I. Leaving the Nineteenth Century
A. The Territorial Courts
Before statehood, written appellate review in this region began when the 1861 federal act for Dakota Territory created a three-judge supreme court. President Abraham Lincoln appointed the first three justices of the Territorial Supreme Court: Chief Justice Philemon Bliss of Ohio; George P. Williston of Pennsylvania; and Joseph L. Williams of Tennessee.(1) In the next twenty-eight years, later presidents appointed five successor chief justices and twenty-one successor associate justices.(2) An additional justice was authorized in 1879, two more in 1884, and another two were authorized in 1888.(3)
The first three Territorial Justices "were also judges of the United States District Court for the Territory and acted as trial judges within the various judicial districts;(3A) hence there was the anomalous situation of the judges sitting in review of their own decisions."(4)
In the case of People v. Wintermute, 1 Dak. 60 , an appeal in a manslaughter case, Shannon, Chief Justice, was the trial judge. An opinion reversing his decision was written by Kidder Associate Justice, and Chief Justice Shannon dissented. Not to be outdone, the other Associate Justice, Justice Barnes, wrote a separate opinion attacking the dissent of Chief Justice Shannon.(5)
Eventually, a 1888 federal enactment "prohibited a judge from sitting as a member of the appellate court in a matter wherein he had an interest or had presided as trial judge."(6)
The first three justices "were all men learned in the law, and of excellent character."(7) But, according to other research, later "territorial judges were political appointees from the eastern states, unfamiliar with local conditions," were often called "political hacks," and one chief justice "had no prior judicial or legal experience when appointed."(8) Statehood brought some improvements.(8A)
1. See I Colonel Clement A. Lounsberry, North Dakota History and People 271 (1917). "The town of Williston, N.D. was named in honor of Judge Williston, who was greatly admired by Mr. James J. Hill, the great railroad builder." Id. at 274. There is confusion over Judge Williston's first name. Colonel Clement A. Lounsberry, founder of the Bismarck Tribune, called him "Lorenzo Parsons," but 1 Dakota Rep. III listed him as "Geo. P.," while the State of North Dakota Legislative Manual 72 (1897) listed him as "S.P. Williston." Should we wonder why Williston moved west?
2. See A Historical Sketch of the Supreme Court of the Dakota Territory and North Dakota Supreme Court 1889-1989, at 1-2 (compiled by Marcella Kramer, partly from material assembled by law clerk David L. Peterson in 1969, and with editorial assistance from Penny (Barry) Miller, then Chief Deputy Clerk of the Supreme Court) (North Dakota Supreme Court 1988) [hereinafter Sketch]. Ara Bartlett was appointed twice, as an associate justice in 1864 and as chief justice in 1865. See id. Jefferson Kidder was appointed and served twice. See id. Additionally, Allan A. Burton declined his nomination and did not serve and Frank Sperry had his nomination withdrawn. See II Bernard Floyd Hyatt, A Legal Legacy for Statehood: The Development of the Territorial Judicial System in Dakota Territory, 1861-1889, at 680, 683 (1987). The thesis is divided into two volumes: volume one includes pages 1-372 and volume two includes pages 373-707. Hyatt also wrote his Master's thesis, The Frontier Judicial System of Dakota Territory, 1861-1873, (Thesis at University of North Dakota for M.A., 1976) looking at the early days of the Dakota Territory courts.
3. See Act of June 19, 1878, 45th Cong., ch. 329, 20 Stat. 194 (enacted); Act of July 4, 1884, 48th Cong., ch. 182, 23 Stat. 101 (enacted); 25 Stat. 823 (1888).
The North Dakota judicial district was established by the legislative assembly of the territory of Dakota at the session of 1870-71, and the court located at Pembina. The first session was held by [Justice] George W. French in June, 1871. George I. Foster was clerk, L.H. Litchfield United States marshall, and Warren Cowles United States attorney. French was a protégé of James G. Blaine, a fair lawyer, and a competent judge for the times. The litigation related to petty affairs between people in an unorganized region, and the prosecutions were for the ordinary offenses against the United States, usual to Indian countries. There were a few cases of horse stealing and petty larceny, some cases of timber depredations and of selling liquor to Indians or without a license.
Clement A. Lounsberry, "North Dakota Supreme Court," I The Record, no. 1, p. 27, 29, column 1 (May 1895). Elsewhere, Lounsberry tells us that, when he first came to Bismarck in July 1872 to publish the Bismarck Tribune, the first newspaper in North Dakota, "[t]here were then but five villages in North Dakota-Pembina, Grand Forks, Fargo, Jamestown, and Bismarck…." Lounsberry, supra note 1, Preface, at viii.
4. J.H. Newton, Appellate Practice and Procedure in North Dakota, 27 N.D. L. Rev. 155 (1951) [hereinafter Newton, Appellate Practice]. A footnote explains: "This article is a digest of a series of three lectures delivered at the University of North Dakota Law School to the class of 1950." Id. The authors of this history fortuitously received apparent carbon copies of the actual lectures from Minot lawyer Roger O. Herigstad, who found them among papers preserved by his father, longtime Minot lawyer O. B. Herigstad, who died in 1951. The law review article abridged the actual lectures, which contain more extensive explanations of some details. Quoted material from Mr. Newton's lectures, as distinct from his law review article, are here identified as Newton Lecture number 1, 2, or 3, followed by the page number of that lecture. These lecture notes are now held by the North Dakota Supreme Court Law Library.
5. J.H. Newton, Lecture No. 1 at the University of North Dakota School of Law, at 2 (1950) (lecture notes available in the North Dakota Supreme Court Law Library).
6. Newton, Appellate Practice, supra note 4, at 155; 25 Stat. 823 (1888).
7. Lounsberry, supra note 1, at 274.
8. Hon. Robert Vogel, Looking Back on a Century of Complete Codification of the Law, 53 N.D. L. Rev. 225, 228 (1976). Justice Vogel (1973-1978), after a career as a practitioner at Garrison, McLean County states attorney, seven years as United States Attorney for North Dakota, and 12 more years of practice at Mandan, was appointed to the Court in 1973 by Governor Art Link to succeed Justice Alvin C. Strutz, who died in office on June 16, 1973. See Sketch, supra note 2, at 53, 58.
8A. + The Territorial Supreme Court has been credited with being instrumental in the adoption of the Field Codes in Dakota Territory.
The bench and bar were dissatisfied with the [first] territorial Civil and Penal codes; then in 1865, they united in recommending the existing codes be repealed and that the Field New York Civil and Penal codes be adopted. They had been completed by Field in February, 1865. A copy of the Report of the New York Commission containing the Civil Code , the Penal Code, and (maybe) a Maritime Code came into the possession of the Dakota Supreme Court. The Court then was composed of Chief Justice Ara Bartlett and Associate Justices Jefferson P. Kidder and William E. Gleason, all of whom were impressed by the Field codes. Enos Stutsman (Chairman of the Council Judiciary Committee) and W.W. Brookings (Chairman of the House Judiciary Committee) were appointed to a committee by the Dakota Assembly in December, 1865. The committee was to confer with the justices of the Dakota Supreme Court in regard to amending the territorial laws. The Field New York Civil and Penal codes were enacted into law by the 1865-66 Assembly. They were changed only in some particulars to suit the Territory. Dakota has the distinction of being the first territory or state to have enacted these codes into law.
Hyatt, supra note 2, at 100. According to UND law professor, William B.Fisch, The Dakota Civil Code: More Notes for an Uncelebrated Centennial, 45 N.D. L. Rev. 9, 37 (1968): "No evidence has been found to indicate why the members of the Supreme Court were interested in the Code or how they came to be in possession of the draft."
While the Field Civil Code was never adopted in New York, several western states eventually did so: California, Idaho, and Montana, besides North and South Dakota. See generally, William B. Fisch, Civil Code: Notes for an Uncelebrated Centennial, 43 N.D. L. Rev. 485-86 (1967). Why was it adopted in Dakota Territory?
Thirty years later, Lounsberry cynically suggested:
[T]he Field codes were no doubt at first adopted, in part, at least, in order to make "fat" for the public printers. . . .
Lounsberry, The North Dakota Codes, I The Record, no. 1, at 32. Since Lounsberry came to Dakota in 1872 as a printer and publisher, (see his biography in his III North Dakota: History and People, supra note 1, at 287), as well as a journalist and historian, perhaps he was peddling a jealous trade rumor, rather than simply reporting. Still, some did criticize the adopted Field Codes as containing "many repugnant provisions" because they "had been prepared especially for the people of [New York] living under somewhat different conditions from those existing in a new western community . . . ." Hyatt, supra note 2, at 59, (quoting a South Dakota lawyer, Horace G. Tilton, History of the Dakota Codes, The Monthly South Dakotan 1, 91 (Oct. 1898)). But, even the cynical Lounsberry, The North Dakota Codes, supra note 1, at 32, joined in appreciating the adoption of the Field Codes in Dakota Territory as a wise step.
Later, Territorial Chief Justice Peter C. Shannon "prepared the [Field] Criminal Code adopted by the Dakota Legislature of 1875, and took a leading part in the codification of the laws . . . adopted in 1877" that revised much of the Field Code as earlier adopted. Lounsberry, supra note 1, at 437. (Dakota's amended version in 1877 adopted some of the changes made to the Field Code by California, which enacted it in 1872. See J. P. Furlong Enterprises, Inc. v. Sun Exploration and Production Company, 423 N.W.2d 130, 136-37, n.23 (1988)). Not long after his revision work, Chief Justice Shannon endorsed and explained the adoption of the Field Codes in a published judicial opinion:
The Codes, Penal and Civil, of 1865 and 1866, reduced into written and systematic order, not only the rules and decisions of the common law on the subjects embraced, but also to the same extent, the whole body of the law, whether denominated as written or unwritten, tribunal or statutory. Their sources are mostly to be found in Blackstone, Kent and Story, and in the decisions and Statutes of New York.
Everett v. Buchanan, 2 Dakota 249, 261, 8 N.W. 31 (1881). Professor Fisch, in his second article, The Dakota Civil Code: More Notes for an Uncelebrated Centennial, 45 N.D. L. Rev. at 37, best explains why the Civil Code was adopted:
In all probability, the fact that it came from New York, whence came the already widespread Code of Civil Procedure, and that it constituted a handy statement of the law in more or less instant form for a virtually unlawyerized territory, sufficed to ensure its adoption once its existence and contents became known.
In any event, this genealogy of a large part of our North Dakota Century Code has often been important to the proper interpretation of some of its sections. For an example, see J. P. Furlong Enterprises, Inc. v. Sun Exploration and Production Company, 423 N.W.2d 130 (N.D. 1988). The genes, and the genius, of Field's passion for codification of the law live on in many parts of our current North Dakota Century Code.