1904 History of Cherokee County Kansas

CHAPTER IV, part 2.

"During the administration of President Buchanan a considerable number of families, attracted by the beauty and fertility, and the genial climate of this section of the country, and finding no opposition from any source, came upon these lands. For political reasons a movement was set on foot to remove these settlers. Soldiers, without any proper authority, were brought here, and a few worthless buildings were burned. The indignation of the settlers, at such unwarranted proceedings, was such that the soldiers desisted from their work of ejectment, and the citizens sent a delegation to see President Buchanan. He told them to return to their homes and occupy them; told them to encourage the settlement of the country, and that the land would soon come in under the preemption law. The soldiers whom politicians had procured to be sent here were withdrawn, and the settlement of the country went on.

"During the Rebellion the Neutral Lands were held alternately by the two parties, the settlers not being able safely to remain at their homes. Thousands of Union soldiers campaigned back and forth over these lands; and when the war was over thousands of them brought their families here to make homes. The Indians directly and indirectly encouraged the settlement of the country.

"In March, 1866, President Johnson wrote us: 'Go on and settle it up and make a country of it, and you shall be protected in the homestead and preemption right.' Senators Lane, Pomeroy and Ross, by many letters, some of which are yet preserved, stimulated our occupation of the country, and assured the settlers of their safety, under the land policy and the laws of the nation.

"The fall of 1866 saw several thousand families occupying claims, some in such rude, temporary shanties as they could erect, some in tents, and some under wagon covers only. From their former homes many of the people had brought a few choice cattle; but that fall four-fifths of these fell victims to the 'Texas fever,' brought here in the herds of cattle driven from the South. February and March, 1867, proved very hard on the few remaining cattle and on the horses of the settlers. Without grain and sufficient shelter, many of the hay-fed animals perished in the sleet and cold rain storms of the season. Disaster seemed to attend the settlement of the land, and many of the faint hearted became discouraged and went elsewhere; but an intelligent appreciation of the country itself, and an abiding trust in the government, that the homes they were struggling for would be secured to them and their families, sustained the more stable of the settlers through all their trials and anchored them fast to the country of their choice. The few patches of sod corn planted in 1867 produced very well, but only a small fraction of what the people needed. Every nerve was strained to get in as large a crop as possible in the spring of 1868, and the coming of 'garden truck' and the ripening of the corn was looked to with earnest hope, as a time of relief from a pressure which, because of its weight and duration and the inability of the people to stand it, had become simply terrible. And yet upon this added misfortune came. About the middle of June there came the worst drought that Southern Kansas ever knew. Corn everywhere was a failure, and, as but little small grain had been sown, there was scarcely any relief. The grass was short, thin and parched, so that only a little of very poor hay could be made. Under these circumstances nothing but a most favorable winter could save the people from further calamity; but that mercy came, and the people were saved. Stock wintered well on the range; but how the people managed to live is known only to themselves. The half of the story of the winter of 1868-69 will never be told.

"Fully to expose Mr. Joy's bad faith, in his attempted dealings with our people, would require much of our and the reader's time. Briefly, his course, from first to last, has been marked by the very essence of despotism, and by an utter disregard of our rights. Evidently he has supposed that he could play the missionary, the benefactor and the guardian, believing that we could not see through the velvet which concealed the claw, the sheepskin which covered the wolf or the thin coating of the sugar-covered pill which he had with so much care prepared for us."

The committee, after going on at much length as to the treaty through which the Cherokee Indians passed their lands to the United States, in trust, have this to say:

"We hold, in short, that the whole transaction is a base swindle, not only upon the whites, but also upon the Indians themselves, and that, in the language of the opinions given by Judge William Lawrence, Hon. George W. Julian, Gen. Benjamin F. Butler and Judge William Johnson, January 28, 1869, 'We hold, therefore, that the sale of the Cherokee Neutral Lands to James F. Joy, is void; that any patent which may be issued to him will be void; that the purchaser from him will acquire no valid title * * * To remove all doubt, it is further our opinion that Congress has the power, and that it is a duty, to abrogate, by law, so much of the municipal regulation of the Cherokee treaty as purports to authorize a sale.' We ask all thinking, honest men and women thoroughly to investigate not only this case, but this general, wholesale and shameless disposal of the people's lands to railroads and other monopolies. The public domain is the heritage of all the people. We ask whether this robbery of the people shall be permitted to go on, until monopolies, always aggressive, aristocratic and oppressive, shall have coutrol[sic] of the Legislature of every State in the Union, and of the government of the United States itself, or whether you will join us in our effort to stop it now and to overthrow it forever. To this end we petition you, for we deem the danger imminent. Aristocracy never did, in any age or nation, so flourish, except when based upon the soil; but if we read the signs of the times aright, this extensive engrossment of the public domain by a few, is the result of an aristocratic tendency in this government, which if not defeated will prove as destructive of our institutions as a dissolution of the Union, or as a successful foreign war would be. It is equally true that republican institutions, in order to flourish, must be based upon the soil. They cannot stand upon any narrow foundation. The people to be free, must own the soil. As well might we attempt to pull down the sun from heaven, or to do any other impossible thing, as to attempt to maintain free institutions of government upon any other or different principles than liberty for all, and a division of the public domain at least among all the people who wish to cultivate the same, in small areas, each family being sole lord and proprietor of its little spot of earth, sufficient to feed, clothe, educate and provide for the household; for in whatever country or neighborhood the lands are in the hands of the few, there will be found serfs, toiling men and women irredeemably poor. The Congress, as well as the court, has the power to undo our wrongs, and the House of Representatives, to its honor let it be said, has twice resolved that it shall be done, while the Senate has as often tabled the resolution. Many of the ablest and best Senators, however, are in our favor, and will, we believe, concur with the House in what it is trying to do.

"The West is being smothered by land monopoly. Principality after principality has been bestowed upon corporations of the most gigantic proportions, and the progress is onward, with a vigor increased by every successful grab of the people's heritage. The government no longer purchases the Indian's title of occupancy, and allows the pioneer to settle upon it, under the homestead and pre-emption laws; but railroad companies purchase the Indian lands for a mere song, that they may wring untold millions of money from one of the most useful and energetic classes of the citizens of the United States.

"The departure from the land policy of the government began in 1861. At that time S. C. Pomeroy entered the United States Senate, from Kansas, as the standard bearer of a party which from every stump had sent up the cry, 'Free homesteads for the landless millions.' He was at that time a man of moderate means. Follow him for a few years. In 1865 we find him as president of the Atchison & Pike's Peak Railroad Company. A treaty was carried by him through the Senate, by which that company purchased 123,832 acres of rich land in Kansas, embracing the beautiful Kickapoo Reservation, thirty miles west of the city of Atchison, for a mere song. The reservations of the Sac and Fox tribes, those of the Kansas, Delaware, Ottowa and Kickapoo tribes, and the Cherokee Neutral Lands have all passed into the hands of railroad corporations and other speculating companies, and Pomeroy has been the 'Big Injin' of the whole ring. From the day he was clothed with Senatorial honors, he has been energetic and unscrupulous in subverting the policy of our government, with regard to the public lands. Congress has granted fifty-seven million acres of the public domain to various Western and Southern railroad companies since 1861; and the Pacific Railroad Company has been granted one hundred and twenty-four million acres. The commissioners of the General Land Office, speaking of these immense grants of land which properly belongs to all the people, that it 'is of empire extent, exceeding, in the aggregate, by more than five million acres, the entire area of the six New England States, with New York, New Jersey, Pennsylvania, Ohio, Delaware, Maryland and Virginia.'"

The people during the times of anxiety, when they were having trouble with James F. Joy, concerning land titles and their rights under the claims which they had taken in Cherokee County, left no means unemployed that offered even a showing of aid. They held meetings, passed resolutions, drew up and signed petitions, published articles in the friendly newspapers and besought their Representatives in Congress and their Senators at Washington to help them in gaining the mastery over their adversaries. They appealed to every motive that could move men to help their fellows who were in distress. I have before me a letter, written by Hon. William Lawrence, of Ohio, to A. V. Peters, an elder brother of W. H. Peters, one of the present county commissioners of Cherokee County. Mr. Peters was a captain in the Federal Army, in an Ohio regiment, and having a personal acquaintance with Judge Lawrence, who was then a member of Congress, from that State, he hoped that some good might be obtained at his hands, in getting a settlement of the troubles which had so long disturbed the people here. The letter, copied from the original, is given below:

HOUSE OF REPRESENTATIVES,
WASHINGTON, D. C., April 13, 1868.
A. V. PETERS, ESQ.:
Yours of the 1st inst. is received. I thank you for the approving words you wrote in reference to my efforts in behalf of the poor and landless people of the country. I am their friend. They need friends. If we do not stop this scheme of delivering over the public lands to speculators, the poor of the country are doomed to toil and poverty, with no h ome wherein to dwell. You, and the true men like you, have a remedy. It is not merely in writing letters. Call meetings, pass resolutions and demand action of Congress. Send them to every Senator and Representative. Denounce their treaties which seek to rob the poor. They are all void. Not one good land title can be made under them. But if they go on, Congress will, after a while, ratify them. Now is your time to strike. Do not delay an hour. Kansas is deeply interested. Let Kansas be heard. But if you rest in peace, all will be lost. My efforts will do no good, unless you people come up to the rescue. The men who speculate under these treaties, and crowd God's poor away from homes on God's earth, are powerful, active and busy. Every county in Kansas should speak out for her people. Will you do so? Let me hear.
Respectfully,
WILLIAM LAWRENCE.

Captain Peters also wrote to Gen. John A. Logan, who was at that time a member of the House of Representatives. General Logan answered briefly. The original letter is before me, and of it the following is a copy:

HOUSE OF REPRESENTATIVES,
WASHINGTON, D. C., June 13, 1868.
A. V. PETERS, ESQ., PETERSVILLE, KANSAS
My Dear Sir--Your letter of June 4 is received. In reply I will state, with pleasure, that I agree with you fully, in reference to the just claims of our soldiers and sailors, upon the gratitude of the government. I am in favor of giving them who fought our battles an opportunity to select homes which shall embrace both convenience and value. I will keep your suggestions in mind. 'As an opportunity may offer wherein it would be of service to our friends, I am always glad to aid in any enterprise which has in view the soldiers' interest.
Yours very truly,
JOHN A. LOGAN

The troubles of the people were not over, even when they had come to know their condition with respect to the Joy land matter, and were settling down to accept it. It seemed that they, like many communities in the West and in the South, had to have their experience with the bond-sharks who were abroad in the land for a good many years following the close of the war. Salamanca township, which includes the city of Columbus, early voted bonds, in aid of a railroad company. The bonds were issued and delivered to the company, and the company sold them to an "innocent purchaser," who was in the market for such securities. The road was never built; but the courts held that the bonds were good, and that the people would have to pay them. I have before me a small pamphlet, written by William C. Wilson, into whose hands the bonds finally fell. It is addressed, "To the Law-Abiding People of Cherokee County," but it bears no date. The following is the preface to the pamphlet:

The municipal township of Salamanca, having defaulted in the payment of interest on its bonds held by me, the United States Circuit Court gave judgment and peremptory mandamus, commanding your county commissioners to levy a tax to pay the same; but as they "unlawfully, contemptuously and oppressively" refused to do so, the court incarcerated them in jail for thirty days.

I also brought suit against them, personally, in a civil action for damages, and a Kansas jury awarded me a verdict for the small sum of $500 and costs; upon which their attorneys made a motion for a new trial, which, after argument by Messrs. Webb, Ritter and Williams, was emphatically overruled by Judge Foster.

As the people of Salamanca, "in mass meeting assembled," after parading to the music of a brass band, resolved that they would not patronize any paper that would publish any communication from me, and as there is a conspiracy and confederation to prevent the payment of money lawfully owing to me, and also to hoodwink the people and keep them in ignorance of the true condition of affairs, freedom of speech and of the press being no longer tolerated in the mob-ridden city of Columbus, I herewith send you Judge Foster's opinion, and the charge of Judge Krekel, to the grand jury, upon combinations to repudiate debts and to resist the laws of the land. I do this in the hope that the time may speedily come when the honest, intelligent and wealthy people of Cherokee County will say to their commissioners, "We can no longer allow you to bring reproach upon our good name, by toadying to the defaulters of Salamanca township, as there is no good reason why they should not pay their honest debts."
Yours truly,
WILLIAM C. WILSON.

The author of the pamphlet then sets out the opinion of Judge Foster, which is as follows:

UNITED STATES CIRCUIT COURT, DISTRICT OF KANSAS.
WILLIAM C. WILSON
versus }No. 4362.
R. W. VAUGHN, JOHN RUSSELL AND W. E. SWANSON.
November Term, 1884.-- Filed March 4, 1885.
Bottsford & Williams, for Plaintiff.
Ritter & Anderson, for Defendants.

MOTION FOR NEW TRIAL
Opinion by Foster, J.:
This action was brought by the plaintiff against the defendants, who are the commissioners of the County of Cherokee, to recover damages for a wilful refusal, on the part of the said commissioners, to levy a tax on the taxable property of Salamanca township, in said county, to pay off a judgment held by plaintiff against said township, in obedience to a peremptory writ of mandamus from this court.

The recovery of the judgment, the issue and service of the writ commanding the levy of the tax, and the wilful disobedience thereof by the defendants, were admitted on the trial, and two of the defendants, on the witness stand, testified that it was not their purpose to levy the tax hereafter.

The plaintiff claimed, as his damages, the full amount for which the writ was issued, about $19,000.

On the trial, the court instructed the jury as follows:

"Gentlemen of the Jury:

"In this case, under the pleadings and evidence, the plaintiff is entitled to recover against the defendants, as it was clearly the duty of the defendants to levy the tax as commanded in the peremptory mandamus, and which they wilfully refused to do.

"The plaintiff is entitled to recover his actual damages sustained by reason of such failure and refusal of the defendants. But, inasmuch as he has not lost his debt or judgment, or any part thereof, and as there is evidence to show that the debtor township is fully able to respond to his debt, and that the refusal of the defendants to levy the tax has only delayed the collection of his debt and the accruing interest, his damages are, consequently, presumed to be but nominal, and you will so find in your verdict.

In this case there is also another element of damages under which the plaintiff may recover, and that is exemplary or punitive damages. The action of the defendants, to say nothing of being contemptuous disregard of the mandate of this court, was oppressive to the plaintiff and a clear and wilful violation of his legal rights, and in my opinion presents a case for consideration of exemplary damages on the part of the plaintiff against the defendants. I can not lay down any definite rule to govern you in fixing these damages. They are given by the law as a punishment for an aggravated violation of plaintiff's rights, and they should be such as, under all the circumstances and facts shown, are commensurate with the offense; and this, you gentlemen, in the exercise of your sound judgment, are to fix and determine under the evidence produced in the case.

"The court instructs the jury that this being an action of that in which defendants' refusal was wilful, continuous and unlawful, you are at liberty to award plaintiff exemplary damages against defendants, in addition to the damages awarded as and by way of compensation to plaintiff. The court instructs the jury that, in the issue s made by the pleadings, and on the uncontradicted evidence in the case, your verdict must be for the plaintiff, finding the issues in his favor."

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