A LEGAL LEGACY FOR STATEHOOD: THE DEVELOPMENT OF THE TERRITORIAL JUDICIAL SYSTQd IN DAKOTA TERRITORY, 1861-1889 by BERNARD FLOYD HYATT, B.S., M.A. A DISSERTATION IN HISTORY Submitted to the Graduate Faculty of Texas Tech University in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY Approved Accepted May, 1937 Copyright 1987 Bernard Floyd Hyatt TABLE OF CONTENTS ABSTRACT iv LIST OF CHARTS vi LIST OF MAPS vii LIST OF TABLES viii PREFACE 1 VOLUME I PART I LAW AND COLONIALISM—UNITED STATES STYLE I. THE NATIONAL TERRITORIAL JUDICIAL SETTING. 16 II. A BRIEF HISTORY OF DAKOTA TERRITORY 39 PART II LAW DURING DAKOTA'S FRONTIER ERA, 1861-1873 III. THE CODES, THE CODIFIERS, AND THE DAKOTA COURT STRUCTURE 54 IV. FRONTIER ERA JUDGES AND INITIAL DAKOTA TERRITORY JURISPRUDENCE 93 PART III LAW DURING DAKOTA'S TRANSITION ERA, 1873-1881 V. THE MATURING OF THE DAKOTA LEGAL SYSTEM: STATUTES, BAR, AND COURTS 167 VI. TRANSITION ERA JUSTICES 206 11 VII. LAW AND THE ECONOMY DURING THE TRANSITION ERA 254 VIII. LAW, POLITICS, AND SOCIETY DURING THE TRANSITION ERA 318 VOLUME II PART IV LAW DURING DAKOTA'S PRE-STATEHOOD ERA, 1882-1889 IX. PRESSURES FOR A NEW LEGAL SYSTEM: PROFESSIONALIZATION AND DAKOTA'S CODES, BAR, AND JUDICIARY 376 X. PRE-STATEHOOD JUDGES 418 XI. LAW AND THE ECONOMY DURING THE PRE-STATEHOOD ERA 476 XII. LAW, POLITICS, AND SOCIETY DURING THE PRE-STATEHOOD ERA 531 XIII. CONCLUSION 588 BIBLIOGRAPHY 60 3 APPENDICES A. OFFICIALS OF THE DAKOTA TERRITORY JUDICIAL SYSTEM, 1861-1889 680 B. DAKOTA TERRITORY SUPREME COURT BAR, 1861-1889 686 C. DAKOTA TERRITORY JUDICIAL DISTRICTS WITH COUNTY NAMES, 1861-1889 692 111 ABSTRACT It is the purpose of this dissertation to provide an in depth analysis of Dakota Territory's judiciary, court structure, and ease law from its formation in 1861 until statehood was achieved in 1889. It is an attempt to reveal the true nature of the federally-appointed judges, judicial system, and judge-made law of the Territory. The method used is a thorough research and analysis of available historical materials. The basic historical data used are: (1) federal and territorial court records, (2) federal and territorial statutes, (3) federal and territorial court opinions, (4) newspapers, (5) letters, (6) published books and articles, and (7) unpublished materials. Historical narration, supplemented with charts and maps, is used to present the results of the research and analysis. The important finding seems to be that the legal experience in Dakota Territory appears to fall generally within the neo-Turnerian view. Neo Turnerianism is found in Dakota specifically in four basic themes—elitism, judicial intervention, legal reform movement, and federal­ ism. Regional elites interjected themselves into the iv economy, politics, and society of the Territory. They were able to manipulate its legal and judicial systems by influencing the judicial appointment process and by taking advantage of the codified jurisprudence informally offered by the national legal reform movement. Complex laws and codes were brought into Dakota which replaced existing systems of informal pre-Territory law. The initial territorial organic act provided by Congress was later augmented by congressional statutes, eastern codes, Dakota Assembly law, and federal-territorial court deci­ sions. Dakota's judge-made law was usually based upon United States Supreme Court, eastern, and midwestern precedents which were revised to make them harmonize with the Territory environment, economy, politics, and society. Territory case lav/ was generally construed to encourage railroad, land, and mining developments which favored corporations and the creditor class. The intrusion by regional elites operated within federalism's framework of congressionally mandated guidelines, while being monitored by the United States Supreme Court through its appeals process. The neo-Turnerian position generally falls within the pattern of intervention through these means. V LIST OF CHARTS 1. Federal-Territorial Relationships 17 2. Frontier Era Court Structure 67 3. Transition Era Court Structure 177 4. Pre-Statehood Era Court Structure 388 VI LIST OF MAPS 1. General Area Map of Dakota Territory, 1861-1889 41 2. Political Map of Dakota Territory, 1861-1889 . 44 3. Dakota Territory Judicial Districts, 30 July 1861 72 4. Dakota Territory Judicial Districts, 1863- 1864 Assembly 74 5. Dakota Territory Judicial Districts, 13 January 1871 78 6. Dakota Territory Judicial Districts, 18 75. 18 5 7. Dakota Territory Judicial Districts, 1877 Assembly 188 8. Dakota Territory Judicial Districts, 1879 Assembly 192 9. Dakota Territory Judicial Districts, 3 March 1879 194 10. Dakota Territory Judicial Districts, 1881 Assembly 196 11. Dakota Territory Judicial Districts, 4 July 1884 393 12. Dakota Territory Judicial Districts, 188 5 Assembly 394 13. Dakota Territory Judicial Districts, 1887 Assembly 396 14. Dakota Territory Judicial Districts, 9 August 1888 398 15. Dakota Territory Judicial Districts, 1889 Assembly 400 vii LIST OF TABLES 1. Frontier Era Federally-Appointed Judges 95 2. Frontier Era Pre-Judgeship Personal Background 9 8 3. Frontier Era Pre-Judgeship Legal and Judicial Experience 99 4. Frontier Era Pre-Judgeship Economic and Political Activities 102 5. Frontier Era Judgeship Appointment Support . .10 5 6. Frontier Era Post-Appointment Social, Economic and Political Activities 10 8 7. Frontier Era Removal Attempts, Reappointments and Terminations 112 8. Frontier Era Judges' Post-Judgeship Activities 118 9. Frontier Era Court Terras 120 10. Frontier Era District Court Cases 121 11. Frontier Era Appeals to the Dakota Supreme Court 12 3 12. Frontier Era Judges' Performances 124 13. Transition Era Federally-Appointed Judges. 208 14. Transition Era Pre-Judgeship Personal Background 214 15. Transition Era Pre-Judgeship Legal and Judicial Experience 215 16. Transition Era Pre-Judgeship Economic and Political Activities 218 Vlll 17. Transition Era Judgeship Appointment Support 220 18. Transition Era Post-Appointment Social, Economic and Political Activities 225 19. Transition Era Removal Attempts, Reappointments and Terminations 229 20. Transition Era Judges' Post-Judgeship Activities 234 21. Transition Era Court Terms 236 22. Transition Era District Court Cases 237 23. Transition Era Appeals to the Dakota Supreme Court 239 24. Transition Era Appeals to the U.S. Supreme Court 241 25. Transition Era Judges' Performances 243 26. Pre-Statehood Era Federally-Appointed Judges . 420 27. Pre-Statehood Era Pre-Judgeship Personal Background 425 28. Pre-Statehood Era Pre-Judgeship Legal and Judicial Experience 427 29. Pre-Statehood Era Pre-Judgeship Economic and Political Activities 431 30. Pre-Statehood Era Judgeship Appointment Support 435 31. Pre-Statehood Era Post-Appointment Social, Economic and Political Activities 441 32. Pre-Statehood Era Removal Attempts, Reappointments and Terminations 447 33. Pre-Statehood Era Judges' Post-Judgeship Activities 449 34. Pre-Statehood Era Court Terms 453 IX 35. Pre-Statehood Era District Court Cases 456 36. Pre-Statehood Era Appeals to the Dakota Supreme Court 457 37. Pre-Statehood Era Appeals to the U.S. Supreme Court 4 59 38. Pre-Statehood Era Judges' Performances 461 X PREFACE Legal history ... is necessary to the understanding and intelligent working of all long established legal systems, for this obvious reason: all long established legal systems must possess a background of old institutions, and of old technical principles and rules, sufficiently stable to give security to the ordering of society, and yet suffi­ ciently elastic to allow the changes needed by altered social needs, and an altered public opinion. It is because the legal systems of Rome and England solved this difficult problem of combining stability with elasticity that they have become two of the greatest legal systems that the world has ever seen. Sir William Searle Holdsworth, Some Lessons From Our Legal History (New York: The Macmil- lan Company, 1928), pp. 8-9 Unfortunately, no comprehensive study has ever been written on the complete development of a specific United States territorial judicial system. Frontier legal his­ torians have concentrated upon partial treatments, such as jurist biographical studies or compilations of territorial laws. None of these works, however detailed, represents a complete territorial analysis of robe and opinion. Major works in American legal history, on the other hand, have slighted the frontier altogether and have created few case studies that fully analyze the development of western legal doctrine in terms of judicial institutional development. Even Lawrence M. Friedman's masterpiece on American legal 2 history has but a brief chapter on frontier law. 1 In these limited studies Dakota Territory has been virtually ignored. No legal history of a comprehensive nature has been written until this present study. I am fortunate, however, to be able to draw upon two Dakota his­ tory works. Howard Robert Lamar has produced a political study of Dakota that focuses primarily on the political parties and the struggles for the congressional delegate- 3 ship and governorship, and Harold E. Briggs completed a dissertation which presents an examination of the economic 4 history of the territory. The purpose of this dissertation is to analyze the development of the Dakota Territory judicial system and then to place the Dakota Territory legal experience within a historiographical framework. It explores the nature of the territorial court structure,