History of Dane County, Wisconsin, Part 74

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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On the same day, in the afternoon, on motion of D. G. Fenton, Esq., the court appointed Thomas Pendleton Burnett, Esq., to be its official reporter ; and he held that office until his premature and lamented death nearly ten years later. Like Mr. Baird, he was in the thirty-sev- enth year of his age at the time of his appointment ; and, like him, had struggled up to a creditable standing in the legal profession, in spite of narrow and difficult circumstances. Born in Pittsyl- vania County, Va., September 3, 1800, he had been reared from early childhood on a farm in

*B. J. Stevens, Esq., in remarke made at the har of the Supreme Court, relative to the life and character of Mr. Beird (39 Wie., R., 27-30), stats that in October, 1824, Judge Doty " opened at Green Bay the first term of court ever held within the present limits of the State of Wisconsin. At this term * * * Henry S. Baird wee admitted to the bar, and was appointed the Prosecutiog Attorney pro tem., and as such served during the term In the trial of more theu forty cases, euch as they were. Od the 23d day of the preceding August, and out of term, J. H. Lockwood had been admitted to the her hy Judge Doty. He had received from the Government e commission as Prosecuting Attorney for the counties of Brown and Orawford. Although Mr. Lockwood was the first to he admitted, Mr. Baird was the first to practice as an attorney within the present limits of the State."

What is here said ehout the "first term of court" must be understood only of courts of the dignity of District or Circuit Courts. From Mr. Lockwood'e article on " Early Times and Events in Wisconsin," published in the second volume of the Collectione of the Wisconein State Historical Society (see pp. 151-2), it would also seem thet Judge Doty held a term of his District Court, for Crawford County, in May, 1824. He had held & term at Mackinaw in July, 1823. [See Mr. Draper's note on p. 151 of the volume cited; and see aleo 7 Wie. Hist. Col., p. 430.] It would alec eeem that Mr. Lockwood had practiced at Green Bay, as well as at Mackinaw, before the removal of Mr. Baird from the latter to the former place. [Compare Judge Lockwood's statements with those of Col. Childe, io Vol. IV of the Wie. Hist. Col., on p. 166.] Mr. Baird was admitted to practice in the District Court for Brown County on the 4th of October, 1824, being the first day of a term. t See 39 Wis., 23-33, and 7 Wis. Hiet. Col., 426-443.

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Bourbon or Spencer County, Ky. ; had obtained such education as he could by the aid of an academy and of private instruction from neighboring gentlemen, laboring with his own hands, and afterward teaching, to acquire the means of support while prosecuting his studies. "While reading law, he was favored with some minor offices, such as Constable, Deputy Sheriff, Sheriff, etc., from the fees of which he derived a scanty means of support." Soon after his admission to the bar, he settled at Paris, Ky., where, in the practice of his profession, he is said to have been brought into contact, and often into professional collision, with some of the ablest lawyers in that State. For two years he filled the office of District Attorney. After the accession of Gen. Jackson to the Presidency in 1828, Mr. Burnett, who had been a warm partisan of the General, received, October 15, 1829, the appointment of a sub-agent in the Indian department, to reside at Prairie du Chien. An accident which occurred soon after, while he was laboring with characteristic zeal and courage to arrest the progress of an extensive fire at Paris, and which resulted in crushing one of his legs, confining him to his bed or to his room, for seven months, and leaving him a cripple for life, determined him to accept the appointment, far as it was below his hopes, rather than attempt to regain his practice after his long illness; and a severe domestic misfortune aided in producing this decision. Arriving at Prairie du Chien, in June, 1830, he found " but two or three American families in the place, except in the garrison at Fort Crawford. The major part of the inhabitants, 400 in number, were Canadian-French and half-breeds, who spoke only French with some Indian languages, all of which were to him unknown tongues." Mr. Burnett was at first disappointed in the country, the people, and the duties of his office ; but, upon better acquaintance, became strongly attached to them all. To the employments of his agency (the salary of which was only $500), he was permitted to add the practice of his profession, in which he soon obtained some business, including suits prose- cuted in behalf of the Government. In 1834, his connection with the Indian agency ceased, and he devoted himself more completely to the practice of his profession. Some question having been made, as we have seen, as to the existence of a vacancy in the office of District Judge, on account of the alleged non-residence of Judge Irvin, Mr. Burnett's appointment to the office was strongly urged upon the President; but the latter did not recognize the existence of a vacancy. In January, 1835, Mr. Burnett was appointed by Gov. Mason, of Michigan Territory, District Attorney for the counties of Crawford, Iowa, Dubuque and Des Moines ; and he attended the summer terms of the courts in those counties ; but, finding it " inconvenient and unpleasant," tendered his resignation to Gov. Mason, September 10, 1835. In October follow- ing, he was elected to the Legislative Council of Michigan Territory, which was appointed to meet at Green Bay ; and, on the meeting of the Council in December, he was chosen its Pres- ident; but the meeting, which was of doubtful legal validity, was a practical failure. Congress was, however, memorialized at this session in favor of a speedy organization of the Territory of Wisconsin ; and a memorial to the President of the United States, in reference to the offices of the contemplated Territory, urged upon him the appointment of its own citizens, in preference to persons from other parts of the country. As it was understood that Gen. Dodge would be appointed Governor, Mr. Burnett was urged as a suitable person for the office of Secretary. " If the secretaryship could not be obtained," we are told, " Mr. Burnett desired a Judgeship;" that is, he desired to be appointed one of the Judges of the Supreme Court of the Territory; and his friends in Congress, Col. Richard M. Johnson, of Kentucky, and Col. George W. Jones, then Delegate from the Michigan Territory, and, through their influence, Senators Benton and Linn, of Missouri, and Senators Wright and Tallmadge, of New York, earnestly, though unsuc- cessfully, sought to secure his appointment to one of the two offices named. About the same period, Mr. Burnett is said to have become a member of the Four Lake Company, organized under the lead of Gov. Mason and Mr. Doty, for the purpose of laying out a city in the Four- Lake region, which should become the capital of the new Territory.

By the apportionment of members of the First Legislative Assembly of the new Territory, as made by Gov. Dodge upon the basis of a census taken in 1836, Crawford was allowed two mem- bers of the House of Representatives, but no member of the Council. The people of that

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county claimed that, under the organic act, each county was entitled to be represented in each house; and Mr. Burnett was unanimously elected by them to be a member of the Council. The fall number of members authorized by law had, however, been chosen in other counties, pursuant to the Governor's appointment and proclamation ; and very naturally Mr. Burnett's election was not certified by the Governor, nor was he admitted to the seat which he claimed. During that session of the Legislative Assembly Mr. Burnett was nominated by the Governor, and con- firmed by the Council, as District Attorney for Crawford County, but this was done without his knowledge, and he subsequently declined the appointment on the ground that the Council " was not legally organized, and that it had not, therefore, the lawful authority to perform any valid and binding act." This characteristic protest echoes the displeasure of Crawford County at the failure of Gov. Dodge to give them a representation in the Council. Whatever may have been the merits of their claim, it is needless to add that the objection of Mr. Burnett, if sound, would have been fatal to the validity of all acts passed by the First Legislative Assembly, which have, nevertheless, always been treated by the courts as valid.

Such had been Mr. Burnett's career prior to his appointment as reporter. The further course of his public life will be briefly sketched hereafter.

Long as we have dwelt on this first term of the Supreme Court, it occupied but a few hours of a single day. By an act of the First Legislative Assembly, the court was required to hold its subsequent terms annually on the first Monday of July at the seat of government. The journal of the court contains the following entry : "Monday, July 3, A. D. 1837. This day being the day appointed by the Legislative Assembly of Wisconsin Territory for holding the Supreme Court at Madison, in Dane County, the seat of government of said Territory, and two of the Judges of the said court not attending on this day ; therefore, the court is adjourned until to-morrow at 11 o'clock A. M. JOHN CATLIN, Clerk."

The journal then shows an adjournment from day to day for the same reason, until the 8th of July, when the adjournment was "until court in course." The Marshal is stated, in the journal of the 8th, to have been in attendance three days. There is nothing to show whether any other officer or any members of the bar were present, nor which of the Judges it was who persisted so long in waiting for his colleagues to appear. In explanation of this failure to hold a term that year, it has been stated that "no business for the court had matured."* Perhaps the want of any suitable accommodations for the court at Madison was an equally persuasive reason, the only houses then erected at that place being a small log house built for John Catlin (on the present site of the United States Post Office), the interior of which had been badly injured by fire, and apparently not repaired, with the two boarding-houses of Eben Peck and Josiah Pierce, and some rude temporary cabins built for the use of the workmen engaged upon the capitol. t

Judge Frazer held the May term, 1837, of the District Court for Brown County at Green Bay, at which term the Winnebago Indian Mau-zau-mau-nec-kah was convicted of the murder of Pierre Pauquette, which occurred in the preceding October near Fort Winnebago. This cause, which excited great interest in the Territory, was taken by writ of error to the Supreme Court, and in the report of it (now most conveniently found in 1 Pinney's Wis. R., 124), a written opinion delivered by Judge Frazer on denying a motion in arrest of judgment is pre- served. He seems to have held the June term of his court at Milwaukee the same year. Proba- bly he was one of the two judges of the Supreme Court whose failure to appear at Madison the next month prevented the holding of the term for that year.

By an act of the Legislative Assembly at its next session (at Burlington), the time for hold- ing the annual term of the court was changed to the third Monday of July. On the 19th of June, 1838, Edward James was commissioned Marshal of the Territory, succeeding Mr. Gehon.

On the 4th of July, 1838, the Iowa Territory became detached from Wisconsin. On the 15th of the same month, Moses M. Strong, of Mineral Point, was commissioned United States District Attorney for the Wisconsin Territory, succeeding Mr. Chapman.

*1 Pinney's Wie. R., Preface, page 35. Mr. Mille is confident that the Judge present on this occasion was Chief Justice Dunn. + Durrie's History of Madison.

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On the next day, July 16, 1838, the Supreme Court held its term at Madison. The journal states that " The Hon. William C. Frazer appeared, and, two of the Judges not appear- ing, the court was adjourned until 3 o'clock, P. M." It then states that at the hour last named, "the court was opened by Francis Gehon,* Marshal of the Territory. Present: Hon. Charles Dunn, Chief Justice ; Hon. William C. Frazer, Associate Judge." I have never seen any reason assigned for the absence of Judge Irvin. This term lasted only one day, and was held, according to Mr Catlin's statement, "at the old Madison Hotel, which was only partially finished."t William H. Banks and Francis J. Dunn, both of Mineral Point ; Frederick S. Lovell, of Southport (Kenosha) ; and Jonathan E. Arnold and H. N. Wells, both of Milwaukee, were admitted to the bar of the court. Orders were made in seven cases, all of which were continued. Four rules of practice were adopted (which will be found in 1 Pinney's Wisconsin R., pp. 5, 6), and then the court adjourned " until court in course."

After this adjournment, Judge Frazer appears to have held a term of his district court at Green Bay. He died at Milwaukee on the 18th of October in that year. His service in Wis- consin was so brief, that only a dim tradition of him remains, and that not of a flattering char- acter. It does not appear that he had ever had judicial experience prior to his appointment to our Supreme Court. He was sixty years old at the time of that appointment, sixty-two at the time of his death. Few men of that age could have been transplanted with success from one of the populous Eastern States to a remote frontier region, such as Wisconsin then was. But, unhappily, the Judge appears to have been disqualified for his office by grossly intemperate habits still more than by his years. By whose influence his appointment had been procured does not appear ; but he was neither the first nor the last of the unfortunates whose friends have secured for them places of supposed refuge in official appointments to distant Territories after they had ceased to be useful or successful at home. Mr. Pinney remarks that " his intemperate habits rendered him unfit for the position, though, it is said, that he had been a lawyer of average learning and ability."# The late Judge Catlin, in some reminiscences written near the close of his life, § says that "Judge Frazer was a very able Judge when not under the influence of liquor, and was remarkable for his ability, memory and knowledge of law." Speaking of the term of the Supreme Court held in 1838, he says: " The Judge came on from Pennsylvania to hold the term [?], but the other Judges. did not attend. The Judge insisted on opening the court and holding the term as the law required. I informed him that there was no business and no lawyers in attendance. He said that made no difference. It was necessary to adopt rules, and accordingly the court was opened ; the Judge dictated from memory, and I wrote the rules, but they were not adopted by the other Judges. The climate of Madison, however, at that dry time at the capital, did not suit the Judge, as the " critter" or " O be joyful " was not there, except some Chinese cordial in the store of James Morrison, which Mr. Bird had charge of in the absence of Mr. Morrison. This cordial was put up in a very handsome and expensive set of Chinaware representing Mandarins, and, by the liberality of Mr. Bird, the whole set (about a dozen bottles) was emptied by the Judge while holding the term. When the cordial had all leaked out, the Judge took his departure, and never held another term."

The very high character of Mr. Catlin, and his relations to the court as its Clerk at that time, would seem to give these reminiscences a peculiar stamp of authenticity. But it is diffi- cult to reconcile this narrative with the facts already stated from the record concerning the term of 1838. If it be true, however, that on the morning of the 16th of July, before the arrival of Chief Justice Dunn, Judge Frazer insisted upon holding the term " solitary and alone," it is only necessary to remark that, by the organic act, the presence of two of the Judges was requi- site to constitute a quorum ; and that, in the face of this express provision, no Judge, whose competency for the position had not been at least temporarily suspended, could possibly have been guilty of such folly.

* It would seem that Mr. James bad not yet been sworn in.

+ Durrie's History of Madison, p. 40.

1 Pinney's Wis. R., p. 49.

Durrie's History of dladison, pp. 39, 40.

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A paper by A. F. Pratt, Esq., of Waukesha, found in the first volume of the collections of our State Historical Society, contains some further reminiscences of Judge Frazer, harmonizing in their general character with those already given ; but, like those of Mr. Catlin, they were written out after the lapse of many years, without reference to the records, and contain some obvious inaccuracies.

On the 8th of November, 1838, Andrew Galbraith Miller, Esq., of Carlisle, Cumberland Co., Penn., was commissioned by President Jackson as a Judge of the Supreme Court of Wis- consin Territory, to fill the vacancy caused by Judge Frazer's death. Judge Miller was a native of the county in which he was practicing law at the time of his appointment, having been born near Carlisle September 18, 1801. After graduating at Washington College, Pennsylvania, on the day after the completion of his nineteenth year, he had studied law at Carlisle for three years, and had been admitted to the bar in November, 1822. After sixteen years of practice in "the courts of his native and adjoining counties, and in the Supreme Court of the State," being then arrived at his thirty-eighth year, he received the appointment already mentioned, and came to Wisconsin, where he was to fill high judicial positions until the close of his life. The oath of office was administered to him on the 10th of December, 1838, at Milwaukee, by John S. Rock- well, Esq. From the accession of Judge Miller to the inauguration of the State Government of Wisconsin, no change occurred in the constitution of the Supreme Court.

Before the next term of the court, the Territory was redistricted by act of the Legislature, and Chief Justice Dunn was assigned to the First District, consisting of Crawford, Grant and Iowa Counties ; Judge Irvin to the Second District, consisting of Walworth, Rock, Green, Dane and Jefferson Counties ; and Judge Miller to the Third District, composed of Brown, Milwaukee, and Racine Counties. Other counties were soon formed from those named, and were included in the several judicial districts which comprised the counties from which they were respectively detached.

The next term of the court commenced July 15, 1839, at the capitol at Madison, and con- tinued for three days. According to the recollection of Mr. Mills, most of the sessions of the court during both this and the preceding term, were held in a small frame building known as the Commissioner's Office, which stood on the east corner of King and Pinckney Streets. The room in which the court sat in this building, measured perhaps sixteen by twenty feet, and con- tained the Territorial Library after its removal from Burlington.

The few hundred people living at that time in Madison, and most of the lawyers atten- dant upon the court, then made their first acquaintance with Judge Miller. James D. Jenk- ins, the Deputy Marshal, was in attendance, and opened the court each day by proclama- tion. A seal was adopted. Two new rules were adopted in addition to the four previously established. Franklin J. Munger, of Potosi, and William N. Seymour, of Madison, were admitted to the bar of the court on the first day, and John Catlin and Nathaniel F. Hyer on the third day of the term. The other attorneys who appear to have been in attendance, are Francis J. Dunn, Thomas P. Burnett and William H. Banks, all from the southwestern portion of the Territory, as Mr. Burnett had become, in 1837, a resident of Grant County. H. N. Wells, who bad been appointed by the Governor, Attorney General of the Territory on the 30th of the preceding March, was not present ; and the court made an order appointing Mr. Munger to act as Attorney General for the term. Mr. Burnett was for some reason re-appointed reporter. On the last day of the term, Mr. Catlin resigned the office of Clerk, and Simeon Mills, of Madison, was appointed to succeed him. He retained the office for only a single year, when he resigned it in favor of La Fayette Kellogg, who had acted as his deputy during the year. Mr. Mills still survives as one of our leading citizens, after a life of varied public service and private enter- prise, which will be found recorded elsewhere in this volume. Only two cases were decided upon the merits at this term, viz., Hunter v. The United States, and Rountree v. The United States. In Judson v. Hindman and another, a writ of certiorari to a Justice of the Peace was dismissed on the ground that the court had no jurisdiction. Four other cases, viz., Ward v. Price, Johnson v. Wilson, Mills v. The United States and Towsley v. Turner, were dismissed

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for defects in the proceedings by which they were brought up. In each of the seven cases above named, a written opinion was filed ; but in only one of the last four (Ward v. Price) was the decision ever reported. Two other cases were dismissed without any written opinion; while two (Arndt v. Allard and Porlier, Doty and Arndt v. Hogarthy) were continued.

The term for 1840, commenced on the 20th of July. The United States Marshal not being present in person or by deputy, Berry Haney was appointed crier. In the absence of the reporter on the first day, Don Alonzo J. Upham, Esq., of Milwaukee, was appointed reporter; but Mr. Burnett made his appearance the next day. The court sat three days in succession, and then adjourned to the 10th of August. In default of any exact knowledge on the subject, it may be conjectured that this adjournment was necessitated by the condition of the court-room, the floor of which was apt to be inundated after a heavy rain. On the re-assembling of the court, Edward James, the United States Marshal, was in attendance. The reporter being again absent, Jonathan E. Arnold, of Milwaukee, was appointed reporter for the term. The court sat seven days at this adjourned session. On the last day, Monday, August 17, it adopted some regu- lations as to the fees of the Clerk, and nine rules in addition to the seven already established. The first record in naturalization in this court appears on the journal of July 21.

The following gentlemen were formally admitted to the bar of the court at this term : Thomas W. Sutherland, of Madison, and Ben C. Eastman, of Platteville, July 20; Wiram Knowlton, of Prairie du Chien, July 21; Charles J. Learned, of Prairie du Chien, and Lorenzo Janes, August 10; Edward V. Whiton, of Janesville, and John H. Tweedy, of Mil- waukee, August 11, and Charles C. P. Arndt, of Green Bay, August 15. Moses M. Strong, of Mineral Point, makes his first recorded appearance in the court on the first day of this term; Morgan L. Martin, of Green Bay, August 10; Mortimer M. Jackson, of Mineral Point, August 11 ; David Brigham, of Madison, on the 13th. There is no record, at this term or any other, of the formal admission of either of the four gentlemen last named, to the bar of the court; but they continued from this time to be recognized and active members of that bar.

We naturally linger long over first things. In the history of any civil institution, the first steps stem of greatest interest, to the reverted glance of subsequent generations. But the Ter- ritorial Supreme Court had now struck its gait ; and its remaining record must be more briefly disposed of.

The records show the formal admission of the following gentlemen to the bar of the court after 1840 : In 1841, Alexander Botkin and Alexander P. Field, both of Madison; in 1842, James S. Baker, of Green Bay ; Alexander L. Collins, of Madison; Edwin P. Carr and Zelotes B. Mayo ; in 1843, William P. Lynde, of Milwaukee; Chauncey Abbott, of Madison, and Henry Waggoner ; in 1844, Isaac P. Walker and Levi Hubbell, both of Milwaukee; in 1845, Cyrus P. Hiller, of Sheboygan ; and in 1847, Ganem W. Washburn, of Oshkosh.

The following gentlemen, not already named above, appear from the records to have prac- ticed at the bar of the court during the Territorial period : Parley Eaton (1841); Alexander W. Stow, David Noggle, H. B. Towslee, Marshall M. Strong, Warner Earle, Thomas Wright, Asahel Finch, Jr., Julius T. Clark and - Beavans (1842); J. D. Learned and James H. Knowlton (1843); Peter Yates, David Agry, J. G. Knapp, Levi Blossom and James Holliday (1844); A. Hyatt Smith, J. E. Holmes, Daniel C. Babcock, J. Allen Barber, Joseph T. Mills, C. C. Washburn, D. W. Jones, Samuel Crawford, H. S. Winsor, F. Randall, George Reed, George Gale, Alfred Brunson, J. B. Jilsun, Horace T. Sanders and A. D. Smith (1845); J. M. Goodhue, - Blodgett, E. W. Evans and Thomas Ogden (1846); J. M. Keep, Nelson Dewey, J. A. Bingham, S. P. Candee, O. C. Pratt, David Taylor, T. O. Howe, George B. Smith, Orsamus Cole, William R. Biddlecome, Charles M. Baker, Lyman Cowdery, O. Cowdery, C. E. Jenkins, W. Bond and William C. Allen (1847). To these, Mr. Pinney adds, from his examina- tion of the records, the following names, which have escaped my attention in the rapid examin- ation which I have made : Edward Elderkin and E. Estabrook, both of Elkhorn ; John Hustis, Daniel F. Kimball, Hazen Cheney, Alexander W. Randall, of Waukesha ; Leonard P. Crary, of Oshkosh ; Walter W. Kellogg and Lewis Smith.

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History of Dane County, Wisconsin, Part 74

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