USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 13
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The memorial was submitted with addresses by G. W. Hazelton, Charles E. Dyer, F. C. Winkler, Winfield Smith, Thomas R. Hudd, Moses Hooper, S. U. Pinney and Bradley G. Schley. The address of Mr. Dyer follows:
"Luther S. Dixon, the eminent jurist, the accomplished lawyer, the just and true man, has finished his work and reached his journey's end. How true are the words of one of the world's great writers, that there is not a curfew bell but tolls at every evening hour the knell of some departing friend. It is the fate of mortality. We go the way of our fathers. Nature has so written it. Death is but submission to law.
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The visitations of that dread power, which sever all human relations and terminate all human experiences, are impartial because they are in obedience to law. If life is either lost or rescued, it is because the law of animate and inanimate existence, inexorably applied to existing events, unerring and suspended in its operations, controls the ultimate result. In giving up his mortal life, therefore, our brother but sub- mitted, as all men must do when 'the mould of nature's fabric' is broken, to nature's final decree.
."Since his public services were so distinguished and his whole pro- fessional career so honorable, it is most fitting that these memorial services should have been appointed, and in this high and sacred place it is most appropriate that his virtues should be commemorated. And here it is worthy of remark that it is rare, indeed, that the bench and bar of two states far distant from each other mingle their grief at the grave of one beloved in common by all. But it was Judge Dixon's rare fortune to have commanded the high respect and won the affectionate regard of the bar of Colorado and the bar of Wisconsin equally and alike. This was worth living for. This is the reward of a manly, noble and useful life. Better than great riches, better, far better, than any emoluments of political place, better than any other title of honor, is such achievement as this. To be thus enshrined in the memories of our fellowmen is to attain the summit of human endeavor and as- piration.
"The work of Judge Dixon as chief justice of this court began in 1859 with the ninth volume of the reports, and closed in 1874 with the thirty-fifth volume, covering a period of about fifteen years. Richly endowed with the qualities essential to success in judicial labor, his work as a member of this court has indelibly impressed his name upon the jurisprudence of the state. In mental as in physical stature he was commanding, broad and strong, and his presence here will not be for- gotten by any who ever came to present their causes to this court in his time. The bench was his place. He was through and through a judge. He adorned and honored the judicial office. He fulfilled its high requirements, and to say this of any man is to bestow upon him the
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most honorable eulogium. It is a serious thing, as your honors know, to be the arbiter between one's fellowmen. No functions are more exalted, no duties more grave. He who trifles with judicial position, he who in the slightest degree, by partisanship or otherwise, dishonors its dignity, he who does not keep the ermine as white and spotless as virgin purity, is unworthy of any trust. This was the sentiment of our friend, and the name of Dixon is the synonym of justice, integrity, truth, and honor. These were virtues which illumined his character, radiant as the sunlight, shining as the stars.
"His judgments are among the jewels of our jurisprudence. With- out exception they bear the stamp of his penetrating and vigorous mind. None fail in that lucidity of statement, strength of diction, and cogency of argument which were his happy gifts. If his intellect was not what may be called brilliant, it was comprehensive and powerful. If he was sometimes wanting in that mental alertness and dexterity essential to emergencies in forensic strife, his masterly powers of deliberation and discrimination made him an ideal judge and a wise and safe counsellor.
"In his convictions he was resolute and courageous. When aroused by needs of the occasion and by the conscious strength of the cause he advocated, I have more than once seen him summon to his command latent powers, the exercise of which instantly gave him the mastery of the struggle. He needed a great cause to bring to the surface his whole strength. He loved legal investigation more than aught else, and he applied himself to it with unwearying diligence. Visiting his office in Denver one day during the past summer, I found a veritable armory of law and law books, and there, I was told, when in health, he reveled in great questions and cases.
"As both judge and practitioner, Judge Dixon appreciated the su- preme rank of usefulness occupied by the true lawyer. His standard of professional conduct was lofty. It could not be otherwise and be in harmony with his own nature. He disdained the little things on which little men thrive, and he viewed with contempt every deviation from honorable purpose and conduct.
"On the bench he was not much given to speech, for he believed
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in the saying of Lord Coke that 'a much speaking judge is not a well tuned cymbal.' When he interrupted it was to keep the argument to the point.
"He had high respect for sound authority, but he believed also, as his opinions show, in original processes of reasoning. Some men have the faculty in the highest degree of stating with precision what the law is. Others have the faculty of stating what the law ought to be. Dixon knew what the law is, and could state it so accurately that it was dangerous to controvert his proposition. If as a judge he was con- vinced that he had committed error, no pride of opinion would stand in the way of its correction. For, like Lord Hardwicke, he would think it 'a much greater reproach to continue in error than to retract it.'
"At all times frank and courteous, every impulse of his nature was generous and noble. His heart was large, his society was congenial, his salutation was hearty. He was plain and unobtrusive. He affected nothing. On the bench and at the bar his demeanor towards his pro- fessional brethren was always that of kind and cordial recognition. I recall as a pleasant memory my first case in this court more than thirty years ago, when Mr. Justice Lyon came with me as associate counsel and as my personal friend, for I found that the young lawyer was re- ceived by Chief Justice Dixon and his associates with the same consider- ation and kindness as was any veteran of the bar.
"As a companion, Judge Dixon was delightful. Judge Drummond -who also sleeps the sleep of the just, and whose name I reverently speak-was wont to say that it always was a pleasure to meet Dixon, he was such a likeable man. Genial in temperament, cultured in literary acquirements, fond of anecdote, and abounding in great sense of humor, he possessed most happily those qualities which drive away dull care when the hours of serious occupation are past.
"It is good that such men have lived, and that they will continue to live. They give hope and strength to other men. They cheer and brighten life's journey. When they go from us they leave rich mem- ories of manly life and noble achievement. The recollection of their virtues inspires us anew to the performance of every duty, and prompts
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to the emulation of their example. One after another our companions in professional business and social life disappear from our presence. They leave us to struggle, as they have done, with the great problem of the future. Forever, here, the evidence 'of things unseen' may to many thoughtful men remain inconclusive; but such evidence as the human mind can grasp confirms the hope of another life where such shadows and griefs as cloud this mortal existence give place to higher conditions. Reason as we may,
'The voice of nature loudly cries, And many a message from the skies, That something in us never dies.'
"Since his time had inevitably come, it was a happy circumstance that the friend whom we mourn should come back to home, family, and friends to lay down life's burden. And it is most appropriate that within view of that capitol, in the state where he earned his greatest and his enduring fame, his mortal remains should rest in the keeping of those he loved and who loved him."
On behalf of the court, Chief Justice Cole said:
"Because of my official association with Chief Justice Dixon for the entire period he occupied a seat on the bench, my brethren think I should make the response of the court to the memorial of the bar which has been presented. I need not say that the court receives this me- morial with a feeling of deep sensibility and sorrow. The members of the court, as doubtless many of the bar, entertained for Judge Dixon the affection of a brother. He held that relation in our hearts and thoughts, consequently a personal grief mingles with the sense of the loss the public has sustained in his death. It is eminently proper that Judge Dixon's name and memory should be honored in this tribunal where he occupied the position of presiding judge for fifteen years, and until he voluntarily resigned the office, elevating the character of the court and giving luster to it by the preeminent ability and great learn- ing which he exhibited in the performance of his official duties. It is fitting, too, that we should here pay to him our tribute of respect; that we should give free and full expression to the feelings of love and
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affection for him as a man, a friend, a judge, which we cherish in our hearts. It is true, some years since, Judge Dixon withdrew from the practice of the law in this state, and resumed it elsewhere, where the climate was more favorable to his health; but he always regarded him- self as a member of the bar of this state. He never fully severed his connection with it. He considered this state as his home. It was here his family resided; and his dearest hopes and warmest friendships were associated with our people and the state. If alive he might well claim kindred with our bar and have that claim allowed; and surely his fame as a jurist belongs to Wisconsin. It will ever be cherished by our bar and people as a most priceless possession.
"I need not dwell in this presence upon the personal characteristics of Judge Dixon. You know him well by long acquaintance. You know how he drew men to him and made them his own by his genial, friendly, and kindly manner, by his large heart, so tender and true, and by his manly, noble personal qualities. And yet he made no effort to secure friends. He never courted public favor or public applause, but he attracted men to him by his open, manly conduct and the innate goodness and kindness of his heart and disposition. Such was Judge Dixon as a man, companion, and friend, noble and true and just in his relations to society and to our profession, worthy of all love, affection, and admiration which we felt for him while alive, and which we now feel for him since he has passed from us to be seen no more.
"I had not much acquaintance with Judge Dixon when he was appointed chief justice of this court in 1859. I had met him only a few times, but he had not appeared before the court to argue any cases while I had been on the bench. At the time of his appointment as chief justice he was a young man and comparatively unknown throughout the state as a lawyer and jurist. There was an impression, how general I will not undertake to say, that he had not sufficient professional train- ing and experience to fully qualify him for the high and responsible office of chief justice when appointed; but a brief trial amply vindicated the wisdom of his appointment. If he was not at the time of appoint- ment a learned and profound lawyer, he was thoroughly imbued with
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the principles and rules of the common law and of equity jurisprudence. He had a discriminating mind and retentive memory, was gifted with robust common sense as well as a nice sense of justice and right. He was most laborious in his investigation of causes, and failed not to read the law found in the books which had a bearing upon the case which he was called upon to decide. He rapidly acquired and appropriated legal learning as found in the writings of the authors of our profession. He illustrated and enriched his opinions by the result of his reading and research. He was endowed naturally with remarkable logical powers, and all of his opinions are marked by great closeness and strength of reasoning and clearness of expression. Massiveness and compactness of logic characterized his most important decisions. That he was firm and fearless in adhering to his convictions was singularly illustrated in I859, when, contrary to the views of the political party with which he acted, he fearlessly held to the opinion that the supreme court of the United States had the right, under its appellate jurisdiction, to review the judgment of this court which discharged on a writ of habeas corpus a citizen arrested for the violation of the fugitive slave law, so ready was he to disregard party ties and all party associations when they came in conflict with what he deemed to be the law. He came to this bench at a most critical period in the history of the court. Questions of con- stitutional law involving the objects, the limit, and rule of taxation under our constitution; of the validity of municipal indebtedness; of the lia- bility of railroad corporations for injuries to person and property result- ing from the negligence of their employes; of the relation of the state. and federal judiciary; soon to be followed by the supremely important questions growing out of the rebellion, such as the power of the Presi- dent to suspend by proclamation the writ of habeas corpus; the validity of the law authorizing the draft, and one permitting the soldiers in the field to exercise the elective franchise; the validity of the legal tender act and of the bounty laws; the right of Congress to tax the process of state courts, and other kindred questions of transcendent interest to the people and nation, were before the court or soon to come before the court for decision. Judge Dixon, in the disposition of these cases,
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played no subordinate part. It was not his nature to rely on others in the examination and decision of causes. He must form his own opinions by his own study and research, master the facts of the case and the principles of law applicable to it for himself, think his way through and over whatever obstacles and difficulties were presented, by the light of his own judgment and understanding; and he always did so. He exer- cised great influence in all decisions made by the court. He has left an enduring record and monument of his labor and services in our reports, and without doing injustice to others I think I may say that whatever value or authority these reports may have in the estimate of the profession is largely due to his opinions published in them. What may be the value of any of these decisions as real contributions to the science of the law must abide the judgment of those who will come after us. I cannot but think that some of the opinions of Chief Justice Dixon will, while the state has a jurisprudence, be recurred to as mas- terly discussions of the questions before him. This is not the time or the occasion to specify any particular opinions, but I honestly believe that some of them are worthy of a place among the ablest judicial dis- cussions.
"When standing at his open grave in yonder cemetery on the after- noon of his burial-that afternoon so calm and bright, with an air of vernal mildness rather than the chill of winter, and as the setting sun rapidly sinking in the west threw a flood of light and glory above and around the spot where we stood, with not a cloud to be seen in the sky, the whole scene in nature seemed to me a fitting emblem of the life of our friend and brother and of its close. Everything which the eye rested upon was serene and pure, beautiful and glorious; and so was his life as he dwelt and labored among us, and so it closed, leaving a name illustrious with professional fame and honor."
Soon after Dixon became chief justice Byron Paine became a mem- ber of the court by election to succeed Judge Abram D. Smith. Judge Paine qualified June 21, 1859, and served until November 15, 1864, when he resigned to enter the military service.
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BYRON PAINE .*
The salient features in the life of Judge Byron Paine may be briefly noted-that while still a young man, with his own future yet to care for, he faced an uncertain popular opinion and made a brave and bril- liant fight for a cause that he believed to be right, in a case that has be- come historic; and that as a judge upon a high bench he showed such noble qualities of mind and conscience that no one can say to what promotion he might not have risen had not death laid him low almost in the beginning of his career. His memory has been guarded with reverent affection in the commonwealth he served, and no son of Wis- consin has a more honored place in her pantheon of great men than this brave advocate, obedient soldier, and unblemished judge.
The outspoken fearlessness which was one of the features of Judge Paine's character, was after the pattern of the still more outspoken courage of his father, while the moderation with which his views were urged upon others, and the calmness with which he could meet opposi- tion, were something of which his father had small possession. The latter had spent the early years of his life in the east, had entered upon the practice of the law, and made his home at Painesville, Ohio, where Byron was born on October 10, 1827. James H. Paine had become filled with the belief that human slavery was a wrong in the sight of God, as it should be a crime in the laws of man, and as the secreting of a moral view was one of the things impossible to his nature, he vehe- mently and publicly denounced the involuntary servitude system of the south. It seems curious that a time should ever have been when one could be too strong an abolitionist for the western reserve of northern Ohio-the region from whence Joshua R. Giddings and B. F. Wade were afterwards sent to fight slavery in the halls of Congress-yet such the elder Paine soon found himself to be; and because of his unpopular
*J. H. Kennedy is the author of this sketch of Judge Paine, which appears here by permission of William W. Williams, editor of the Magazine of Western History, in the sixth volume of which (pages 183-196) it was originally published. The editor of this work is responsible for the notes appended to this sketch.
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course in this regard he lost practice, and was led to seek a home in the far west. In 1847 he removed to Milwaukee, where he followed the practice of his profession until his death in 1879. He continued his vehement denunciation of slavery, and it was through his example and teaching that his son was led to an early advocacy of freedom for all men, and finally to the charge of a case from which his professional career may be said to have commenced.
Byron's education was received in an academy at Painesville, and he accompanied his father to Milwaukee, where he entered upon the study of law, and was soon afterwards admitted to practice. Possessed of an unusual literary faculty, he spent some portion of his time in these early days in work upon the Free Democrat, one of the earliest aboli- tion newspapers in the west. He also served as a clerk in the Wisconsin senate for one term.
In the first years of practice the young man was known to his asso- ciates as faithful and capable, but not inclined to push himself into notice, nor disposed to seek for business. He was moved more by his convictions than by his ambitions, and as likely to defend a cause be- cause he believed it to be right as to take a case because it might be of profit. But he possessed all the capabilities for a successful advocate and a great lawyer, which should only be awakened and recognized when some fitting opportunity should present itself.
The occasion came, and the man was ready. The Glover rescue case, the trials of Sherman M. Booth that grew out of it, are a part of the history of Wisconsin, and a familiar tale to the older residents thereof; but some explanatory details will be necessary for a full understanding of Mr. Paine's connection therewith. Mr. Booth was one of the most outspoken of the opponents of slavery, and had made a name for himself in that field of labor before coming to Wisconsin in 1847, to take charge of the American Freeman, an abolition newspaper published under the auspices of the State Liberty Publishing Association. Joshua Glover, a black man, an alleged fugitive from an owner in Missouri, was labor- ing in a mill at Racine, in the spring of 1854, when the owner, one Gar- land, suddenly made his appearance and caused Glover's arrest. He
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was hurriedly carried to Milwaukee, which was reached on March II. Word was immediately conveyed to Mr. Booth by sympathizers of Glover, and he made such investigation as led to the discovery that the slave was then in Milwaukee jail, bruised and bloody, and carrying marks of severe treatment at the hands of his captors. When the facts became known through the efforts of Mr. Booth and others, the excite- ment reached fever heat, a public mass meeting was held, a vigilance committee of twenty-five appointed, and resolutions adopted declaratory of a purpose to aid the kidnapped slave by all means within their power. The result was, that before many hours had passed, a rush of many strong-armed men was made upon the jail, the negro taken out, placed in a wagon, and hurriedly driven out of the city.
Several days later Mr. Booth, as leader of the rescuing party, was arrested, and after a preliminary hearing, was held to bail in the sum of two thousand dollars, which was promptly furnished. Suit was also commenced against him for damages to the amount of two thousand dollars, the value of the escaped slave.
It would be foreign to the purpose of this sketch to follow these various suits, and all that grew out of them, to the end, and we need touch only upon such points as involve the presence and services of Byron Paine. The rescue of Glover and the arrest of Booth had at- tracted attention from the whole country, and had Mr. Booth desired, some of the ablest and most eminent anti-slavery lawyers of the north would have appeared in his behalf, but it was his choice that the young, and as yet almost unknown barrister who had been his associate and friend, should take up the weapon in his behalf.
Mr. Paine threw himself into the case with all the earnestness of a deep nature that had found an occupation where desire and conscience could work together. The defense of his client as he presented it to the various courts before which he appeared was masterly, original, and full of profound logic. In illustration of one curious phase of American politics at that date, it may be noted that this earnest abolitionist, in the defense of another of like belief who had violated the fugitive slave law in the rescue of a slave who had been taken under the forms of that
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law, stood upon the ground of ultra state rights, and upon that line was fully abreast of Calhoun and his associates of the extreme south. And it was upon that ground that his defense was made-that the sovereign state of Wisconsin was so supreme within her own moral and legal responsibility that the legislators of the United States could not com- pel her citizens to surrender a slave who was such under the laws of another state. That one man should have held this view can cause no surprise, but that he should have caused the supreme court of Wisconsin to declare that his idea was good law, proves the logical character of his plea, and the eloquence and force of his argument. Another curious thing to be noted is that Wisconsin, from the first one of the strongest anti-slavery states, had a marked leaning toward states' rights doctrines, and that just before the war the republican party inclined in that direc- tion, while the democratic was in the opposite. This idea was soon abandoned when the war showed the north what it meant when reduced to practical operation.
The case was carried into the supreme court in May. The com- plaint against Booth was that he had violated the seventh section of the fugitive slave act of 1850 by aiding in the rescue of Glover. After giving bail Booth had been surrendered and sued out a writ of habeas corpus to be released, chiefly on the ground of the unconstitutionality of the act. The hearing was set for the 29th, and it was upon this occasion that the young barrister made the argument that gave him fame and honor, and was the stepping-stone to high judicial honors in the future.
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