History of Dane County, Wisconsin, Part 73

Author: Butterfield, Consul Willshire, 1824-1899; Western Historical Co., Chicago, pub
Publication date: 1880
Publisher: Chicago : Western Historical Company
Number of Pages: 1304

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490

HISTORY OF DANE COUNTY.

CHAPTER IX.

COURTS HAVING THEIR SITTINGS IN DANE COUNTY-NORWEGIAN LUTHERAN SEMINARY-ALBION ACADEMY AND NORMAL INSTITUE-STATISTICS.

COURTS HAVING THEIR SITTINGS IN DANE COUNTY. .

Federal Courts .- By Section 4 of the act of Congress entitled "An act to enable the people of Wisconsin Territory to form a Constitution and State Government, and for the admis- sion of such State into the Union," approved August 6, 1846, it was inter alia provided : * * "and said State shall constitute one district and be called the District of Wisconsin, and a District Court shall be held therein, to consist of one Judge, who shall reside in said dis- trict, and be called a District Judge. He shall hold at the seat of Government of said State, two sessions of said court annually, on the first Monday in January and July, and he shall, in all things, have and exercise the same jurisdiction and powers which were by law given to the Judge of the Kentucky District, under an act entitled ' An act to establish the Judicial Courts of the United States.' He shall appoint a clerk for said district, who shall reside and keep the records of said court at the place of holding the same, and shall receive for the services per- formed by him, the same fees to which the Clerk of the Kentucky District is by law entitled for similar services. There shall be allowed to the Judge of said District Court the annual compen- sation of $1,500."

Section 5 of said act provides for the appointment of a "person learned in the law to act as attorney of the United States " in said district, and provides that, besides the stated fees, he is to receive a salary of $200. It also provides for the appointment of a Marshal in said district, to perform the duties and services, and entitled to the fees and emoluments given to the Mar- shals of other districts.

Under this section, it will be seen that the Federal Court was to hold two terms at the times provided, in the city of Madison, which, by Section 6, of Article XIV, of the Constitution, adopted by the convention, February 1, A. D. 1848, was declared to " be and remain the seat of government until otherwise provided by law."

By Section 4 of the act of Congress entitled " An act for the admission of the State of Wis- consin into the Union," approved May 29, 1848, the provisions in the foregoing section of the act of August 6, 1846, were modified so as to read " that the Judge of the District Court for the District of Wisconsin shall hold a term of said court in each year, at the seat of government, to commence on the first Monday of July, and another term of said court in each year at Mil- waukee, to commence on the first Monday of January." It also gave him power to hold special terms of court at either Madison or Milwaukee, wherever he should deem that the nature and amount of business should require, the records and papers to be kept at either place, as the Judge might direct.

Pursuant to these provisions, the Hon. Andrew G. Miller, a lawyer of prominence, resid- ing in the city of Milwaukee, was appointed District Judge of the District of Wisconsin, on the 12th day of June, A. D. 1848.

By the provisions of the act of Congress entitled " An act making appropriations for the legislative, executive and judicial expenses of government for the year ending the 30th of June, 1858," approved March 3, 1857, it was, among other things, provided, "that the annual salary of the District Judge of the United States for the District of Wisconsin shall hereafter be $2,500. This salary was afterward increased, and is now $3,500 per year.

491

HISTORY OF DANE COUNTY.

Congress, by an act approved July 15, 1862, amending the act of March 3, 1837, which was supplementary to the act establishing the judicial system of the United States, declared that " the districts of Michigan, Wisconsin and Illinois shall constitute the Eighth Circuit ; " and pro- vided that Circuit Courts should be held therein at the same times and places as were then prescribed by law for holding the District Courts of said district, thereby creating a Circuit Court of the United States to be held in Wisconsin; and provided that the same allotment of Justices of the Supreme Court to hold such Circuit. Courts should continue as had theretofore been made. The powers and jurisdiction of a Circuit Court which had previously been vested in the District. Court of Wisconsin, was by the same act repealed ; and it was provided that each court should have and excrcise such powers only as were given to similar courts throughout the other circuits, repealing all provisions of all laws inconsistent therewith.

The effect of the above was to make Mr. Miller Judge of the District Court purely, with the power given in the statutes to hold the Circuit Court of said district in company with the Circuit. Judge and Circuit Justice, or either of them, or alone in their absence.

By the act approved February 9, 1863, Wisconsin was made a part of the Ninth Judicial Circuit. It was, by a subsequent act, made, and now constitutes, a portion of the Seventh Judi- cial Circuit, the Hon. Thomas Drummond, of Chicago, Circuit Judge.

The times for holding the Circuit and District Courts for Wisconsin were, by Section 5 of the act of June 27, 1864, changed as follows: To be held at the city of Milwaukee on the second Monday of April and the second Monday of September ; and at the city of Madison on the first Monday of January in each year, respectively.

The business of the United States Courts becoming too large to be easily attended to by a single District Judge, by an act of Congress, entitled " An act to establish the Western Judi- cial District of Wisconsin," approved June 30, 1870, the State was divided into two districts, the Eastern and Western. That portion of the State comprising the counties of Rock, Jefferson, Dane, Green, Grant, Columbia, Iowa, La Fayette, Sauk, Richland, Crawford, Vernon, La Crosse, Monroe, Adams, Juneau, Buffalo, Chippewa, Dunn, Clark, Jackson, Eau Claire, Pepin, Mara- thon, Wood, Pierce, Polk, Portage, St. Croix, Trempeleau, Douglas, Barron, Burnett, Ashland and Bayfield, was constituted the Western, and the remainder of the State the Eastern, District. The terms were appointed to be held for the Western District, at Madison on the first Monday in June, and at La Crosse the first Monday in December. In the Eastern, they were to be held at Oshkosh on the first Monday of July, and at Milwaukee on the first Monday of January and October of each year. A District Judge for said Western District was provided for, and a Marshal, District Attorney and Clerk at Madison and Clerk at La Crosse. Under these provisions, James C. Hopkins, of Madison, Wis., was appointed Judge of said Western District on the 9th day of July, A. D. 1870, the Hon. A. G. Miller remaining Judge of the Eastern District. F. W. Oakley, of Beloit, Wis., was appointed Marshal ; and Charles M. Webb, of Grand Rapids, appointed District Attorney, on the 9th of July, 1870. F. M. Stewart, of Baraboo, on the 2d day of August, 1870, was appointed Clerk of both Circuit and District Courts at Madison ; and H. J. Peck, of La Crosse, Clerk at that place, on the 18th of August, 1870. On the 19th of October, 1879, Sidney Foote, of Madison, was appointed a Register in Bankruptcy ; and on the 10th January, 1871, Carson Graham, of Viroqua, was appointed Register at La Crosse.

The terms of court were changed by act of Congress, approved May 9, 1872, and directed to be held at La Crosse on the third Tuesday of September, and abolishing the December term there, but reserving to the Judges the right to appoint special terms as they might deem necessary.

No change occurred in the officers of the courts until the death of Mr. Foote, the Register in Bankruptcy, which occurred in March, 1877. He was succeeded in office by Mr. S. W. Botkin, of Madison, the present incumbent.

On the 4th day of September, 1877, Judge Hopkins died, after a service of over seven years. His successor, Romanzo Bunn, of Sparta, Wis., the present Judge, was appointed on the 13th day of October, A. D. 1877.

492

HISTORY OF DANE COUNTY

On the 5th day of February, A. D. 1878, Henry M. Lewis, of Madison, was appointed Dis- trict Attorney vice Charles M. Webb, resigned.

These officers now constitute the officers of the Federal Court of the Western District of Wisconsin.

Territorial and State Supreme Court .*- The history of the Supreme Courts of the Terri- tory and State of Wisconsin belongs rather to the general history of the State than to that of any one county. Yet, as those courts have held all but three of their terms at the city of Mad- ison ; as their Judges and other officers have either resided in that city, or, at least, spent consid- erable portions of their time there during their several periods of service ; and as nearly all law- yers of distinction in the State or Territory, as members of the bar of those courts, have resorted, with greater or loss frequency, to the capital city to attend the sessions of the supreme tribunal, or to avail themselves of the State law library-it has been thought best to include in this his- tory of Dane County an historical sketch of those courts, in which some facts may be stated in greater detail, and all the important facts bearing upon that particular topic may be grouped to- gether more closely, than in the general history of the State, with which this volume opens.

The act of Congress which provided for the organization of the Wisconsin Territory, de- clared that the judicial power therein should be vested in a Supreme Court, District Courts, Probate Courts and Justices of the Peace. The Supreme Court was to consist of a Chief Jus- tice and two Associate Judges, any two of whom should be a quorum ; and they were required to hold a term of the court annually at the seat of government. The Territory was to be divi- ded into three judicial districts ; and it was provided that "a District Court or Courts " should be held in each of said districts, by one of the Judges of the Supreme Court, at such times and places as might be prescribed by law. The jurisdiction of these several courts was to be "as limited by law ;" but the act declared that both the Supreme and District Courts should "pos- sess chancery as well as common-law jurisdiction ;" that " writs of error, bills of exceptions and appeals in chancery causes " should be " allowed in all cases, from the final decisions of the Dis- trict Courts to the Supreme Court," under regulations to be prescribed by law; and that in no case removed to the Supreme Court should there be a trial there by jury. It further provided that "writs of error and appeals from the final decisions of the said Supreme Court " should be "allowed and taken to the Supreme Court 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," should exceed $1,000. The Supreme Court was further empowered by the act (as was cach District Court) to appoint its own Clerk.

The Judges of the Supreme Court, as well as a United States Attorney and Marshal for the Territory, were to be appointed by the President, by and with the advice and consent of the Senate ; the former to hold their offices during good behavior, and the latter, each for a term of four years. In spite of vigorous efforts, by leading politicians of that early day, to induce the President to appoint to all the leading offices of the new government persons then resident in the Territory, President Jackson appointed, as Chief Justice, Charles Dunn, then of Illinois, while for the Associate Judges, he selected William C. Frazer, of Pennsylvania, and David Irvin, for- merly of Virginia, but who had been, during the preceding four years, Judge of the additional or Fourth District of the Michigan Territory, which comprised the whole of that Territory west of Lake Michigan. Judge Irvin was, nominally, a resident of the new Territory at the time of his appointment; but he was a bachelor, without any permanent home, and, except during short terms at Mackinaw, Green Bay and Mineral Point, is said to have passed his time in some of tbe older parts of the United States, usually in Virginia or in St. Louis, so that leading and in- fluential persons in the Territory had strongly urged the President to treat the District Judge- ship as va ant, by reason of Judge Irvin's non-residence, and to appoint a resident of the Terri- tory to fill the vacancy. William W. Chapman was appointed United States Attorney, and Francis Gehon Marshal of the Territory. On the 4th of July, 1836 (the day on which the civil existence of the new Territory began), Chief Justice Dunn and Judge Irvin, as well as the newly

*Written expressly for this history, by O. M. Conover, LL. D., Reporter to the Supreme Court of Wisconsin.

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HISTORY OF DANE COUNTY.

appointed Governor (Henry Dodge), and the Secretary (Robert S. Horner), took the oath of office at Mineral Point, in the midst of great rejoicing and festivities on the part of as large a crowd as could then be assembled at the metropolis of the mining region.

The Chief Justice of the new Supreme Court was then in his thirty-seventh year, of Irish descent, of Virginia ancestry on his mother's side, a native of Kentucky. Having enjoyed the advantage of a nine years' preliminary education at Louisville before he attained the age of eight- een, and having read law for about three years with distinguished lawyers of Kentucky and Illinois, he was admitted to the bar in the latter State before reaching his majority, and had practiced there during most of the next sixteen years, except so far as his practice was inter- rupted by the duties of various civil and military offices. He had taken part in the Black Hawk war as Captain of an Illinois company, and had entered Wisconsin with the Illinois forces engaged in the pursuit of the retreating enemy. Within the limits of what is now the town of Dunn, in Dane County, he had been wounded by a blundering sentinel ; and had thus been dis- abled for further service in the campaign. An able and well-read lawyer, endowed with a fine physique, with a countenance open, ruddy and frank, whose lines were nevertheless strong and indicative of good sense and a strong will, with a firm, manly and dignified bearing, familiar with the habits of border life, yet with the manners of an urbane and cultivated gentleman, Judge Dunn, though still a young man, had little difficulty in commanding the respect or win- ning the general good will of the people among whom his lot was now cast.

Judge David Irvin appears to have been a man of widely different type from the Chief Justice. A native of the Shenandoah Valley, in Virginia, of Scotch-Irish descent (his father being a Presbyterian minister and teacher of the ancient classics), he was appointed in 1832, by President Jackson, at the suggestion, it is said, of William C. Rives, to succeed Judge Doty in the office of District Judge in the Fourth District of Michigan Territory, already described. Though only thirty-six years old when he first came to Wisconsin, where he had now performed judicial duties and had a nominal residence for four years, he seems never to have been regarded by the people of the Territory as one of their number. He was free from the vices which too often in those days injured or even ruined the most promising men in our Western States and Territories ; and he seems to have been generally regarded as a fair and upright Judge, of respectable ability. The peculiarities of his character, and his entire withdrawal many years ago from all connection with this State, have led to numerous attempts, on the part of early set- tlers, to convey vivid impressions of him by free and minute description. "Judge Irvin," says one who knew him well, " was about six feet in height, very erect and well proportioned. His hair was auburn, not turning to gray ; eyes blue ; features narrow. He was not a laborious

Judge, but was attentive to duty, honest and upright in every particular. He was candid and without intrigue or deception. For integrity and moral principle, he enjoyed universal confi- dence. He was fond of a horse and a dog ; always esteeming his horse and dog the finest and best. Being a bachelor, these animals seemed to be the especial objects of his care and atten- tion. He was fond of hunting, particularly prairie chickens ; and frequently took the lawyers with him. *

* He was very economical, but scrupulously just in all his dealings. He indulged in acts of kindness to his relatives, but did not show much sympathy for others. While he treated all with urbanity and respect, he did not form particular attachments for strangers."*

A description by the late Judge C. M. Baker, of Walworth County, seems to be fair and just : "He was a Virginia gentleman of the old school. Social, kind-hearted, aristocratic, as became a Virginian of the F. F.'s, he was a bachelor with his whims and peculiarities. He was a great lover of hunting, particularly of prairie hens, in the shooting of which he was an expert ; and on this he prided himself, and no one must excel him if he would keep in his good graces. He was also learned in the knowledge of horses and dogs, as well as in the law; and his own horse Pedro and his dog York, to whom he was much attached and whose superior blood often formed the theme of his conversation, were as well known to the bar as the Judge himself. They were necessary appendages to the Judge and the court ; and it was said by the wags, that,

*Wisc. Hist. Coll., Vol. VI, p. 379 .- Note by Mr. Draper.

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HISTORY OF DANE COUNTY.

if one wanted to win his case before the Judge, he must praise his dog and his horse. But of truth it can be said of him that he was a lover of justice, detested meanness, was well grounded in the principles of the law, and was possessed of very respectable perceptive and reasoning powers. He seldom consulted law books, with which the bar of those days was poorly supplied, but, on the whole, for the times, was a fair and respectable Judge."

Judge Frazer, will be described hereafter.

At the first session of the Territorial Legislature, held at Belmont from October 25 to December 9, 1836, the Territory was divided into three judicial districts, the first consisting of Crawford and Iowa Counties, the second of Dubuque and Des Moines Counties (west of the Mis- sissippi), and the third of Brown and Milwaukee Counties. Chief Justice Dunn was assigned to the first district, Judge Irvin to the second, and Judge Frazer to the third. At the same session, many new counties were formed out of those already named, and it became the duty of the Chief Justice to hold terms in Grant County, of Judge Irvin to hold terms in Lee, Van Buren, Henry, Louisa and Muscatine (all west of the Mississippi), and of Judge Frazer to hold terms in Racine. Dane County was created at this session, with its present boundaries, the four eastern ranges of towns being taken from Milwaukee, and the three western ranges from Iowa, but it was attached to Iowa for judicial purposes until the first Monday in May, 1839.

On the 8th of December, 1836, the Supreme Court held its first term in the council cham- ber of the Legislative Assembly at Belmont. Only the Chief Justice and Judge Irvin were present. Mr. Simeon Mills informs us, as of his personal knowledge, that Judge Frazer was at Belmont at some time during the month of December, 1836. He cannot state why the Judge failed to be present at the organization of the court. He further states that Judge Frazer expressed an intention to spend the remainder of the winter in Pennsylvania, and return to Wisconsin the next spring.

We read in the little old journal, still carefully preserved, that "Hon. David Irvin presented a commission from Andrew Jackson, President of the United States, and a certificate of qualification from His Excellency Henry Dodge, Governor of said Territory ;" but we do not read that the Chief Justice thought it necessary for him to present any credentials. Justus De Seelhorst, of Iowa County, was appointed Crier, and John Catlin, Clerk. Mr. Catlin was then . thirty-three years of age, and had just settled in the Territory that year as a partner in the prac- tice of the law with Moses M. Strong, at Mineral Point. He became a resident of Madison soon after, and his honorable career, so largely identified with the history of Dane County and of the State, is related elsewhere in this volume. It is sufficient to say here that he withdrew, in the summer of 1839, from the office of Clerk of the Supreme Court and became a practitioner at its bar, taking part in about one-eighth of all the reported causes of the Territorial period. The journal of the earlier terms (from 1826 to 1839, inclusive) are found in a separate book, above referred to. It is a very small, cheap and unpretending book as compared with the heavy and handsomely bound folios in which the minutes of the court are now kept; but the entries, though very brief and not always very. formal, are carefully and neatly made, presumably in the hand- writing of Mr. Catlin.

By the organic act, all causes which had been removed from the District Courts of Brown and Iowa Counties to the Supreme Court of Michigan Territory, and which should remain in the latter court undetermined at the time of the organization of the Wisconsin Territory, were to be transferred to the Supreme Court of the latter. It would seem, however, that no such causes were found to exist. No case of that kind, or of any kind, came before the court at this first term; nor have I discovered that any case afterward came before it by transfer from the Michigan Supreme Court.

After appointing its Crier and Clerk, the court, " on motion " (but on whose motion does not appear), admitted to practice as attorneys and counselors, at its bar, the following gentle- men, most of whom were afterward well-known citizens of Wisconsin : Henry S. Baird, James Duane Doty, Barlow Shackelford and John S. Horner, all of Green Bay ; Hans Crocker, of Milwaukce ; Daniel G. Fenton, James B. Dallam, James H. Lockwood and Thomas P. Burnett,

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HISTORY OF DANE COUNTY.

all of Prairie du Chien ; William W. Chapman, of Platteville (the United States Attorney for the Territory) ; William R. Smith, .f Mineral Point ; Lyman J. Daniels, William N. Gardner and James Nagle, whose residence I am unable to state ; with Peter Hill Engle, of Dubuque, and Joseph Teas, of Des Moines.

Henry S. Baird, Esq., who had been appointed by Gov. Dodge the Attorney General of the Territory, then appeared and took the oath of office. Mr. Baird was then in his thirty- seventh year, having been born in Ireland May 16, 1800. Brought to the United States when only five years old, he had, after many struggles and difficulties, acquired the elements of an English education, at Pittsburgh, by the end of his fifteenth year. He had afterward read law, as he could find opportunity, under many disadvantages, chiefly at Cleveland, Ohio, between his eighteenth and the close of his twenty-second year. Starting out to shift for himself, he had landed at the Island of Mackinaw, in what was then the far Northwest, on the morning of June 5, 1822, "with about $15 in his pocket, a few law books and a rather scanty wardrobe," having obtained a passage thither on credit; had taught school at Mackinaw for some nine months, ending in April, 1823, and had been admitted by Mr. Doty, in June of that year, to practice in the courts of the Judicial District, for which that gentleman had just been appointed Judge. In September, 1824, he had removed to Green Bay, and had been the first lawyer to practice his profession within the present limits of Wisconsin, excepting, perhaps, James H. Lockwood, of Prairie du Chien .*. He had been in the Government service as Quartermaster General of the Militia in the Black Hawk war. He had acted as Secretary to Gov. Dodge when the latter, as United States Commissioner, effected an important treaty with the Menominee Indians, at Cedar Point, on the Fox River, in 1836. He was also a member and President of the Council in the First Legislative Assembly of the Territory, which had not yet finally adjourned. Mr. Baird resigned the office of Attorney General in 1838. His subsequent useful and honorable career as citizen, lawyer and member of the First Constitutional Convention, and in manifold positions of public and private trust, until its close in 1875, need not be described here. t One of his daughters, the wife of Dr. John Favill, has resided in Madison since 1854; and both his public duties and his domestic affections brought him frequently among us. His form, sturdy, though not tall, and his countenance so . expressive at once of firmness, goodness and solid sense, were well known to our citizens. The accomplished lady who, when but a school girl in her sixteenth year, was united to him in marriage at Mackinaw, just before his removal to Green Bay, and whose gracious courtesy seconded his simple and patriarchal kindliness in making their home at the latter place for half a century a center of attraction for old and young, still survives him, and is a not infrequent and an ever-welcome visitor here. And all who have known the venerable pair in later years may read with interest the record of that first term of the Territorial Supreme Court, when Mr. Baird, in that little council chamber at Belmont, took the oath of office as first Attorney General of the Wisconsin Territory.

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History of Dane County, Wisconsin, Part 73

Author: Butterfield, Consul Willshire, 1824-1899; Western Historical Co., Chicago, pub Publication date: 1880 Publisher: Chicago : Western Historical Company Number of Pages: 1304

Author: Butterfield, Consul Willshire, 1824-1899; Western Historical Co., Chicago, pub
Publication date: 1880
Publisher: Chicago : Western Historical Company
Number of Pages: 1304