History of Dane County, Wisconsin, Part 75

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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HISTORY OF DANE COUNTY.

We have thus the names of over one hundred attorneys, who appear to have been recog- nized as members of the bar of our Territorial Supreme Court. Of this number, only a few attended the terms of the court with regularity or frequency. Taking the whole period together, the largest practitioners were Francis J. Dunn, Thomas P. Burnett, Moses M. Strong, Edward V. Whiten, Horatio N. Wells, John Catlin, Alexander L. Collins, Jonathan E. Arnold, A. Hyatt Smith, James H. Knowlton, David Noggle, Levi Hubbell, Morgan L. Martin and Mor- timer M. Jackson. Of the 131 cases in which decisions of this court are reported for the eleven years of its existence (less then half the number new reported for a single year), Mr Dunn appeared as attorney in 1844. From his admission in 1838 to the close of the period, he was a constant attendant upon and a leading practitioner in the court. Mr. Strong did not appear there until 1840; but, for the next five years, his practice at this bar was equal to that of Mr. Dunn. Afterwards, he became engaged in various public enterprises, which withdrew him to some extent frem attendance upon the court. Franklin J. Munger, of Potosi, who was admitted at the opening of the term in 1839, and was very active during that term, disappears thereafter from view. Mr. H. N. Wells and Mr. Arnold were less frequent attendants upon the court in the later than in the earlier years of its existence. On the other hand, the practice of J. H. Knowlton, A. Hyatt Smith and Levi Hubbell, was chiefly in the latter half of the period. Besides these, we may name as well-known and frequent attendants upon the court from out- side ef Dane County, John H. Tweedy, and a little later William P. Lynde and Peter Yates, of Milwaukee ; William R. Smith and Parley Eaton, of Mineral Peint, and Ben C. Eastman. A few ethers attended enly one or two of the terms, who afterward rose to distinction in the State. Of the Dane County bar, besides. Mr. Catlin and Mr. Collins, David Brigham, Alex- ander P. Field, Alexander Botkin, Julius T. Clark, Chauncey Abbott and J. Gillett Knapp all appeared in important cases. Mr. Brigham, whose name is first mentioned in the journal in 1840, died in 1843. The personal appearance and character of most of the gentlemen whom I have named as attending the court from other counties, were probably familiar to the citizens of Dane County, and especially of Madison.

During 1842, the Judges of the Court appear to have had a large amount of business in bankruptcy, of which the records of the court show little trace. On this point the following statements are made in a paper read before the Old Settlers' Club of Milwaukee, by Judge Andrew G. Miller, on the 4th of July, 1870: "The second act of Congress to establish a uniform system of bankruptcy throughout the United States *

* took effect from and after the 1st day of February, 1842. Jurisdiction of cases in bankruptcy being by the act conferred upon the Supreme or Superior Courts of the Territories, the Supreme Court of this Territory dis- charged 300 petitioners out of 315. A majority of these had failed in business in the Eastern States, in consequence of the inflation of the currency and of speculations in 1836. It was estimated that the debts of those 300 bankrupts exceeded $2,000,000. The act largely increased the miles of travel and the judicial duties of the Judges who held their court in Madison. They were empowered by the act to form the rules of their court in bankruptcy ; and to cstablish the fee.bill. Under the fee-bill of the Supreme Court in Bankruptcy, the fees in cases did not average $20. The act was repealed on the 3d of March, 1843."

The decisions of the court to the close of the term of 1840 were prepared by Mr. Burnett, and published in 1841 by the direction of the Legislature (as an appendix to a volume containing the acts of a special and a regular session of the Legislature), from the press of W. W. Wyman, at Madison. The decisions of 1842 and 1843 were published by Mr. Burnett in a separate volume, in 1844, from the press of George Hyer, at Madison. In the winter of 1844-45, and again the succeeding winter, Mr. Burnett was in the Territorial Legislature as a member of the House of Representatives from Grant County. He was then elected a delegate to the first Constitutional Convention, which met at Madison October 5, 1846. He had removed, in 1837, from Prairie du Chien to Cassville, the temporary seat of justice of Grant County, but had subsequently removed to a farm on the old military road between Forts Crawford and Winne- bago, which he had selected and embellished with taste and care for his permanent home, and to

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which he had given the name of " The Hermitage." Field, garden and lawn were already taking shape under his eye and hand ; and a dwelling of stone was already planned to take the place of the comfortable log house which he had erected for temporary use. At this place"he had been confined by disease for some months before the meeting of the Constitutional Conven- tion. He was unable to take his seat in that body until October 14, and even then he was probably too much enfeebled for the severe draft which membership of such a body would naturally make upon a man of his active brain, accustomed to be a leader of men. On October 25, he was recalled to his home by intelligence of the alarming illness of his wife from typhoid fever. A wagon-ride of eighty-five miles, commenced after an exhaustive day's work, brought him to his home, only to be himself struck down by the fever. Himself, his wife and his aged mother, who had recently come from Kentucky to spend her last days with him, lay prostrate with the same disease, " under the same roof and within hearing of each other.". The mother died on the 1st of November, the husband and the wife on the 5th ; and on the 7th of that month, when the evening shadows fell on " The Hermitage," the bodies of the three reposed side by side, " in a beautiful grove at the head of the garden," in a spot which the owner had chosen as the burying place of his family .*

The very first reported case determined by the Supreme Court of the State was one involv- ing an alleged nuncupative will of the late reporter of the Territorial Court. At a later stage of the cause, Judge Hubbell, in delivering the opinion of the court, said : "The members of this court hold in cherished recollection the character and public services of the late Thomas P. Burnett. His high standing as a member of the bar, his position as reporter of the late Supreme Court, his ability and influence as a legislator and statesman, and especially his amiable private charac- ter, have induced a more than usually careful examination of this case."

At the time of his death, Mr. Burnett "had prepared abstracts of the cases and briefs of all causes which had been argued and decided up to the close of the July term, 1846," and to these rough notes Mr. Pinney acknowledges his obligations in the preparation of the first volume of the valuable series of Supreme Court reports edited by him and published in 1872.

The last term of the Territorial Supreme Court was held in July, 1847. On the 29th of May, 1848, Wisconsin became a State, and a new period began in her judicial and political his- tory. None of the Judges of the Territorial Court were afterward connected with the State judiciary. Chief Justice Dunn held his last term as Judge of the First District at Mineral Point, in October, 1848. That district had been, during the greater part of his period of service, the most populous of the three, and had furnished the greatest amount of litigation. One who knew him long and intimately has said : "The duties of the Judge were exceedingly onerous, but they were discharged with ability, fidelity and integrity, and a dignity and grace which won for him an immense popularity and made him the idol of his bar."t

While still upon the bench, Judge Dunn was elected a delegate from La Fayette County to the Second Constitutional Convention, which assembled at Madison in the summer of 1848; was Chairman of the Judiciary Committee, and is said to have " possessed a commanding influ- ence " in the convention. He was a member of the State Senate from 1853 to 1856, both inc.u- sive, and was a member of the Judiciary Committee of that body during the whole four years, and its chairman until 1856, when, the majority of the Senate being of the political party opposed to his own, he was succeeded in the chairmanship by David Taylor.

" Upon the establishment of the State Courts, Judge Dunn devoted himself to the practice of law, which he continued up to his death. A portion of the time, he kept an office in Mineral Point, but his residence was at Belmont, where hewas generally to be found when not engaged in court, and where consultations with clients were generally had. He was well educated in the classics, and was an excellent English scholar. His professional education had been thorough and complete. * * * He added to his scholastic and professional acquirements a very remarkable knowledge of human character and of the reasons and causes that ordinarily influ-

* The facts above stated concerning Mr. Burnett are derived chiefly from an interesting sketch of his life by his father-in-law, Rev Alfred Bruneon, of Prairie du Chien, found in the second volume of the Collections of the State Historical Society.

+Moses M. Strong, 30 Wis., 25.

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ence human conduct. These acquirements, in connection with the reputation he so gener- ally and so deservedly had for candor and integrity, personal and professional, gave him unbounded influence with juries and made him a most successful practitioner."

Judge Dunn died at Mineral Point on the 7th of April, 1872, being then in his seventy- third year. His portrait, admirably painted by James R. Stuart from a photograph, is asso- ciated with those of the late Chief Justice Whiton and the late Judge Byron Paine upon the walls of the Supreme Court room, to which they furnish the chief and the most appropriate embellishment .*

When his functions as Judge of the Territorial Supreme Court ceased, Judge Irvin removed, first to St. Louis, and afterward to Texas. We are told that in the latter State he invested the accumulated savings of his official life in wild cotton lands, and became wealthy ; and that, durin: the rebellion, he espoused the cause of the South. He died, apparently, in the early part of 1872. "But a little while ago," said Mr. Ryan, in his very striking remarks upon the death of Judge Dunn, " we read of the death, in a place far distant, of Judge Irvin, one of the first Territorial Judges of Wisconsin. After a long absence, perhaps a long forgetfulness, his death called up the past to many of us, like the ghost of our earlier lives. But he was only a Terri- torial officer, who filled his office respectably amongst us, and left us when his office expired. Respectable in all his relations, kind in heart and life, he came and left us as a Territorial func- tionary ; was a stranger among us, and had little part in the lot of the early settlers of Wiscon- sin. Peace be with him.'

On the 12th of June, 1848, Judge Andrew G. Miller was appointed by President Polk to be District Judge of the United States for the District of Wisconsin ; and he held this position until January 1, 1874, when, in the seventy-third year of his age, he retired after an almost con- tinuous judicial service of more than thirty-five years. He had retained his office and performed full service therein for two years after reaching the age at which the laws of the United States would have permitted him to retire with continuance of salary. On the day when he resigned his commission, in notifying the President of the Milwaukee Bar Association of the fact, he wrote : "I am the oldest Federal Judge in commission, and the sole surviving Judge who administered the Bankrupt Act of 1841. As Judge of the Territorial Supreme Court, I attended its annual terms at Madison, and held the District Courts in the Third District of the Territory (which, before the admission of the State into the Union, was composed of nine counties), and also the terms of the District Court as Judge of the United States, without missing a term from sickness or any other cause." He added that the infirmities of age could not even then be pleaded as an excuse for his resigning, but that, after passing fifty-four years of his life in the law, as student, member of the bar and Judge, he hoped that his retirement in the evening of his days would be approved. A few months afterward, on the 30th of September, 1874, Judge Miller died at his home in Milwaukee. In respect to the manner in which he discharged his duties as a Federal Judge, there were unquestionably wide differences of opinion and feeling among the people and the bar of Wisconsin ; though all appear to concede to him professional learning, great industry and entire integrity in the ordinary sense of that term. "For the greatness of his office," says Chief Justice Ryan, " for the remarkable length of his official life, for the pub- lic importance of his administration, for the vast aggregate of his official labors, few Judges have a higher claim to eminence. * * * Judge Miller's intellect was less remarkable than his character. It had nothing brilliant or attractive in it. Its quality was sagacious, not pro- found; deliberate, not quick ; it was respectable rather than remarkable, and was always sub- ordinate to his character. He was a man of firm, resolute, persistent nature ; patient and steadfast ; self-reliant, reserved and unsympathetic. His temper was calm and impassive; his disposition undemonstrative. His feelings and passions were deep, and rarely manifest on the surface. There was nothing impulsive or emotional in his constant and sedate constitution. His moral

* See the proceedings in the Supreme Court relative to the death of Judge Dunn (30 Wie., 21-40), including the interesting, and, in some cases, most eloquent remarks of Moses M. Strong, Mr. (now Chief Justice) Ryan, George B. Smith and Judge Cole. To the biographical sketch there given by Mr. Strong 1 am indebted for most of the facts here stated. See also the proceedings in the same court on the presenta- tion of the portrait of Judge Dunn, 35 Wie., 21-26.

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sense was just, but not broad or generous. He had great self-esteem, and great faith in his own opinions, often rather instinctive than philosophical. He was inflexible in all his convictions, and steadfast in all his conduct. He was a self-centered and self-contained man, who yielded nothing for applause, and was never visibly affected by censure. He had little quality of attrac- tion ; little habit of conciliation. The world could have little appreciation of such a man ; little comprehension of the principles and motives of his life ; little sympathy with him ; little toler- ation of his course, where it conflicted with its interest or offended its sense, And so men's criticisms of his judicial administration were sometimes severe and angry, not to say vindictive. But he appeared to heed nothing of these ; and kept his way, guided by his own lights. He may have felt censure, but he made no sign. *

* * Think as men may of his administra- tion, there was something grand in the lonely self-reliance and steadfastness of the man, which none can fail to admire. * * * There was a long period when he exercised great power; and, by no fault of his, his power was practically irresponsible. This was at least as great .a misfortune to him as it could well be to others. But he did not so regard it. His love of power probably led him to enjoy it the more because it was irresponsible. And so it happened that men often denounced the power and impeached the exercise of it. Such animadversions tended" rather to harden than to soften such a man. If they had any effect upon him, they drove him on his way, not checked him in it. He had a high sense of authority, perhaps an overweening one. Had he been Chief Justice of England, tempore Gascoigne, policy, not defective sense of dignity or power, might have spared the heir apparent of the throne from commitment for con- tempt. And so, regardless of all outcry, he held his own way. And so he appeared to others arbitrary, when he was only true to his own sense of the duty and dignity of his office. * * Judge Miller could not but take his personal character with him on the beach, and such a character could not fail largely to influence his judicial administration.

Mistakes and errors he doubtless committed. * * * Some of these were judicial errors, mistaken conclusions of law or fact, the common infirmity of all Judges. Some were undoubtedly owing to the peculiar constitution of his court, and his habit of independent, almost absolute authority ; some to the idiosyncrasies of the man ; and some to a complication of these causes. It would be unjust to Judge Miller's memory to ignore the criticisms which his administration encoun- tered. They were open and notorious. And the memory of them has not passed away. His court was sometimes denounced as a judicial despotism, tyrannous, partial and oppressive. These criticisms did not spare the personal character of the Judge. So far as they affected him, they were founded on imperfect consideration, and were indiscriminating and unjust. * * *

Judge Miller's notions of the rights of property were very high ; unduly so, I think. They betrayed him into a leaning toward all prima-facie creditors; and so his court was called a plaintiffs' court. But the same bias led him, in actions of ejectment, to lean toward persons in possession under color of title. . And thus in real actions his court was as much a defendants' court as a plaintiffs' in actions ex contractu ; both upon a single prepossession, of which there was little or no recognition. And so his steady, passionless prejudice of character encountered, provoked if you will, a violent and passionate prejudice against him, which was unjust, which exaggerated and discolored his errors, and imputed errors which he did not commit. * * Few living members of the bar practiced longer before Judge Miller than myself, and few are less open to suspicion of being influenced by favor to his memory. And I am happy to bear witness to my own belief, founded, I think, on thorough knowledge of the man and his adminis- tration, that Judge Miller left the bench without a sense of willful wrong done upon it."

By the Constitution of the State of Wisconsin, and the acts of the first Legislature, provis- ion was made for the first Supreme Court of the State, as follows: The State was divided into five judicial circuits, of which the First comprised Racine, Walworth, Rock and Green Counties; the Second, Milwaukee, Waukesha, Jefferson and Dane; the Third, Washington, Dodge, Colam- bia, Marquette, Sauk and Portage; the Fourth, Brown, Manitowoc, Sheboygan, Fond du Lac, Winnebago and Calumet ; and the Fifth, Iowa, La Fayette, Grant, Crawford and St. Croix, and three new counties attached to some of these for judicial purposes. The Legislature was, how-

Young July M. D. Miller

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ever, authorized to alter the limits or increase the number of the circuits, with certain restric- tions. The qualified electors in each circuit were to elect a Judge for the circuit, who should reside therein after his election. The Circuit Courts, to be held by these Judges in each county, were the courts of most general original jurisdiction throughout the State, and had, also, appel- late jurisdiction from the inferior courts. The Constitution further provided for a Supreme Court having appellate jurisdiction only, except in a few specified cases. It then provided that, for the term of five years, and thereafter until the Legislature should otherwise provide, the Judges of the several Circuit Courts should be Judges of the Supreme Court, four of whom should constitute a quorum ; and that the concurrence of a majority of those present should be necessary to a decision. Another provision was, that the Supreme Court should hold at least one term annually at the seat of government, at such time as should be provided by law ; and that the Legislature might provide for holding other terms at other places when they might deem it necessary.

The first election of Circuit Judges was held on the first Monday of August, 1848, and the fol- lowing persons were chosen, the numbers indicating the several circuits : First, Edward V. Whiton; Second, Levi Hubbell ; Third, Charles H. Larrabee ; Fourth, Alexander W. Stow ; Fifth, Mortimer M. Jackson. By law, the terms of the several Judges first elected were to be such that one should go out at the close of two years, and one each year thereafter, while those elected to fill the several vacancies thus created were to hold, each, for a term of six years. The short term fell by lot to Judge Stow. The Legislature having erected a sixth circuit, consisting of Craw- ford, Chippewa, Bad Axe, Black River, St. Croix and La Pointe, Wiram Knowlton was elected Judge thereof, on the first Monday in July, 1850, and took his seat in the Supreme Court at the December term in that year. Judge Stow, having refused a re-election, was succeeded as Judge of the Fourth Circuit in January, 1851, by T. O. Howe, who first took his seat in the Supreme Court at the June term, 1851. Judge Hubbell's first term expired in January, 1852, but he was re-elected. No other changes occurred in the composition of the court during its brief ex- istence in this form of organization.

On the expiration of Judge Stow's term, January 3, 1852, Judge Jackson was chosen Chief Justice, but resigned on the same day, and Judge Whiton was thereupon chosen, and re- tained the position until the court in that form was superseded by a new organization, in June, 1853.

J. R. Brigham was appointed the first Clerk of this court, and, upon his resignation, to go into the practice of the law at Milwaukee, S. W. Beall was appointed on the 12th of December, 1849; and he immediately appointed La Fayette Kellogg his Deputy.

Daniel H. Chandler, Esq., of Milwaukee, was the reporter of the first Supreme Court of the State, and published its reports in four volumes, averaging 292 pages each. These volumes, covering four years, contain 157 cases. The court expired by law on the 1st day of June, 1853; but it held no term after the December term, 1852.

So rapid was the growth of population and business in the State, that a Supreme Appellate Court composed of nisi-prius Judges soon ceased to be able to perform satisfactorily the various duties imposed upon its members. But the Constitution authorized the Legislature to provide for the organization, after the lapse of five years, of a "separate Supreme Court," to consist of a Chief Justice and two Associate Justices, who should be elected " by the qualified electors of the State," and should be so classified that but one should go out of office at any one time, and whose full term of office should be six years. By Chapter 395 of 1852, the Legislature exer- cised the power thus conferred; and, since June 1, 1853, the State has had a Supreme Court under the new form of organization, though the number of Judges and the length of the term have since been increased by constitutional amendment. This court differs from that of the Territorial period in that its members are elected by popular vote and for a term limited by law, instead of being appointed by the executive authority, to hold during good behavior. It differs from the first Supreme Court of the State, in that its members are all elected by a vote of the whole body of electors throughout the State, instead of each being chosen by the electors of a

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particular circuit. And it differs from both in that its members have no judicial duties other than those which belong to the Supreme Court itself. Under the Territorial Government, the three Judges of the Supreme Court were, by virtue of that office, Judges of the District Courts. Under the first State organization of the judiciary, the persons elected Circuit Court Judges in their several circuits were ex officio members of the Supreme Court. Under the existing organ- ization, the Judges have no function as Circuit District or Judges.

The first Judges of the new organization, elected on the last Monday of September, 1852, were Edward V. Whiton, of Janesville, Chief Justice, and A. D. Smith, of Milwaukee, and Samuel Crawford, of Mineral Point, Associate Justices. The term of Judge Crawford expired on the last day of May, 1855, when he was succeeded by Orsamus Cole, of Platteville. Chief Justice Whiton was his own successor on the 1st of June, 1857, and retained his seat until his death, in April, 1859, deprived the State of one of its most useful and distinguished citizens. He was succeeded by Luther S. Dixon, of Portage City, as Chief Justice. Byron Paine suc- ceeded Judge A. D. Smith, June 1, 1859, and from that date until the lamented death of Judge Paine in January, 1871, the court consisted of Chief Justice Dixon and Justices Cole and Paine, except during an interval of nearly three years (from November 15, 1864, to September 11, 1867), following upon the resignation of Judge Paine to take a command in a regiment of Wis- consin infantry in the war of the rebellion. During that interval, his place was filled by Jason Downer. On the death of Judge Paine, William P. Lyon, of Racine, succeeded him ; and, on the resignation of Judge Dixon, on the 17th of June, 1874, Edward G. Ryan, of Milwaukee, succeeded to the office of Chief Justice. By an amendment of the constitution, adopted in 1877, the Legislature was required to provide for the election of two additional Associate Justices; and Harlow S. Orton, of Madison, and David Taylor, of Fond du Lac, were elected in the spring of 1878; the provision as to terms being such that the term of the former will expire on the first Monday of January, 1888, and that of the latter on the corresponding day in 1886, while the term of Judge Lyon will expire in January, 1884, and that of the Chief Justice in January, 1882. Judge Cole, whose term expired in January, 1880, was re-elected in the spring of 1879. His term and that of all the Judges to be hereafter elected is fixed by the constitutional amend ment at ten years.

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History of Dane County, Wisconsin, Part 75

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