History of Dane County, Wisconsin, Part 76

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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As we have seen, La Fayette Kellogg had been Deputy Clerk of the Territorial Supreme Court from July 18, 1839; had been appointed its Clerk August 11, 1840 ; and had retained that office until the dissolution of the court. After an interval of ill health, he had become Deputy Clerk of the First Supreme Court of the State December 12, 1851, and had been " virtually the Clerk of the Court until its re-organization." When the court was re-organized, June 1, 1853, he was appointed its Clerk, and he retained the office until his death, June 4, 1878. His long, faithful and skillful service was fully recognized by the court and bar .* On the 11th of June, 1878, he was succeeded by his son and previous Deputy, Clarence Kellogg.

The first eleven volumes of the reports of the court under the new organization bear the name of A. D. Smith, one of its Associate Justices, as reporter. Some of the earlier of them were, in fact, prepared and passed through the press by that accomplished and able jurist. Others, of later date, are understood to have been prepared, and their publication supervised, by other gentlemen at Judge Smith's request. Early in 1861, Philip L. Spooner, Esq., of Madison, was appointed reporter by the court, and he published Volumes 12 to 15. In 1864, he resigned the office to resume the practice of the law, and was succeeded by O. M. Conover, Esq., of Madison. The whole number of volumes containing the reports of the court under its present organization is forty-eight, and at the time of this writing sufficient matter has accumulated to make the forty-ninth. The number of reported cases for the twenty-seven years may be esti- mated at about five thousand. In consequence of the destruction of a great number of volumes of the reports by the great fire in Chicago in 1871, the first twenty-two volumes were repub- lished by Messrs. Callaghan & Co., of that city, under authority of the Legislature; Volumes 3 and 5 with annotations by Chief Justice Dixon ; the remainder of the first twenty volumes annotatd

*See the proceedings of the conrt upon his death, 44 Wis., 28-30.

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by Messrs. Vilas & Bryant; and Volumes 21 and 22 without notes. While these reports have been published for many years by the firm above named, they have for the most part been printed in Madison, and have furnished a nucleus for a considerable and valuable business in book print- ing and binding in this city. The whole set, and the three volumes edited between 1872 and 1876 by S. U. Pinney, Esq., containing the decisions of the Territorial period and those by the first State organization, have been stereotyped, and the plates are preserved in the capitol.

Judge Cole was, perhaps, the first of the Judges of the Supreme Court who transferred his residence permanently to the capital. Since the summer of 1859, all the Justices have, upon their election, made Madison their home, except Jason Downer ; and that learned and able Jndge, finding it inconvenient to abandon his residence in Milwaukee, felt compelled to resign his posi- tion on the bench after a brief service.

All the terms of the State Supreme Court, except two, have been held in Madison. By Chapter 49 of 1868, the Legislature provided for holding thrce terms annually-a February term at Madison, a June term at Milwaukee, and an October term at Oshkosh. The June and October terms were held, as thus provided, during 1868; but the arrangement was found to be excessively inconvenient to the court and its officers, with no compensating advantages, and the act was repealed in March, 1869.

Of the Judges who have from time to time composed the court under the State Government, all but Stow, Hubbell, Whiton, Crawford and Paine still survive .*

To this hasty outline of the history of the court, it would be a pleasant task to add sketches of the eminent men who have sat upon the bench of the court, or at least some notice of the public life and character of each of the honored dead. It would be interesting. too, to speak of the lawyers, many of them learned and able, and some of them distinguished by very great forensic talent, who have practiced at the bar of the court. Interesting would it be, also, to notice some of the great controversies carried on before the court and determined by its judgment, which have arrested the attention of the whole State, and marked epochs, perhaps, in its civil growth. Still more interesting to me, and more instructive, perhaps, would it be to follow the line of juridical development in legislative enactment and forensic discussion and judi- cial decision, during all the years since the first Legislature and the first Supreme Court of Wis- consin met in those little rooms at Belmont, until the present day, when almost every civil and business interest is regulated by statutes or decisions of native growth, inspired or tested by Wisconsin necessities, criticised and modified by Wisconsin intellect ; when our own reports furnish the sources of argument and authority and the means of solution for almost every legal question raised in our courts ; and when the laws and judicial decisions of Wisconsin, a State hardly one-third of a century old, exert a controlling influence over the juridical life of great States and Territories of still later growth, stretching from the Mississippi to the Pacific. But the theme is as large and difficult as it is fascinating ; and the limits of time and space alike for- bid me to attempt it here.

Territorial District Court and State Circuit Court .- The act establishing the Territorial government of Wisconsin provided for the division of the Territory into three judicial districts, and for the holding of a district court by one of the Justices of the Supreme Court in each dis- trict, two terms in each year in each organized county in the district. The three Justices were Charles Dunn, David Irwin and William C. Frazer. By an act of the Territorial Legislature, approved November 15, 1836, the counties of Brown and Milwaukee were constituted the Third District, and assigned to Justice Frazer ; the counties of Crawford and Iowa the First District, and assigned to Chief Justice Dunn. As, at that date, what is now the county of Dane was then portions of the counties of Milwaukee and Iowa, it was, of course, in both the Third and First Districts. However, there being no population at that time in what is now Dane County, except

* The proceedings of the Court, upon occasion of the death of Chief Justice Whitoo, will be found in 8 Wis., xi-xx, new edition, and those relative to Judge Paine, with other memorials of him, io 27 Wis., 23-68, and 38 id., 21-27. The reports contain oo similar memorials of the other Judges above named; and it is doubtful whether any adequate momorlals of them, or of Judge Whiton, exiet in print.

Since this article wes sent to the printer, viz., on the 19th of October, 1880, Chief Justice Ryan joined the number of the dead. No grester lawyer or judge has adorned the bar or the bench in Wisconsin. A proper notice of his life and character will doubtless be found prefixed to Vol. I. of the Wisconsin Reports when that volume ehell appear.

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HISTORY OF DANE COUNTY. .

in that part which then formed a portion of Iowa County, the Blue Mound region and that f the Four Lakes was, judicially considered, a part of the last-mentioned county-that is, it was, practically and in fact, in the First Judicial District. Nor was this state of things changed by the formation, in December following, of Dane County ; as the latter was attached to Iowa County for judicial purposes and so remained until its organization in 1839. By the statutes of Wisconsin Territory of that year, the counties of Walworth, Rock, Green and Dane, were. made the Second Judicial District, to which Justice Irvin was assigned. To this district Dane County belonged until Wisconsin was admitted into the Union as a State. In 1840, Sauk County was formed, and attached to Dane for judicial purposes, where it remained until 1844, when it was detached and organized into a county by itself. So, also, of Portage County, which, in 1841, was for judicial purposes attached to Dane, and so remained until 1844.

The first term of the District Court of the United States in Dane County began Monday, October 7, 1839, David Irvin, Judge of the Second Judicial District of Wisconsin Territory, . presiding. The first action of the court was the appointment of Simeon Mills as Clerk, to hold his office during the pleasure of the court. The Sheriff, Nathaniel T. Parkinson, returned a venire with the names of the following persons summoned as Grand Jurors on part of the Ter- ritory : Prescott Brigham, William T. Sterling, Henry Fake, Horace Lawrence, George Vroman, Jonathan Lyman, Jr., Almon Lull, George H. Slaughter, Berry Haney, Mahlon Blaker, Angus- tus A. Bird, John C. Kellogg, William B. Long, Isaac Atwood, Robert L. Ream, Isaac H. Palmer, William Wyman, Josiah A. Noonan, John Stoner, David Hyer, Prosper B. Bird and Ebenezer Brigham. Of the number so returned, the following-named persons appeared on the first day of the term and were sworn on the part of the Territory : Augustus A. Bird, George H. Slaughter, Jonathan Lyman, Jr., William T. Sterling, Horace Lawrence, George Vroman, Robert L. Ream, Isaac H. Palmer, William W. Wyman, Henry Fake, Josiah A. Noonan, Prosper P. Bird, Isaac Atwood, Almon Lull, David Hyer and John Stoner. George W. Slaughter was appointed foreman.

On motion of Moses M. Strong, United States Attorney for the Territory, a venire was issued to the Marshal of the Territory, for a grand jury on the part of the United States. Thereupon the Marshal returned the same names as those who were sworn on part of the Ter- ritory. The same person was appointed foreman. The second day of the term, the grand jury reported that they "had no further business before them on the part of the United States," and, as such, were discharged. George H. Slaughter received pay, in addition to his per diem allow- ance, for fourteen miles travel-coming from and returning to his home-and Horace Lawrence for sixteen miles travel. After this, Ebenezer Brigham, Prescott Brigham and Mahlon Blaker, who were called to answer for their contempt in not appearing as grand jurors on the first day of the term, appeared in court and purged themselves of contempt. Thereupon, on motlon of John Catlin, District Attorney, they were severally sworn as grand jurors,

The Marshal, on the same day of the term, returned into court a venire with the names of the following persons summoned to attend as petit jurors on the part of the United States : Wil- son D. Spaulding, Richard H. Palmer, Peter W. Matts, Hiram C. Fellows, John T. Wilson, William Hoadley, Charles H. Bird, Charles Lawrence, Darwin Clark, Jairus S. Potter, William Webb, James A. Hill, Charles S. Peaslee, William G. Van Bergen, Jonathan Taylor, Thomas Jackson, Jonathan Butterfield, William M. Seymour, Thomas Perry and Adam Smith. There being no business, the jury were discharged. Charles Lawrence, besides his per diem allowance, was also paid for sixteen miles travel, and Charles S. Peaslee for ten miles.

On the third day of the term the grand jury for the Territory, came into court and pre- sented an indictment against " one Scoville, a fisherman," for erecting " across a certain stream of water," in Dane County, "commonly called the outlet of the Fourth Lake, a dam, to prevent the passage of fish." A "nolle" was entered in this case at the May term, 1841. On the same day another indictment was found by the grand jury against one of the citizens of the county, for fornication. The jury were then discharged. The indictment was quashed at the August term, 1840.

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On the fourth day of the term, the Sheriff returned into court a venire, with the names of the persons served by him as petit jurors on the part of the Territory-being the same as those summoned on the part of the United States. There being no business for this jury, they were discharged.

The first civil suit, at this term of the court, upon the docket, was one in assumpsit, brought by "Lester H. Cotton and Henry Fake vs. Almon Lull." On motion of the plaintiffs, by their attorney, William N. Seymour, the cause was dismissed at their costs. There was a number of other cases disposed of during this term of the court.

The attorneys in attendance at the first term of the United States District Court of Dane County, were John Catlin, Thomas W. Sutherland and William N. Seymour, residents of Mad- ison ; Moses M. Strong, William R. Smith and Parley Eaton, from Mineral Point; J. E. Ar- nold, from Milwaukee, and Edward V. Whiton, from Janesville.

Upon the admission of Wisconsin into the Union as a State, it was divided into five Ju- dicial Circuits. In the Second Circuit were four counties, one of which was Dane. On the first Monday of August, 1848, Levi Hubbell was elected Judge of this circuit. Judge Hubbell com- menced the first term of the Dane County Circuit Court on the 25th of September, 1848. On that day the attorneys admitted to practice in that court were Thomas W. Sutherland, Chauncy Abbott, Ira W. Bird, George B. Smith, I. G. Knapp, William Welch, Alexander L. Collins, Julius T. Clark, Henry A. Lambert, John Catlin, Alexander Botkin and N. F. Hver. The first case disposed of was one in assumpsit-" Abijah Perry vs. Albin Blood." This case was dismissed at plaintiff's costs. Singularly enough, this suit was of the same nature as the one first disposed of by the District Court of the county, and precisely the same disposition was made of it as of that case.

On the 29th of September, 1851, Judge Hubbell was re-elected for the full term of six years as Judge of the Second Judicial Circuit, to commence January 1, 1852. Dane County continued in that circuit until January 1, 1855, when, by the law of April 1, 1854, it passed into the Ninth Judicial Circuit, in which it has since remained. As the last-mentioned circuit was a new one, created for the counties of Dane, Sauk and Jefferson, a new Judge had to be chosen. The choice of the electors fell upon Alexander L. Collins. who was elected on the 4th Monday of September, 1854. He went into office January 1, 1855, but on the 19th day of August, 1858, he resigned. On the 5th of September following, Luther S. Dixon was appointed in his place until a successor was elected and qualified. Before the next April election, how- ever, Judge Dixon resigned, being elevated to the Supreme Bench, and Harlow S. Orton was elected Judge of the Ninth Judicial Circuit, to fill out the full term for which Judge Collins was elected, which expired December 31, 1860. On the 3d day of April, 1860, Judge Orton was elected for a full term of six years, but he resigned January 28, 1865, when Alva Stewart was appointed to hold until the next April election. In April, 1865, Judge Stewart was elected to fill out the full term of Judge Orton, which expired December 31, 1866. In April, 1866, he was again elected. this time for a full term of six years, which began January 1, 1867, and ended December 31, 1872. In April, 1872, he was re-elected for a full term, commencing January 1, 1873, and to end December 31, 1878. However, on April 2, 1877, upon the increase of the Ninth Judicial Circuit by the addition of three counties-Juneau, Adams and Marquette-Judge Stewart resigned, but was appointed, on the 5th of the same month, as his own successor, to fill out his full term. In April, 1878, he was re-elected for another full term of six years, which commenced January 1, 1879, and will end December 31, 1884.

Municipal Court of Dane County .- At the organization of the city of Madison, in 1856, a Police Court was provided for, with exclusive jurisdiction of all criminal cases within the city. With this exception, the jurisdiction of this court was no greater than that of a Justice of the Peace. The first Police Justice elected under this act was A. B. Braley, who held that office for three successive terms of two years each. In the spring of 1862, Calvi Aunsnorth suc- ceeded to the office, which he held for one term, or until the spring of 1864, when J. M. Flower was elected to the office. In 1866, Judge J. R. Baltzell was elected, and filled the office for

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three terms, or until the spring of 1872, when Judge Braley was again chosen without opposition to fill the place. During this term, the Supreme Court having decided that police courts could exercise no greater Territorial jurisdiction than the municipalities which elected them, the Legis- lature of 1874 provided for a Municipal Court, the Judge of which was to be elected by the voters of the whole county. To this important place, Judge A. B. Braley was elected without opposition, in the spring of 1874, for a term of six years. In 1875, the jurisdiction of the court was greatly enlarged in criminal matters, and made concurrent with that of the Circuit Court in all respects save the crime of murder. At this re-organization of the court, in which it was erected into a court of record, with clerk and seal, A. E. Pettingell was appointed clerk, and still holds the place, the duties of which he has discharged with great efficiency and fidelity, and to the satisfaction of all who have had business with the court. In the spring of 1880, Judge Braley was re-elected to the office of Municipal Judge in a second term. Up to May, 1880, the compensation of both Judge and Clerk was derived through fees in each case ; but, in the winter of 1880, the Legislature passed an act providing for a salary for the office. This was fixed at $3,000 per annum, out of which the Clerk is to be paid. One-third of this salary is paid by the city, and two-thirds by the county. All fees taxed and collected are paid into the treasury toward the salary. The Municipal Court has proved itself to be a very efficient instrumen- tality both in the punishment and prevention of crime. Since its organization, crime has greatly diminished, especially in the city of Madison. The certainty and speediness of punishment, in a court which is open every day, exercises a wholesome and restraining influence on those disposed to violate the law.

The Municipal Court of Dane County is the only court in the State which carries out to the very letter that provision of the constitution which gives to all a speedy public trial on criminal charges. This court also saves much in criminal expenses to the county. Prisoners, instead of waiting for months in jail for the Circuit Court, can be tried at once. Besides the saving in board of prisoners, the expenses of a trial in the Municipal Court are very much less than in the Circuit Court. In the latter court, there is a jury of thirty-six, at $2 per day, while in the former, the jury consists of twelve men, in each case, at $1 per day. Besides these items, officers' and witnesses' fees are also very much less in the Municipal than in the Circuit Court. Since the organization of the Municipal Court, with its enlarged jurisdiction, in 1875, it has tried and disposed of about 125 cases, which otherwise would have been sent to the Circuit Court for trial. About four-fifths of these have resulted in convictions of the prisoners, and been followed by sentences for longer or shorter terms at hard labor in the State Prison, the longest sentence being for eleven years, and the shortest six months.

County Court .- County Courts were established in this State by Chapter 86 of the Revised Statutes of 1849; and the jurisdiction and powers previously exercised by Probate Courts, were, by said Chapter 86, transferred to the county courts. Civil jurisdiction, to a limited extent, was vested in County Courts by the act establishing them, but such civil jurisdiction was soon after taken away.

By Chapter 76, of the laws of 1858, the jurisdiction of the County Court for Dane County was increased, and jurisdiction conferred in actions founded on contract, and some other matters in controversy, where the amount claimed did not exceed $5,000. That act, however, was repealed in 1863, since which time the County Court of Dane County has exercised only probate jurisdiction.

Prior to 1849, the Judges were styled Probate Judges, and prior to 1844, they were ap. pointed by the Executive of the Territory.

Isaac H. Palmer, appointed December 23, 1869; Albert W. Parris, May 13, 1842; Alex- ander Botkin, November 24, 1842; William W. Wyman, June 1, 1843; Jesse A. Clark, elected September, 1844; E. B. Dean, Jr., September, 1846; Daniel B. Steeden, November, 1848; John Catlin, September, 1849; N. B. Eddy, appointed October 19, 1850; N. B. Eddy, elected September, 1853; J. P. Atwood, appointed July 3, 1854; J. G. Knapp, January 1, 1857 ; D. C. Bush, elected April, 1857 ; S. H. Roys, April, 1857 ; Thomas Hood, April,

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1858; Thomas Hood, April, 1861; George E. Bryant, April, 1865; George E. Bryant, April, 1869; George E. Bryant, April, 1873; Alden S. Sanborn, April, 1877.

At the election in April, 1857, D. C. Bush was elected to fill an unexpired term, and S. H. Roys was elected for the full term commencing next thereafter. The latter died before the commencement of the term for which he was elected.

Eight of the Judges aro deceased, to wit : Albert W. Parris, Alexander Botkin, William W. Wyman, Jesse A. Clark, Daniel B. Sneeden, John Catlin, S. H. Roys and N. B. Eddy. The other eight are living.

The first estate administered, as shown by the records, was the estate of Zenas H. Bird. Letters were granted by Judge Wyman to Ira W. Bird June 1, 1843.

The first book of records contains 490 pages, and contains all Probate proceedings from the first official act of Judge Palmer, June 26, 1840, to the 2d day of March, 1853. The record books proper, of Probate proceedings, now number forty-four, made of medium paper, and each containing about 600 pages.

NORWEGIAN LUTHERAN SEMINARY.

This institution is located in Madison. It is owned and supported by the Norwegian Lutheran Synod, founded in 1852, and consisting of about one hundred and fifty ministers and 65,000 communicants. In 1876, this seminary was inaugurated with two professors, Prof. F. A. Schmidt, formerly of Concordia Seminary, St. Louis, Mo., and Prof. O. Aspenheim, of Springfield, Ill. The seminary consists of two departments-one theoretical, pre-supposing a full classical course, and the other practical. At present three professors are engaged in the work, Prof. Schmidt, Prof. H. A. Stub and Prof. J. Ylvisaker. The number of students for the year 1879 to 1880 was thirty-seven, graduates four. The theology taught is strictly Lutheran, according to the symbolical books of the Lutheran Church.

The building and grounds were formerly the Soldiers' Orphans' Home, and were purchased in the summer of 1876 of the Regents of the University of Wisconsin, to whom it was donated by the State.

The number of students in 1876 was nineteen. The time required to complete the course of study is three years, in both departments. The languages used are Norwegian, English and German.

ALBION ACADEMY AND NORMAL INSTITUTE.

Albion Academy located in the village of Albion, was founded in 1854, with C. R. Head, as President ; J. H. Potter, as Secretary, and J. A. Potter as Treasurer.

The first building was completed in September, 1854, and the school began its work under the direction of T. R. Williams, A. M., D. D. His very able administration continued until 1860, when he resigned in order to engage in the ministry, and A. R. Cornwall, A. M., was appointed to supply the vacancy.

In 1864, Prof. Cornwall left his work in the institution to take charge of a church at Plainfield, N. J., and Prof. J. Q. Emery and Prof. E. G. Campbell were appointed Associate Principals, continuing successfully till the death of Prof. Campbell, in the fall of 1865. The vacancy caused by the death of this able scholar and teacher was filled by A. B. Prentis, who, in conjunction with Prof. Emery, conducted the school till the spring of 1866.

During these two years the school grew in public confidence, and its financial affairs became reliable and satisfactory.

In 1866, Prof. Cornwall again became its Principal, and in 1868 Prof. R. B. Anderson became Associate Principal. The influence of this energetic young man largely increased the patronage of the school, filling the buildings to their utmost capacity.

Prof. Anderson remained till 1869, when he became connected with the State University, where he now holds an important professorship. Prof. Cornwall remained at the head of the academy till 1878, when Edwin Marsh, A. M., was appointed to succeed him, and remained till

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the spring of 1880. Both these gentlemen proved themselves to be able, efficient and successful teachers.

The object of the founders of the academy was to afford to young men and women a thorough and practical education at a cost so low that no one who had any desire need go with- out it.

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History of Dane County, Wisconsin, Part 76

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