USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 15
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plause, anxious only to be right. Rarely has the service been blessed with an officer of so pure morals and so sincere a purpose."
With his return to ways of peace, Judge Paine again settled himself at Milwaukee, and resumed the practice of law. While still preserving the quiet tenor of his way and attending to such business as he had in hand, he was enabled at this period to perform one service to the race to which he had given such patient and courageous aid, which illustrates his love of liberty and his desire to see equal right done to all men. In 1865, one Gillespie, a colored man living in Milwaukee, had offered his vote at a regular election, which had been refused. Judge Paine became once more the champion of the black man, and carried the matter into the courts. He based his right for such vote upon an election held in 1849, when a democratic legislature had submitted to a vote of the people whether or not "equal suffrage to colored people" should be granted. The result was a total of 5,265 for and 4,075 against. He claimed that the intent of the act under which the vote was taken was that the proposition must receive a majority of the votes cast on that question rather than of those cast in the general election-a construc- tion far different from that previously accepted. The fight was carried into the supreme court, where judge Paine argued with such powerful and eloquent logic that the court sustained his opinion, and the negroes from thenceforth exercised the right of suffrage in that state.
Judge Jason Downer, of Milwaukee, who had been appointed to the supreme bench in 1864, on the resignation of Judge Paine, decided in turn to retire to private life, which purpose he carried into effect on September 11, 1867. The most appropriate choice of a successor was made when Judge Paine was asked by the governor to return to his old duties and responsibilities. He was re-elected in 1870, and was still an occupant of the bench at the time of his death. The only other public position held by him was that of professor of the law department of the state university, from 1868 to the close of his life. The university conferred upon him the degree of LL. D. in 1869.
It was while still short of the prime of life, with powers of mind that grew with each passing day and opportunity of exercise, and that had
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not yet expanded to the full strength that age and experience would have given, and with a fame gaining new holds perpetually upon the love and confidence of the people, that Byron Paine was unexpectedly called upon to lay earthly cares and honors aside and go into the unknown future. He was attacked by erysipelas, which at first presaged no fatal ending, but after some weeks of pain and increasing danger the malady had reached such proportions that no hope was left. He died on Jan- uary 13, 1871, at his home in Madison, leaving a mourning wife and four sons.
The announcement of his death was received with a degree of sor- row and sympathy not often accorded men filling even more responsible positions, while everywhere the feeling was apparent that one was gone who could be illy spared. Governor Fairchild in transmitting to the legislature a special message announcing his death, voiced the popular opinion when he said: "The loss of such a man to the state is almost irreparable. His eminent ability and valuable services as a jurist ; his stainless integrity and devotion to duty as a judge, and his unblem- ished private life, endeared him to the people, and will cause him to be long remembered as one of the best men of the time in the state." The legislature adopted a joint resolution in honor of his memory, and immediately adjourned. Like action was taken by the bar of Milwau- kee, by that of the state supreme court, and by other associations, and no tribute of public honor usual to such occasions was omitted. The feeling in his home city, Milwaukee, was expressed by the leading editorial utterances of the Sentinel: "On the bench his great ability has been conspicuous. Not less manifest were his even impartiality and perfect uprightness. His logical mind mastered the principles of legal science, while his industry left no precedents unexplored. It disparages no one to say that he, of all judges in Wisconsin courts, possessed in greatest measure the eminent judicial qualities. No temptation how- ever attractive could swerve him, no personal motive draw him from the line where duty led him. We think no man ever imagined that it would be worth while to try Judge Paine's integrity. The soil will cover the bodily form of Byron Paine, and hide forever all that is mortal
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of that noblest work of God. His works and his good example shall live, and his memory will be green until all who know him follow him."
The writer of this sketch has conversed with many of the leading members of the Wisconsin bar concerning the life work and personal character of Judge Paine, and the unanimity with which they have recognized his purity, power and courage sets upon his career a stamp of approval that nothing can remove. The general verdict of all may be profitably summed up in the language used by one-Hon. Winfield Smith-who was an intimate personal acquaintance of the dead jurist, and had means of knowing him not open to many of his associates. "As a young man," said he, "Judge Paine was simple, almost rustic, in ap- pearance and manners. His father and brother were more so, but Byron had a natural refinement which modified his appearance and intellect more and more as he grew older, and distinguished him conspicuously from the other male members of his family. He was about five feet ten inches in height, with solid frame and rugged features, hale, hearty, of' ruddy countenance, light hair, massive forehead, of a most kind heart, pleasant temper and cheerful disposition. The logical quality was the promising feature of his intellect. The straightforwardness of his argu- ment was its chief force, and the perfect integrity which ennobled his moral nature was also delightful to distingush in his mental operations. He was an honest reasoner, and the strength of his faculties was such that no one who grappled with him in discussion ever afterwards under- rated them. He was supposed by some lawyers at the outset of his judicial career to rely exclusively upon his own arguments, and was derided as too disrespectful of authority; but the injustice of this cen- sure became, before long, apparent. In truth, Judge Paine was discov- ered by those who had to do with him to have a memory as remark- able as his power of logic; and it has been my good fortune to hear him quotethe names and the facts of the individual cases which he had discov- ered, studied and relied upon, in cases decided by him more than a year previous. It seemed as if he never forgot the facts or the points decided in any case he once perused. His mind seemed continuously to grow and increase in strength, and prominent and able as his intellect shone
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before the bar of this state at the time of his death, no one could doubt that, had he lived to the age which his splendid physique would have seemed to give him title, he would have grown to be one of the greatest of American judges. He was free from passion and prejudice beyond most men, and to him candor and simple fairness were innate. He was bound by no shackles which he needed to throw off, and his whole vigor could be readily given to the mere intellectual disposition of the judicial question before him for solution. As soon as he came to be known to the members of the state bar, there arose for him an esteem which con- tinually increased. He had a kind heart, which displayed itself in un- broken amiability and courtesy. The strenuous discussions which he sometimes had with others, even among the colleagues on the bench, upon legal questions before them for decision, were purely of an intel- lectual character, and were so conducted as to enhance rather than di- minish their mutual regard. It seemed impossible that he could have an enemy, and it was impossible that he should be the enemy of any man. He was not ruled by excessive passions or desires, and while clear in his views, while his opinions of right and wrong were clearly defined, while he was practical and, therefore, earnest, zealous when the consideration of great matters aroused him, yet, if thus warmed by the fire of patriot- ism, or by his hostility to slavery, he seemed never to be wrought up to the point of personal bitterness; and the ardor with which he discussed these questions seemed to leave behind no trace of malice."
The belief held by some that Judge Paine depended too little upon precedent and had no great respect for the opinions of jurists before his time, seems to be effectually disposed of by a consideration of his actual course in that regard. No man was more capable of understanding him as a jurist, or in describing his peculiar bias of mind as a thinker, or his course of action in the administration of the law, than Justice Cole, who sat upon the bench by his side, and has embalmed his estimate in the legal history of the state. In that memorial he has said: "The question as to Judge Paine's eminent qualifications and fitness for this position is settled finally-conclusively put to rest-by the published decisions of the supreme court. These will abundantly
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vindicate, it is believed, so long as they exist, his reputation and char- acter as an able, independent and incorruptible judge. Causes of great difficulty, magnitude and importance have come before the court while he was upon the bench, have been determined and have passed into judgments. The record is therefore made up; so far as he is concerned it can not be changed; and his judicial fame and merit may rest upon it as it is. His friends should be willing, as they doubtless are willing, to let his published opinions decide the matter. Do not these opinions show patient and careful examination; laborious research and investiga- tion; a proper deference to authority; just discrimination of adjudged cases; a clear and firm grip of sound principles? Do they not show that he at least sought to decide causes according to the well estab- lished rules and principles of law, impartially, justly, without regard to person or party or any unworthy consideration? That he made mis- takes and sometimes fell into error is no more than saying that he had the infirmity of our common human nature. It is impossible to get a just idea of his strength and ability as a judge from any one of these opinions. Those upon the true limits and principles of taxation and upon questions of constitutional law seemed most fully to call forth the resources, as they taxed most severely the powers, of his mind. Many of his opinions might be cited as fine specimens of judicial reasoning, and clear, persuasive argument. The remark was sometimes made that he was too little inclined to follow in the beaten path of the law-to. stand super antiquas vias. If by this was implied that he had not such a blind reverence for authorities that he dare not question an unsound decision which had the support of a great name, or any number of them, the remark was undoubtedly just. He certainly had but little idolatry for mere precedents, as such, which violated correct principles. His mind was critical, but not revolutionary. He laid no violent hands upon the great systems of equity and common law jurisprudence which the great sages of the past have left us. But he realized that those systems, however wise and excellent, were still not perfect. They will bear im- provement, and must at times be modified to adapt them to the wants of a highly refined society, and a new condition of things. What wise
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jurist thinks otherwise? He also had a just appreciation of the respon- sibilities of his office. He knew that an independent, pure and intelli- gent judiciary was a sheet anchor of our institutions; and, as far as he could, he labored to render 'it all that, in this state. No one will say that the fountains of justice were polluted by him."
In his personal character, Judge Paine was frank, fearless, sympa- thetic and true. His life was stainless; and united to his great ability was a warm affection for those near him or dependent upon him. He was possessed of rare culture, read the German as readily as the English, and in a time of leisure accomplished the translation of a German poem in a manner showing not only a close knowledge of the German tongue but the possession of the poetic faculty in no mean degree. He read much outside of the books of his profession, and the judicial quality in his character led him to believe that there were two sides to a question, and caused him to look at the other side. This course led him to doubt, in spiritual matters, much that those about him believed, but never to scoff at or deride a faith that was not possessed by him. He was fond of nature and of outdoor sports, and with gun in hand spent many hours of leisure in the woods about Madison or Milwaukee. His life as a unit, was wholesome, true, high-minded, and given more to the service of others than the advancement of himself. There is no lack of men who can lay claim to many of the high and noble qualities possessed by Byron Paine, but there are few who hold them in so bountiful a degree, and in whom can be found so little that friendship could condemn or love desire might be cast out.
The vacancy caused by Judge Paine's resignation was filled by the appointment of Jason Downer, who served from November 15, 1864, until September II, 1867, when he resigned, and was succeeded by Judge Paine, who was appointed by Governor Fairchild.
CHAPTER VII. THE SEPARATE SUPREME COURT AND ITS JUDGES. (Continued.)
JASON DOWNER.
"Jason Downer was born at Sharon, Vermont, September 9, 1813. His father was a wealthy farmer, as wealth was counted in those days. He remained at the homestead farm until he was nineteen years of age. He then entered Kimball union academy at Plainfield, New Hamp- shire. In 1834 he entered Dartmouth college, and graduated in 1838. He soon afterwards went to Louisville, Kentucky, where he studied law and was admitted to practice. In 1842 he removed to Milwaukee. About that time the Milwaukee Sentinel was established. Mr. Downer was one of the original proprietors of the paper, and for about six months he filled the editorial chair. He retired from that position in favor of Gen. Rufus King. Thenceforth he devoted himself to the prac- tice of the law.
"In November, 1864, he was appointed an associate justice of the supreme court in place of Byron Paine, resigned, and the following spring he was elected to that position for a full term. He participated in the labors of the court until September II, 1867, when he resigned. (His death occurred September 1, 1883, at Milwaukee.)
"His judicial career, including a brief period when he occupied the circuit bench, by appointment to fill a vacancy (in 1869), did not exceed three years. But it was long enough to establish his standing as a learned, industrious and able jurist.
"By far the greater portion of his active life was spent in the practice of law in Milwaukee county. At the Milwaukee bar his powers were formed; there they were put forth in their full vigor for more than
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thirty years; there he acquired the professional distinction that led to his elevation to the bench; there he earned the greater part of his for- tune. He returned to the Milwaukee bar when he laid by the judicial ermine, and he was a member of, that bar down to the day of his death.
"As a lawyer he was distinguished for the extent and depth of his learning, for the soundness of his judgment, and for professional dili- gence and fidelity. As an advocate he was strong and convincing, whether dealing with questions of law or fact. If he lacked the elo- quence and magnetism of Ryan, Arnold and Carpenter, or the in- genuity and originality of Byron Paine, the deficiency was well sup- plied by the soundness and extent of his learning and the clearness of his views. His arguments were seldom ornate, never florid, but always direct and to the point. As an adviser he was cautious and conser- vative, not given to raising false expectations, never blind to the strength of the adversary's case, and never tempted into that wild pro- fessional partisanship so apt to injure the cause which it espouses. In short, his cases did not run away with him. He was, therefore, justly considered among the safest of advisers. It was mainly this quality that built up for him a large practice and an enviable fame. His clients felt secure in his judgment, his learning, and his industry. He was chary of promises of success, and was apt to accomplish more than he pre- dicted.
"As a judge his record was made here. I need not say to this court that it is an honorable record .. The reports of his opinions are redolent of deep learning and vigorous thought. They are models of clearness and conciseness. He was the organ of the court in the promulgation of some of its important decisions, and the court has never, I believe, been embarrassed by any looseness or redundancy in his manner of pro- nouncing its judgments. It is surely better that one's style should be colorless than that it should be colored by prejudice or whim, or dark- ened by uncertainty.
"In his business relations his thrift and his integrity went hand in hand. He accumulated a handsome fortune, but wronged no man. In all his business ventures his caution and his enterprise were happily
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balanced. He was not afraid of large and complicated undertaking's, and he was not reckless or thoughtless in small and simple matters.
"It is but justice to add that although he made little public show of any non-professional attainments or accomplishments, he was in fact a ripe scholar and a diligent student of the ancient and modern classics.
"In his domestic relations it is enough to say that he was above reproach. He leaves behind him a well earned reputation for probity, diligence and ability. The disposition which he made of his large estate in his last will and testament may well serve as a model for other rich men. Without neglecting any of the claims of kindred and friends, he remembered in a munificent manner an institution of learning* in which he felt an interest, and did not couple his gift with any of those absurd and crotchety conditions which often make such a bequest a burden rather than a help."i
In responding to the memorial of the Milwaukee bar and the address of Mr. Johnson in presenting it, Justice Cole said that the tribute of respect paid to the professional attainments and judicial character of Judge Downer seemed to him just and well deserved. He also said: "I did not know Judge Downer before I took my seat upon the bench. Indeed, I did not become intimately acquainted with him until some time after that. He was rather retiring in his habits, and it was not easy to become well acquainted with him. But when one had broken through his reserved manner, and knew him well-as I think I did- it was found that he was not the cold, unsocial being, the human icicle he was often taken to be. He possessed strong affections, active sympa- thies, and had great kindness of heart. From the time I first met Judge Downer, until he took his seat upon this bench, he had a large practice in this court. I understood also-and such no doubt was the fact-that he had a large and lucrative practice in the other courts of the state. It
*The Wisconsin Female College, formerly located at Fox Lake, now known as the Milwaukee-Downer Female College and located in Milwaukee.
¡The foregoing is the substance of the address of D. H. Johnson (now Judge Johnson of the Milwaukee circuit) in presenting to the supreme court the memorial of the Milwaukee bar on the death of Judge Downer.
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is entirely safe to say that for some years before I knew him, certainly after that time, he was an able and successful lawyer, recognized by the members of the Milwaukee bar as a wise counselor and one of its strong men. One who had any acquaintance with that bar twenty-five or thirty years ago, who knew its leading members, need not be reminded of what is implied in that simple statement -- need not be told of the earnest effort, the continued application which a lawyer had to make to attain such a position, even when aided by the possession of strong in- tellectual powers. As many of the bright and remarkable men who then were numbered in its ranks have passed from earth,-beyond the reach of all flattery and praise,-I hope it will not be deemed improper or indelicate for me to add, that the Milwaukee bar twenty-five or thirty years ago was a galaxy of brilliant and eminent lawyers and advocates. It was with no little feeling of state pride that I heard, more than twenty years since, a then-as now-distinguished judge of the supreme court of the United States declare, when speaking to me about that bar, that there was no other bar in his circuit which could be compared with it in forensic ability, sound legal attainments, and genuine eloquence. It was with such rivals that Judge Downer, in his practice, came in con- flict and had to measure his strength. To acquire professional distinc- tion and win fame and success in competition with such able antagonists put in requisition great research and industry and all the resources of a well-disciplined and strong mind. But Judge Downer acquired em- inence at the bar, where every day and at every step, his claim to distinc- tion was certainly challenged, and which he could only make good by the best proof.
"He was a hard student and exclusively devoted to his profession. The prizes of political life did not excite his ambitions or have attraction for him. And he gave his whole heart and soul and energy to the study and practice of his chosen profession. They seemed to be his delight by day and his solace by night. The law is said to be a jealous mistress, who will tolerate no rival. As a rule she certainly bestows her highest favor, her brightest honors, upon those who court her most assiduously and with the most unwearied devotion. This Judge Downer did do;
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consequently he became and was acknowledged to be a thorough and profound lawyer. In his arguments before this court he never indulged in any declamation or in fine speaking, but addressed the understanding and reason. His efforts were never enlivened by any flashes of wit or humor, nor embellished with any eloquent and rhetorical language. His arguments were plain, clear, forcible and learned. His manner earnest, direct,-at times, owing to the strength of his convictions, almost dog- matic. But when he closed his argument you were sure to have an exhaustive discussion of the law and facts on his side of the case, all pre- sented in a lucid order with great clearness and force of reasoning.
"On Judge Downer's appointment to this bench he brought into exercise the same useful and laborious habits, patient industry, and care- ful examination of causes, which had characterized his practice at the bar. He conscientiously investigated each case for himself and mas- tered all its facts. He had great respect for authority, and wished to walk in the old paths of the common law, super antiquas vias legis. He had a strong sense of justice, and thought the rights of parties would be most fully protected and secured by a rigid adherence to settled prin- ciples. Some thought he was too technical and did not sufficiently ap- preciate the necessity for new rules or the modification of old rules to meet the demands of modern society and its ever changing business re- lations.
"The opinions which he delivered from this bench are well described in the memorial as being distinguished for the soundness of their logic, the depth of their learning, and as safe and valuable precedents and ex- positions of the law. He remained upon the bench about three years, during which period he left in the published reports an enduring monu- ment to his industry, discrimination, and exact and comprehensive learning. To say that he was honest and impartial in the discharge of his duties as judge may be faint praise, but it is true nevertheless."
William Penn Lyon was appointed to the vacancy caused by Judge Paine's death, and qualified as associate justice January 20, 1871.
non
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WILLIAM P. LYON.
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