leased the right to take coal from these lands to the
Keystone Coal Company, under which lease they sunk a shaft and operated
a mine on the home place for about thirteen years. The royalty from the
coal during these thirteen years more than paid the original purchase
price of this land, which cost me originally only about fifty dollars
per acre.
About the year 1878 I received a letter from my old friend, Amos
Harris, formerly a resident of Centerville, Iowa, then living at
Wichita, Kansas, informing me of the death of a man by the name of
Loring, who had been a former client of mine, residing at Indianola,
Iowa. He stated that Mr. Loring had left a widow and some five little
children, all girls, the youngest an infant only a few months old, and
that the family was left in a destitute condition; that upon
questioning Mrs. Loring she had told him that I had transacted some
business as attorney for herself and husband, and had sold a house and
lot in Indianola that they had deeded to me, with a promise upon my
part that after paying certain debts for the collection of which I was
attorney, if there was anything left they should have it. I had
realized about one hundred dollars over and above the amount paid out
and I immediately sent Mrs. Loring fifty dollars for the relief of her
immediate necessities, and afterwards paid her the balance. Some four
or five years after this Mrs. Loring came to Des Moines, bringing with
her this young child then about four or five years of age, stating that
she had a short time before that married a man by the name of Gregory,
that he was a man of considerable means but refused to support her
first husband's children, that she wished to make some arrangement to
have this young child cared for, that she had already disposed of her
older girls among her relatives. I introduced her to Mrs. Winkley, then
a resident of Des Moines, who kept a school for small children and
boarded and cared for them, a lady to whom my son had been going to
school and who was held in high estimation by her many friends. Mrs.
Gregory, as she then was, arranged with Mrs. Winkley to leave her
youngest child with her to be cared for, and left with me some money to
pay Mrs. Winkley from time to time, and also any other expenses that
might be incurred in the care of the child. Mrs. Winkley lived on Third
street within a block or two of our residence, and I frequently had
this child visit our home. My wife seemed to be interested in the child
and became attached to her, as I did also myself. Along about the first
of February, 1882, Mrs. Gregory came into my office in Des Moines,
stating that she had come to take her child Susie, as she could no
longer afford to bear the expense of her keeping with Mrs. Winkley. I
asked her if that was the only objection to the child remaining where
it was, and she said yes, she was very well satisfied but she was then
separated from her husband and was not able to pay the expense incident
to the child's keeping in her present situation. I asked her if she had
any home to which she could take the child, and she said no, that she
had employment at some sanitary institution but it really was not a
home for the little one. Upon the impulse of the moment and without any
very considerable thought upon the subject and having no consultation
with my wife, I told Mrs. Gregory to leave the child where it was and I
would bear the expense of caring for her. My income from my practice at
that time was averaging about $10,000 a year and I saw nothing very
serious about this undertaking, but upon reporting it to my wife she
expressed herself very much dissatisfied. Upon further reflection I
feared that after the child became older the mother might claim its
custody, and for my own protection I wrote out articles of adoption and
sent it to the mother, which she duly executed and returned it to me,
surrendering to me the full care, custody and control of the child,
which articles were duly recorded in Polk county, Iowa, on the 8th of
February, 1882. After remaining for several years with Mrs. Winkley I
sent this child to Chicago to the school of Miss Rebecca Rice, where
she remained for a number of years and received a very satisfactory
education. The enterprise, however, of caring for and educating this
child was not a success. My wife imbibed a strong prejudice against her
and never received her as a member of the family. When she was about
seventeen years of age she became dissatisfied and I sent her to her
mother, who was then living in California. She did not remain with her
mother, but afterwards came back to me and by her own wish and desire I
arranged to have her taught telegraphy by the superintendent of city
telegraphs at Chicago. In the meantime I ascertained that while she was
in California she had engaged herself to be married to a man by the
name of Guldager. I tried to dissuade her from this early and
inconsiderate engagement but she had not learned the lesson of
obedience and was not easily controlled by good advice or counsel. Her
California lover furnished her the means and she left without my
knowledge or consent and went to California to him when she was about
eighteen years of age, and was married.
After the dissolution of my partnership with Williamson & St. John in
1865, I continued the practice of law without any partner in business,
receiving assistance from time to time from young men who were studying
law in the office or who were beginners in the profession. None of
these, however, proved entirely satisfactory.
About the year 1870 Benjamin F. Kauffman, then a young man recently
graduated in the law department of the State University, came to me
desiring a situation in my office. I had been so disappointed in the
young men who had preceded him that I hesitated about making any
further engagement in that direction. Judge George G. Wright, however,
who had been one of Mr. Kauffman's preceptors at the law school, warmly
recommended him and urged me to give him a position in the office. He
was entirely without means and I offered finally to pay his board for
six months and take him upon trial. He asked me what he could expect
after the expiration of the six months. I told him that after six
months if I found that I could get along without him I should
discontinue the arrangement. He replied that that was a very hard
proposition. I told him no, that he was a young man in good health,
full of energy, and if he could not make himself a necessity to my
business in six months there was no reason why I should continue even
to pay his board. He said if he accepted my proposition, what would I
do for him at the end of the six months. I told him that if he made
himself a necessity to my business so that I could not get along
without him, he would then be master of the situation and I thought
there would be no trouble about arranging terms that would be entirely
satisfactory to him. He came into the office accordingly and applied
himself diligently to business. I occasionally stated to him some
question involved in cases I had pending and desired him to examine the
authorities and make a brief upon the question involved. He proved to
be of very material assistance, very industrious, with a clear mind
capable of understanding and analyzing and applying the cases he found
in the books bearing upon the question under investigation. At the end
of six months I arranged a partnership with him and he continued in
that relation for seventeen years, with much profit pecuniarily both to
himself and myself.
In the year of 1874 I exchanged a lot that I owned on Center street
with Mrs. McCauley for property on Fifth street, taking the deed in the
name of the firm of Nourse & Kauffman, upon which we built the
subsequent year a two story brick building, occupying the south half of
the first story for our law offices. We subsequently bought from Thomas
Boyd the forty-four feet on the east end of this purchase, giving us
the entire forty-four south feet of lot 2, block 22, of the original
town, and in the year 1886 we built a four story brick building
covering the entire surface of the lot.
On the dissolution of my partnership with Mr. Kauffman I formed a
partnership with my nephew, Clinton L. Nourse, and we removed into the
new building and occupied the front rooms of the second story. Mr.
Kauffman in the meantime entered into partnership with one N. T.
Guernsey and occupied rooms on the fourth floor of the building.
About the first of January, 1880, I received information that my
father, who had removed to and was then residing at Reynoldsburg, Ohio,
was very ill and not expected to live. I immediately went to
Reynoldsburg. My father was still conscious and able to recognize me,
but was very nearly approaching the end. My brother, John D., who
resided then at Lancaster, Ohio, was in attendance upon my father but
unable to arrest the disease. On the 3rd of January my father passed
away. After his death in conference with my step-mother in regard to
her future, I found she was disposed to join her sister, Mary Herron,
in building a small house in West Rushville and making her home there.
I was satisfied that this arrangement would not last. My step-mother
was a self-sacrificing woman and I knew her sister's disposition was
very exacting. It was also arranged that my half-sister Mary should
live with them. When I bid my step-mother good-bye I told her that I
had no confidence in the permanency of the arrangement she had made
with her sister, but in view of her faithfulness to my father during
his old age I wanted her to feel that she should have a home, and if
the arrangement she had made to live with her sister did not prove
satisfactory, not to hesitate about advising me of the fact, and I
would provide her a home on the farm where her youngest boy Charles R.,
was then living. As I anticipated, after a few years I received
information that mother and sister Mary both desired to come to Iowa
and avail themselves of my proffered help. They came accordingly and
the first year resided with my half-brother Charles. Mother then had
about twelve-hundred dollars of the small means left, and I proposed to
borrow this money and build her a house which she should have rent
free, and I would pay her interest on the twelve-hundred dollars which
would enable her to live comfortably on the farm. I accordingly built
the cottage for herself and her daughter Mary, which they continued to
occupy for several years. In the meantime sister Mary taught a Sunday
School class in the neighborhood, and among her scholars was one Chris
Mathes. This rude uneducated boy, seventeen years younger than herself,
pretended to fall in love with her and on the first of January, 1889,
she became his wife. In March, 1896, my step-mother died, leaving what
little means she had to her daughter Mary, and what was left of the
money she had advanced to me for building the house she had occupied on
the farm, which I afterwards paid over to Mary in full.
CHAPTER XVII
BREEDER OF SHORT HORN CATTLE
My half-brother, Charles R., continued on the farm in my employment and
in the care of my short-horn cattle business until the year 1889, when
I sold out my entire herd. During the ten years I was in the business I
enjoyed the recreation and attention to my stock, finding it a great
relief from my nervous tension and anxiety incident to an extensive
practice of the law. Soon after I commenced the business I attended a
meeting of the short-horn breeders of the state at West Liberty, Iowa,
at which time there was organized a Short-Horn Breeders' Association of
the state of Iowa, and I was elected president of the association and
continued in that office for seven years and until I retired from the
business. In the meantime we had also organized a national association
at Chicago for the purpose of purchasing the short-horn herd books
published in New York, Ohio, and Kentucky, and establishing the
_American Short-Horn Herd Book_, which became the only authentic
publication of pedigrees of short-horn cattle in the United States. I
was made a member of this board of control and continued in that
relation for a number of years, until I declined a further election
because of my retirement from the business. Our board of directors
represented some eleven different states of the Union with one director
from Canada. Our annual meetings were held at the time of the annual
Fat Stock Show in Chicago, and the gentlemen with whom I was associated
in that capacity were among the most pleasant acquaintances I ever made
during my lifetime. I found them intelligent, broad-minded men,
entirely unselfish and devoted to the interests of the Association.
During my connection with the board we paid off the entire indebtedness
incurred in the purchase of the _Short-Horn Herd Book_ as theretofore
published by Mr. Allen of New York, and also the indebtedness incurred
in the purchase of the _Kentucky Herd Book_ and the _Ohio Herd Book_.
Our state association also met once a year in connection with the
Improved Stock Breeders' Association of the state. We generally wound
up these sessions of our meetings with a banquet given us by the
citizens of the place where we held our meetings. At these banquets we
had a number of toasts and speeches, rather of the humorous than of the
instructive kind. I give herewith a specimen that I find printed with
the proceedings of the association held at Ottumwa on the 4th day of
December, 1885.
The Short-horn and Improved Stock Breeders' associations of Iowa
were intended in a great measure by their founders as missionary
societies. It was contemplated that they would hold their
conventions in the smaller towns and more sparsely settled portions
of the state, where their discussions upon breeds and breeding
would educate the farmers around in these great and important
industries.
A feast like this in one of the thriving and finest cities of the
state is hardly consistent with this benevolent and
self-sacrificing purpose, and I have reason to fear for the
consequences; we may fall from grace. At a recent session of the
New York Annual Conference of the Methodist Episcopal church, it is
said that the bishop had great difficulty in satisfying the
preachers about their appointments. One of the elders gravely
informed the bishop, that the preachers in his district had two
ambitions; one was to get to heaven, and the other was to be
stationed in the city of New York, and if they were to miss either,
he thought they would prefer to go to New York!
Now I know many of these self-sacrificing gentlemen I see around me
have in the past of their lives been trying to do good, looking for
their reward largely in the next world; but I fear in the future,
when we come to fix the place of our next annual meeting, they will
forget the spirit of self-sacrifice and the world to come, and say,
"Let us go to Ottumwa!" [Great laughter.]
I wish I could express to the citizens of Ottumwa the genuine
appreciation that I know these my brethren feel for them. It could
not be otherwise than that they should love you. You have
appreciated us and we must ever appreciate you. Your example also
may be valuable to us; others may hear of your good works and may
be thereby moved to be equally mindful of our necessities.
[Applause.]
My first knowledge of Ottumwa was in the year 1851. It was then a
straggling village of one street lined on either side with wooden
shanties. It would have been impossible for me to have imagined
then that in a few short years, whilst I am yet a young man
[laughter], there should be built here a substantial city of
fifteen thousand inhabitants. This goodly town is indeed a proud
monument to the thrift, enterprise, intelligence, and taste of its
inhabitants. Its commercial and manufacturing interests, and its
tasteful architecture you may justly be proud of.
Iowa is indeed a remarkable state and her people a peculiar people.
We have but few drones in the hive. Our population is made up of
simply the young and the strong and the enterprising of the other
states that have come hither to build up their personal fortunes,
and who have at the same time laid well and strong the foundations
of a great state. There is scarcely a college or university of any
of the older states that is not well represented in our men and
women. We have come together here and what one did not know he has
learned from his next door neighbor. All have contributed something
to the common fund of knowledge and enterprise. We have now built
our own schoolhouses and colleges, and today we have a less per
cent of illiteracy than any other state in the Union. But there is
one burden on my heart and one thought I desire to express: What is
the future to be? Are we giving to the state the children that may
worthily fill our places and take up and carry forward the work
that we have begun? The highest duty that we owe to the state is to
furnish to it in our children that perfect type of manhood that
will constitute its true glory. What signifies this accumulation of
wealth, these fine buildings, this beautiful architecture, if our
sons are to be profligates and the accursed saloon is to destroy
all the fruit of our toil. The time has come when as citizens and
as fathers we must seriously address ourselves to this problem of
our civilization.
I came to Iowa more than thirty years ago. I formed many warm
attachments among the young men, then just beginning life. I
remember the pride and hope that these young men and their then
young wives had in their children. As I visit the older towns where
these men have lived and won honorable distinction I have inquired
for their children. Alas! Too often it is a sad story and a painful
remembrance, and I have asked myself the question, is this always
to be so? And is there no help?
But enough of this; I forget I was not appointed to preach a
sermon, but to respond to a toast, and to express the appreciation
of these stockbreeders for your kindness. You have done well. The
scriptures exhort "that we should not be forgetful to entertain
strangers for thereby some have entertained angels unawares." Now I
am willing to admit that it would be a violent imagination that
would mistake one of these lusty stockbreeders for an angel. It
will probably be some time before even the pin-feathers will sprout
from their shoulder blades. But they are susceptible and under
proper influences and conditions I don't know what may happen. I
remember in the early days of Des Moines, when we were dependent
upon ourselves entirely for amusements, the ladies got up a public
entertainment consisting chiefly of tableaux. I had the honor of
officiating as stage manager. One representation was of a good and
an evil spirit, representing an angel and a devil. The ladies were
quite tardy in getting ready. I went into the green room to hurry
matters and found the ladies dressing [great applause and continued
interruption]. Do not interrupt in the middle of a sentence. I was
saying I found the ladies dressing the angel--a young lady to whom
they were attaching a pair of wings. I chided their delay and
unfortunately remarked, "that it took a long time to make an angel
out of a woman." The man who was to represent the evil spirit was
sitting by, all ready, with blackened face and horns, and one of
the ladies, pointing to him instantly remarked, "that it took but
little time to make a devil out of a man." Of course it is only a
question of time with all of this crowd. We all expect to be angels
but it will take time and good feeding.
I believe I have fully exhausted the subject assigned to me, to say
nothing of the audience. It is sad to have to make a speech when
you don't know beforehand what you are going to say and nobody
knows after you are done what you have said. Brethren we have cast
our bread upon the waters--and it has returned to us after many
days, literally and substantially.
I cannot conclude without thanking you for your quiet and
uninterrupted attention.
During my visit to Emporia, Kansas, with my niece, Rose Vimont, I found
a volume written by Alexander H. Stephens, evidently for the purpose of
justifying the attempt that had been made to destroy the government of
the United States by the disintegration of the government and the
establishment of the doctrine of the right of secession. That fall I
was invited by the president of the faculty of Simpson Centenary
College at Indianola, Iowa, to deliver an address at the college
commencement. I accordingly prepared with considerable care a lecture
upon the constitutional relations of the national and state
governments, in which I endeavored to combat the heresies contained in
Stephens's book, and the great truth that the national government was
not a compact between sovereign states, but was what it purported to
be--a government emanating from the source of all power: to-wit, the
people. The trustees and faculty of the college, after this lecture,
honored me by conferring upon me the degree of Doctor of Laws. This
lecture I afterwards delivered, upon the invitation of the president
and faculty of Drake University, before the students of that
institution, and also before the law class of the State University at
Iowa City.
About this time I also prepared and delivered on several occasions a
lecture upon the legal rights of married women, containing some sarcasm
and criticism upon the advanced legislation by which under our laws a
wife could bring suit in the courts and obtain judgment upon a
promissory note executed by her husband and payable to herself, citing
an instance in which this doctrine had actually been put in practice,
and remarking upon the right of the wife to issue execution against her
husband and cause a levy to be made upon his personal property for the
payment of the judgment, stating, however, that the law in its humanity
and pity for the husband had fortunately exempted the husband's wearing
apparel, including his pantaloons, from execution. This lecture I also
delivered, at the request of several local institutions in several
parts of the state.
CHAPTER XVIII
B. F. ALLEN'S BANKRUPTCY
On the 2nd day of January, 1875, the citizens of Des Moines were
startled by the news that the Cook County Bank of Chicago, Illinois, of
which bank B. F. Allen was president, had closed its doors. A meeting
of the citizens was called and held for consultation to ascertain what
effect this would have on the local affairs of our city. Impressions
seemed to prevail at first that the failure of the Cook County Bank did
not necessarily involve the failure of B. F. Allen or of his private
bank in the city of Des Moines, or of the National Bank of this city,
of which he was president. The great question before the meeting was to
ascertain "where we were at." A committee was appointed for that
purpose. I had the temerity to suggest that this committee could easily
ascertain what we all desired to know by examining the bills receivable
in Mr. Allen's bank. I was decidedly of the opinion that the Cook
County Bank had never failed and closed its doors while Mr. Allen
controlled the means to avoid such a result. Some months before this
time, on my return home from business out of the state, my partner, Mr.
Kauffman, informed me that he had purchased a certificate of deposit on
B. F. Allen's bank at a liberal discount from one J. C. Taylor. The
certificate of deposit was of recent date, payable twelve months after
date. It occurred to me a very strange performance that Mr. Taylor
should deposit fifteen hundred dollars in the bank and take a
certificate payable twelve months after date, and then go into the
market and sell such a certificate at a liberal discount. As I then
suspected, and afterwards ascertained the fact to be, Taylor had not
deposited fifteen hundred dollars in the bank, but had furnished the
bank his promissory note payable to the Cook County Bank and had
received in exchange for it a certificate of deposit payable twelve
months after date, and this note of Taylor's had been endorsed by Allen
as president of the Cook County Bank, and had been sent to New York as
an asset upon which to raise money. Fortunately this little transaction
coming to my knowledge induced me to remove my business from B. F.
Allen's bank and I lost nothing by his failure.
A short time after this; to-wit, about the 26th of January, 1875, a
gentleman from New York, to-wit, A. N. Denman, formerly a clerk in the
office of Allen, Stephens & Co., came into my office and put in my
hands for suit and foreclosure the following remarkable document:
NEW YORK, 18 NOV., 1874.
I hereby acknowledge the receipt of $465,000 of advances to the
Cook County National Bank of Chicago for my account, same being
made by Allen, Stephens & Co. in money, paper, and endorsements. I
have arranged with them for additional advances. In consideration
thereof I hereby grant and convey to Allen, Stephens & Co. by way
of mortgage and as security for such advances, all my real estate
of every kind and description, and wherever situated.
B. F. ALLEN.
This mortgage was not filed for record with the recorder of deeds of
Polk county until the 19th of January, 1875. On the 30th of November,
1874, it had been placed in a sealed package and intrusted to Mr.
Denman in the city of New York with sealed instructions and directions
for him to proceed with the package to Chicago and there await further
instructions. He was not even informed of the contents of the package
and was instructed not to open it until he received advices from New
York as to further proceedings.
When the people of Des Moines began to realize that B. F. Allen had
really become a bankrupt they were ready to believe almost any theory
that would exonerate him from the censure that he deserved in risking
the money of his depositors in wild and foolish speculation. One theory
promulgated and believed was that he had been deceived in the value of
the assets of the Cook County Bank when he purchased the same. On the
contrary the evidence taken in the suit to which I have alluded shows
that he did not pay a dollar of his own money for the stock of the Cook
County Bank. Several years before his failure and before his purchase
of the Cook County Bank, or a controlling interest in it, he had been
appointed by the United States Circuit Court of Des Moines receiver in
a litigation that had been commenced against the Chicago, Rock Island &
Pacific Railroad Company. As such receiver he had come into possession
of about $800,000 of bonds issued by the Rock Island Company. These
bonds he had hypothecated in New York City for money with which he
carried on his speculations, and as the time approached for him to make
settlement of his receivership he found it necessary to do something in
order to save the sureties on his bond. He accordingly went to Chicago
and in May, 1873, he purchased the controlling interest in the Cook
County Bank, giving a draft for the larger part of it on Allen,
Stephens & Co., and his note for the balance, all of which was
ultimately paid out of the money of the depositors of the Cook County
Bank. The funds that he came in control of by this means enabled him to
settle his receivership. Mr. Allen, in his testimony in the case
referred to gives the following account of his losses by speculation:
As a member of the firm of B. F. Murphy & Co., Chicago $200,000
H. M. Bush & Co., Grain Speculation 75,000
Lewis & Stephens, speculators (grain) 30,000
Swamp Land speculation 18,000
San Pete Coal Co. of Utah 18,000
Denver Coal Lands 5,000
Kentucky Lands 25,000
South Evanston property 40,000
Building on So. Evanston property 40,000
Sheffield near South Chicago 32,000
Grand Pacific Hotel stock 10,000
Prairie Avenue Residence 31,000
Chicago Railway Construction Co. 10,000
Canada Southern Railway Co. 60,000
Toledo, Wabash & Western R.R. Co. 35,000
Speculation Stock Exchange 150,000
These losses only foot up $779,000, whereas in truth and in fact the
depositor's accounts in his private bank in Des Moines alone amounted
to $800,000 at the time of his failure, and his indebtedness to the
Charter Oak Life Insurance Company for money procured by Blennerhassett
from that institution amounted to over one-half million dollars, and a
draft of the Iowa State National Bank $100,000 not credited to that
bank until after the failure. In May 1874, one Warren Hussey, of Utah,
visited Blennerhassett & Stephens in New York City and induced them to
procure a pretended loan of $400,000 from the Charter Oak Life
Insurance Company, then represented by its vice-president, a man by the
name of White. The money was advanced as a pretended loan to one
Matthew Gisborn without any security whatever save the personal
security of Gisborn & Hussey, with a private understanding that Mr.
White and Messrs. Blennerhassett & Stephens should have the benefit of
anticipated dividends on the stock of the mine, a large share of which
was in the hands of Warren Hussey for his commission as procurer; in
other words, it was a speculation on the part of Allen, Stephens & Co.
and White, the vice-president of the Charter Oak Life Insurance
Company, being one of the causes of the failure thereafter of the
Charter Oak Life Insurance Company, as the stock proved to be entirely
worthless and the security of Gisborn & Hussey was of no value
whatever. On April 22, 1875, B. F. Allen was adjudged a bankrupt on the
petition of his creditors filed on the 23rd of February, 1875, and Hoyt
Sherman, of Des Moines, was appointed assignee in bankruptcy. Mr. Jeff
S. Polk and Mr. Bisbee, an attorney of Chicago, were employed by the
assignee in bankruptcy to defeat the suit for the foreclosure of the
mortgage. The main ground of defense to this mortgage was that at the
time of its execution there was an agreement between Allen and Stephens
& Blennerhassett that it should be withheld from record, and that
between the time of its execution and the time that it was recorded
Stephens & Blennerhassett represented that Allen was solvent and
possessed of large properties in real estate, and they caused him to be
rated by the commercial bureaus of the country as worth one million
dollars, and at the same time knew that he was in fact insolvent, and
this defense was held to be abundantly proved by the testimony taken in
the case, and the supreme court of the United States decided that as
against the creditors and the assignee in bankruptcy the mortgage was
absolutely void. After the original petition was filed for the
foreclosure of the mortgage I filed a supplemental bill making the
Charter Oak Life Insurance Company the plaintiff and Hoyt Sherman, the
assignee in bankruptcy, the respondent. After several months had
elapsed from the time the suit was begun I concluded to make a personal
visit to Blennerhassett & Stephens, of New York City, and try to
understand the real situation and facts in the case. I spent some two
weeks interviewing the two men who constituted the firm, but for some
reason not known to me I never could obtain from them any very accurate
account or reliable statement of the facts necessary to be understood
to make the proper presentation of the case. Mr. Blennerhassett
especially appeared to be a very peculiar man and his desire for
concealment amounted to a controlling passion. The books of the firm of
Allen, Stephens & Co. had locks upon their lids and Blennerhassett
carried the key. No attempt was made to inform me of the detail of the
transaction between them and the Cook County Bank, and I never became
fully advised as to these matters except as they were developed by the
testimony afterwards taken. The evidence showed that the correspondence
between the house in New York and Mr. Allen was carried on by means of
a cipher or fictitious word. Allen was represented as "head,"
Blennerhassett as "arm," and Stephens as "leg" of some imaginary
person. The transmission of the mortgage itself to Chicago in a sealed
package with sealed instructions, and the manner in which the business
was transacted were well calculated to excite suspicion, or in other
words give the impression that there was something that it was
necessary to conceal. That Allen was insolvent and had been for several
years prior to his actual failure the testimony left no doubt, and the
manner in which he conducted his business in connection with the house
in New York was overwhelming proof that the parties knew that he could
not promptly meet his pecuniary obligations. The real interested party
in the transaction was the Charter Oak Life Insurance Company. Mr.
White, the vice-president, proved to be under the influence of
Blennerhassett and obtained the money of the company in matters of loan
and discount to an extent that was wholly unjustifiable.
My visit to New York, however, was a very profitable one to myself. The
Charter Oak Life Insurance Company and several of the banks to whom
Allen's mortgages and bills receivable had been negotiated from time to
time, including $100,000 of bonds of the Des Moines Gas Company, placed
in my hands their collections, and I think that the securities that I
brought home with me amounted to one half million dollars, and in the
suit and foreclosure of these collaterals the firm of Nourse & Kauffman
made very handsome profits. The litigation lasted a number of years and
a final result was not obtained until the decision of the supreme court
of the United States at the April term, 1882. The opinion is reported
in United States Supreme Court Reports, Volume 105, page 100. After
this decision was made we filed a claim of the Charter Oak Life
Insurance Company against the bankrupt estate as a general creditor. In
the meantime the Charter Oak Life Insurance Company itself had gone
into bankruptcy. We had some doubt as to whether our claim would be
allowed as we had insisted on a preference that the court had decided
was fraudulent. Mr. J. S. Polk and Mr. Bisbee, of Chicago, finally
bought the claim of the Charter Oak Life Insurance Company against the
bankrupt estate, and had no difficulty in having it allowed by Mr.
Sherman, the assignee. These men also bought large and valuable
portions of the real estate from Mr. Sherman, the assignee, and
received a conveyance accordingly. The estate paid to the general
creditors only, as we were advised, about fifteen cents on the dollar.
Another interesting feature of the transaction was that Mr. Allen
claimed the benefit of the homestead law of Iowa and claimed the fine
residence on Terrace Hill with forty acres of land as exempt from his
debts. The homestead law of Iowa, however, only exempted a homestead in
favor of a resident of the state. Mr. Allen had been for a number of
years a resident of Chicago, had purchased a home there, and had paid
out $31,000 on the purchase. We also proved that he had voted as a
citizen of Chicago, I think at the city, county, and state elections,
and that he had offered the property on Terrace Hill for sale and had
caused a number of articles to be published in the city papers claiming
the property to be worth $100,000. A compromise, however, was made by
the assignee in bankruptcy by which Mr. Allen was allowed the buildings
and a limited amount of ground, and Mr. F. M. Hubbell purchased the
same for $40,000. This $40,000 did him no good, for within a year or
two he lost it in another grain speculation on the board of trade in
Chicago. In the meantime his wife, who was a daughter of Captain F. R.
West, had become insane and imagined that her husband's creditors were
pursuing her because of their losses, and she died within a few months
after losing her reason. Mr. Allen a few years afterwards removed to
California, where he still lives at the time of the present writing,
holding some employment from the United States government in connection
with the business of preserving the timber on the public lands in that
state.
[Illustration: _Charles Clinton Nourse_
From Photograph by I. W. Kramer, Des Moines]
CHAPTER XIX
ABOUT PROHIBITION
In the month of November, 1889, the democratic party of the state of
Iowa, for the first time since the election of Governor Grimes in 1854,
succeeded in electing their candidate for governor; to-wit, Horace
Boies. This was brought about by a singular combination between the
railroad and the saloon interests of the state. I have already given
some account of the effect upon the question of prohibition of the
foolish policy pursued by the pretended friends of temperance in
securing from the supreme court of the state a decision against the
right to manufacture alcohol within the limits of the state for the
purpose of export, and also the foolishness and wickedness of certain
pretended friends of prohibition in instituting fraudulent prosecutions
with a view to making costs and fees for their own personal profit.
During the administration of Governor Larrabee the railroads of the
state had become very restive under the control exercised by the
Railroad Commissioners of the state under the law of 1888. In the month
of August, 1888, some thirty suits were commenced in the district court
of Polk county against the Rock Island, Northwestern, and "Q" railroads
for penalties incurred in failure to make their reports to the
Commissioners as required by the statute. The railroads of Iowa had
become a very potent political power. We had five railroads extending
from the Mississippi to the Missouri river, and in every county of the
state in which these roads were located the railroads had one or more
active attorneys to look after their interests, and under such
captaincy as Blythe, of Burlington, and Hubbard, of Cedar Rapids, they
exercised a very important influence over the politics of the state,
controlling to a large extent the nomination of supreme judges and
district judges and other state officers. The people of the state had
become restive under the domination of this power. The open and
shameless peddling of railroad passes to the members of the general
assembly had begun to lose its power as against the rising indignation
of the people. In the counties of Lee, Des Moines, Muscatine, Scott,
and Dubuque on the Mississippi river, and such interior counties as
Johnson and Crawford, with their foreign population, the saloon power
of the state, uniting with the railroads, was sufficient to cause a
successful revolt against the party in power. Horace Boies, the
democratic candidate for governor, openly and shamelessly declared the
prohibitory law to be cruel and unjust in its provisions, and his
utterances in this behalf encouraged the violators of the law to
believe what they afterwards realized, that though the courts might
assess penalties, yet an executive who believed the penalty to be
unjust could easily be persuaded to exercise pardoning power in their
remission, and such was the result. For four years during the
administration of Horace Boies the effort to enforce the prohibitory
law was almost paralyzed. After incurring all the expense and trouble
incident to the conviction of any one violating the prohibitory law,
the people had the mortification of seeing the judgments of the courts
rendered nugatory by the wrongful exercise of the pardoning power,
vested by the constitution in the governor for wise and proper
purposes, prostituted by an unscrupulous politician for his own
political advancement and that of his party.
Another cause of this successful revolution in the politics of the
state arose from the absolute cowardice of the leading republicans of
the state in not defending the legislation for which they were
responsible. During the candidacy of Boies for his second term, a
gentleman who was a candidate on the state ticket for a state office
applied to me and asked my consent to publicly discuss the question of
prohibition with Mr. Boies in case the state central committee of the
party would arrange for such discussion. I gave my consent to such an
arrangement, provided the committee would agree to the same, but he
afterwards reported to me that the committee did not think it
advisable. On the part of the public speakers in behalf of the
republican cause the only discussion of the question of prohibition was
an apology for the enactment of the law. They did not attempt to
discuss the question of right or wrong, but only that the law was
enacted because the people by their vote upon the constitutional
amendment had signified their approval of prohibition. The result of
this cowardice and the four years' domination of the democratic party
had its result in the platform adopted by the republican state
convention in the year 1893. Only the year before this the republican
state convention had adopted a resolution promising the people of the
state that the party would take no backward step on the subject of
prohibiting the sale of intoxicating liquors as a beverage, and at this
convention in 1893 they adopted the following resolution:
Resolved, That prohibition is not a test of republicanism. The
general assembly has given to the state a prohibitory law as
strong as any that has been enacted in any country. Like any other
criminal statute, its retention, mitigation or repeal must be
determined by the general assembly, elected by and in sympathy
with the people and to it is relegated the subject, to take such
action as they may deem best in the matter, maintaining the
present law in those portions of the state where it is now or can
be made efficient, and giving to other localities such methods of
controlling and regulating the liquor traffic as will best serve
the cause of temperance and morality.
Under this platform, which merely meant the return of the open licensed
saloon to Iowa in such localities in which the people would tolerate
them, Mr. A. B. Cummins and his followers were all received back with
open arms as prodigal sons and became at once important leaders
politically in the republican party. The friends of prohibition were
shocked and alarmed at this result and at once the prominent and more
courageous prohibitionists of the state joined in a call for an
independent republican convention favorable to prohibition. At the
solicitation of a number of prohibitionists in the city of Des Moines I
prepared the following address and call for a state convention, which
address was adopted by a public meeting, held in the city of Des Moines:
When, through the machinations of men who, in their desire for
success, have lost sight of principle, causes dear to humanity are
about to be sacrificed, it becomes the duty of patriotic citizens
to make an organized effort to rescue their imperiled rights.
As republicans we assert our unqualified devotion to the doctrines
and principles of the republican party as heretofore set forth in
our national platform, and as declared by republican state
conventions and put in practical effect in the state of Iowa by
republican legislators prior to the meeting of the republican state
convention, held at Des Moines on the sixteenth inst. We declare
that through the patriotic efforts of the republican party of Iowa
prohibition had become the settled policy of the state, and that
any attempt on the part of the politicians to induce the party to
take a backward step on that question is to repudiate a past
honorable record and to uselessly endanger future success by a base
imitation of a hitherto despised opposition.
More than forty years ago the people of Iowa without distinction of
party declared through the enactment of their general assembly,
that the "people of this state would hereafter take no part in the
profits of the retail of intoxicating liquors." This principle was
again approved by the people of the state in the adoption of the
act of 1855, approved by Governor Grimes, and more recently the
people again endorsed the principle by adopting a constitutional
amendment prohibiting the sale of intoxicating liquors for the
purpose of a beverage. The people of the state of Iowa have never
indicated any desire for a change of policy on this question, but
on the contrary through the action of their representatives
expressly elected upon this issue, they have constantly and
consistently adhered to our present law.
The declarations of the recent republican convention have not been
brought about by any change of sentiment on the part of the
republicans of the state, but in our judgment its action is the
result of a combination of politicians who had other and ulterior
purposes at heart, and have failed to realize that whatever may
have been their own want of convictions upon the question, the
great mass of people have been honest and sincere. The honest
voters of the republican party are not "clay in the hands of the
potter," to be molded into any fashion that may suit the
professional politician. The battle that for the past quarter of a
century they have been waging against the liquor power and
influence, and in which they have gained so many signal triumphs,
has not been prompted by a mere desire for office or place, nor
have our forces been kept together by the mere "cohesive power of
the hope of public plunder." Hence if the defeat of 1891 could in
any measure have been attributed to the position of the party on
the question of prohibition, it would not constitute a valid reason
for a shameful surrender and retreat. When the republican party
declared for the maintenance of the prohibitory law, and promised
that the party would take no backward step on this question, the
earnest and honest men of the party did not mean that the party
would only pursue that policy so long as it would win, but they
meant that prohibition was right and that they would maintain the
right, and that they intended to fight it out on that line, not
only that summer, but until the saloon should make an unconditional
surrender.
We have reasons to believe and do believe that the platform of the
convention of the sixteenth inst., on the subject of temperance,
was brought about by the same combination of railroad and saloon
influence that defeated our party in the election of 1891, aided by
the timid and half-hearted defense of our platform through the
weakness of our state central committee.
The implied threat of the same combination to repeat their
opposition in the approaching election, induced the republican
state central committee to unite in accomplishing this surrender.
It is said and often repeated that there is no hope for the cause
of prohibition except through the success of the republican party.
This was undoubtedly true so long as the state platform pledged the
party to maintain and enforce the law.
The platform adopted on the sixteenth inst. not only does not
promise to maintain prohibition as a state policy, but expressly
declares in favor of "something else" in those localities where the
prohibitory law was not enforced. This "something else" in the
pretended "interest of true temperance" can deceive no man who does
not desire to be deceived. It is a base imitation of democratic
state platforms, and intends merely the "Schmidt bill" or the
"Gatch bill" or some other equally objectionable attempt to abandon
prohibition as a principle and as a state policy.
We believe in the sovereignty of the state of Iowa, and in its
undivided sovereignty over every foot of territory within its
boundaries. We do not believe the general assembly should attempt
to exercise the power to make an act criminal in one part of the
state and license the same act in another part of the state. The
constitution of our state requires that all laws enacted by the
general assembly "shall have a uniform operation." If the state
shall concede that the sale of intoxicating liquors may be licensed
in one part of the state and saloons may be lawfully established in
one city or county, with what consistency can the state punish such
acts as criminal when done in another locality within her
jurisdiction. The establishment of a saloon for the propagation of
drunkenness is either innocent or a criminal act. We recognize no
middle ground. We do not believe in compromising with criminals or
commuting offenses committed against the best interests of
humanity. Neither do we believe the republican party of Iowa can
ever survive an act so inconsistent with principle and her former
professions, as would be the repeal of our present prohibitory law
or the enactment of a license system for any part of the state.
We do not propose or recommend opposition to the election of any
candidate for the general assembly on the republican ticket who is
in favor of maintaining and enforcing our present law. The election
of such is consistent with our past history and policy and will
secure a republican United States senator. If, however, any
candidate for the general assembly on the republican ticket shall
declare for a saloon as against what has heretofore been recognized
as republicanism, the responsibility of his defeat, with all its
political consequences, will be upon him, and not upon those who
are true to their convictions and principles and the past policy of
the party.
We, therefore, the republicans of Polk county in mass convention
assembled, at the instance and with the coöperation of the
republicans of Sac and other counties of the state, who protest and
dissent from the action of the state convention of the sixteenth
inst., with the view of an organized effort that may save our party
from committing the great wrong and outrage attempted, do hereby
invite all citizens who agree with us in sentiment and purpose to
meet in delegate convention in Calvary Tabernacle at Des Moines,
Iowa, on Tuesday the fifth day of September, A.D. 1893, at 10 A.M.,
to take such steps and devise such measures as
_First._ Will secure the election to the general assembly at the
November election of such candidates only as will maintain the
present prohibitory law.
_Second._ As will secure such action and such an expression of
the will and wishes of the people of the state as will convince the
republican managers that the path of honor is the only path of
safety.
The call for this convention alarmed the leaders of the republican
party in the state, and they were very active in their efforts to
counteract its effect. The convention was held according to the call on
the 5th of September, 1893, and we had a very large representation and
a very enthusiastic convention. We adopted a platform embracing the
principles indicated in the call for the convention and nominated a
state ticket. Our candidate for Governor, Mr. L. S. Coffin, was not
present in the convention, but Doctor Fellows, a prominent
prohibitionist of the state, vouched for his entire sympathy with the
movement and his acceptance of the nomination. Mrs. J. Ellen Foster,
who had been president of the national W.C.T.U., was sent by
politicians from Washington, D.C., and was present at the convention,
for the purpose, if possible, of alienating such as she could influence
from taking part in or endorsing the movement. She seated herself in
the gallery over against the chair occupied by the president and
scowled and looked vengeance at those who took an active part in its
proceedings. When I read the call for the convention before set out she
looked for all the world like Tam O'Shanter's wife when waiting for
Tam's return, "Knitting her brows like a gathering storm and nursing
her wrath to keep it warm." During the recess of the convention she was
very busy button-holing first one and then another of the prominent
prohibitionists in attendance, taking them to a private parlor in the
hotel and laboring with them to convince them that the success of the
republican party was more important than the question of prohibition.
After our nomination of Coffin as our candidate for Governor, Mr. Lafe
Young, editor of the _Capital_, made a visit to Mr. Coffin at his
home at Fort Dodge. Mr. Coffin had prepared his letter of acceptance of
our nomination, but Young induced him to cut it in two and change the
latter half of it so that it would read a declination of the
nomination, and by some means unknown to the public induced Mr. Coffin
to take the stump and make a number of speeches on the tariff question
during the political canvass that year. By some means unknown also to
me, the leading railroad lawyers of the state who had supported Boies
were induced to return to their allegiance to the republican party, and
the party succeeded in electing Jackson their candidate for governor,
and also electing a legislature in sympathy with their saloon platform.
The general assembly that met in January, 1894, accordingly passed the
act known as the mulct law, being chapter 62 of the laws of the 25th
general assembly of the state. This act does not in terms attempt to
repeal the prohibitory law then in force in the state. On the contrary,
section 16 of the act expressly provides: "Nothing in this act
contained, shall be in any way construed to mean that the business of
the sale of intoxicating liquors is in any way legalized, nor is the
same to be construed in any manner or form as a license, nor shall the
assessment or payment of any tax for the sale of liquors as aforesaid,
protect the wrongdoer from any penalty now provided by law, except that
on conditions hereinafter provided certain penalties may be suspended."
The next section of the act provides for the circulation of a petition,
and by obtaining a certain majority or percentage of the voters to sign
a petition to that effect the penalties provided in the prohibitory
liquor law shall not be enforced against the offender. Under this law
the brewers of St. Louis and Milwaukee employed men to circulate
petitions, paying them five dollars a day for their services in
obtaining signatures to petitions in certain counties of the state,
under which the parties who paid the required tax were secured against
any prosecutions for violations of the law. I tried several cases in
the district and supreme court of the state for the purpose of testing
the constitutionality of this act of the legislature. It placed the
pardoning power theretofore exercised by the Governor of the state in
the hands of the brewers of Milwaukee and St. Louis and their
employees, provided they could by such means as they might adopt,
obtain the required number of signatures to such petitions. It clearly
recognized that what was a crime under the law in one part of the
state, might be committed provided the necessary amount was furnished
and paid into the public treasury as a commutation for the offense, and
that payment should be made in advance without reference to the number
of offenses that might be committed. It was clearly not a law of
uniform operations under the decisions of our supreme court as
theretofore held, for it was a crime in one city or county in the state
and not a crime in another city or county of the state; notwithstanding
the law making it a crime was still left in full force and effect,
except as it was abrogated in a particular locality by the signing of
certain petitions. Strange to say the supreme court of Iowa,
notwithstanding their former decisions to which I have heretofore
referred, sustained this law and its constitutionality, and under it in
all of the counties of the state where we had any considerable foreign
population the legalized saloon has returned to do its deadly work and
the only compensation for it is that men who call themselves
republicans have been able to hold and enjoy the honors of public
office. After the decision of our supreme court upon the question of
the constitutionality of this act I received from the editors of a law
publication east a communication requesting my views and opinions for
publication in their law magazine, and I simply wrote upon the letter
addressed to me the statement that the decision made by our supreme
court under this law was a political necessity and that it was an old
and true adage that necessity knew no law, and I had no further
comments to make upon it.
Since the prominent part that I took in this canvass of 1893 my
standing with the republican party has been rather impaired;
nevertheless, subsequently in the campaigns of Mr. Wm. Jennings Bryan
involving the national policy of the republican party, I have taken
very active part. The free coinage of silver heresy of Mr. Bryan I
regarded as a serious menace to the integrity and honor of the nation,
and I spent very considerable time and my own private means in making
public speeches condemning that wild and visionary scheme. In state
politics I have taken no active part since 1894. I never belonged to or
coöperated with what has been known as the "Third party" or the
prohibition party as a national organization. When the prohibitionists
of Iowa united with the national organization I strongly advised
against it. I could not see any hope of accomplishing anything by such
an organization. The states of Kansas, Iowa, and the Dakotas had become
prohibition, and in my judgment the only effectual way of reaching the
question of prohibiting the sale of intoxicating liquors as a beverage,
or the establishment of places of resort for such sale, was by the
exercise of the police power of the states in the management of their
own domestic affairs. The congress of the United States had no control
over the subject, except in the matter of revenue laws or the taxing of
the manufacture or sale of liquors. Our courts and the supreme court of
the United States had agreed that the payment of taxes under these
revenue laws and the issuing of what has been called a license, was
really no protection as against the state law and its penalties. The
general government does not exercise police power within the state but
it may enforce penalties for the violation of revenue laws or enact
laws regulating commerce within the states, but it cannot prohibit the
establishment of the saloon or the maintenance of such a place merely
upon the ground of preserving public order and morality. I could not
and never have been able, therefore, to see the propriety of a national
organization based upon the idea of prohibiting the sale of
intoxicating liquors as a beverage, or establishing places of resort
for such sale.
Another objection to this third party, the national prohibition party,
so-called, has been the adoption of a platform favoring universal
suffrage without reference to sex. This also is a question over which
the congress of the United States have not heretofore exercised any
jurisdiction. The question of suffrage or the right to vote has been a
matter peculiarly within the control of each state of the Union and its
local constitution and laws, and is not and never has been a matter of
national politics. I have always believed and still believe that if the
prohibitionists had confined their efforts to the several states,
capturing those in which they had some prospect of success, their cause
would have grown and become stronger each year. The great centers of
population such as New York City, Chicago, Cincinnati, and St. Louis,
and such other cities filled as they are with foreign population, who
have no sympathy with the manners and customs pertaining to these
agricultural states, cannot in my judgment be brought under the control
of prohibition at any time during the present or next generation of
men, and I regard it as foolish to spend our time and our money in such
quixotic efforts. My hope in inaugurating the movement that we made in
1893 was simply to teach the republicans of Iowa the lesson that
success politically was not to be attained in this state by
subservience to the saloon power, and that defeat in the election of
that year might result in a return of the party to its better and
higher purposes in maintaining that which was right and just and
humane. That we were defeated in that effort at that time was most
unfortunate, but the domination of the political power of the saloon, I
still have faith to believe, will work its own destruction, and that
the people of this state will return to their former convictions.
CHAPTER XX
PERSONAL INCIDENTS
In the spring of the year 1888 I sold my home, 707 Fourth street, and
built a house for my residence on my farm. We left the old home with no
little regret. It had been our place of residence since the fall of
1859, with the exception of two years in which we fitted up the
property temporarily on the corner of Fifth and Center, while we built
the new house on Fourth in the old location. We had planted the shade
trees of hard and soft maple. Here our child had been born and had
grown to manhood, here we had celebrated our silver wedding in 1878,
and had enjoyed the society of many kind friends and persons of
distinction and influence in the state. Bishop Andrews, the bishop of
the Methodist Episcopal church, with his family, resided nearly
opposite to our house, and Bishop Hearst and his family had lived on
Third street nearby, and our excellent neighbors, A. Y. Rawson and his
first wife, Thos. F. Withrow and his family, had been our kind friends
through many years. Here we had entertained such men as Governor Grimes
and Governor Kirkwood and his wife, Senator Harlan and his wife, Bishop
Waldron, Bishop Simpson, and other distinguished men of the state and
of the church.
The most difficult problem in my life that I had to solve was the care
and education of my son. I felt that everything was at stake in his
proper discipline and education. During his early childhood we sent him
to school as already mentioned to Mrs. Winkley, afterwards for some
years to the public school and still later to Callanan College, an
institution taught by Dr. Pomeroy. When the time came for him to go
from home and attend college my first thought was to send him to Iowa
City to the State University, but I had grave fears in regard to the
influence that prevailed in that city. The college campus was environed
by saloons and public sentiment of that town was far from being what it
ought to have been. Attorneys had been mobbed in the streets of the
city for the offense of prosecuting the violators of the prohibitory
law, and there had been no proper expression of public sentiment
condemning the outrage. I consulted with a number of the best citizens
of Iowa City in regard to the matter of sending my son there for his
education, but I became satisfied that they knew but very little of
what was transpiring in the city after bedtime. I thought it prudent to
make an investigation on my own account. I accordingly took the train
that left Des Moines at five o'clock in the afternoon, arriving at Iowa
City about half past nine. I went to the St. James Hotel and quietly
registered my name and engaged a room for the night, but did not go to
bed. I waited until about half past ten or eleven o'clock, and took my
hat and started out on a tour of inspection. I visited a number of the
saloons on the public square and found them filled with young men, no
doubt students of the college, and I met several crowds of these young
gentlemen on the street headed by one of the trustees of the college in
not a very sober condition. I returned to my hotel with my mind fully
made up that my boy should go without an education before I would
subject him to the risk of being educated in such a town. Subsequently
I visited Ames in company with my wife and selected a proper room in
the dormitory for my son's occupancy, and we sent him to Ames
accordingly. He afterwards spent a year in California before settling
down to business as an architect in Des Moines.
[Illustration: _Rebecca A. McMeekin Nourse_ From Photograph by
Edinger]
He was anxious to design a country farm house that should be a credit
to his own skill and ability. Our new house was completed in the latter
part of July of that year. We found it somewhat inconvenient to be so
far away from our church privileges and from business, but took great
pleasure in improving our grounds and setting out fruit and ornamental
trees for our new home. I had the old road changed so as to run east of
the house. My wife soon became very much attached to the new home and
here we had many pleasant reunions with our old friends and neighbors.
In 1886 I rented the farm, including the land in section 20 bought of
Sneer, to Mr. Charles West for the term of three years, he carrying on
a dairy farm on the place, reserving from his lease the right to occupy
the orchard as well as my own residence, and also the right of pasture
for a team of horses and a couple of cows. The next year, 1889, my son
contracted marriage with Miss Elizabeth Baehring, and here were born my
two grandchildren, Clinton Baehring Nourse on April 14, 1890, and
Lawrence Baehring Nourse on October 5, 1893. My son and his wife and
first child made a trip to Europe in the year 1892. In 1895 my son
purchased a property on Fifth street and removed to the city and
occupied the same until the fall of the year, when the children were
both taken down with diphtheria. He put them both at once in a carriage
and brought them out to our country home, where the oldest of the two
children died September 10th. This was the first death we had in the
family, and I purchased a lot in Woodland Cemetery where the little one
was laid away.
The following year my health became somewhat impaired and I had a
serious attack of what they called la grippe. I was somewhat overworked
at that time, and under the advice of my physician I went with my wife
to the state of Florida and spent the winter in St. Petersburg in that
state, returning early in the spring and resuming my practice. For
several successive years since then I have spent my winters in St.
Petersburg, Florida.
In the year 1902 my son's health became seriously impaired, and early
that fall with his wife and child he visited California, and in
December of that year my wife and myself joined them. My son suffered
from severe nervous condition that made it impossible for him to sleep
only a few hours out of each twenty-four. He was reduced in flesh to
about 117 pounds weight and I became seriously concerned for his
future. Finding outdoor travel to agree with him better than treatment
of the doctors, we finally in the month of April, 1903, determined upon
a camping expedition and a visit to the Yosemite valley. We fitted out
two teams with camp wagons and tent, and started from Long Beach about
the 26th of April, traveling about twenty miles a day, going first via
the coast to Santa Barbara and thence via Merced over to the Yosemite
valley. At Santa Barbara my wife concluded she would not go any further
with us on the trip. Our roads over mountains were very narrow, the
outer wheel of the wagon only three or four feet from the precipice,
and she suffered nervous apprehension that deprived her of any real
enjoyment of the trip. I secured the services of a young man to
accompany us on the further trip and to aid in the work incident to
camp life. My son's wife had suffered from a spell of nervous
indigestion and was scarcely able to do the cooking for her husband and
child. I became the cook for myself and my assistant and acquired
considerable skill in making coffee and flapjacks and frying breakfast
bacon. The scenery upon this trip and in the valley of the Yosemite has
been described by many writers more skilled than myself in putting
their impressions upon paper. I can only say that we all enjoyed the
trip exceedingly and were strongly impressed with these wonderful
mountains and valleys and great trees that have acquired a world-wide
reputation. My wife and myself returned to Iowa and to our home early
in July, 1903.
During the second year of the tenancy of Mr. Chas. West I had the
misfortune of losing all of my barns and outbuildings by fire. The loss
amounted to about $3,500 and I only had $500 insurance on one of the
barns. I immediately rebuilt the barns and granary and corn cribs,
taking the precaution also to build a separate barn for my own use. A
few months after my return from California in that year I discovered
that one of my eyes had failed, supposed to be caused by a callous
condition of the optic nerve. Soon after the other eye became affected
in the same way, and later in the fall I was unable to read. I first
applied to and received treatment from Dr. Pearson; afterwards I
visited Chicago and took treatment of an oculist of some reputation
there. The following winter I took treatment from Dr. Amos of Des
Moines, and spent two weeks in the Methodist Hospital without receiving
any relief or seeming benefit. These physicians were all candid enough
to confess their inability to do me any good, and since that time I
have been partially deprived of the use of my sight, and have not been
able to read or write. My physicians promised me several years ago that
I should lose my sight entirely, but in this I am happy to say they
were wrong. I can still see imperfectly to get about and avoid
collision with objects, but I am not able to recognize the features of
friends and acquaintances.
I have continued every year to visit St. Petersburg during the winter
season, and have made many pleasant and interesting acquaintances among
the tourists who visit annually that place.
On the first day of November, 1906, my beautiful home was totally
destroyed by fire. We lost all our furniture and clothing, except my
private library and furnishings on the first floor of the house, which
we succeeded in rescuing from the flames. The previous winter my wife
had accompanied me to Florida and remained with me there during the
season. After our house was destroyed we removed to the city and
occupied apartments with my son and his wife in a block of flats then
belonging to my son on Fifth street. The following winter, 1906-07, I
spent in St. Petersburg, returning home in April of that year. I had
been home only a few days before we made the sad discovery that my
wife's health was fast failing. At her earnest solicitation, however,
we rebuilt our house on the farm and in August of that year
reëstablished ourselves in the location of our old home.
And now comes the saddest event of my life. On the 11th day of
November, succeeding, my wife passed away. The previous 21st of March
was her eightieth birthday. A short time before that date while at St.
Petersburg, Florida, I received from my daughter Elizabeth a letter
stating that she intended to have some friends spend an evening with my
wife to have a birthday celebration, and requesting me to write some
verses and also to send a new silk dress pattern to be presented to my
wife on the occasion. I had a premonition that the sad event that later
transpired in the fall was not far off. I wrote as cheerfully as I
could under the circumstances and sent my daughter a check with which
to purchase the silk dress pattern, and the following verses I composed
as well as I could with my defective sight. They were read on the
occasion, and those present assure me that my wife was cheerful and
enjoyed their visit very much:
My Dear Wife:--
Elizabeth, our daughter, writes to me
That she intends to have some friends to tea;
She says she can't invite them all,
Because our house is much too small,
But she selected just a few,
The ones she thinks are dearest most to you.
She intends to celebrate, for mother dear,
The birthday of her eightieth year,
And she requests that I shall write to thee,
What she is pleased to call some poetry,
And that because I can't be there
She'll read it from my vacant chair.
She also writes, that while your health is good,
That very lately she has understood
That you are suffering some distress,
And I must buy for you a new silk dress,
And send it there together with the poetry,
That she could have them both in time for tea.
The journey has been very long my dear,
And you have safely reached your eightieth year,
But you will never seem so old to me,
I still recall your face just as it used to be.
Your brow is smooth, your eyes are bright,
You still retain your appetite.
This human life doth now as ever
Depend so much upon the liver.
Some sixty years ago, I knew
A fair young girl, she looked like you.
We fell in love, a youthful dream,
But even now, this world would seem
A barren waste, if I could doubt
The love I could not live without.
'Tis more than fifty years since we were wed,
How rapidly the time has fled.
The way has not been always smooth,
I only cite the fact to prove
Our love was true. That is to say
We found some shadows o'er our way.
But they were shadows only, and did not bother,
For reaching out our hands to touch each other
We kept the path until the light
Shone out again and all was right.
We've had our joy, our grief and sorrow,
Differed today, agreed tomorrow,
Forgave each other and repented,
Firm one day, the next relented,
But after all the truth to tell
I think we've averaged very well.
'Tis almost four and fifty years
Since you, with many sighs and tears,
Bade farewell to home and friends,
Not knowing what your life might be,
With only faith in God and love for me.
I'm thinking of the time gone by,
When from your home, both you and I
Came west to seek and make a home
That we might claim and call our own.
Without our kindred, friends or wealth,
We started forth with youth and health.
Whate'er we have, whate'er we've gained
We know we've honestly obtained,
And we grew strong in faith and hope,
And never thought of giving up.
To our store we added day by day,
And faithful friends have joined us on our way.
No woman ever bore a son
More true and faithful than our one,
And when he grew to man's estate
And sought and found a worthy mate,
We got our daughter ready grown
And took and loved her for our own.
But there's another blessing yet
And one we never can forget:
Our dearest Laurence--
The only grandchild we have left,
Since of the other one bereft;
But there is also present here
A cherub from another sphere.
He comes to us from realms above,
Drawn hither by the power of love.
We can but feel his presence here
To honor Grandma's eightieth year.
I do not know how many more
Of birthdays you may have in store.
It is not within our ken to know,
Just how much further you may have to go
Before you reach the end.
But whether near or far,
We all will meet you at the "Gates Ajar."
In my younger days I had been accustomed somewhat occasionally to
indulge myself in the attempt of writing what out of courtesy to my
literary qualifications might be called poetry, though my life was too
busy a life to indulge much in sentiment or even to indulge much in
imagination. Some time the year before I wrote this for my wife's
birthday, I composed and wrote the following for the benefit of the
Early Settler's Association of Polk county, which was sung with
considerable enthusiasm at several of their picnic celebrations. The
song is sung to the tune of "John Brown's body lies a mouldering in the
grave," and is as follows:
The early settlers' picnic has come around again,
And here we are together the few that still remain,
To exchange our hearty greetings and to join in this refrain,
As we go marching on.
Chorus--Glory, glory, hallelujah,
Glory, glory, hallelujah,
Glory, glory, hallelujah,
We still are marching on.
'Tis many years ago since we all came out west
To grow up with the country that is now the very best.
God gave the soil and climate and the settlers did the rest
When they came marching on.
Chorus--
We left our homes in yonder for the far off Iowa.
We came and saw her beauty and settled down to stay,
And there's not a soul among us that has ever rued the day
When we came marching on.
Chorus--
This is the land of promise where the milk and honey flow,
With corn and pumpkin plenty, and where pies and puddings grow,
With every other blessing that nature can bestow
As we go marching on.
Chorus--
We may seem a little older for our heads are silvered o'er,
But our hearts are still as young as they were in days of yore,
And we still recount the blessings the future has in store
As we go marching on.
Chorus--
This is a goodly land where we have lived and loved together;
We have borne the heat of Summer and faced the coldest weather.
Glory, hallelujah! our Iowa forever!
We still are marching on.
Chorus--
Our nation is united as it never was before,
All are happy and contented with old glory floating o'er.
We are coming Father Abraham with many millions more,
We all are marching on.
Chorus--
Our column is unbroken though some have gone before,
They have passed across the river and have reached the shining shore,
And are waiting there to greet us as they did in days of yore
When we were marching on.
Chorus--
