USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 2
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58
Sheffield, William F 301
Sheldon, William B 83
Shepard, Charles E. 302, 567
Shepard, Thomas R
302
Shepard, Haring & Frost.
.568
Sholes, C. Latham
.285, 292
Silverthorn, W. C.
205
Simmons, James, 283, 300. 301, 302, 313 (Biog. 376-377).
Simpson, P. B .307
Sloan, A. Scott. 102, 123, 278, 279
Sloan. Ira C ... 278, 279
Small, David W.
.383 (Biog. 38S)
Smith. Abram D., 29, 30, 86, 94, 107, 108 (Biog. 110-112), 119. 123, 133, 137, 268, 300, 308, 395, 396, 471.
Smith, Amos A. L., 440 (Biog. 523-525), 552 Smith, A. Hyatt 113, 234, 270, 272 Smith, Edwards P .441 (Biog. 522-523) Smith, George B .86 Smith, Rufus B ... 594
Smith, William
66. 234
Smith, William E .. 114. 184, 234, 235. 236, 409. 410.
Smith. William R ..
86
Smith. Winfield, 126, 146, 150, 339, 453, 455,
456, 524 (Biog. 550-566).
Somers, Peter J
597
Spence, T: W.
580
Smith & Palmer
470
Smith & Salomon
.453, 455, 570
Smith & Stark.
552
Smith, Winfield & A. A. L. .524, 552
Spencer, E. A
298
Spooner, John C.
.297, 298, 315, 331
Spooner, Philip L.
.268, 300
Spooner, Roger C.
.266, 288, 299
Spooner & Bardeen
.266
Stark, Joshua, 61, 81, 339, 343, 388, 389, 396,
397 (Biog. 400-465), 479, 526, 552, 562, 567.
Starr, Merritt
.302
Story, Augustus
82, 282, 283
Stow, Alexander W., 85, 86 (Biog. 87-92). 9C, 220, 571.
Street, William
234
Strong, Marshall M., 82. 86, 282, 283, 285, 244 (Biog. 379-381).
Strong. Moses M .. 73, 75, 76, 86, 104. 224, 319, 320, 321, 328, 330, 379, 394, 400, 480.
Sutherland, George E
206, 416
Sutherland, George G.
234
Sutherland, J. G.
309
Sweet, Alamon
83
Tarrant, Warren D
.590 (Biog. 595-596)
Tarrant & Kronshage.
.595
Tarrant, Kronshage, McGovern .& Diel- mann, 595.
Taylor, David. 119, 186 (Biog. 204-213), 215, 246, 268, 286, 287. 288, 293, 294. 315. 320, 327, 372, 420, 427.
Taylor. H. J
.546
Taylor, James B
126
Taylor & Hiller.
.204
Tenney, H. A
305
Tenney, Henry W
86
Thomas, O. B
315
Thompson, A. M.
491
Thornton, W. W
306
Tiedeman, C. G.
306
Todd, Samuel J
.206, 286, 287, 372
Tolman, Edgar B.
.349
Toohey, Doerfler & Gilmore
.594
Toohey. Morse & Gilmore .594
Towne, J. P.
266
Tucker, LeRoy
278
Turner, A J ..
233, 591
Turner, H. G. & W. J.
.541
Turner, T. G.
167
Tweedy, John.
.340
Tweedy, John H
81, 82
Upham, Don A. J., 339 (Biog. 486-492), 548. 577.
xvi
PERSONAL INDEX.
Upham, Horace A. J., 343, 492 (Biog. 548- 550), 571.
Upham & Graham .577
Van Buskirk & Hayes. .369
Van Dyke, George ' D., 343, 450, 534, 575 (Biog. 581-582).
Van Dyke, John H ..
339 (Biog. 447-451)
Van Dyke, William D.
450, 534, 575, 581
Van Dyke & Emmons. ... 448
Van Dyke & Van Dyke
532, 575, 581
Van Dyke & Van Dyke & Carter, 450, 532,
534. 575, 582.
Van Valkenburgh, Frank B .... 329, 331, 597
Velten, Jacob. .435
Vilas, Edward P., 314, 343 (Biog. 506-507), 524 Vilas, Levi B .251, 506
Vilas, Levi M ..
.327
Vilas, William F .. 182, 186, 206, 207, 224, 288, 289, 301, 315, 319, 320, 331, 480, 481, 507.
Vilas & Bryant. .507
Vilas & Remington .251
Vilas, Roys & Pinney.
.251
Wahl, George H. 433 (Biog. 521-522) .520
Wahl. Jacob
Wakeley, E.
.363
Walker, George H. .429
Walker, Isaac P. .168
Walker, Brown & Wahl. .521
Waldo, Otis H., 338, 339, 343 (Biog. 451-452), 554, 557.
Wallber, Emil. 521
Walworth, Clinton. 83
Warvelle, George W. .306
Washburn, C. C .71, 109, 114, 348, 434
Washburne, Elihu B
46, 233
Watkins, Charles K.
137
Webb, Charles M.
260, 315, 515
Weeks, T. D. .320
Weil, Paul M. .545
Wells, C. K.
.339, 549, 550, 571
Wells, Daniel
562
Wells. Horatio N., 67, 80, 82, 83, 99, 339, 340,
444.
Wells & Brigham. .549
Wells, Brigham & Upham, 549, 550, 571, 610
Wells, Crocker & Finch. .340, 444 Wentworth, John T., 356 (Biog. 356-357), 377 West, F. H. .589
West, George S
83, 430
Wetherby, Lucien P. 114
Wheeler, E.
307
Wheeler, L. C. 588
Wheeler, L. G. 588
Wheeler, N. W.
262
Wheeler, William G. 291
Wheeler & Marshall. 262
Whipple, William G
494 (Biog. 531)
Whitehead, John M.
291
Whiton, Daniel G. .92
Whiton, Edward V., 29. 30, 78, 85, 86, 87 (Biog. 92-96), 99, 101, 104, 107, 108, 115,
118, 119, 121, 122, 244, 268, 272, 275, 276, 277, 278, 282, 344, 345.
Whiton, H. K ..
107
Wight, William W., 303, 305, 313, 343, 428 (Biog. 504-506).
Williams, Amzy L. 86
Williams, W. C .343, 526,- 598
Wilson, A. O.
234
Wilson, William K
97, 169, 396
Winans, John
234
Winsor, H. S.
.608
Winkler. Frederick C., 27, 111, 126, 205, 233, 320, 343 (Biog. 438-440), 524.
Winkler, Flanders, Smith, Bottum &
Vilas, 440, 506, 525, 592.
Winkler, Smith & Vilas.
.525, 530
Winslow, John B. (Biog. 246-250), 344, 350, 358, 481, 580.
Woodle, Isaac.
.95, 107
Woodman, Aaron
.83, 84
Woolworth, James M.
.. 363
Wyman & Johnson
.391
-
. 13. borday
HISTORY OF THE BENCH AND BAR OF WISCONSIN
CHAPTER I. 1
OUR MAGNA CHARTA AND SOME OF THE STEPS LEAD- ING TO ITS ESTABLISHMENT.
BY JOHN B. CASSODAY.
The most important things in life are generally the most common. The most common things in life are generally the least appreciated. Thus seed time and harvest, summer and winter, day and night, earth and air, fire and water, are indispensable to happiness, and yet. com- paratively few who enjoy, daily return grateful acknowledgment to the munificent Giver.
In a limited sense, the same is true in respect to some things insti- tuted by men. Among such institutions, none stand out more promi- nently than government; and yet, comparatively few fully appreciate that the absence of government implies the presence of confusion, dis- order, anarchy, terror and unrestrained crime.
The experience of the ages has demonstrated the necessity of some kind of government. This has led to the assertion, in many different forms, to the effect that any government, even the most arbitrary and corrupt, is better than no government. This necessity is the result of the savagery and brutality so common among unregenerated, unrefined, uneducated, uncivilized humanity. Actuated by envy, the first born of the race deliberately murdered his own brother, because he was better than himself. The family of Jacob must have been as well trained as 1
-
6
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
any in his section of the country, and yet for a supposed personal ad- vantage, eleven of his sons sold one of their brethren into cruel slavery. If diseases are the result of sin, then their prevalence and variety sug- gest a multitude of sinners. From the beginning of the race in every generation and in every climate, down to the present moment of time, the unrestrained passions and animalism of men have been productive of sorrow, pain, suffering and death-not only in countries where bar- barism has reigned, or anarchy has become triumphant, but, at times, in the most civilized and refined nations of the earth. In the infancy of the race, there were but few to govern and they were more or less scattered; and there was only occasionally one with any capacity for government. As the people multiplied, government of some kind was absolutely essential to secure order and the lives, the liberty and the property of the weak and innocent, from those who were strong. brutal, desperate and wicked. In studying governmental evolution, it is, in the language of a recent writer, "a prevalent error to over- estimate intelligence, and under-estimate instinct."
A government may have originated with a single individual-a select few or a convention of many. It may have been instituted by gradual reconstruction, or by revolution, or even by usurpation-and then maintained by military despotism-yet the necessity for its con- tinuance until supplanted or superseded by some other government, is imperative.
Fortunately, most of us have inherited a government already made. Some have it by adoption. As American citizens, we may be prone to unduly praise our system of government, and hence should proceed with caution. The European statesmen and political writers have no such prejudice. More than fifty years ago, and while men were held in bondage in half the states of our Union, De Tocqueville paid a glow- ing tribute to our government-especially its judicial department-and particularly referred to the centralization of national power as being balanced by the decentralization of national administration.
Mr. Bryce frankly says: "The constitution (of 1788) deserves the veneration with which the Americans have been accustomed to regard
7
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
it. . After all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity and precision of its language, its judicious mixture of definiteness in principle with elasticity in details."
Mr. Gladstone says that, "as the British constitution is the most subtle organism which has proceeded from progressive history, so the American constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." With such acknowl- edgments, coming from such sources, it would ill become an American citizen to under-rate its intrinsic excellence and efficiency. But that great English statesman is too familiar with the elements of the Ameri- can government to mean, by the words last quoted, that this nation was conceived and born in a day, or that it emanated wholly from the brain of one man or one body of men. On the contrary, he undoubted- ly agrees with his liberal friend, Mr. Bryce, in saying: "There is little in that constitution that is absolutely new. There is much that is as old as Magna Charta." Or, as Mr. Webster expressed it in his great argument in the Rhode Island case: "Our American liberty . . has an ancestry, a pedigree, a history. Our ancestors brought to this con- tinent all that was valuable, in their judgment, in the political institu- tions of England, and left behind them all that was without value, or that was objectionable." In other words, whatever may be our views respecting animal evolution, all thoughtful and discriminating students of history must agree that there have been running through the ages moral evolution, religious evolution, social evolution, and governmental evolution, and that the American Republic, as it now stands, is the highest governmental result of all such evolutions.
But there can be no such thing as government without the right to govern. "There is and must be in all" forms of government, said Blackstone, "a supreme, irresistible, absolute, uncontrolled authority in which the rights of sovereignty reside." The same author tells us, in effect, that political writers of antiquity allowed only three regular forms of government; and that all others were modifications
8
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
of those three: I. Democracy, where "the sovereign power is lodged in the aggregate assembly consisting of all the free members of a community;" and hence, where public virtue and good intentions are most likely to be found; and therefore it is "usually the best calculated to direct the end of the law," but "frequently foolish in their contriv- ance, and weak in their execution." 2. Aristocracy, where the sover- eign power "is lodged in a council, composed of select members;" and hence, there is more wisdom to invent the means for carrying the de- sired end into execution; "but there is less honesty than in a republic, and less strength than in a monarchy." 3. Monarchy, where the sover- eign power is lodged in a single person; and, hence, most powerful for carrying its mandates into execution; "but then there is imminent danger of his employing that strength to improvident or oppressive purposes."
But the governments of our times are of many varieties. In most, the governing power seeks its own advantage merely, instead of the advantage of the whole state-which, according to Aristotle, marks the distinction between the bad and the good. Obviously, that form of government is best which stimulates and secures the greatest amount of intelligence, wisdom, industry, honesty, public virtue, liberty, pa- triotism, benevolence and charity to the unfortunate, with sufficient strength and concentration of power to maintain order and domestic tranquillity, and at the same time command respect among the great powers of the earth.
Such being the purposes of government, it is very manifest, that the government and people of any country should be adapted to each other. Thus a country in which a large proportion of the people are intelligent, virtuous and wise, may, and should have a higher, and hence, a more complicated system of government, than a country in which the great mass of the people are ignorant, vicious and foolish. It is still true that ignorance and stupidity sometimes are found in houses of wealth and royalty, as well as in the abodes of poverty and helplessness.
Only a few years ago it was found on attempting to build a railway in one of our western territories, that some of the inhabitants were
9
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
so ignorant that they had never seen or heard of a railroad train or a railroad; and had no conception of their operation. If such ignorance is possible in this last half of the nineteenth century, here in the United States, where religion is unrestricted, where common schools are free, where speech is free, and where the press is free and newspapers are spread broadcast throughout the country daily, then what must have been the ignorance of the great mass of the people during the forty centuries preceding the Christian era, and even since, especially before the art of printing was discovered.
Had one language always pervaded the whole earth, universal ig- norance would, probably, have been more likely to prevail, but the coll- fusion of tongues at Babel and the diversity of languages which fol- lowed, compelled men to study in order to communicate with each other.
True, during the dark periods mentioned, intellectual and spiritual lights of more or less brilliancy appeared from time to time on the Nile, in northern Africa, along the Euphrates and the Tigris, in Pales- tine, Macedonia, Greece, Rome and other places-nevertheless, the great mass of men must have been unfit to perform any of the functions of government, except, perhaps, to pay tribute and perform services in peace and war.
Under such conditions the only government possible was necessari- ly simple in its form and direct in its operations. Obviously, the most simple government is the arbitrary rulership of a single individual, whether he is called patriarch, chief, governor, king or monarch.
But a single individual could never govern a vast multitude, occupy- ing an extensive country, except through subordinates. The use of such agencies necessarily developed the agents, and frequently they became superior-morally and intellectually-to the rulers themselves. Such schools of experience tended from time to time to influence and control rulers; and even to modify and change forms of government; and hence, oligarchies, aristocracies, and democracies in the fullness of time and in certain places, made their appearance.
But as the boy never learns to swim until he has been allowed to
IO
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
go into the water, so the mass of the people in olden times remained ignorant of the functions of government, because they had no partici- pation therein, except as subjects rendering service or paying tribute.
Such oligarchies, aristocracies and democracies were generally de- veloped on the shores of navigable waters, or where commerce had otherwise been established. Nevertheless, they were simple in their conceptions, and rude in their methods of execution. But it has always been found difficult to govern a great multitude of people, even though excessively ignorant, by mere brute force; and so the theocratic prin- ciple early made its appearance in Africa, Asia and Europe. It was not the personality of Moses or Joshua that controlled the wandering Israelites, but the voice of God back of them -. the history of Joseph, the dividing of the waters, the safe deliverance, the cloud by day and the pillar of fire by night, the water from the rock, the fire in the bush, the manna in the wilderness, the flowing back of the waters of the Jordan.
The one man who chased a thousand was not alone. The monarchy of wicked Saul seems to have been divinely appointed, but it was also divinely improved by David. Solomon prayed for "wisdom and knowl- edge" to govern his kingdom, and the prayer was granted, but at times he lacked the requisite force of character to govern himself.
Alexander at the head of his army and with conquest in his heart would demolish Jerusalem, but the appearance of the high priest on the border of the city made him conscious of his own inferiority, and he instinctively bowed to the earth in humble reverence of a power higher than armies.
Dogs were worshiped by the Egyptians, but held in contempt by the Jews.
Plato's communistic republic was wisely rejected by Aristotle and would certainly be unsuitable for the English people at the present time, and much more so for the American. In the time of the Cæsars, Roman citizenship was a good thing to have, especially for one away from home and in trouble, but it was too exclusive; and not of the kind to form the basis of a republic like these United States.
II
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
The fundamental conditions for the coming republic, with equal rights secured to all before the law, were education and moral and social culture of the great mass of the people, and graded participation in the functions of government. To effectuate such a purpose, radical changes were essential in the prevailing ethics of the times-the re- lations of men to their Creator, the relations of men to each other, the relations of men to the church and to the government.
But the requisite seeds were sown in Palestine, along the banks of the Jordan, on the shores of Gennesaret, and in and about Jerusalem. The passions and brutality of men were to be supplanted by spiritual agencies. Ambition for ecclesiastical glory was to be superseded by a love of sacrifice for the poor and the needy. Ambition for civil magis- tracy and temporal power was to be subordinated to that patriotism and philanthropy which would die for country and for fellow man. Egoism and selfishness were in due time to yield to Altruism and chari- ty. The word neighbor was to have a new significance; and the golden rule of doing unto others as we would have them do unto us, was, in due course of time to be translated into equality for all men before the law and thus to become the rock upon which the coming republic was to be founded.
But these principles were not to become dominant through arbi- trary enforcement by civil or ecclesiastical power; but by voluntary acceptance through the persuasive influence of the home, the church, the school, the teachings of patriotic statesmen and social and Christian philosophers.
These germinal principles in the hearts of men gradually tended to transform the civilization of Europe and the world.
To trace their operation and the several advances made would be to give in detail the history of nations, of wars and of the feudal system, the history of municipalities, the history of the corporate church with functions and revenues of its own, the history of Christianity, the history of theocracy, monarchy, aristocracy and democracy-and how the principles of each of these resisted, crossed, jostled and modified each other. Of course the advance was irregular and at times spasmodic,
12
HISTORY OF THE BENCH AND BAR OF. WISCONSIN.
but when numerous centuries are contemplated as a whole, we discover that in some way the old barbarian monarchies were superseded by religious monarchies, and religious monarchies by imperial monarchies, and imperial monarchies by limited or constitutional monarchies, and constitutional monarchies by oligarchies or aristocracies, and aristocra- cies by pure democracies, and democracies by firmly established con- stitutional republics.
War is always cruel, but at times it is the only way of opening the door to knowledge and breaking down the partition walls of bigotry and conceit. The crusaders found the society of the Musselmen, as well as of the Greeks, in advance of their own. If the theocratic despotism of China has been weakened by the penetrating shot of the Japanese soldiers and what has since occurred, it is well.
The free corporate cities between the eleventh and sixteenth cen- turies, in France, in Holland, in Germany and to the north, afforded the mass of the people an opportunity for participating in the functions of government. True, the great mass of the people within the walls of any city, were, comparatively, ignorant, brutal and savage, with no proper guarantees of order or continuance; and with no established government, yet each was acting under the sanction of an oath; and when magistrates were to be chosen, or important questions of local concern were to be determined, the inhabitants were all summoned to the public square by the tolling of the great bell, and the question at issue there decided by democratic vote. But classes grew up and the spirit of mob violence became furious; and more stable forms of gov- ernment became necessities. The chartering of free corporate cities prevailed in England. Thus on August 28, 1207, King John granted a charter to Liverpool, whereby that city was to have the liberties and free customs of any free borough; and eight years afterwards the same were guaranteed, not only to Liverpool, but to London and other cities, by Magna Charta.
The Crown had started out as an absolute monarch. But six hun- dred and eighty-two years ago the 15th day of last June, the enraged people, and the great body of the nobility of England, under the com-
I3
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
mand of Robert Fitz-Walter, with the flaming title of "Marshal of the Army of God, and the holy church," notwithstanding the Pope had taken part with the King against them, met King John with his lay and spiritual advisers at Runnymede, between Windsor and Staines; and agreed upon that Magna Charta, and affixed their signatures to the same, thereby guaranteeing, among other things, the "unwritten liber- ties"-secured by the common law-also certain property rights-the free ingress and egress to all traders, unless openly forbidden, free writ of inquisition, as to life or limb-and, in effect, that no man should be deprived of life, liberty or property without due process of law. As strange as it may now seem, eighteen niches between the windows in the House of Lords-the special guardian of the Crown and the Aris- tocracy-are occupied by the statues of the Barons who aided in ex- torting that Magna Charta from King John.
By the progressive constitution of that country, the powers of the Crown were, from time to time, gradually diminished; and the personal rights of the people, and the powers of Parliament-especially the House of Commons-gradually increased and strengthened. Thus, there was finally secured to Englishmen something of that individual liberty which had previously been contended for by the barbarians of Germany.
Much of such progress in the British constitution has been since the American revolution; and largely by reason of the establishment of the American republic.
As all students of history are aware, the island of Britain had been settled by numerous races having different habits, customs and lan- guage. The mixture of these races was necessarily followed by a com- mingling of thoughts, customs, manners and laws. The Roman civil and canon laws were there in advance, and prepared the way for the common law, which afterwards became dominant on the island.
Of course that law was, at first, merely traditional and fragmentary, and consisted of but little more than a rude method of settling con- troversies according to recognized principles of right and justice, in- stead of some arbitrary power. The old Anglo-Saxon lawsuit was not
14
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
by a court and jury as now, but by all the attendant freeman of the hundred, or the county, as the case happened to be; and the trial con- sisted in the main of wrangle and contention. In the early history of England, the King was the source of all power, but in due course of time Parliament was instituted and the King was required to take an oath to submit to the laws of the realm, and then courts were estab- lished, the rules of their proceedings prescribed, and their judgments and reasons for the same entered of record for the benefit of all. The common law and its administration, as a schoolmaster and educator, is rarely comprehended and never over-estimated. It probably impelled Lord Chancellor Francis Bacon to reduce to a system the inductive method of reasoning which has done so much to revolutionize the thought of the world. As the commerce of England opened up new and innumerable industries and avenues of trade, the common law, with its benign influence, kept pace with and stimulated them, and thus its dominions gradually became broadened, strengthened and purified. Undoubtedly it has been a potent factor in many of the reformations and social advances in Great Britain and America.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.