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Iowa Territory. The Governor shall nominate and by and with the advice and consent of the Legislative Council, shall appoint all judicial officers, justices of the peace, sheriffs, and all militia officers, except those of the staff, and all civil officers not herein provided for. Vacancies occurring in the recess of the Council, shall be filled by appointments from the Governor, which shall expire at the end of the next session of the Legislative Assembly; but the said Governor may appoint, in the first instance, the aforesaid officers, who shall hold their offices until the end of the next session of the said Legislative Assembly.
Sec. 8. And be it further enacted, That no member of the Legislative Assembly shall hold, or be appointed to, any office created, or the salary and emoluments of which shall have been increased, whilst he was a member, during the term for which he shall have been elected, and for one year after the expiration of such term; and no person holding a commission or appointment under the United States, or any of its officers, except as a militia officer, shall be a member of the said Council or House of Representatives, or shall hold any office under the Government of the said Territory.
Sec. 9. And be it further enacted, That the judicial power of the said Territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The supreme court shall consist of a chief justice, and two associate judges, any two of whom shall be a quorum, and who shall hold a term at the seat of Government of the said Territory annually, and they shall hold their offices during the term of four years. The said Territory shall be divided into three judicial districts; and a district court or courts shall be held in each of the three districts, by one of the judges of the supreme court, at such times and places as may be prescribed by law; and the said judges shall, after their appointment, respectively, reside in the districts which shall be assigned to them. The jurisdiction of the several courts herein provided for, both appellate and original, and that
of the probate courts, and of the justices of the peace, shall be as limited by law: Provided, however, That justices of the peace shall not have jurisdiction of any matter of controversy, when the title or boundaries of land may be in dispute, or when the debt or sum claimed exceeds fifty dollars. And the said supreme and district courts, respectively, shall possess a chancery as well as common law jurisdiction. Each district court shall appoint its clerk, who shall keep his office at the place where the court may be held, and the said clerks shall also be registers in chancery; and any vacancy in said office of clerk happening in the vacation of said court, may be filled by the judge of said district, which appointment shall continue until the next term of said court. And writs of error, bills of exception, and appeals in chancery causes, shall be allowed in all cases, from the final decisions of the said district courts to the supreme court under such regulations as may be prescribed by law;1 but in no case removed to the supreme court shall trial by jury be allowed in said court.
The supreme court may appoint its own clerk, and every clerk shall hold his office at the pleasure of the court by which he shall have been appointed. And writs of error and appeals from the final decision of the said supreme court shall be allowed and taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, shall exceed one thousand dollars. And each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested in the circuit
1 It was not the province of the Supreme Court "to give advice to the District Courts.”—Long v. Long, Morris, 382.
The Supreme Court although properly an appellate court was by statute (Acts of the Legislative Assembly of 1836, p. 23) authorized to issue the writs of habeas corpus, mandamus, quo warranto, prohibition, error, supersedeas, procedendo, certiorari, scire facias, etc.-United States v. Commis. sioners of.Dubuque Co., Morris, 31.
and district courts of the United States. And the first six days
And be it further enacted, That there shall be an attorney for the said Territory appointed, who shall continue in office four years, unless sooner removed by the President, and who shall receive the same fees and salary as the
1“But the main question is that the court below, sitting as a District Court of the United States, had no jurisdiction of the case.
Counsel seem to be under a misconception as to be the true nature of our District Courts. Under no circumstances are they properly speaking, District Courts of the United States. They are merely Territorial Courts, having powers of District and Circuit Courts of the United States; but when adjudicating upon the laws of Congress their character and title does not change.”— Lorimier and others v. the State Bank of Ill., Morris, 225.
2 "The 9th section of the Iowa organic law provides that the several courts thereby created, both appellate and original, shall be as limited by law, and that the supreme and district courts respectively shall have a chancery as well as a ommon law jurisdiction. The territorial district courts, in addition to the federal powers conferred upon them, were invested with extended and general jurisdiction over actions real, personal and mixed. Under this general jurisdiction they were authorized to try and determine, according to the course of the common law, all ordinary actions, both local and transitory. They were also invested with a special jurisdiction, conferred by legislative enactment, in proceedings which could not be entertained as actions at common law. The term inferior courts, in a strict and technical sense, is only applicable to courts of a limited and special jurisdiction, in which the proceedings are not according to the course of the common law, but defined by statutory regulations. It must be obvious that our territorial district courts cannot be included under that term. They were endowed with all the general powers and universal attributes of common law jurisdiction. Their authority was general and superior to all but the supreme court.”--Wright v. Marsh, Lee & Delavan, 2 Green, 103.
attorney of the United States, for the present Territory of Wisconsin. There shall also be a marshal for the Territory appointed, who shall hold his office for four years, unless sooner removed by the President, who shall execute all process issuing from the said courts when exercising their jurisdiction as circuit and district courts of the United States. He shall perform the same duties, be subject to the same regulations and penalties, and be entitled to the same fees, as the marshal of the district court of the United States for the present Territory of Wisconsin; and shall, in addition, be paid the sum of two hundred dollars annually, as a compensation for extra services. SEC. II.
- Int be it further enacted, That the Governor, secretary, chief justice, and associate judges, attorney and marshal, shall be nominated, and by and with the advice and consent of the Senate, appointed by the President of the United States. The Governor and secretary to be appointed as aforesaid, shall, before they act as such, respectively, take an oath or affirmation, before some judge or justice of the peace, in the existing Territory of Wisconsin, duly commissioned and qualified to administer an oath or affirmation, [or] before the chief justice, or some associate justice of the Supreme Court of the United States, to support the constitution of the United States, and for the faithful discharge of the duties of their respective offices, which said oaths when so taken, shall be certified by the person before whom the same shall have been taken, and such certificate shall be received and recorded by the said Secretary among the executive proceedings. And, afterwards, the chief justice and associate judges, and all other civil officers in said Territory, before they act as such, shall take a like oath or affirmation before the said Governor or secretary, or some judge or justice of the Territory who may be duly commissioned and qualified, which said oath or affirmation shall be certified and transmitted by the person taking the same to the Secretary, to be by him recorded as aforesaid; and, afterwards, the like oath or affirmation, shall
be taken, certified, and recorded, in such manner and form as
And be it further enacted, That the inhabitants of the said Territory shall be entitled to all the rights, privileges and immunities heretofore granted and secured to the Territory of Wisconsin and to its inhabitants;' and the exist
1 See Sec. 12 of the the Organic Law of Wisconsin Territory--No. IV. of this series, p. 88.
The important “rights privileges and immunities” guaranteed by this provision to the inhabitants of the Territory of Iowa were those enumerated in the Ordinance of 1787.
“The ordinance of 1787 is made part of the fundamental law of this terri. tory.
That ordinance seems to contemplate the extension (in a general way) of all the benefits of the common law to the territory north west of the Ohio river, including the State of Illinois.