USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 11
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the jury that 'pure liquor was a wholesome beverage, promotive of longevity,' but that no man could ever recover judgment in his court. for the sale of adulterated and poisonous liquors."
TIMOTHY OTIS HOWE.
The basis of the enviable fame connected with the name and memory of Timothy O. Howe is political rather than judicial. For long years he stood the idol of his party in Wisconsin and the object of the respect of all the people of the state. Indeed, his fame was national. His ability as a lawyer and judge has been obscured by the lasting success won by him in the political world.
Mr. Howe was born in Livermore, Maine, February 24, 1816. His father practiced medicine in a rural district. Besides such advantages as the common schools afforded, he spent some time at a grammar school; at eighteen attended tlie Maine Wesleyan seminary, and at twenty was prepared for college. His hope for a collegiate education was not realized. Instead of going to college he began to read law, and at the age of twenty-three located at Readfield, Vermont, for the purpose of practicing his profession. Among those then there and practicing law was Lot. M. Morrill, afterward Mr. Howe's compeer in the senate. Presumably his experience as a young lawyer was much the same as that of those who enter the profession in these days. In 1842 .he was an unsuccessful candidate for the nomination for the office of clerk of the court of the county of his residence, and in 1843, though nominated for that office, was unsuccessful. In 1845 he was elected a member of the popular branch of the legislature as a whig. It is said that he there "took a prominent part as a debater beside the late William Pitt Fessenden, the recognized leader of the house."
In 1845 he came to Wisconsin, settling at Green Bay, where he opened a law office, and ever after resided. In 1848 he was the whig candidate for Congress, but failed of election. In 1850 he was elected judge of the fourth circuit, and in January, 1851, took his seat as a justice of the supreme court, and acted in that capacity until 1853. He resigned his seat on the circuit bench in 1855, and resumed the practice
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of the law which he continued till 1861, when he was chosen United States senator. In 1855 he made an excellent reputation as a "stump speaker" for the newly-organized republican party; and in 1856 added largely to his reputation as a lawyer by his argument in the case involv- ing the right of the respective contestants before the people to the office of governor. The fact that he was retained in that case, which called forth the best efforts of J. E. Arnold, H. S. Orton, M. H. Car- penter, J. H. Knowlton and E. G. Ryan, closes the door to any question of his professional standing. Mr. Howe might have been elected to the senate of the United States in 1857 but for the fact that he had taken strong ground in opposition to the states' rights views which were then predominant in the republican party; but he preferred defeat to any modification of his opinions, and saw himself fully vindicated by the acceptance of his views a little later. He was re-elected to the senate in 1867 and again in 1873, each time without the formality of a caucus. At the end of eighteen years of service in that body he was defeated by Matt. H. Carpenter in 1879. Mr. Howe's other public services included a commissionership for the purchase of the Black Hills territory from the Indians, membership in the international monetary conference held in Paris in 1881, and a seat in the cabinet of President Arthur, as post- master-general, which he took in January, 1882. His death occurred March 25, 1883. It was generally understood that during the second presidential term of General Grant Judge Howe was tendered the ap- pointment of chief justice of the supreme court of the United States, that he put aside the honor because the legislature of his state was demo- cratic, and his successor would therefore be of that faith.
CHAPTER VI.
THE SEPARATE SUPREME COURT AND ITS JUDGES.
The constitution as adopted in 1848 authorized the legislature, after the expiration of five years, to provide by law for the organization of a separate supreme court, to consist of one chief justice and two associate justices, to be elected by the qualified electors of the state at such time and in such manner as the legislature may provide; and that the sep- arate supreme court, when so organized, shall not be changed or dis- continued by the legislature. The term of office was fixed at six years.
Pursuant to this power the legislature of 1852 provided by law that an election should be held on the last Monday of September of that year to choose one chief justice and two associate justices; that the terms of office of the persons elected should commence June 1, 1853; that the term of the chief justice should expire with the last day of May, 1857; that the term of one of the associate justices should expire on the last day of May, 1855, and of the other associate justice on the same day in 1859; that it was to be decided by lot between the two associate justices whose term of office should first expire. The salary was fixed at two thousand dollars per year.
The election resulted in the choice of Edward V. Whiton as chief justice, and Abram D. Smith and Samuel Crawford as associate justices. The latter drew the short term. These gentlemen qualified June I, 1853. The same day La Fayette Kellogg was appointed clerk; his service in that capacity continued until June, 1878.
The first session of the court was held June 21, 1853. There were admitted to its bar on that day R. N. Messenger, Allison Lewis, A. W. Farr, J. B. Jilsun, A. R. R. Butler, James H. Howe, Jacob J. Enos, A. Cook, O. B. Messenger, I. Woodle, J. R. Sharpstein, E. B. Bowen, H. K. Whiton and R. K. Knight. The first proceeding in a cause was in the form of a motion by F. Randall for a continuance.
On the 6th of July, 1853, the court made an order appointing Ed-
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ward G. Ryan its reporter. That gentleman seems not to have accepted the office. This fact explains what Judge Smith says in the preface to the first volume of the Wisconsin reports: "At the commencement of the functions of the separate supreme court provision was made by appointment for full and accurate reports of its decisions. Up to the close of the June term (or very nearly to its close) it was confidently ex- pected that such arrangement would be carried out. But, unfortu- nately for the profession, the expectations founded upon such arrange- ment were disappointed, and, at the close of the term, the court found itself without a reporter." The order appointing Mr. Ryan was revoked September 29, 1853. Judge Smith was thereafter appointed reporter.
Judge Crawford sat as a member of the court the last time May 31, 1855, and Judge Cole, chosen his successor, occupied a seat on the bench for the first time June 19, 1855, the opening of the June term. This was the first change in the personnel of the court since its organi- zation. A sketch of Judge Whiton has been given in a preceding chapter. Sketches of Judges Crawford, Smith and Cole and their suc- cessors follow:
SAMUEL CRAWFORD.
Mr. Crawford was a native of Ireland, having been born in Baltibay, county Monahan, April II, 1820. His education was received in his native land and is said to have been an excellent one. The exact date of his arrival in this country is not stated, but it is said that he entered upon the study of law and pursued it one year at Warwick, Orange county, New York, and came to Galena, Ill., in 1841, where he finished his reading. He was admitted to the bar in 1844, and began practicing at New Diggings, Wisconsin, not far from Galena. It is said of him that his habits were most exemplary for that region of wild life, where was plenty of money and little of civilization, and that he soon became prominent. He distinguished himself in several important trials, and his fame spread throughout the mining region. He had the bearing of a high-spirited, cultured gentleman, and a manner which, while some- what imperious and masterful, was fascinating, and he soon became popular. He was an able politician and a graceful and eloquent
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speaker. He had no little dramatic power, and, in his earlier days, would bear a part in a play with great adaptation. The theatrical troupes in those days thronged to New Diggings, sure of good houses and appreciative audiences. Crawford sometimes took a part, and when Joe Jefferson was there in his youth the young lawyer gave him advice as to his acting and how to reform it.
Mr. Crawford did not remain at New Diggings long, but removed to Mineral Point, and became a member of the firm of Dunn & Craw- ford, the senior being Francis J. Dunn. Their business, already large, became more extensive. In 1852 Mr. Crawford was elected an asso- ciate justice of the supreme court, and drew the short or two-year term. His views as expressed in his opinions in the cases arising out of the fugitive slave law were not in accord with the rapidly rising tide of anti-slavery feeling, and at the expiration of his term he failed of election, Orsamus Cole being chosen his successor. On his retirement from the bench he returned to Mineral Point, and, except for a brief period of residence at Madison, continued in practice there.until 1861, in which year he died, on the 28th of February. His political ambition was never fully gratified, he having been an unsuccessful candidate for Congress against C. C. Washburn in 1856 and for attorney general in I859.
"He was an able and gifted man, highly esteemed in his time, evincing always the high spirit, courtesy, dignity and hospitality of the higher classes of his nationality. His written opinions show a culti- vated and trained mind. With small allowance for the con- vivial frailties that were too common in his time and in that region, he was an ornament to the bench and bar during the period of his activity, and his untimely death was mourned throughout the state."*
*Edwin E. Bryant, in The Green Bag, vol. 9. p. 114.
A correspondent writes the editor that when Mr. Crawford settled at New Dig- gings he was a pompous freshman recently from college and law school. He was a delightful conversationalist, using the choicest and most felicitous language. He read his Bible and prayer-book, and was, in the language of the miners, "too nice for these diggings." He was a thorough gentleman. Though kind and polite to the rough element, he never chose ill-bred people for his companions. Mr. Crawford was rather a polished than a forceful speaker. His legal attainments were of a high order.
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ABRAM D. SMITH.
Mr. Smith was elected an associate justice of the supreme court on the last Monday of September, 1852. But little is known of his early life. He was born in Lowville, Lewis county, New York, but at what time is not stated. The nature and extent of his early education are matters of uncertainty. He came to Wisconsin in 1842 and located in Milwaukee, where he entered upon the practice of his profession. In 1847 he was defeated by Rufus King as a candidate for a seat in the second constitutional convention. In 1848 he was a candidate against Levi Hubbell for the office of judge of the second circuit, comprising Milwaukee, Waukesha, Jefferson and Dane counties, but was unstic- cessful. The following incident, narrated by Edwin E. Bryant in his sketch of the supreme court,* it is said, explains his defeat, "Before coming to Milwaukee, and in his youth, he was justice of the peace in Cleveland, Ohio. During a 'scare' in regard to the small-pox a person afflicted with that disease had been placed in an isolated building, and there left alone, no one being allowed to visit him. A humane and high- spirited physician, in violation of municipal regulations, broke into the building and ministered to the sick man. For this humane and lawless act he was brought before Justice Smith, who imposed a heavy fine. In the office of this doctor was a young Irish student, William H. Fox, who afterwards became an excellent and influential physician in Dane county, Wisconsin. When Mr. Smith became a candidate for circuit judge, Dr. Fox took the field against him, having stored away a grudge for this severity to the good samaritan, his medical teacher. By his activity in Dane county the scales were turned, and Smith was defeated by a few votes, and Doctor Fox declared 'the account settled.'" Judge Smith continued his practice in Milwaukee until his election to the su- preme court in 1852.
An incident is related which throws some light on the political methods of those days. Judge Hubbell and Judge Smith were candi-
*9 Green Bag, IIO.
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dates for the democratic nomination for chief justice. Smith's friends advised him, after the convention had met, to become a candidate for associate justice; this he consented to. A motion was made in the con- vention to nominate the candidates for associate justices first. The convention was surprised, the motion was put so quickly that protests were unavailing and was declared carried before those opposed to it could manifest their opposition. Smith and Crawford were nominated for associate justices and Milwaukee, having a candidate in the person of the former, could not press Judge Hubbell as a candidate for the chief justiceship, and Judge Larrabee was chosen, but failed of election. Judges Smith and Crawford were elected. The former's views on the powers of the state and federal governments, as expressed in the case arising out of the fugitive slave law,* cost him his seat. Byron Paine was selected as a candidate by a caucus of republican members of the legislature and leading men of that party, and Judge Smith did not become a candidate. He returned to Milwaukee at the close of his term and remained in practice there until the civil war opened; though for a brief period he was the editor of the Free Democrat. Soon after- ward he accepted from the government an appointment in South Carolina as tax commissioner, and spent most of his time there till his death, which occurred in New York City, June 3, 1865. His interment took place in Milwaukee on the IIth of the same month.
Referring to the strong views held by Judge Smith on the question of the rights of the states (which were expressed in opinions written by him in controversies growing out of the fugitive slave law), Jonathan E. Arnold said on the occasion referred to: "There were some points in his peculiar political and constitutional views, which have made him so prominent both at home and abroad, about which there is and will be a difference of opinion. But whether they were true or false, right or wrong, he was the leading spirit that originated and taught them. He lived to see them become the settled law and policy of the state, and they were incorporated into and adopted by every department of the government." Referring to this subject Justice Cole, who sat
*See General Winkler's contribution, ch. 2.
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on the bench with Justice Smith for four years, said: "Judge Smith was endowed by nature with a singularly original and vigorous mind, which had been invigorated and enriched by much reading and learning. He had an abiding love for and devotion to the great principles of civil liberty and natural justice; and I believe it was the strongest desire of his soul that every human being, however degraded, should enjoy his natural rights. And if, for the purpose of securing these rights to the downtrodden and oppressed, Judge Smith ever advanced from the bench constitutional views which some deem unsound, it is sufficient to say that the great mass of the loyal people of the country have adopted his views in regard to the particular law which called them forth, overlooking his errors, if he fell into any, and freely pardoning something of the spirit of liberty by which he was actuated. Further- more, he was fearless and independent in all his judgments, following no authority which did not seem to be founded on principle and reason." Justice Cole further said of Judge Smith: "All his opinions were well written and will compare favorably with those of any contemporary judge of our sister states, while some of them are marked by remarkable ability and force of reasoning. It was impossible to become acquainted with Judge Smith without discovering many traits of character which would command love and regard. He was genial and warm in his feelings. He was also constant in his attachments, and open, direct and manly in all his conduct. I can but believe that he enjoyed to the last, in a high degree, the personal regard and good will of all his professional brethren of the bench and bar of the state."
Judge Smith reported the cases in volumes I to II, inclusive, Wis- consin reports, covering the years 1853 to 1859.
ORSAMUS COLE.
On the 15th of June, 1855, Orsamus Cole entered upon the dis- charge of his duty as an associate justice of the supreme court, a tri- bunal to which he brought the most patient industry, a highly cultivated mind, the highest type of character, a marked judicial temperament, and in which he was an ornament for nearly thirty-seven years.
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The birthplace of Orsamus Cole was Cazenovia, Madison county, New York; the time August 23, 1819. In 1843 he was graduated from Union college. After preparing for the practice of the law he came as far west as Chicago, but remained there only a few months, when, in 1845, he removed to Potosi, Grant county, Wisconsin, in the lead mining region. In connection with William R. Biddlecome he built up a good practice and remained there until the performance of official duties im- posed upon him by the will of his fellow citizens necessitated a change of residence. In 1847 he was elected a member of the second constitu- tional convention from Grant county, "in which body he served with marked fidelity and ability. He was a member of the committee on ex- ecutive, legislative and administrative provisions, and was one of the most faithful and hard-working members upon it. Mr. Cole was one of the youngest members of the convention, and his proverbial modesty caused him to shrink from taking a leading part in the debates for some time; but he soon took rank among the ablest and clearest debaters in that body of able men. His cautious habits made him a most valuable man in forming the organic law of the state, and at the close of the ses- sion but few men stood higher in the estimation of his fellows than did Orsamus Cole. He had taken prominent part in the shaping of all the more important articles of the constitution."*
In 1848 Mr. Cole was elected to Congress as a whig, his opponents being A. Hyatt Smith, democrat, and George W. Crabb, free soiler. Notwithstanding the changes in political views and affiliations which re- sulted from the succession of Mr. Fillmore to the presidency, on the death of President Taylor, Mr. Cole stoutly maintained his anti-slavery principles and earnestly opposed the enactment of the compromise measures and the fugitive slave act.
At the close of the thirty-first Congress Mr. Cole returned to Potosi and resumed the practice of his profession. In 1853 he was made the whig candidate for attorney general, and was a candidate for that office upon the people's ticket, a consolidation of the whig and free soil parties. The whole ticket was unsuccessful. At about this time Mr. Cole was
*Fathers of Wisconsin, p. 196.
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nominated for the state senate, but was defeated by a small majority by Nelson Dewey, then ex-governor.
By the winter of 1855 the republican party had secured a majority of the members of the legislature. Party feeling was strong, and the objec- tions to a partisan judiciary had not been so fully appreciated as in these later times. Judge Samuel Crawford's term upon the bench of the supreme court was to expire in June of that year, and he was a candidate for re-election. A caucus of the republican members of the legislature placed Mr. Cole in nomination to succeed Judge Crawford, notwithstanding the candidacy of Timothy O. Howe for the honor and the fact that Mr. Cole was not a candidate, did not know that his name was to be considered, and doubted his fitness for the place. On learning of his nomination his purpose was to decline it; and it took the strong persuasions of his warmest friends, including C. C. Washburn, to dis- suade him from his purpose. The election resulted in Mr. Cole's success, and in June, 1855, he assumed the duties of his position. In 1861 Judge Cole was re-elected, receiving 56,171 votes against 50,315 for James H. Knowlton and between 5,000 and 6,000 for Charles A. Eldredge, and in 1867 by 46,895 votes as against 8,236 for Lucien P. Wetherby. In 1873 there was no opposition to Judge Cole's re-election; but in 1879 Judge M. M. Cothren, of Mineral Point, became a candidate and made an effort to secure his election, with the result that Judge Cole received 100,692 votes to 67,554 for his opponent.
In November, 1880, Chief Justice Ryan died, and Governor Smith, in response to a prevalent sentiment among the lawyers and people, ap- pointed Judge Cole his successor. At the election in April, 1881, that appointment was ratified by his election, without opposition beyond a limited number of scattering votes, for the unexpired and the full term of ten years, thus making his term end January 4, 1892, and extending his whole consecutive judicial labor over almost thirty-seven years.
On the 29th of December, 1893, Charles E. Dyer, formerly United States judge for the eastern district of Wisconsin, presented the supreme court a portrait of Judge Cole. His remarks on that occasion and the response thereto by Chief Justice Lyon so faithfully portray the judicial
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career of Judge Cole that they are reproduced here without material condensation. Mr. Dyer said that Judge Cole's "connection with this high court of judicature, extending through a period of nearly thirty- seven years, entitles him to this recognition." Public position is to be valued in precise proportion to the fidelity with which its duties are per- formed. The value to the state of the public life of Judge Cole must be estimated in accordance with that principle, and so estimating it, his ser- vice has been invaluable. The political world, oftentimes with turbulent demonstration and even unseemly flattery, bestows its honors upon its living idols and heroes. Why should not those whose lives have been laboriously spent in the retiracy of judicial vocation, fashioning and building the jurisprudence of a commonwealth, be also kindly remem- bered, and their achievements suitably recognized, while they are still with us and of us and may yet enjoy the pleasures of happy retrospect and the realization of the public gratitude.
"The work of the bench is growing to be more and more valued and its power more and more felt. A preacher of distinction, whose thoughts keep pace with modern progress, says the bench of the current times seems as pure as the closet of literature. Further, he says, it is the happiness of the bar to congratulate the times over the fact that the judges in the higher courts draw their decisions from the law and the evidence; 'and that whereas one age was happy in possession of one honest judge,-Matthew Hale,-our country is happy in the possession of many such administrators of justice. More and more have educated men in literature and in the professions sought to combine with their mental gifts and their position the fame of integrity.'
"Every lover of this country must rejoice that this is so; for, 'the fame of integrity' endures, when, without it, brilliancy of intellect per- ishes with the decay of its possessor.
"The public career of Judge Cole forms a large part of the judicial history of the state, and has secured to him the true fame of which I have spoken. He has been associated with all members of this court in un- broken succession, from June, 1855, when Edward V. Whiton was chief justice, to the time when he left the bench, himself chief justice, January
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4th, 1892. His judgments may be read in every volume of the Wiscon- sin reports from the fourth to the eighty-first volumes, both inclusive. The value of his contributions to the jurisprudence of the state is in equal proportion to the extent of his work.
"He had not been long on the bench when it devolved upon him to deliver judgment, in concurrence with that of his associates, in a cause which had for its advocates on one side or the other such lawyers as Jonathan E. Arnold, Edward G. Ryan, his honor, Mr. Justice Orton, Matthew H. Carpenter, Timothy O. Howe, and James H. Knowlton. I refer to the celebrated case of Bashford vs. Barstow.
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