USA > Wisconsin > Brown County > History of Brown County, Wisconsin, past and present, Volume I > Part 12
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When the first United States court convened in this initial American settle- ment in Wisconsin, Judge Doty bestirred himself to have a less plebian name bestowed upon the county seat of Brown. A plat was made of the hamlet and below in large letters was printed the name Menomineeville, but this perfectly suitable cognomen was never popular and plain Shantytown the place remained until, as township boundaries were defined, the village was included in Bellevue. Each year settlement grew along the shores of Fox river, among the pioneer colonists being Ebenezer Childs and the Dickenson brothers, Joseph and Wil- liam, who settled at the De Pere rapids. In 1823, Henry S. Baird took up his residence at Shantytown, and that same year John P. Arndt, one of the prominent pioneers, bought a part of the Langlade estate and with his fan- ily located across the river from Fort Howard. According to the United States law for the government of land and naval service it was provided at that time that "no person who has been enlisted as a soldier shall be liable to arrest or imprisonment for any debt contracted by him during the term of his enlistment." During the first years of American occupation brawls were frequent between the soldiers from the garrison and the keepers of the small groceries where liquor could always be obtained, for the enlisted men not infrequently sold their uniform and accoutrements in order to obtain the coveted dram. The officers, exasperated by the action of the shop keepers in accepting the men's clothing in exchange for liquor and goods, would often take advantage of the existing law to aid the soldiers in evading the just payment of their debts. For the few closing days of his term of enlistment the debtor would be granted leave of absence so that if arrested before he left the post he could enter the plea of unexpired enlistment as a bar to detention. In those days it was lawful to arrest dishonest debtors and imprison them until they paid their debts or were otherwise discharged and the first jail in this part of the country was also a debtors' prison.
On the whole, however, the Americans both in civil and military life adapted themselves successfully to the oddities and lawlessness of the frontier post on Fox River, and as for the French Creoles, they were quite as suave and courteous
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to the newcomers as ever they had been to the English, while the Indians found them as ready to buy furs and for as high a price as their former masters.
An inevitable consequence of the occupation of Brown county by a new government was the adjustment of claims made by the inhabitants to property occupied by them. Accordingly in August, 1820, Isaac Lee, a specially appointed government commissioner, reached the bay and the day following his arrival went from house to house as he reports, giving notice of his errand. The letter of instruction to Lee from the land commissioners at Detroit warned him of the difficulties of his mission, as it was feared "from the characteristic want of caution of, the Canadian French as regards the preservation of their title deeds that most of their claims will be attempted to be supported by proving continued possession by means of affidavits."
Commissioner Lee performed his duties most satisfactorily not only to his employers but also to the majority of the Green Bay claimants, who recognized him as a kindly, painstaking man, desirous of seeing justice done. The map made from Lee's report of the settlement is the first plat of Brown county, although only of that part lying between Fox and Devil rivers from east to west, and from Duck creek to the rapids at De Pere, north and south. It shows Fox River to be bounded closely by farins, the largest not occupying a water frontage of over five hundred feet, but extending inland an indefinite distance.
The commissioner returned from adjudicating claims at Prairie du Chien on November 16. 1820, and from the lateness of the season was obliged to pass the winter at "the bay." It was possibly for the French inhabitants a fortunate circumstance, for opportunity was thus given to investigate and listen to testi- mony, and Lee's official report to the land commissioners at Detroit is a much more friendly and minute document than it might otherwise have been. He recommended clemency toward the careless Canadian habitant, who for many years had been tossed from one government to another until he hardly knew to which one he owed allegiance, who had been evicted from land he had long and industriously tilled, and left without title deed or any proof whatever of his occupancy.
Many of the claims were disallowed because the time of residence was less than required by law, which called for an exclusive and individual possession of the land from July, 1796, to March, 1807. This insured the claimants owner- ship of the property up to 1821, or a term of twenty-five years. The clause in relation to individual possession had reference to certain tracts of land which had been used from time immemorial by the village in common, or as "a com- mon," where crops of corn or wheat sufficient to supply the entire community were harvested or the village cattle herded.
The complaint forwarded by Judge Matthew Irwin just previous to this allotment, setting forth that the six hundred families residing in the place were all still loyal subjects of Great Britain, was recognized by the insistence on the part of the commissioner that each claimant should take oath of allegiance to the United States.
The prominent fur traders, the Porliers, Lawes and the Grignons, received not even a reprimand for the active part taken by them against the United States during the War of 1812 and no further inquiry was made after the oath of allegiance was taken, with the explanatory clause that the "protection of our
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government being entirely withdrawn from this district of country, the inhabitants were compelled to yield to the tyranny and caprice of the reigning power and its savage allies."
The old French claims were under dispute for many years, and were passed down through many generations, for the families of these early settlers inter- married until the connections were legion. The names of Porlier, Vieau, Beaupré, Langevin and Guardipie found in many legal papers recall the days of French occupancy of Brown county when boundary lines were marked by an elm tree or by a bend in the river rather than a surveyor's stake.
Throughout the towns of Bellevue, Allouez, Depere, Ashwaubenon and Howard, ran these narrow strips of property mapped off by the early French settlers, all fronting on the river, which furnished, with the bay, Brown county's highway to the outside world for two centuries.
On September, 1825. the plat of the town of Menomineeville was laid out by John Lawe, proprietor. A large piece of land was set off as a site for the public buildings to be erected there, as the deed states, "the seat of justice having been situated upon this lot." The streets were laid off running east and west with the names of the Indian tribes in the vicinity, "Kickapou." Dahcoatah, Ioway, "Saukee," and were sixty feet in width. Running from north to south, skirting the river, was the public highway, forty feet in width, on which faced most of the residences. High up on the hill stood the Episcopal mission house and the plat of 1825 records a donation of 198x220 feet of land not far from the river for Christ Church and yard.
The location was in many respects far more desirable for residences than the low land at the mouth of Fox river, and it was this reason that induced Colonel Joseph Lee Smith to transfer as he hoped permanently the Fort Howard garri- son to this commanding site. By 1822, however, the United States government decided that the mouth of Fox River, the gateway to the Fox-Wisconsin waterway, was the evident point where a fort for defense should stand. There- fore the building of fortifications at Menomineeville was discontinued and the troops returned to the old cantonment which was to remain on the same ground for forty years to come, when the Chicago & North Western railroad acquired the property for its right of way.
(References for Chapter IX: Minute Book of Brown County Court ; Amer. State Papers, Vol. 4. Public Lands and Military ; Grignon Manuscripts ; Report of A. C. Neville, Wis. Hist. Proc., 1909: H. S. Baird, Wis. Hist. Colls., Vol. 2; Wis. Hist. Colls., Vol. 19.)
CHAPTER X
BROWN COUNTY CIVIL GOVERNMENT AND COURTS
No fixed boundary lines defined the country west of the great lakes until the county of Brown was organized by an act of congress on October 26, 1818.
Heretofore under its successive owners the territory known as La Baye was included under the general name of the "upper country" and specialized as "Baye des Puans," the military post being usually designated as La Baye, rather than by the name of Fort St. Francis. The mission of St. François Xavier also recognized no clearly defined boundaries, and the priests wandered in their work of evangelization from Lake Huron to the Sioux country. The new county received its name in honor of Major General Jacob Brown, at that time com- mander-in-chief of the United States army.
Lewis Cass, the governor of Michigan, was a man thoroughly qualified for the many and diverse positions he was called upon to fill, from arbitrator and lawgiver in a section of country controlled by a mixed population of Indians, French fur traders, United States troops and a small contingent of American colonists whose avowed object was to develop the resources of the country, to that of English ambassador. It was a difficult matter to place upon a sound system of government this section of western territory. which from its very length of settlement and its importance commercially, had become a law unto itself and independent of the whole outside world. The Indians too, in this vicinity were looked upon as unruly and dangerous, liable to rise and tomahawk the unwary settler at any moment when it might suit the English colonial govern- ment to give the decisive word; to Cass belonged the prerogative of issuing fur trading licenses to the Indian country adjoining Green Bay and much finesse was required to keep peace between the American newcomers and the established peltry merchants.
The first civil appointments bear date of October 27, 1818, the day following Brown county's organization and included :
Matthew Irwin, chief justice, commissioner and judge of probate.
Charles Reaume, associate justice and justice of the peace.
John Bowyer, commissioner.
Robert Irwin, junior, clerk.
George Johnson, sheriff.
The form of oath as taken by the first sheriff of Brown county was as fol- lows: "I do solemnly swear and declare that I will favor from this time forward and support the Constitution of the United States of America, and that I do
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absolutely and entirely renounce and abjure all fidelity to every foreign power, state or sovereignty, particularly to the king of the United Kingdom of Great Britain.
"25 July, year of our Lord, 1821."
"GEORGE JOIINSON.
This first organized court in Brown county was run in haphazard fashion. No records seem to have been kept, and the chief justice, Matthew Irwin, with no knowledge whatever of law was no more of a success in judicial administration than in dispensing articles of apparel to the Indians as government storekeeper. He had, moreover, made himself very unpopular with the powerful class of fur traders, and Charles Reaume, the associate justice, lived only a short time after his appointment in the autumn of 1818. The latter's methods of procedure were much ridiculed by the first American settlers, who had endless stories to tell of Judge Reaume's quaint ways, his irascible questioning of culprits and clients, his seemingly absurd though often sound decisions, above all the use of his old, clumsy jackknife, as a warrant of arrest.
It is possible that on the occasion of Governor Cass' visit to the fort and hamlet on Fox river in August. 1820, complaint was made to him by the Ameri- can inhabitants of the irregularity and lack of dignity displayed in their county court, although Schoolcraft notes at the time, "this settlement is now the seat of justice for Brown county in the territory of Michigan, and the ordinary courts of law are established." This was simply a justice court, for there is no record of an estate coming to probate prior to July 22, 1821. That no business came before the court previous to the above date may account for the lack of evidence that a Brown county court of probate existed in 1818, the date of Matthew Irwin's commission. The French settlers were not given to making wills, that of Domitelle Langlade (Madame Langevin). admitted to probate on July 9, 1824, being the earliest recorded.
The first entry in the record book of the Brown county court is the appoint- ment of Robert Irwin, Isaac L. Welch and Thomas C. Sheldon, to take inventory "according to your skill and judgment," of the estate of Colonel John Bowyer, cleceased. The appointment is made by order of John Biddle, judge of probate, on the 22d of July, 1822. Judge Biddle, who held office up to 1822, was a lead- ing citizen not only of Brown county, where he was as far as known first acting judge of probate, but also as a member of congress from Michigan in 1830 and for many years prominent in the life of Detroit. On the death of Colonel Bow- yer, Biddle succeeded him as agent of Indian affairs.
The estate of John Bowyer, the first and popular Indian agent for this section of territory, which came to probate in the summer of 1821, entailed many years of litigation before it was squared, for as late as the summer of 1829, the attempt at a settlement was still going on. The old man left no family, his youthful nephew, Henry Bowyer, who lived with him, having been drowned in Fox river previous to that time. The inventory and appraisement of household effects left by the government official seem hardly to justify so long a period of settlement, but the adjustment of creditors' claims was a lengthy operation.
The commissioners to receive such claims were Robert Irwin, Sr., Albert G. Ellis and Ezekiel Solomon. The estate was represented to be insolvent and the property sold must be applied to the satisfying of all claims. The reports
LEWIS CASS
THE NEW YORK PUBLIC LIBRARY
AUTOR, LENDA AND TILDEN FOUNDATIONS.
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` of appraisement and demands of creditors show pretty clearly the furnishings of Colonel Bowyer's bachelor establishment, the servants he employed, the service of the table, his daily life in short. We learn from these lists what his clothes and those of Henry cost him, "$2.00 apiece for pantaloons," etc., that he had "a roane horse called Gordon," a fowling piece manufactured by the Northwest company, a pair of spectacles valued at $6.50. It appears that he ploughed his land on Dutchman's creek with oxen and raised on it oats, peas and barley, but not in sufficient quantities to supply the agency, with its thousands of dependent Indians, for he purchased all sorts of supplies from the French inhabitants and the government factory. We learn that his library consisted of two volumes of Morse's geography, probably purchased after the visit of Jedediah Morse to Green Bay in 1820, that he used wrought iron in his fireplace, and that Peter Ulrick "the Dutchman," looked after his hogs, while fowls were charged up to him by the French habitants at 50 cents a bird. Louis Grignon and the other high-bloods of the settlement came often by canoe to visit the colonel and a significant memorandum of the time records, "lost at play at Colonel Bowyer's."
According to an act adopted by the "Governor and Judges of Michigan Terri- tory" on the 27th of October, 1818, it was provided that the county court for the county of Brown should be held on the second Monday of July, in each year, but this was later amended or overruled. the judge in office apparently holding court whenever he so ordained. The Coutume de Paris or old laws of France, was the code in use throughout the entire "Province of Upper Canada," but had been formally annulled in that portion now comprised within Wisconsin on September 16, 1810. Under Judge Reaume's administration, however, this enactment was absolutely ignored and the old French law was still the one in force when the American court was organized in 1818.
In October of that year the following resolution was adopted by the governor and those in authority : "Whereas the good people of the Territory of Michigan may be ensnared by ignorance of acts of Parliament of England, and of the acts of the Parliament of Great Britain, which are not published among the laws of the territory. it has been thought advisable by the Governor and Judges of the Territory of Michigan hereafter specially to enact such of the said acts as shall appear worthy of adoption ; Be it therefore enacted by the Governor and Judges of the Territory of Michigan; That no act of Parliament of England, and no act of the Parliament of Great Britain shall have any force in the Territory of Michigan. . Be it enacted by the Governor and Judges of the Territory of Michigan ; that the Coutume de Paris, or ancient French Common Law exist- ing in this country, the laws, acts, ordinances, arrests and decrees of the governors or other authorities of the Province of Canada, and the Province of Louisiana under the ancient French crown, and of the governors, parliaments or other authorities of the Province of Canada generally, and of the Province of Upper Canada particularly under the British crown are hereby formally annulled, and the same shall be of no force within the Territory of Michigan; Provided, that all rights accruing under them or any of them shall remain valid."
The inhabitants of La Baye settlement knew no other government or code . of laws except that in force in Canada, but in 1821 a compilation of the laws in force in the territory of Michigan was published, which was called the code of
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1820, and comprehended all such statutes as were essential to the successful administration of civil government within the territory.
Jacques Porlier, the well known fur trader, when appointed to succeed Judge Biddle as chief justice and judge of probate in December, 1822, carefully trans- lated into French for his own use and at his death left in manuscript the new and unfamiliar code. Porlier, well educated, and a most courteous gentleman, also held office as justice of the peace, not only under commission of the United States, but also prior to this under English government and was, according to contemporary testimony, "the most useful man in the settlement."
Brown county seems to have had at this time (1822) no less than three justices and a county judge to adjust legal differences in its newly organized government. None of them were lawyers, and their jurisdiction both civil and criminal was limited; they were obliged to enter upon the duties of their several offices without formulas to refer to, or precedents of proceedings, and it is not surprising that the legal documents of that day are without much form, and the court records entirely missing.
Important cases which were beyond the jurisdiction of a justice court were adjudicated by the supreme court of Michigan, consisting of three judges, which held its sessions semi-annually at Detroit. Thither criminals were conveyed for trial, a mode of procedure causing much delay and confusion, for the journey to Detroit must be made by bateau or bark canoe, as transportation by schooner was still rare and the long trip by land exceedingly wearisome.
It was therefore cause for sincere congratulation among the inhabitants of Brown county and those of Michilimackinac, when, in the early part of the year 1823, congress passed an act establishing what was known as the additional judicial district, "comprising the counties of Brown, Michilimackinac and Crawford."
On February 1, 1823, James Duane Doty was appointed judge of the newly organized circuit, but does not appear to have taken the oath of office until June of the succeeding year. Meantime in preparation for Judge Doty's arrival on the scene of action the deputy clerk of the court, Alexander J. Irwin, a young fellow of twenty-three and something of a wag conformed with the written statute by convening court daily for two weeks at the appointed place in Men- omineeville. The first records of the circuit court of Brown county begin thus, written in a beautiful clear hand : "At a session of the Circuit Court of the United States for the County of Brown in the Territory of Michigan on the 13th day of June, 1823, the Deputy Clerk attended at the Court House at the time des- ignated by the statute, but no judge appearing the court adjourned to meet again at ten o'clock a. m., June 14th, 1823.
ALEXANDER J. IRWIN, Deputy Clerk."
Up to June twenty-fourth, when the court adjourned sine die, the deputy clerk daily, Sundays excepted, was on hand and noted down each day that "the judge not appearing the court adjourned," but not until October of the follow- ing year did Judge Doty formally convene the circuit court "in conformity with the statute." On June 30, 1824, Governor Lewis Cass certified that he had administered the oath of office to James D. Doty, as additional judge for the counties of Brown, Michilimackinac and Crawford. In August, James H. Lock- wood applied for admission to practice in the court and was admitted, and on
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October 4, 1824, the first regular term of the United States circuit court for Brown county was held at Menomineeville.
Judge Doty's circuit included all of Michigan's upper peninsula the entire tract afterward comprised in the state of Wisconsin, and the country north of the St. Croix river and east of the Mississippi to latitude forty degrees, now under the government of Minnesota. The terms of court for this extended ter- ritory were to be held at Mackinac, Green Bay and Prairie du Chien, the judge making the journey on horseback or by means of a birch bark canoe paddled by chanting voyageurs. Doty was at this time just twenty-three years of age but was already regarded as a man of experience and authority, well suited to the important position he was called upon to fill. The first session of the newly created court was held at Mackinac in July, 1824, the judge presiding with much tact and dignity.
The legal mode of procedure heretofore in use throughout Judge Doty's district made his position a difficult one. The French and English languages were used indiscriminately, and the traders had long been independent of any law, regulated by a settled code. Under Doty's administration the Brown county federal court promptly rose to the first dignity and assumed an orderly and well- grounded character : decisions were based on the rules and practice of other states, and were made according to the common law.
This first term of court in the county of Brown was held in a small log cabin on the east shore of Fox river in the town of Allouez, the grand jury holding its deliberations in the court room. The prosecuting attorney was Henry S. Baird, a young Irishman, later a prominent figure in Wisconsin his- tory, who was admitted to the bar at this term of court and was the first lawyer to practice west of Lake Michigan.
The first case on the docket was the trial of Aruba J. Joice. a soldier belong- ing to the third regiment of United States infantry, stationed at Fort Howard, who "not having the fear of God before his eyes but being moved and seduced by the instigation of the devil, on the Ist day of January, 1824, etc., did kill No-No-So-bi-Ma an Ottawa Indian, with a certain large stick of no value." of which deed Joice was found guilty and sentenced to hard labor in the "county gaol" for two years.
At this initial session of the United States court, Judge Doty caused much stir and decided ill feeling by charging the grand jury to make special inquiry in relation to persons living with Indian wives to whom they had not been married according to church or civil law. Thirty-six bills of indictment were brought in, and the offenders notified that they must be married in proper form and produce a certificate of the fact, or stand a trial. This drastic decision, although in the end salutary, caused much confusion among the inhabitants, many of whom had been married according to the Indian custom, there having been in the settlement no magistrate prior to the appointment of Judge Reaume. and no resident priest. The people of the Green Bay country came at Judge Doty's summons, bringing him their marriage certificates, or were married before the court according to civil code.
Endless litigation grew out of this decree in later years, and many of the common-law marriages were pronounced legal by decisions of the courts. There remains a curious court record in manuscript of 1839, which bears upon this
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