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.

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.