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The Organization of Montana, 1864-1866
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Up to this time the territory later called Montana was still within the limits of Idaho, which embraced the mining country east of the Rocky Mountains. On the 26th of May, 1864, congress passed an act providing a temporary government for a new territory to be called Montana, the boundaries of which embraced 143,776 square miles, or 92,016,640 acres;1 commencing at a point formed by the intersection of the 27th degree of longitude west from Washington with latitude 45°, thence due west to longitude 34°, thence to latitude 44° 30′, thence west along that line to the summit of the Rocky Mountains, and along their crest to its intersection with the Bitterroot Mountains, thence along the summit of the Bitterroot Mountains to its intersection with longitude 39°, thence along that degree to latitude 49°, thence east along that line to longitude 27°, and thence southward on that degree to the place of beginning.2 It comprised the northeast part of Idaho, the southeast part being reattached to Dakota, from which it was taken when Idaho was first organized.
It will be remembered that in 1863 Sidney Edgerton, formerly of Ohio, was appointed chief justice of Idaho, but that Governor Wallace of that territory, in laying out the judicial districts, assigned him to the district east of the mountains, in order to exhibit his dislike of imported judges. As the territory was not organized until September, and the Idaho legislature did not meet to lay out districts until December, there was little opportunity for the exercise of judicial functions in Edgerton’s district before Montana became a separate territory, and the former chief Justice of Idaho was appointed governor of Montana. He was commissioned June 22, 1864, and the territorial secretary, Thomas Francis Meagher, on the 4th of August, 1865.3 The judges appointed were Hezekiah L. Hosmer chief justice, and Lorenzo P. Williston and Lyman E. Munson associates.4 Edward B. Neally was commissioned United States district attorney,5 and George M. Pinney marshal.6 Internal revenue officers appointed were Nathaniel P. Langford collector, and Truman E. Evarts assessor. None of the district judges were on the ground before late autumn. The first election was held on the 24th day of October, for the choice of a legislature7 and a delegate to congress. Samuel McLean was chosen delegate by a majority of thirteen hundred votes.8 The legislature met December 12th at Bannack, was sworn in by Judge Williston, and proceeded harmoniously to business.9
The condition of politics in Montana was a repetition, to a considerable extent, of the anti-administration sentiment of Idaho, and for the same reason, that it was overrun by southern men, escaping from draft into the confederate army. But otherwise there was this difference between Idaho and Montana, that the former was founded by western men from Oregon, Washington, and northern California, who were chiefly descendants of men bred in the southwestern and southern states, while Montana had a large percentage of her first population from the northern states.10 That portion of the governor’s message which related to the existing war, being referred to a committee of Bagg, Thompson, and Leavitt in the council, Bagg reported, as chairman, in language strongly anti-administration, while refraining from uttering sentiments openly disloyal. Leavitt, not being willing to indorse such a report, a few days afterward offered a resolution strongly loyal, which was adopted by a majority of the council, the whole being done without any discourteous exhibition of political hostility. According to the requirements of the organic act, the legislature proceeded to locate the seat of government, which was fixed at Virginia City. A seal for the territory was adopted, which had as a central group a plough and a miner’s pick and shovel; on the right the falls of the Missouri; on the left mountains; underneath the motto, Oro y Plata. Upon the margin surrounding the whole were the words, The Seal of Montana Territory.
There being no map of the territory by which the legislature could define the district boundaries, W. W. De Lacy was employed to make one for the purpose, to be further completed when the districts were laid off. Among the earliest acts was one incorporating the Historical Society of Montana. Acts were passed repealing the statutes of Idaho, adopting common law, and providing for the codification of the territorial laws.11 A common-school system was adopted, and an act passed to prevent carrying concealed arms.12 Acts were passed incorporating Virginia City, and the towns of Montana (the name being changed to Prickly Pear), Missoula, Marysville, Willow Creek, Ophir, North Ophir, Junction City, Jefferson, Gallatin, East Gallatin, Brandon, Beaver, and Alki. Several of these had only an ephemeral existence, and were soon not to be found on the maps. A large number of mining, road, bridge, and ferry companies were incorporated, showing the activity of the population in seizing upon business opportunities.
But an error was committed by the first legislature, which practically disorganized the territory for two succeeding years. According to the organic act, the first legislature was to be apportioned by the governor; but thereafter the time, place, and manner of holding elections, and the apportioning of the representation in the several counties, were to be prescribed by law, as well as the day of commencing the regular sessions of the legislative assembly. The lawmakers, instead of keeping within their privileges as granted by the organic act, of gradually increasing their numbers to thirteen councilmen and twenty-six representatives, passed a bill defining the districts in the territory, apportioning the legislators among them, and included m the bill the substance of another, to increase the number of councilmen at once to thirteen, and the assemblymen to twenty-six. The governor returned the bill with his veto, and his reasons there for. But the temper of the legislature being adverse to correction, it adjourned without passing any apportionment bill. The effect was to prevent an election of representatives in 1865. In the latter part of summer Edgerton returned to the east, and Meagher, the territorial secretary, arrived, on whom devolved the functions of executive. There was a strong desire on the part of the democratic portion of the inhabitants of Montana to form a state constitution, which they affected to believe, from the population flowing in at this period, they would be justified in doing. In their extremity of doubt, they called upon Meagher to settle the question of his own authority to order a new election for the specific purpose of organizing a state convention.13
Meagher replied in a clear and logically written letter, that only an enabling act of congress could restore to the territory the right to elect a legislative body, and advised them to appeal to congress for such relief. His views, however, underwent a change a few weeks later, when he published a proclamation recalling his first decision, declaring his authority to convene the legislature, and summoning the members of the council elected on the 4th of October, 1864, and the members of the house of representatives elected on the 4th of September, 1865, to meet at Virginia City on Monday the 5th of March, “for the transaction of business, as well as to give legislative sanction and validity to the convention,” which had been called by another proclamation to assemble at Helena the 26th of March. Meagher’s change of opinion was of so radical a nature that he declared in a public address his intention to have the laws so framed by the legislature he had convoked that “no judge, whatever his powers or consequence, should dispute or disobey them;” and further, that he would enforce these laws “with the whole power of the county of Madison, and if need be, with the whole power of the territory.” He said a good deal also about glorying in his democracy, and having been deceived as to his true prerogatives by republican rascals. In short, he made it plain to the anti-administrations that he should be upon their side in any political contests. He set at liberty a criminal under sentence of three years incarceration for manslaughter. Judge Munson requested him to annul the pardon, but he refused. The liberated desperado made use of his freedom by going to Helena with threats to take the lives of some of the witnesses against him, and while there was taken and hanged by vigilants.14 In these various ways the acting governor gave offence to the best sense of the community, which otherwise would cheerfully have acknowledged the talents and bravery of “the Irish patriot.”
The first legislature, recognizing the insufficiency of the salaries of the territorial officers, had increased the pay of the governor and judges from $2,500 a year to $5,000,15 the deficiency to be made up by the territory, and at the same time increased their own per diem to twelve dollars.
The legislature summoned by the secretary repealed the law. So far as the chief justice and Williston were concerned, there was some appearance of propriety in refusing to give them double pay, inasmuch as they had, after the usual manner of territorial judges, absented themselves from the territory, leaving Judge Munson to perform the duties of all the three districts. A resolution was passed by the Helena bar, that in their opinion justice required that Judge Munson should be reimbursed the expense incurred by him in discharging the duties of the absent judges, in a sum at least equivalent to the compensation repealed.16 The resolution was treated with contempt, and the war upon a Connecticut judge by southern democrats continued unabated, resulting in the organization of the union party of Montana, at Virginia City, March 29, 1866.17 Meantime the legislature18 legalized the existence of a state convention, and that body assembled on the 9th of April, at Helena. It was rather a meager affair, Choteau and Beaverhead Counties being unrepresented, and so many delegates being absent that a quorum could not be made out, and the convention resorted to the expedient of voting for the absent members! A memorial to congress was prepared, avowing the loyalty of the people of Montana, setting forth the resources of the territory, and asking for such congressional legislation as would be for the best interests of a mining community, and also would prevent a re-annexation to Idaho of that portion of Montana lying between the Bitterroot and Rocky Mountains, which the former territory was then endeavoring to recover, in order to divide southern from northern Idaho, as I have else-where mentioned, with other matters of general interest; calling the attention of congress to the necessity of an early appropriation for public buildings, to the desire of the memorialists for a branch mint, and to the discovery only just being made that cereals of all kinds, as well as gold and silver, might be reckoned among the productions of the country; but nothing was said of a state organization,19 which indeed was not justified by the condition of the territory in point of finance or population.20
A feeling of insecurity prevailed concerning the legality of the acts of the legislature, which soon forced that question into court. An attachment suit being brought in the third judicial district, the defendant set up in his defense the invalidity of the laws passed at the March session, and was sustained by the decision of Judge Munson, whose opinion was published at length for the benefit and at the request of the bar of Helena.21 An appeal was taken to the supreme court; but before that convened the comptroller of the treasury had refused to honor drafts for money to pay the expenses of the legislature, and it became understood that congress would not recognize its acts. This gave the anti-administration party cause for indignant protests against the tyranny of congress and the administration. Open-air meetings to denounce Judge Munson and the government became the fashion with the democracy, at the head of whom was Acting Governor Meagher, reiterating his determination to enforce the laws enacted by the legislature he had called into being. Twenty-four hours later, in the same place, union orators denounced the course of the delegate in congress as a “wanton disregard of the interests of the territory,” and the conduct of the executive for failing to file his official bond for a long period, thereby preventing the congressional appropriations from being made available; for illegal and extravagant use of the public money; for neglect to settle with the accounting officers; for impudent denial of the powers and rights of lawyers, courts, and citizens to call in question the legality of his legislative bantling; “for his scandalous disregard of the common decencies of life; and above all, his infidelity to the institutions of liberty, and his wanton abuse of the American people, who have furnished him an asylum from the officers of the laws of his native land.”
There was just ground for this outpouring of the vials of wrath and sarcasm on the heads of Montana’s delegate and governor. McLean, in a speech on a bill before congress to amend the organic act of Montana, which disallowed the powers of the late legislature, stupidly threatened that body with taking Montana over the line into British Columbia. “Do not,” said this Solon, “by unwise and oppressive legislation, drive us over the border, while our love of country would actuate us to stand upon its outer edge, a living wall of strength in the defense of the land.” As for Meagher, he could be eloquent, but he could not be honest.
On the 1st of August he issued a proclamation based upon the election act of the legislature of 1864, which called for a general election on the first Monday of September of each year, and also upon the apportionment act of the March session of 1866, notifying all county officers whose duty it was to appoint officers of election and to give notice in their several counties that a general election would be held on the 3d of September, 1866, for the choice of thirteen council-men and twenty-six representatives. Seeing that Meagher and his aduerents were determined in their course, the union party put forth a ticket of ‘anti-state and legislative’ candidates, and the party journals22 took up their arms for a campaign.
In the mean time Chief Justice Hosmer returned to Montana, in the district to which he was assigned by Governor Edgerton, and his duties were resumed in August. In his charge to the grand jury he reviewed the history of the vigilance committee, the necessity in which it originated, and the good which had resulted from it, but warned them that to continue their operations in the presence of an organized judicial system would prove detrimental to the best interests of society, and besought them to convince the people, by their thoroughness in searching out and punishing offenders, that the laws were sufficient for the purposes of justice.23 The judge soon had occasion to reprove the citizens of Virginia City for a laxity as great as the sternness of the vigilants had been strong. John Gibson having been indicted, tried, convicted, and sentenced to three years’ imprisonment and a heavy fine, for an assault with attempt to kill, thirty-three names were appended to a petition to have his punishment reduced to a mere fine for assault, compelling the man to pay fifty dollars for the privilege of attacking another behind his back and striking him senseless to the ground, from which injury his victim was a long time in recovering. The reason given by the petitioners for their request was that it would be very expensive to the people to keep Gibson in prison, and the inability of the criminal to pay a heavy fine. It was a mere matter of dollars and cents, and not of justice or order, for which the Chief Justice very properly censured the petitioners, while refusing to commute Gibson’s sentence.24
Indeed, the absence of a penitentiary had been one, if not the principal, reason for the prompt executions of the vigilance committee. Now, persons convicted of offences for which they were sentenced to a period of incarceration not exceeding three years were confined in the county jail, these sentenced to a longer term being taken to Detroit and confined in the Michigan penitentiary by order of the government. The expense attending the journey of the United States marshal, and the opportunities for escape which were offered, made this method of disposing of criminals anything but economical or satisfactory. These were some of the obstacles in the way of the smooth working of the judicial machinery. No capital offence was tried in the United States courts until in August 1866, when James H. Foster was tried for the murder of Philip Mallory, in Judge Munson’s court at Helena, pronounced guilty, and sentenced to be hanged on the 5th of October. Foster’s attorneys, however, managed to secure for him a new trial, on the ground of a defective indictment, but the grand jury again found a true bill for murder.
Montana was more fortunate than many other of the Pacific territories, in having for her early judges men of ability and integrity. Nor was it the fault of the people that crime sometimes assumed such magnificent proportions, but rather the lack of law compelling machinery; for when the good men of Montana saw that the courts were unable to cope with crime, they arose as one man and cleansed the community of its wickedness.
Montana judges had to deal with many difficulties – with a large amount of perplexing business involving novel questions for which there was no law and no precedent, yet which made or unmade the fortunes of the litigants.25 They had to deal with crime much in excess of the usual average in organized communities, and to endeavor to suppress lawless hanging by the administration of legal justice, when they were perfectly aware that the rule of law, on account of the embarrassments26 under which they labored, was not so effectual in preserving the lives and property of the public as the action of the vigilance committee had been. The first legislature adopted codes, civil and criminal, but owing to the delay in printing them, the courts were thrown back upon manuscript bills of that session for guidance. Under this practice, in the first three years, in the first district alone, six hundred and fifty cases were disposed of, six being criminal trials. Few cases were ever appealed to the Supreme Court, and but one of these few was reversed. At the session of the legislature of December 1867, the civil code of California was adopted, because it originated in a state whose interests were, at the time when it was framed, similar to these of Montana at this time, and which had dealt with the knotty questions of quartz-mining, water rights, placer claims, and their congeners. This greatly simplified the business of the courts. But the criminal code remained unimproved. Under it nearly half of all the complaints tried resulted in acquittal, owing greatly to the ambiguity of the language in which a crime was defined by the legislators. Of the four capital cases tried in Judge Hosmer’s court all failed of conviction, not because the indictment was faulty or the jury were not properly charged, but because they disagreed on the interpretation of the law and the charge of the judge. More than twenty persons tried for murder during the term of the first set of district judges were acquitted, the juries being drawn from the same people who had sustained the vigilance committee. It can not much be wondered at that there existed dissatisfaction with the courts, though they were not responsible for defective statutes, or that lynch-law so often hastened to remove criminals from their jurisdiction. The cause lay even deeper than I have intimated, in the great infusion of a reckless element, which was strengthened by still larger numbers of careless and tolerant persons, whose experience of the freedom of the frontier had made them callous to the horrors of violated law, even when it brought them face to face with sudden death.27 A shooting scrape was a common occurrence, and had so many sides to it – besides the danger that any man might want to shoot another some time, and to establish a precedent might be troublesome – that it was difficult to arouse a sense of outrage in the minds of the majority, except where the murder had been perpetrated for robbery in a treacherous and brutal manner. Even this, as we have seen, they failed to punish. Such was the condition of society in Montana in its earlier period, and such to a great degree it remained for a score of years, although on the statute-books there existed a law against drawing a weapon in anger.28 All this tends to prove the absurdity and futility of the jury system, a relic of past ages which has outlived its usefulness.
A question discussed at this period was one which deeply touched the foundations of society and its good order, and which disturbed particularly the first judicial district. Montana having been organized out of the territories of Idaho and Dakota, for the first six months every commercial transaction had been conducted in tacit, if not expressed, recognition of the fact that placer gold was the exclusive currency of the country, and that United States treasury notes were worth fifty cents on the dollar of the former currency. The custom of conducting business on the basis was so well established that it had never been thought necessary to specify in writing in what currency given sums of money should be paid. Two questions which presented themselves were therefor of the greatest significance. First, was Montana with out statutory enactments, or were all those laws of a general nature passed by the legislature of Washington, not inapplicable in their form and nature to the western counties of Montana, in force in that portion of Montana west of the Rocky mountains, and such general laws passed by the legislature of Dakota in force east of the Rocky mountains; and were the laws of Idaho passed at its first legislative session, ii the winter of 1863-4, of like nature and force after their passage through out the territory, or did the organization of a new territory out of Idaho itself operate to repeal all the statute law then in force? Second what should be the measure of damages upon contracts made in the territory to pay a given number of dollars, not expressed to be in gold-dust, but unquestionably so intended by the contracting parties? Judge Hosmer, when he opened his court, made first his impressive charge to the grand jury, as before mentioned, and then, deferring all other business, invited the opinions and arguments of the bar on the vexed questions. As we know already, a majority of the population of the territories of Idaho and Montana at this period were in sympathy with disunion and a political bias was likely to be given even to questions of abstract law. A majority of the bar therefore argued that the organic act of the territory wrested all its geographical area from the force and operation of the statutes of the other territories which had once had jurisdiction. In the absence of authorities or precedents, a single letter of secretary Buchanan to General Kearney in California, in which it was stated that the Mexican laws not inconsistent with the laws of the United States, and applicable to the existing state of affairs, would remain in force, was the only authority for the opposite side of the argument. It was Judge Hosmer’s opinion that the former laws remained in force until a Montana legislature enacted others, which should also be consistent with the constitution of the United States.
On the question of contracts, a large majority were of the opinion that contracts made while gold-dust was currency, for the payment of a given number of dollars, could only be liquidated by dollars of market value as measured by gold-dust. A few members of the bar, however, maintained that a promise within the United States to pay any number of dollars could always be liquidated by whatever the United States had declared to be the legal tender for the payment of debts. It does not appear that Judge Hosmer decided this question, but wisely left it to the legislature, which held its first session before his court adjourned; and it soon ceased to be a disturbing question, popular sentiment in the mines being a unit in favor of gold.
Notwithstanding no ground of complaint could be found against the United States judges, except that they exercised their right to held opinions in consonance with their convictions, shortly before the expiration of their terms judges Hosmer and Munson were warned by the anti-administration journals, and requested by the legislature, which had assigned them to the uninhabited counties of Bighorn and Choteau, to resign, and did resign, their places being filled by the appointment of Henry L. Warren, chief justice, and Hiram Knowles29 associate. Williston remained until 1869, when he was succeeded by George G. Symes.30
To return to the proceedings of the governor and legislature. Meagher was fond of proclamations, and considering that he was only, at the most, acting governor, drew upon himself the ridicule of the opposite party, who dubbed him, in a kind of merry contempt, the Acting One. He had called a third session of the legislature before the governor appointed to succeed Edgerton arrived, October 3, 1866. This was Green Clay Smith of Kentucky, whose coming was without noise, and who assumed the executive office quietly and gracefully. The legislature which had been elected under the apportionment of the previous one, consisting of the maximum allowed by the organic act, namely, thirteen in the council and twenty-six in the lower house,31 met November 5th, and proceeded to enact laws. Governor Smith, in his message, recommended some legislation looking to the establishment of a permanent and healthy system of education, and made some suggestions concerning such a system. He called attention to the debt of the territory, already amounting to $54,000, and to the manner in which the assessments and collections were made. While the assessment roll showed $4,957,274.53 of taxable property, the treasurer’s report showed only $20,316.95 paid in taxes from eight counties. The county of Choteau paid no tax, and refused to organize or conform to the laws. The governor recommended the repeal of the law creating the county, thereby throwing it back into Edgerton County, whose officers would do their duty. But the treasurer of Edgerton County had32 neglected to collect taxes, and left it in debt, when it was amply able to appear solvent. Two other counties, Meagher and Beaverhead, also failed to make any returns, for which evil the legislature was directed to find a remedy. Indeed, with all the legislating that had been done, the affairs of the young commonwealth were in a sad way, and not likely soon to be amended, under the existing practices of the legislature, which, while it affected economy in cutting down the salaries of federal officers, doubled the number of territorial officers, and paid them well for doing their duty ill.33 Indeed, they did not think twelve dollars a day high pay for making laws which congress might repudiate, but for which the territory had to pay.34 In addition to the debt, apparent and acknowledged, there was a large amount of scrip outstanding, of which there was no official record. The governor recommended the legislature to inquire into this matter, and the request was complied with, the inquiry resulting in finding the debt of the young commonwealth to be over $80,000. The $20,000 in the treasury was supposed to be applied to liquidation, as far as it went, and the remaining $60,000 was funded at a high rate of interest for the taxpayers of the future to pay. Even this was not all, there being over $28,000 due the members of the second and third legislatures, which they had voted themselves.
Governor Smith recommended that instead of asking for a mint, as was talked of, congress should be petitioned for an assay office. A surveyor-general was very much more needed35 than a mint, if county boundaries and private land claims were to be correctly established. Another good suggestion of Smith’s was the adoption of the civil code of California, by which the bar and courts of Montana would have the experience of many years of legislation under similar circumstances, and the opinions of the Supreme Court of the United States on questions likely to arise. As I have before said, this suggestion was carried out, although not by this legislature. Public buildings being still wanting, he recommended that congress be asked for means to erect these absolutely necessary for the preservation of the public archives, and auditor’s and treasurer’s books, and the safe-keeping of convicted felons.36 They were also advised to labor in behalf of the Northern Pacific railroad, to convince the national legislature of the great benefit of such a highway to the whole northwest territory, and especially to Montana.
The seat of government, located at Virginia City when that was the centre of the mining population, was already coveted by other towns, centers of other rich mineral districts, and by the inhabitants of counties centrally located with reference to the whole territory. The legislature of November 1866 settled the question, so far as they were concerned, by removing the capital to Helena.37 The organic act required a vote of the people upon the final location of the seat of government, and other events were to occur which would nullify their action.
Zabriskie’s Land Laws, 857. ↩
Id., 860-71; U. S. Acts, 91-7, 38th cong. 1st sess.; Camp’s Amer. Year’ Book, 1869, 497-500: Como Sentinel, Aug. 13, 1864. ↩
Two other men had been previously appointed who declined: Henry P. Torsey, June 22, 1864, and John Coburn March 3, 1865. Edgerton was without a secretary for the first year he was governor.
Sidney Edgerton was born in Cazenovia, Madison County, N. Y. His father was Amos Edgerton, who married Zevirah Graham, both educated in the best schools of their times. The father dying, the mother was left, while Sidney was but 6 years of age, to support and educate the family of 6 children, with whom she removed to Ontario County, N. Y., where Sidney grew to man’s estate, alternately following the avocation of a builder and attending the higher schools, or teaching village schools. For 2 years he was principal of the Genesee Wesleyan seminary at Lima, Livingston County. In 1840 he went to Akron, Ohio, to read law with the famous Rufus P. Spaulding. In 1842 he entered the Cincinnati law school, then under the charge of Timothy Walker, author of American Law, from which institution he graduated in 1844, returning to Akron to practice, forming a partnership with Van R. Humphrey and William H. Upson. Edgerton was strongly anti-slavery in his convictions, and a leader of that unpopular party, finding no national organization to adhere to before the birth of the Republican Party in 1855. In 1858 he was elected a member of congress, and again in 1860. His appointment to the chief justiceship of Idaho, in 1863, followed, and on arriving at Bannack, then a part of that territory, and finding a large population there without law or officers, he reported to Gov. Wallace and awaited the designation of the courts, but no court was appointed within the district to which he was assigned, nor was there any officer there to administer the oath of office. He was selected by the people to go to Washington to endeavor to have the territory of Montana organized, in which business he was successful, and was appointed governor. At the expiration of his term he returned to Akron, Ohio, where he continued the practice of his profession. Owing to the turbulence of the times. Gov. Edgerton did not receive the just meed of his qualities and services in Montana Sanders’ Notes, MS., 1-11. ↩
Ammi Giddings was the first associate judge appointed, but declined. ↩
O. F. Strickland was appointed A. A. Attorney General. In 1865, and William M. Stafford in 1866. ↩
Cornelius F. Buck was the first appointed, but declined. ↩
The legislature consisted of 20 members, 7 in the council and 13 in the lower house.
The council was composed as follows:
Beaverhead County, Frank M. Thompson and Ebenezer D. Leavitt
Madison County, Charles S. Bagg, Anson S. Potter, and Robert Lawrence
Jefferson County, Nathaniel Merriman; Choteau and Deer Lodge County,
Missoula County; Frank L. Worden
Lawrence was chosen president.
Appointed by the council:
George Heynes Secretary;
Frank H. Angevine Assistant Secretary;
Robert Hereford Engrossing Clerk;
John C. Ryan Enrolling Clerk;
Harrison G. Otis Sergeant-at-Amis;
Harris Oilman Doorkeeper;
W. P. Edgerton Page.
Mont. Jour. Council, 1864, 1, 6.
The members of the House of Representatives were:
Beaverhead County, J. C. Faul, A. J. Smith;
Deer Lodge County, James Stuart;
Jefferson County, George Detwiller speaker, J. N. Buck, Milo Cartwright
Madison County; Francis Bell, Wiley Huffaker, Alexander E. Mayhew
Washington County; J. McCormick, J. H. Rogers, Patrick Ryan, John Owen
Elected but not seated, E. B. Johnson. ↩
W. F. Sanders was put forward as a candidate by the loyal population. James Tufts, who had been speaker of the Idaho legislature, also had aspirations. Portland Oregonian, Sept. 14, 1864. ↩
According to J. N. Bond, who has furnished me with a manuscript narrative of the early History of Colorado, Idaho, and Montana, in each of which territories he has borne a pioneer’s part, not one of the members of the first legislature of Montana had ever served before in the capacity of law-maker, and the governor himself was ignorant of parliamentary rules, p. 61 of Bond’s MS. It would seem, however, that this statement should betaken with allowance, particularly in regard to the governor, who was a graduate of a law school, and had been a member of congress. ↩
There was strong political feeling in the first canvass. The leaders of the dominant party were Sample Orr, W. L, Ewing, Warren Toole, Alexander Davis, H. Y. Pemberton and Thomas Thoroughman of Missouri, W. B. Dance of Montana, W. L. McMath, N.J. Bond and Samuel McLane of Colorado, and Ansell Briggs, whilom governor of Iowa, who was president of the first democratic convention of Montana in the autumn of 1864. The leader of the republican element was W. F. Sanders. Bond’s Hist, Col., Idaho, and Montana, MS., 58 ↩
The code commissioners were William H. Miller, George W. Stapleton and W. F. Sanders. Helena Montana Post, Dec. 4, 1868. ↩
Where the majority were openly armed, such a law could effect little reform in the practice of shooting a man at sight. ↩
The inquirers were Thomas E. Tutt, R. W. Donnell, James T. Hedge, Mark A. Moore, Peter H. Rea, J. H. Shober, W. K. Roberts, Alexander W. Woolfolk, E. C. Moore, R. C. Ewing, and others. Montana Scraps, 20-1. ↩
The Virginia Montana Post, March 31, 1866, upheld the vigilants, saying they had hanged Daniels because of his crimes, and not because he had been pardoned, as the governor’s party chose to construe it. ↩
Mont. Jour, Council, 1864, 101. ↩
Virginia Montana Post, March 31, 1866. ↩
At the preliminary meeting, T. C. Everts was called to the chair, F. C. Deimling being appointed secretary. The committee appointed to report at the regular meeting March 31st was composed of Phelps, Strickland, Merriman, and A. J. Davis. The central committee was composed of:
Madison County, F. C. Deimling, A. J. Davis, R. H. Robinson;
Edgerton County, R. P. Seely, E. W. Carpenter;
Jefferson County, N. Merriman, Jacob Wettleson;
Missoula County, F. C. Worden, Thomas Roop;
Deer Lodge County, O. G. Darwin, B. P. Johnson;
Choteau County, H. D. Upham, G. E. Upson;
Gallatin County, R. C. Clark, K. C. Knox;
Beaverhead County, E. D. Leavitt, A. J. Smith.
President of committee, F. C. Deimling;
Vice-president, J. S. Lott;
Secretaries, O. F. Strickland, W. M. Stafford;
Treasurer, J. J. Hull. ↩
The members of the council for the 2d term were:
Anson S. Porter, Charles S. Bagg, E. D. Leavitt, W. J. McCormick, Nathaniel Merriman, E. P. Phelps, J. G. Spratt.
R. J. Mitchell Secretary,
E. S. Calhoun Assist Secretary,
William D. Leech and A. H. Barrett Clerks,
John Bigler Sergeant-at-Arms,
George Reid Doorkeeper.
Members of the house:
A. J. Smith,
H. D. Herd,
A. V. Corry,
G. H. Hanna,
J. N. Rice.
J. S. McCullough,
A. E. Mayhew,
J. La Fontaine,
R. R. Parrott,
A. S. Maxwell,
R. W. Mimms. ↩
The members of the convention which failed so signally in its purpose were:
From Edgerton County, R. C. Ewing, J. A. Johnson, W. J. Pemberton, O. F. Hart, W. L. Steel, H. B. Parrott, A. S. Maxwell, K R Waterbury, A. M. Woolfolk, Thomas E. Tutt.
From Madison County, Thomas Thoroughman, W. B. Napton, Geo. W. Hill, William N. Couch. J. T. Rucker, George Wilhelm, P. C. Evans, John P. Rogers.
From Jefferson County, T. F. Boler, W. G. Barclay, J. C. Gillman, J. H. Shober, W. F. Evans.
From Gallatin county, A. Metcalf, W. B. Morris, J. D. Davidson, A. J. Hunter, H. P. Downs.
From Missoula County, John Pomeroy, C. E. Irwin.
From Deer Lodge County, W. B. Irwin, A. E. Mayhew, James Stuart, Michael Helland, D. L. Irvine, W. J. McCormick, T. H. Buir, Reuben Borden, Blakely. ↩
There had really been no census taken when the first apportionment was made; only an estimate by the United States marshal; nor had any yet been taken. ↩
Virginia Montana Post, Juno 9, 1863. ↩
Virginia Montana Post, Aug. 11, 1866. ↩
There is a pleasant book, written by A. K. McClure of Pennsylvania, and published in 1869, entitled Three Thousand Miles through the Rocky Mountains in which there is a good deal said about the administration of the vigilants and the courts in Montana. The author remarks of Hosmer, that he ‘started wrong in the outset – like a timid driver failing to wield the reins with vim in bis first drive of a vicious team; and the team has measurably driven the driver ever since. Stem in his integrity, and well versed in the law, he does his part creditably in all things, save in exercising with a firm purpose the high prerogatives of a court of justice.’ I have not found the timidity imputed to Judge Hosmer by McClure – at least not in any important matters. The same author finds Judge Munson too lax in his jurisdiction – yet Munson, single-handed, steered the judicial craft through the breakers of southern-democratic disorganization for a year, without losing his position or the respect of the people, who presented him with a gold watch as a testimonial in October 1866. Williston, McClure described as a martinet ‘who learned the duties and prerogatives of courts from his father, one of Pennsylvania’s best judges in the best days of her legal tribunals;’ and calls him ‘fastidious, foppish, and genial.’ This species of criticism, in which the wise men of the east love to indulge, howsoever it may satisfy a certain class of readers, only tends to reader the writers contemptible in the eyes of those who know something of what they are talking about. ↩
Chief Justice Hosmer in his last charge to the grand jury gives a humorous picture of his court, which as a bit of history is valuable also. He says that he first organized a court in his district in December 1804. ‘Most of the suits had been commenced when Montana formed a part of Idaho, and a nearly worn-out copy of an original house bill of the civil practice act of Idaho, with written interlineations and corrections, was the sole guide to the attorneys in making up a calendar of 80 cases. This worn and dilapidated pamphlet, dirty from constant use, and covered with paper so scribbled over that its original color was hardly discernible, was the vade mecum of bench and bar in all the early practice of the territory.’ It was always being borrowed and getting lost. ‘Anxious clients and eager lawyers attributed the law’s delays more frequently to the absence of this peripatetic monitor than to any other cause… The question arose concerning the integrity of this old book. Montana of herself had no laws. Should the laws of Idaho prevail? or should we fall back upon the common law? The evenings of a week were spent in the various arguments of the lawyers, and the question was at length decided. Close upon the heels of this discussion followed another of equal duration on the gold and greenback question; then another as to the legality of instruments in action which had not been stamped simply because there were no stamps in the territory. Our first courtroom, the dinner-hall of the Planters’ House, was a model of rustic judicial architecture. Upon a long table, whose tottering legs threatened any one having the temerity to climb upon it with instant demolition, behind another table of smaller dimensions, on one of the stools which had served apprenticeship at the dinner table, sat the judge, in the language of Milton, ”he above the rest proudly eminent.” In the arena below, the jurors, the bar, the suitors, spectators, prisoners, even the dogs, mingled together in incongruous confusion. Under all these teeming embarrassments, the course of justice was slowly onward. An importation of Idaho laws superseded the worn-out house bill, and in a week’s time a hall of ampler dimensions, suitably arranged, was provided for the court.’ Virginia Montana Democrat y April 11, 1868. ↩
]Wilbur F. Sanders, in a chapter on the early judiciary of Montana, contained in his Notes, MS., says: ‘Justice has not been done to the courage which enabled these early judicial pioneers to step into such a community and so act as to practically drive the vigilance committee out of existence in a short period of time.’ I would here make my acknowledgements for many favors received from time to time from the very able and public spited author of these manuscript Notes, who also contributes in effect the following remarks on Montana tribunals.
From the time of the first settlement in Montana to May 1864 there was not an officer authorized to administer oaths or the laws in the territory, and no organization, if we except a partial organization of the county of Missoula by the legislature of Washington, where there was a single justice of the peace. Yet for two years there had been a number of considerable settlements in the territory, and property, real and personal, of great value, owned, titles created and conveyed, crimes punished, and other forms of redress resorted to known to the judicial tribunals. And this was a necessity. Thrifty and active communities were engaged in mining and commercial transactions of large moment and amounts; cargoes of goods were arriving and being sold and transported, calling into being all the processes by which civilized communities assume to regulate affairs between men and enforce justice. The story of these days furnishes a remarkable example of the force of habit in such matters which characterizes the American people, and demonstrates that they readily follow the forms of law, and abide by the consequences when their acts lack legal sanction.
The primary tribunal, constituting what I would call the first period of judicial proceedings in Montana, was known as the miners’ court, and regulated all rights, legal, equitable, and admiralty. Prior to March 1863, when the territory of Idaho was created, comprehending what is now Montana and a part of Wyoming, within the limits of these latter there was not a volume of the statutes of Washington, out of which Idaho had been carved, nor had the legislature of Idaho met or enacted any laws. No man was authorized to administer an oath, acknowledge a deed, certify a contract, or determine any controversy. Hence the necessity of some regulations to which the people consented. The occupied mineral regions were divided into districts of convenient size. Public meetings were called, usually upon Sundays, when the people had leisure, and some citizens were elected president of the district, miners’ judge, sheriff, and coroner, their duties being undefined except by name, and the admonition that they should discharge the functions which usually devolved upon such officers. In a community where the criminal class possessed great strength, a prosecuting attorney was added to the list of officers. The entire strength of these districts was wielded by these officials in repressing and punishing crime, and for the vindication of pecuniary rights or the redress of financial wrongs. These courts without hesitation granted divorces, and the judges performed marriage services without question. They summoned any party complained of into their courts, brought in juries of six citizens whenever demanded, listened to lawyers with the customary impatience, declared the law dogmatically without question, instructed juries as to their duties, received their verdicts and entered judgment upon them, or set them aside with the same degree of regularity and sobriety which characterizes similar tribunals now. If the courts did not held quite so strong the principles of law over the juries, or direct and control them as is customary in more stable communities, the fault was not confined to miners’ courts. Probably there were more disagreeing juries then than now, although this is still a chronic disorder in Montana. Not infrequently cases were tried half a dozen times before a jury agreed. Their fluctuations were remarkable, there being generally five obstinate men on one side, and at the next as many on the other side. It was a frequent occurrence that the judge arrested proceedings, and ordered the sheriff to obtain for the court and jury and members of the bar refreshments from the nearest saloon. The costs of a suit were fixed somewhat arbitrarily by the judge, generally upon a scale of prices arranged by him; but if the trial was important and exciting, and the parties making money fast in the mines, he discriminated against wealth. The lawyers got paid very well. The sheriff was an important figure in the mines. He usually selected the juries upon an open venire, and if he had particular friends engaged in litigation, would take care of them in the selection. Changes of venue and nonsuits were practically unknown. There was generally provided by the rules and regulations of the district an opportunity for the defeated party to appeal to a ‘miners’ meeting,’ which he was permitted to do without giving bonds, and simply upon serving a notice on the party and judge of his appeal to the president of the district; the miners, as jurors, being supreme over the judge and the parties to the contention. These miners’ meetings were most often held in the open air, and if the weather was cold, or some incident of the saloons attracted them, they absented themselves until one of the parties to the suit rallied them by signifying that a question of supreme importance was about to be decided, when they returned and voted for their favorite. At these miners’ meetings the appellate judge usually occupied a wagon, and the lawyers and witnesses spoke and testified from the same eminence. The witnesses might be interrogated by any one who wished to know further about the case, exhibit his learning, or make a display of his feigned impartiality. These tribunals were sometimes swayed by the politics of their clients or their counsel, and sometimes influenced by the liquid refreshments furnished by one side, or occasionally by a solid motive; but whatever consideration determined the result, it was manifested by a viva voce vote of all present, except the litigants and their counsel, and was final. If there was any doubt about the vote, there was a division and a count; the opposing voters standing on either side of a line, while the sheriff or president ascertained the exact number of each. Once definitely settled, there was no further appeal. Property worth many thousands of dollars was involved in these suits, and titles were passed which stand to this day as firmly as any established by any courts. There was a lofty scorn of technicalities about these courts, which treated with contempt a lawyer’s suggestion of the illegality of a written contract which had less than the required number of United States revenue stamps upon it.
Thoughtful men were troubled as to what was to follow, and many believed that these determinations were of such consequence that they would confirmed by an act of the legislature when it should convene, as probably would have been the case but for the restrictive laws of congress. As it was, they remained practically the determination of all controversies. These tribunals continued to exercise some jurisdiction until the arrival in the territory of the justices of the Supreme Court in October 1864; but in the spring of that year commissions had arrived from Lewiston for justices of the peace and probate judges, and the statutes of the first session of the territory of Idaho were also received. It was found that certain jurisdiction had been conferred upon these officers, limited indeed, and comprehending but a small portion of the jurisdiction necessary to be exercised by judicial tribunal, and therefore the miners’ courts were continued, presenting the spectacle of the courts authorized by law exercising a limited authority, while the larger contentions were determined by an unauthorized and volunteer tribunal. The two, however, never came in collision, but worked together harmoniously until the Supreme Court was organized. This constituted the second period of judicial history. During the last ten months of the latter period, the vigilance committee divided jurisdiction with the courts, but took cognizance only of the more flagrant offenses. The third period has been treated of above. ↩
Dimsdale, Vig. Montana, says that the shooting of a man in a barber’s saloon did not interrupt the business of shaving. ↩
In the earlier period John X. Beidler was deputy U. S. marshal, as well as collector of customs for the district of Montana and Idaho, and colonel in the territorial militia. He was from Chambersburg, where he was known as an ‘excellent maker of brooms, cocktails, and juleps, and a fellow of infinite jest.’ In Montana he wore a white slouched hat with an immense brim, loose frock-coat with ponderous pockets, pants and vest of the same cloth, loosely cut, high-topped boots, the inevitable woolen shirt, a brace of faithful pistols in his belt, and a huge ‘Arkansas toothpick,’ or bowie-knife, in a leather sheath. This was his travelling costume. At other times he could be quite foppish; and at all times he was a general favorite, except with the law-breakers, like most favorites, he had a pet name, which was simply X. The local newspapers noticed his movements as X, and so frequently in connection with the arrest of some criminal that the journals of other localities took it for granted that X was a cabalistic sign for vigilance committee. But although he was undoubtedly on that committee’s service at times, he was an officer of the regular courts, whose activity, endurance, sagacity, and readiness in drawing and firing made him the terror of evildoers, and which procured him the thanks of the legislature in 1883. McClure says: ‘When he goes for a desperado he generally takes him without papers, as he terms it; and when he commands, no one has yet been reckless enough to question his authority or dispute his power. He has hung some 30 of the most lawless men the continent could produce, and has arrested hundreds, often in distant regions and without assistance, and has never been repulsed. Many have tried to get the drop on him, but in vain.’ Three Thousand Miles, 376-8.
The first U. S. marshal commissioned was Cornelius F. Buck, June 22, 1864, who declined. The second, commissioned Feb. 2, 1865, was George M. Pinney. The third, commissioned March 18, 1867, was Neil Howie. The fourth, commissioned May 15, 1869, was William F. Wheeler, who was recommissioned in 1873. J. J. Hall was deputy marshal after Beidler. ↩
Knowles was threatened because in a case which concerned the administration of the estate of George Carhart, killed by Plummer’s band at Plummer’s bidding, Plummer pretending to take out administration papers in a miners’ court and selling Carhart’s interest in the Dakota mine to the Montana Mineral Land and Mining Company, the judge decided against the company, and in favor of the proper heirs. Deer Lodge News Northwest, May 25, 1870. Knowles was from Keokuk, Iowa, and had resided in Nevada. He was appointed from Deer Lodge County, Montana, at the request of the bar. Virginia Montana Post, July 26, 1868. ↩
Decius S. Wade was commissioned chief justice after Warren in 1871, and again in 1875. Knowles was retained two terms. John L. Murphy, commissioned Jan. 27, 1871, Francis G. Servia Sept. 21, 1872, and Henry N. Blake July 30, 1875, were the associate justices down to a comparatively recent period. Con. Hist. Soc. Montana, 326-7. ↩
In the council, Charles S. Bagg, A. A. Brown, William H. Chiles, J. E. Calloway, T. J. Lowry, Mark A. Moore, Sample Orr, E. F. Phelps, J. G. Spratt, David Tuttle, E. B. Waterbury, E. S. Wilkinson, G. G. Wilson. Bagg president.
William Y. Lovell, F. W. A. Cunningham, C. V. D. Lovejoy, C. C. Menaugh, clerks.
J. B. Caven Sergeant-at-Arms;
Henry Catlett Doorkeeper. Mont. Jour. Council 3d seas., 4.
In the house, A. E. Mayhew, Raj W. Andrews, C. P. Blakely, I. N. Buck, M. Carroll, T. D. Clanton, John Donegan, A. M. Esler, J. Gallaher, T. L. Gorham, H. Jordan. W. W. Johnson, A. S. Maxwell, J. L. McCullough, Peter McMannus, Louis McMurtry, K. W. Minims, John Owen, J. W. Rhodes, M. Roach, J. H. Rogers, A. J. Smith, H. F. Snelling, J. B. Van Hagan, J. W. Welch, J. B. Wyle. Mayhew speaker.
A. H. Barrett, James K. Duke, Hedges, McCaleb, Clerks.
O. P. Thomas Sergeant-at-Arms.
William Deascey Doorkeeper. Mont. Jour. House, 3d sess., 4.
McMannus killed a man in 1867, and was soon himself killed. Boise Statesman, Aug. 3 and 17, 1867. ↩
This was P. H. Read. His excuse was that he had no time to attend to his official duties, being employed in a mercantile house! Virginia and Helena Post, Sept. 29, 1866. ↩
The sheriff of Madison County, A. J. Snyder, was indicted for forgery. According to the Helena Republican of Sept. 20, 1866, he was able to escape the consequences of his crime by a free use of money among lawyers. The same paper says, ‘We have a police magistrate, McCullough, said to have belonged to a band of guerillas.’ The ‘left wing of Price’s army’ was not all in Idaho, although Montana early officials were not so notoriously corrupt as in the sister territory. ↩
The pay of a legislator, under the organic act, was $4 per day . Zabriskie’s Land Lawa, 868. ↩
Solomon Meredith was commissioned Surveyor General of Montana April 18, 1867. He was instructed to make the initial point of the surveys at Beaverhead rock, named by Lewis and Clarke. Lewis and Clark’s Journal, 257. But this not being convenient, the starting point was fixed at a lime-stone hill 800 feet high, near the mouth of Willow creek, between that stream and Jefferson River, 12 miles from the three forks of the Missouri. The base line was run 30 miles east and 34 miles west from this point, and the standard meridian 42 south and 60 miles north from it in 1867 De Lacy, being draughtsman in the office of the Surveyor General, corrected his map by the survey. Tri- Weekly Mont. Post, Nov. 16, 1867. Orville B. O’Bannon was appointed register, and George McLean receiver, of the land office. Meredith was succeeded in 1869 by Henry D. Washburn, who was followed in 1871 by John E. Blaine, who gave place in 1874 to Andrew J. Smith. The registers following O’Bannon were Lorenzo B. Lyman, Addison H. Sanders, William C. Child, and James H. Moe. The receivers after McLean were Richard F. May, Solomon Star, and H. M. Keyser, down to 1875. ↩
Congress appropriated in 1866, for a penitentiary, $40,000 out of the internal revenue, to be collected annually for three years; this being the first appropriation for territorial buildings in Montana. Cong, Globe, 1866-7, app. 180; Virginia Montana Post, Feb. 23, 1867. ↩
Montana Jour. House, 3d sess., 165, 176, 271, 319. ↩
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