USA > Wisconsin > Milwaukee County > Milwaukee > History of Milwaukee from its first settlement to the year 1895 > Part 41
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The results of these and other trials in the state at about this time for capital offenses, showing the evident reluctance of juries to convict where the penalty was death, had great influence in causing the passage of the act of 1853, abolishing capital punishment in Wisconsin.
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In general importance and far-reaching conse- quences, no event or series of events in the history of the Milwaukee bar can compare with the liti- gation growing out of the "Glover rescue," to which reference has already been made. Although the Democratic majority in Milwaukee city was unusually large down to 1860, yet there was a strong anti-slavery sentiment pervading all classes of the community without regard to their party affiliations. In the main it was passive, but the efforts of Southern statesmen to force slavery into Kansas, and the enactment of the compromise measures of 1850, especially the fugitive slave law, were very offensive to the patriotic and liberty- loving residents of the city. There were not many avowed Abolitionists in the city in 1854, but among thein were some men prominent and influ- ential in business and professional circles. A daily newspaper published in the city by Sherman M. Booth, a graduate of Yale College and an able and vigorous writer, gave energetic support to Abolition principles.
Mention has already been made of the arrest of Glover as a fugitive from slavery, and of his for- cible rescue from the county jail and his escape. This occurred on the 11th of March, 1854. Before the rescue, the public mind had been greatly in- flamed by the failure of an effort to procure the release of the negro, or an inquiry into the cause of his imprisonment, by means of the writ of habeas corpus. Mr. Charles K. Watkins, as his attorney, had procured a writ to be issued by Judge Jenkins of the County Court to the sheriff of the county, the negro being then confined in the county jail. The sheriff returned to the writ that he was not in his custody. Another writ was procured late in the afternoon, addressed to the United States Marshal, but the belief was general that he would refuse to respect it. Meanwhile, the sheriff of Racine county arrived with a war- rant for the arrest of Garland, the alleged owner of the negro, for assault. A large body of men from Racine accompanied the sheriff. The sheriff arrested Garland, but he was a day or two after discharged by Judge Miller upon habeas corpus. In these proceedings Mr. Watkins and James H. Paine of Milwaukee appeared for the sheriff of Ra- cine county, and Messrs. Arnold and Hamilton as attorneys for Garland. On the 15th of March, Mr. Booth was arrested upon a warrant issued by Win- field Smith, a United States Commissioner, upon the
charge of aiding in the escape of Glover. Other ar- rests npon a like charge were made shortly after of three citizens of Racine, and of John A. Messin- ger and Charles K. Watkins of Milwaukee. All these parties were held to bail by the commis- sioner. Mr. Watkins waived an examination. In the case of Messinger, ex-Chief Justice Stowe ap- peared for him with James H. Paine. Mr. Booth gave bail March 22d. On the 27th of May he was surrendered to the custody of the United States Marshal, upon whom a writ of habeas cor- pus issued by Hon. Abram D. Smith, a justice of the Supreme Court, was immediately served. The marshal returned to the writ that he held Booth in custody as United States Marshal under the warrant of commitment of the commissioner, a copy of which he appended. The return was demurred to, and on the 29th and 30th of May, Judge Smith heard arguments upon the de- murrer. Byron Paine then appeared for the petitioner, Booth, and the United States Dis- trict Attorney, John R. Sharpstein, as attorney for the marshal. The argument was full and elaborate. Mr. Paine boldly attacked the fugi- tive slave law as unconstitutional upon two grounds :
1. That it attempted to confer upon commis- sioners appointed by the United States courts, judicial powers not warranted by the constitution, and-
2. That the right of trial by jury was denied to alleged fugitives.
The argument of Mr. Paine was able, dignified and lawyerlike, and indicated profound and ex- haustive study of the constitution and of the opinions of its expounders, and also remarkable intellectual power. He challenged the right of Congress to legislate relative to the rendition of slaves escaping from one state into another, and supported his views with great vigor and strength of reasoning, and at times with fervid eloquence. On the 7th of June, Judge Smith discharged Booth from the custody of the marshal, sustaining all the positions of Mr. Paine in a lengthy and able opinion. The United States District Attorney procured the order of discharge to be brought before the Supreme Court of the state for review. The cause was there heard at the June term, 1854, before the full bench. Byron Paine appeared for the petitioner, Booth. Mr. Sharpstein, the district attorney, was assisted
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on the argument by Hon. Edward G. Ryan. The holding that the record of conviction and sentence Supreme Court affirmed the order of discharge, from the District Court presented no evidence of conviction of an offense over which that court had jurisdiction. Judges Whiton and Smith re- affirmed their views upon the constitutionality of the fugitive slave law. Chief Justice Whiton delivering the opinion. The majority of the court held that it was competent for the state court upon habeas corpus to inquire into the legality of the custody of one held by the marshal under process issued by a United States commissioner, and to discharge from arrest if in their opinion the federal law under which the person held was invalid as a violation of the constitution of the United States, or for want of authority of Congress to enact it. The positions taken by Mr. Paine were fully sustained in the opinion of Judges Whiton and Smith. Justice Crawford dissented upon the constitutional ques- tions involved, but agreed with his associates that Booth was properly discharged upon the ground that the commitment was defective in that it failed sufficiently to set forth the cause of deten- tion. Of the argument submitted by Byron Paine, then but twenty-seven years of age, before the Supreme Court, Mr. Ryan afterward publicly said : "The printed brief which he submitted in that case was the ablest argument I ever met against the constitutionality of the fugitive slave act. It is a professional loss that it is not inserted at length in the report of the cause. It estab- lished in my mind his great learning and re- searches as a cultivated lawyer."
Booth and Rycraft were afterward arraigned at the July term, 1854, before the United States Court to answer for indictments found against them by the grand jury for aiding in the escape of Glover. Booth thereupon applied to the Su- preme Court for a writ of habeas corpus and an order for his discharge. The writ was denied upon the ground that the application was prema- ture. Booth and Rycraft were both tried at the January term, 1855, convicted and sentenced January 23rd to fine and imprisonment. January 26th application was made by both Booth and Ry- craft to the Supreme Court for their discharge from imprisonment under the sentence of the United States Court, and a writ of habeas corpus was thereupon issued. The return of the marshal set forth the proceedings in the Federal courts, the indictments, trial, conviction and sentence. The Supreme Court sustained the demurrers of the petitioners to the marshal's return, and Booth and Rycraft were both discharged from arrest. All the judges of the Supreme Court concurred in
In April, 1855, the Supreme Court of the United States, upon application of the attorney-general, issued a writ of error to the State Supreme Court to bring up the record in the case last mentioned for review. The writ was served on the clerk, but by direction of the judges no return was made by him. A further order made by the Supreme Court of the United States, requiring the return on or before a day certain, was made and served upon the clerk, but still no return was made. The judges of the Supreme Court of Wisconsin dis- puted the right of the Federal Supreme Court to review their decision. In March, 1857, the United States Supreme Court, on application of the at- torney-general, ordered a certified copy of the record, which had been procured from the clerk of the Supreme Court of the state of Wisconsin, to be filed and the cause to be docketed, with the same effect as if it had been duly returned by the clerk of the Wisconsin Supreme Court with the writ of error. The cause was thereupon heard at the December term, 1858, Jeremiah Black, attor- ney-general of the United States, appearing for the government. The order or judgment of the Supreme Court of Wisconsin was reversed by the Supreme Court of the United States, Chief Justice Taney delivering the opinion. At the June terni, 1859, application was made to the Supreme Court of Wisconsin by D. A. J. Upham, then United States district attorney, for leave to file with its clerk the. mandate containing the judgment of reversal by the Supreme Court of the United States. Meanwhile, Luther S. Dixon had become chief justice by appointment in place of Chief Justice Whiton, deceased, and Byron Paine had become an associate justice of the court by election. The motion was submitted without argument, Judge Paine, having been of counsel for Booth, taking no part in the decision. Mr. Justice Cole adhered to his former opinion and refused permission to file the mandate. Chief Justice Dixon was of opinion that the application should be granted. This disagreement between the two judges compe- tent to act, resulted in the denial of the motion. After the reversal of the decision of the Supreme
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Court of Wisconsin in the habeas corpus cases by the Supreme Court of the United States, Booth was again taken into custody by the United States marshal under the original sentence and judgment. On the 6th of March, 1860, he again appealed to the Supreme Court of Wisconsin for a writ of habeas corpus for his discharge. The writ was de- nied March 7, 1860, Justice Paine being disquali- fied to act, and Chief Justice Dixon and Justice Cole holding opposite views. Booth was subse- quently pardoned by President Buchanan.
The proceedings which have here been sketched profoundly agitated the public mind, and greatly intensified the hostile feeling among the people against the fugitive slave law. The action of the courts of the state in the assertion of their right to protect its citizens against what were consid- ered aggressions of the slave power, was generally approved. Mr. Paine was at once recognized as the champion of the rights of the state as against the Federal government, and public opinion mani- fested itself in his election, in 1857, to the office of county judge, and in 1859 to a place upon the Supreme Bench. In the latter position he con- sistently upheld the views which he had main- tained at the bar, that the courts of the states have the right, and it is their duty, upon the writ of habeas corpus, to inquire into the jurisdiction of the courts of the United States, and wherever they find that the latter have acted without authority, to treat their judgments and orders as nullities.
The railroad litigation which introduced Hon. Matthew H. Carpenter to the circle of Milwaukee attorneys, and occupied much of the time of the Federal courts for nearly eight years, was remark- able for the energy and professional acumen dis- played in its various phases.
The La Crosse & Milwaukee Railroad Company was incorporated in 1852 to build a road from Milwaukee via Horicon and Portage City to La Crosse. The construction of the road proceeded slowly, and in 1857 it was not yet completed. In October of that year Mr. Carpenter, then living in Beloit, appeared, with Hon. William P. Lynde, as counsel for Newcomb Cleveland upon the trial of his action in the United States District Court against the railroad company for damages for breach of a contract for construction of a portion of the road.
The protracted and sharply-contested trial re- sulted in a heavy judgment for Cleveland. An-
ticipating this. the company, by the confession of a large judgment in favor of the chief builder of its road and by a lease of the entire road, with pos- session, to such builder, as security for his judg- ment, aimed to render Cleveland's judgment worthless. Mr. Carpenter boldly and vigorously assailed both lease and judgment as fraudulent, and procured a decree of the District Court in equity, declaring them invalid as to Cleveland's judgment, and thereby compelled its prompt pay- ment. While these proceedings were pending, the railroad company executed, in June, 1858, to William Barnes of Albany, N. Y., a deed of trust, conveying its entire property and franchises, in- cluding the lands granted by Congress in 1856 and turned over to the company by the state to aid in the construction of its road-but subject to prior mortgages and other liens-to secure an issue of its corporate bonds to be used ostensibly for funding the unsecured debts of the company. A few of the bonds were so used. The greater part were sold for a mere song. The first semi- annual installment of interest fell due January 1, 1859, and was not paid. Foreclosure promptly followed, for which, in February, 1859, the trustee employed Edward G. Ryan. For greater dispatch, Mr. Ryan proceeded by advertising the property for sale by the trustee, under the power of sale contained in the trust deed. Vigorous opposition was made. Suits were brought and injunctions obtained to arrest the proceedings, but by extra- ordinary energy their speedy dissolution was ef- fected, and in spite of all obstacles the foreclosure was consummated in May, 1859. The property was bid in for the bondholders under the Barnes mortgage or trust deed, and they organized a new corporation and took title as the Milwaukee & Minnesota Railroad Company. Then followed a brief but highly interesting episode, a crossing of swords between the lawyer and the financier.
In preparing the articles of organization of the new company, Mr. Ryan provided that each bondholder, on exchanging his bonds for its stock, should pay to the secretary one per cent. of the face of such bonds to constitute a fund for paying the expenses of the foreclosure and organization. Russell Sage of New York was an active bond- holder, and became president of the company. He undertook the collection of the percentage, but kept the money and neglected to report or to pay the costs of the foreclosure. After a patient
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waiting for some two months, Mr. Ryan, aided by his able partner, James G. Jenkins, in July, 1859, began proceedings to enforce payment. He first sued Barnes, the trustee at law, for the value of his services. A few weeks later, finding Sage in Milwaukee, he brought suit against him in equity charging him, as trustee of "the fund," and demand- ing an account of his doings as such. In Novem- ber he obtained judgment against Barnes in the snit at law. The appointment of a receiver of the fund and an order requiring Mr. Sage to account before a commissioner of the court, quickly fol- lowed. An order for the examination of Sage before the commissioner was personally served on him. As soon as he appeared in Milwaukee he was arrested and held to bail on a writ of ne exeat, and as he failed to appear for examination, proceedings were instituted to punish him for "contempt." These proceedings were repeated, and the wily capitalist was pursued, without a moments' respite, until the only alternative was payment or imprisonment. Before this point was reached, he had tried every expedient which the in- genuity of his skillful counsel could devise, to escape payment-appeal to the Supreme Court, removal of the cause to Dane county and bonds for his appearance-but none of them availed. At last, after a hot chase of some seven or eight months, he yielded to compulsion, and confessed that he had found in Milwaukee a lawyer who was not only strong and able in maintaining the cause of his client, but equally able and resolute in vindi- cating his own right to the compensation due.
The property of the LaCrosse & Milwaukee Rail- road Company was still in the hands of its lessee, when in December, 1859, bills were filed in the United States District Court at Milwaukee for the foreclosure of separate mortgages on the east- ern and western divisions of the company's road, older than the Barnes mortgage, and Hans Crocker was put in possession of the whole road as receiver appointed by the court.
Sage had become largely interested in these prior mortgages, and in the movement thereby to cut off the rights of the new company of which he was president. Stockholders of that company, through Mr. Carpenter as their counsel, obtained leave to appear and defend in the company's be- half, and they afterward secured control of the company by their election as its directors.
The contest maintained during the succeeding
seven years by Mr. Carpenter for the Milwaukee & Minnesota Railroad Company, against the weight of constantly increasing debt and the power of capital, is one of the marvels of legal practice. His client was without income or re- sources. The priority of right and lien of the plaintiff's mortgage was undisputed. The income of the road in the hands of the receiver was inadequate even to the payment of interest on the prior liens, and burdens upon the property as against his client were constantly increasing. Yet, with masterly energy and ingenuity, he maintained the unequal contest, securing at times important though tempo- rary advantages, and postponing the final judg- ment and sale for years. The foreclosures were . prosecuted by John W. Cary, as solicitor for the mortgagees. Mr. Cary, after practicing law in Racine several years, had located in Milwaukee in January, 1859. He was a sound, conservative and sagacious lawyer, a man of excellent judg- ment, often slow in reaching conclusions, but firm and able in maintaining them.
Mr. Carpenter was of nervous temperament, mentally alert and versatile, fluent in speech, and clear, able and persuasive as well as convincing in argument. There was a charm in his voice, a fas- cination in his bearing, and a fine rhetorical flavor in his language, which made his discussions, even of the dryest legal propositions, interesting and attractive to all intelligent hearers.
In 1863, the foreclosure of the land grant mort- gage, so-called, covering the western division of the road, ended in a sale of that division and the organization of the Milwaukee & St. Paul Rail- way Company by the purchaser. The eastern division, extending from Milwaukee to Portage City, remained in the hands of the receiver, hav- ing been separately mortgaged. The struggle went on for the possession of this portion of the road. Mr. Carpenter had procured a decision of the District Court, affirmed by the Supreme Court, to the effect that all the rolling stock of this entire road, except certain forty box cars and a propor- tion of the rolling stock purchased by the receiver while operating the road, belonged to this eastern division. He also obtained from the Supreme Court an order that the Milwaukee & Minnesota Railroad Company should be let into possession of the eastern division upon payment of the over- due interest upon the prior mortgages thereon
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and the costs of the foreclosure suit. To effect this required the payment into court of more than half a million dollars in cash. This seemed im- possible. But the resources of Mr. Carpenter proved equal to the task. He prepared an elab- orate brief, supporting with strong argument the proposition that the franchise of the LaCrosse & Milwaukee Railroad Company was indivisible, and that as the Barnes mortgage alone covered the whole road and the entire franchise of the La- Crosse & Milwaukee Railroad Company-all other mortgages purporting to affect only fractions of both-and was the first mortgage foreclosed, the Milwaukee & Minnesota Railroad Company, holding title under the Barnes mortgage would, upon gaining possession of the eastern division, have the undoubted right, as owner of the entire franchise of the mortgagor company to redeem the western division, if not to run its trains over the entire road from Milwaukee to LaCrosse, in- cluding that portion west of Portage City, ac- quired and held by the Milwaukee & St. Paul Railroad Company under the land grant mortgage.
Upon their faith in such contention, capitalists in 1865 advanced the money required, and Mr. Carpenter's clients secured the coveted possession of the eastern division only to find their expecta- tions as delusive as a dream.
The franchise theory could not be reduced to practice, and even the rolling stock decision was soon reversed by the court which made it. In a few months the company for which he had made so long and brilliant a fight was driven from the field, and the St. Paul company had gained title to the entire property in controversy.
This incident affords a striking example of the persuasive force of Mr. Carpenter's reasoning upon propositions of law. Of his subsequent career at the bar and in the Senate of the United States it is needless to speak. Mr. Carpenter rose quickly to very high rank among the strongest and ablest lawyers of the nation, and when, as the chosen representative of Wisconsin, he took his place among the distinguished statesmen in the United States Senate, the most august legislative body of the land, he was soon recognized as the peer of the greatest and noblest of that body. His fame was national, and his death in 1881, at the com- paratively early age of fifty-seven, was widely mourned as a national loss.
It may be of interest here to mention some of
the members of the bar who, after spending a few years in legal practice in Milwaukee, removed to other cities and there gained honorable distinction.
Burr W. Griswold, who came from New York in 1849, and was for three or four years associated with Francis Randall in practice, returned to New York about the year 1854 and was for years a member of the distinguished law firm of Blatch- ford, Seward & Griswold.
John R. Sharpstein was, for many years prior to 1865, prominent in the political and professional life of the city. He was district attorney of the United States from 1854 to 1857, and afterward a member of the law firm of Palmer & Sharpstein, editor of the leading Democratic journal, superin- tendent of schools, postmaster, and member of the state legislature. In 1865 he removed to California, and there, having served a few years as district judge, became in 1880 a justice of the Supreme Court, and remained on the bench until his death in 1893.
Orlando L. Stewart tried the West a few years, beginning with 1850. In 1856 he was associated with Francis Bloodgood, practicing as the firm of Stewart & Bloodgood. Later he returned to New York, his former home, where his career has since been highly successful.
Wheeler H. Peckham of New York was law partner with Mr. Bloodgood in 1859. After a brief residence in Milwaukee he too removed to New York, where his distinguished professional labors as prosecutor of the Tweed ring, and in many other celebrated cases, have given him national fame.
Edward Salomon, a native of Prussia, read law in Milwaukee with E. G. Ryan and was here admitted to the bar in 1855. The same year he became a member of the law firm of Smith & Salomon, which was maintained until he removed to the city of New York in 1869. In 1861 he was elected lieutenant-governor of Wisconsin, and by the death of Governor Harvey, soon after the commencement of their official term, was unex- pectedly called upon to discharge the duties of gov- ernor of the state during a very critical period. His administration was able, patriotic and judicious. In circumstances peculiarly trying he proved himself always firm, upright and independent. As a lawyer and citizen, Governor Salomon possessed the confidence and respect of his fellow citizens in an eminent degree. Although in the enjoyment
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of a large and lucrative practice liere, he was induced by New York friends to remove to that city, where he at once took high rank as a lawyer, and an influential position in political and busi- ness circles. For many years he was general counsel of the German Empire in New York city. He retired from practice a few years ago, and is resting from the toil of active life in the land of his birth.
Wallace Pratt came to the Milwaukee bar early in 1857. In 1858 he was associated as partner with Ephraim Mariner. Early in 1859, he became a partner with John W. Cary, and a few years later was a member of the law firm of Ogden & Pratt. About the year 1870 he removed to Kansas City, and there became prominent and successful as attorney for railroads and other corporations.
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