USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 22
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examine or review at length the judgments which he gave, and I for- bear to do so.
"The last visit I was permitted to pay the chief justice was at his residence about a fortnight before he died. It was in the early part of the forenoon when I made my call, but he was dressed and received me at the door. At his invitation I entered his room and had a sad but friendly chat with him. I could see at a glance that disease was mak- ing great inroads on his constitution. But his voice was strong, and other indications of vitality led me to believe and hope that he would live some weeks, possibly some months. His mind seemed clear, but was occupied by subjects not pertaining to this life, but those relating to a future state of existence. He had upon his mind the old question which has perplexed mankind in all ages; a question asked by the pa- triarch Job in that wonderful discussion with his friends on the far dis- tant plains in the east; a question possibly asked by thousands of the sons and daughters of Adam before Job's day; and certainly a question asked by many thousands of them since his day, and one that will continue to be asked, I know not how long nor how often, but as long as man shall speculate as to his final destiny; and that was, 'If a man die, shall he live again?' This question seemed to engage his thoughts, or lie upon his mind. Of course, I could give no new answer to the question, nor throw any new ray of light upon it, nor was I able to solve any of his doubts or remove any of his difficulties. His observa- tions seemed to call for some reply, and I made the commonplace re- mark, trite, but true, as I believe, that we are the children of a Creator of infinite love and mercy, one who gave us life and prepared this world for us with all its possibilities of happiness; and if, in His wis- dom, it was for our permanent welfare that our spiritual nature, our moral and intellectual being, should survive death and the tomb, I was confident our Creator had so ordered from the beginning, and it might suffice to rest the matter there. After a few words further, we parted, I going my way of life, and he, in a very few days, 'going to his long home, and the mourners go about the street.' "
During the day on which the supreme court took formal action on
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the death of Judge Orton exercises in memory of Moses M. Strong were had. In the course of his address concerning the career and character of Mr. Strong, William F. Vilas thus spoke of Judge Orton:
"The late chief justice was the judge of this circuit when I came to the bar, and before him my fledgling efforts were put forth. Deeply and tenderly now, as 'many a time and oft,' I recall the gracious kind- ness with which he tolerated my crude beginnings, and, with justice not less than with considerate sympathy, guided the righteous cause to a righteous success. Himself long triumphant in the struggles of the bar, and well tried in practice among that older generation whose strug- gles were often merciless as fierce, it is a testimony to the nobility of his heart that he never rejoiced in triumph over an unequal antagonist, and especially to the young lawyer whose feeble attempts might well pro- voke a smile from his power, he was ever gentle, considerate and kind. Let blessing rest on his memory for it! He shall never want that prayer while I hold remembrance.
"Nor, though I purpose no account of his powers, can I withhold my recollection of the matchless eloquence which, in his happiest moods before the panel, I have never heard surpassed.
"All genuine orators are, I suppose, unequal, as occasions vary in demand and moods in responsiveness. But of him I can truly say that the intellectual and emotional delight with which I have listened, rapt, ravished and swept away by his thrilling energy, suiting 'the action to the word, the word to the action,' I treasure the memory of to this hour.
"Great occasions have sometimes proffered opportunities to orators worthy of them, and their masterpieces are prizes among men. The occasions tendered Orton were not historic, and, as with most of his profession, his fame must rest mainly in tradition. I wish I might add to its duration by this testimony."
Mr. Chief Justice Cassoday, on behalf of the court, responded as follows:
"The several members of this court fully endorse all the good things said of our brother, the late Chief Justice Orton. He was certainly a very remarkable man in many respects. With an ambition towering
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far above that of ordinary mortals, with courage equal to any emer- gency, with an imagination excessively brilliant and grandly compre- hensive, with a heart that sympathized with all suffering and despised all shams and all meanness, with quick perceptions and a clear insight into the ordinary motives of men, with an integrity of purpose which could not be swayed by friendships or enmities, with a remarkable com- mand of language, with extensive reading and a large acquaintance with men and things, with an intensity of feeling and a vehemence of expression seldom equaled, he was born to be unusually conspicuous among men, and especially in the field of oratory and the arena of de- bate.
"Impelled by such qualities of head and heart, he left his home, his relatives, and his friends in the state of New York at the early age of nineteen, and went to Kentucky to begin the battle of life. While there, at Paris, in the vicinity of Lexington, engaged in teaching the young, he was himself being taught in courage, in oratory, and in statesmanship by the most illustrious advocate and political leader of that day-Henry Clay. Inspired by the manly presence and the per- sonal popularity of that eminent American, he was induced to study law, and was admitted to the bar at La Porte, Indiana, at the age of twenty-one. Undoubtedly his belief in, and admiration for, Henry Clay prompted many of his political and public utterances throughout his long and eventful life.
"While engaged in the practice of his profession at Valparaiso, Indi- ana, in 1839, he met a Maryland girl, and the result was mutual love and marriage a few days afterward.
"The summer before he was twenty-three he visited the relatives of his young wife in Maryland. The great campaign between William Henry Harrison and Martin Van Buren was then in full vigor. The young and ardent 'Hoosier orator,' as he was called, soon found him- self upon the stump; and he made eighty speeches during the campaign in the several states of Maryland, Pennsylvania, Virginia, Ohio, Ken- tucky, and Indiana.
"The merits of his addresses may well be imagined from the contents
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of a letter now present, dated at Chambersburg, Pennsylvania, Septem- ber 17, 1840, addressed to 'Mr. Orton,' and purporting to be written 'at the earnest and repeated solicitation of many' of the citizens of Chambersburg, 'friendly to the cause of Harrison and reform, some of whom' had heard him speak at Mercersburg, Pennsylvania, and at Hagerstown, Maryland, a few days before, inviting him to be present at a meeting to be addressed, among others, by Hon. James Buchanan, then forty-nine years of age and serving his second term in the United States senate, and the special champion of Andrew Jackson and Martin Van Buren in Pennsylvania, for the purpose of taking up and answer- ing 'their arguments.' The letter states in effect that it emanated from strangers to Mr. Orton, and on behalf 'of a large and respectable portion of his 'warm admirers as an energetic, eloquent public speaker.' and the writer says: 'Allow me, sir, to add that we know of none whom we prefer to yourself for that trust.' The tone of this letter suggests the early public efforts of Clay himself, and even those of the younger Pitt. The fact that he declined the invitation reflects credit on the judgment of one so young, without any disparagement of his courage.
"With such a make-up, Harlow S. Orton was necessarily a com- manding figure at the bar, whether practicing in Indiana or Wisconsin. Upon the dissolution of the old whig party he joined the democratic party.
"Forty years ago the coming January, as indicated in remarks from the bar, there arose in this court a controversy as to the governorship, which attracted the attention of lawyers and statesmen throughout the whole country. In behalf of the claimant there appeared as coun- sel Timothy O. Howe, Edward G. Ryan, James H. Knowlton and Alex- ander W. Randall, while in behalf of the incumbent there appeared Jonathan E. Arnold, Matthew H. Carpenter, and Harlow S. Orton. It is unnecessary to say in this presence that it was a battle between giants in which, from the first to the last, Mr. Orton was a very potent factor. Upon his death there was found among his papers a note con- taining the refrain, which he has often uttered in the presence of his
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brethren, to the effect that ex-Chief Justice Cole and himself were the only survivors of the many persons connected with that great trial.
"Six years upon the circuit bench made him restless of the confine- ment, and so he voluntarily resigned, in February, 1865, and resumed the practice of the law, which he continued until he became a member of this court more than thirteen years afterwards. During that time he assisted many attorneys in different parts of the state in the trial of causes.
"My estimate of him as a lawyer and advocate is manifest from the fact that twenty-five years ago Judge Bennett of Janesville and my- self, being confronted in an important case by a large array of able counsel, including the late United States Senator Carpenter, then in the zenith of his great national reputation as a lawyer, were author- ized by our client to select any one we desired to assist us on the trial, and without a moment's hesitation we selected Harlow S. Orton.
"In the trial of causes he seldom took any notes or made any mem- oranda, but relied upon his memory and the inspiration of the mo- ment. His tact and skill were more conspicuous in his addresses to the court and jury than in the management of the trial and the ex- amination and cross-examination of the witnesses. His sparkling wit, his biting sarcasm, his keen sense of the ludicrous, his positive convic- tion, his powers of invective, his personal magnetism, his commanding voice, and his ability to make every fact and circumstance appear favorable to his cause, all conspired to secure the attention of his hear- ers the moment he rose to his feet, in the court room or elsewhere.
"He was always very social with his friends; and during his long practice at the bar and for several years after he became a member of this court he was seen almost daily upon the streets, cordially greeting his many acquaintances and admirers.
"At the time he became a member of this court some of his friends doubted whether he could endure the protracted confinement and se- clusion, the patient, severe, and continued study and investigation, so essential to the satisfactory performance of the responsible duties of his office. But he was equal to the emergency, and applied himself to
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the work of his office with all the enthusiasm of his nature and all the energy of which he was master. He took great pride in the opinions he wrote, and was in the habit of reading them aloud to himself in order that he might the better detect any error in thought or misuse of language. Such readings were frequently interrupted by his breth- ren to prevent the premature announcement of the decision made, and on all such occasions he would rebuke himself with great emphasis for the inadvertence.
"His opinions are embraced in forty-seven volumes of Wisconsin Re- ports and speak for themselves. They will remain as his perpetual and living monument. Although he was over sixty years of age when he became a member of this court, yet he served for more than seventeen years-two years longer than Chief Justice Dixon, and longer than anyone except Chief Justice Cole and Chief Justice Lyon. During all those years, except when prostrate by disease, he performed his duties with patient industry, fidelity, and ability. In the consultation room he was, when in good health, vigorous, suggestive, and helpful. Fre- quently he would be the last to yield to the decision made, and then write the opinion, from which it might be inferred that he had no re- spect for any contention to the contrary. He had a high regard for the personal courtesies due among members of the court, and if in the earnestness of discussion and on the impulse of the moment he chanced to overstep the limits of propriety, he was thereafter quite sure to make a frank and full apology.
"Some may say he was equal, superior, or inferior to some other; but one independent personality, with fully developed brains and heart, cannot be intelligently compared with another in the language of mathematical formulas. On the contrary, the only intelligent com- parison of such men, even in the same vocation, must be largely by way of contrast. As this court has never had, and never will have, but one Crawford, one Smith, one Whiton, one Cole, one Dixon, one Paine, one Downer, one Lyon, one Ryan, and one Taylor, so it never had, and never will have, but one Harlow S. Orton. Each of these men came here by a separate pathway, with different experience and
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opportunities, and with a physical and mental make-up peculiarly his own, which resulted in an independent personality-unlike any other- and each has left his peculiar impress upon the jurisprudence of our state.
"The soul of our departed friend was highly strung and took a broad range, and was capable of touching notes far above, as well as below, the ordinary gamut. He would at times, under the pressure of intense excitement, appear as an uncaged lion, and then again as gentle as a lamb. At times he would walk the room in the presence of one or more of his brethren, and discourse with much emphasis upon some incident of the day or of his past life, or some phase of social order, or the creative powers of God, or the possibilities and probabilities of im- mortality.
"He was by nature broad, generous, and honest, but excessively sensitive, and hence was more or less affected by his environment; and so at times a change in the weather was liable to produce exuberance or depression. For many years he dreaded death as the door leading to a terrible uncertainty, but he always had a strong belief in the fatherhood of God, the brotherhood of man, and the teachings of Jesus; and during the last weeks of his life he became resigned and reconciled. He was domestic in his habits and loved his family with the most tender affection. His companion for fifty-six years of married life was to him a guardian angel.
"When I last saw him he spoke of the terrible pains he had suffered and the hours of despair he had experienced. When able, he always wrote to each of his absent children every Sabbath, and did so only four days before his death. In each of these last letters he clearly analyzed his own condition and stated what his physician had said about his malady, but apparently without any expectation of recovery. In one of them he said: 'It is a terrible life, to alternate between hope and despair.'
"On the afternoon of July 4, one of his sons and his wife, about to go out to ride, expressed to him the hope that the next time they went riding he would be able to go with them, but he shook his head. He read up to a few minutes of his last attack, and then marked the place
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where he stopped. Soon after he told his wife he was liable to faint and what to do in case he did so. He then rose from his chair, said he was a 'pretty sick man,' lay down on the bed, and expired soon after. Thus, like John Adams and Thomas Jefferson, he died on the fourth of July, and when we remember his ardent love of country and the many patriotic utterances he has made, we may well doubt whether he would have had it otherwise. Thus sadly closes the last chapter in his recorded history in this court."
Four cases of unusual public interest have engaged the attention of the supreme court of this state, and Judge Orton has been, either as lawyer or judge, connected with them all. The first of these involved the question of the original jurisdiction of that court to inquire, by quo warranto, into the right of opposing claimants to the office of governor and to oust the person intruding therein or usurping the functions of the office. In that case Judge Orton appeared as counsel for Barstow who claimed to have been reelected, but whose right to the office was denied. That case arose in 1855. In 1874 the "Granger cases" arose. These involved the right of the state to regulate railroad charges. Judge Orton argued the affirmative of the proposition as counsel for the state. The other cases referred to involved the right to read the Bible in the public schools and the power of the court to overthrow acts apportion- ing the state into senate and assembly districts because they did not conform to the requirements of the constitution as to uniformity of population and compactness of territory. In each of these cases he wrote an opinion.
The promotion of Judge Cole to the chief justiceship followed the death of Judge Ryan, and John B. Cassoday was appointed to the as- sociate justiceship vacated by Judge Cole.
JOHN B. CASSODAY.
Mr. Cassoday was born in Herkimer county, New York, July. 7, 1830. About three years later his father died and he and his mother moved with her parents to Tioga county, Pennsylvania. He began life as poor as the poorest of boys, but the same industry, good judg-
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ment and well-directed ambition which made him one of the foremost lawyers of Wisconsin, carried him successfully through his early strug- gles. Besides occasionally attending the district school for a few months, working for his board, he attended one term at the village school at Tioga and one term at the Wellsborough academy before he was seventeen. For the next four years he was engaged in various kinds of manual labor, occasionally teaching in the winters. He after- ward spent two terms at the academy of Knoxville, Pennsylvania, and two years at Alfred (New York) academy, from which he was gradu- ated. He then went to the university of Michigan, where he spent one year, taking the select course, which was supplemented by a short term at the Albany law school, and reading in a law office at Wellsborough, Pennsylvania. Desiring to find a wider field, he went west in 1857, and settled in Janesville, Wisconsin, where he entered the law office of H. S. Conger, afterward judge of the twelfth judicial circuit, and pur- sued his law studies there until 1858, when he became a member of the firm of Bennett, Cassoday & Gibbs, which continued for seven years. He was ambitious and full of energy; and with a manly self-conscious- ness of his ability, integrity of purpose and determination to succeed in life, both as a man and as a lawyer, he took his place and was soon recognized as the peer of his brethren at the bar.
From 1866 to 1868 he was alone in his practice. At the latter date the firm of Cassoday & Merrill was formed; it continued for five years, when Mr. Merrill retired from practice. That firm was succeeded by the firm of Cassoday & Carpenter, which continued until our subject was appointed to the supreme bench, November 11, 1880.
As a lawyer, Mr. Cassoday was one of the brightest and most suc- cessful in the state. From the outset of his career he showed a clear, analytical mind, well-balanced, cool and cautious; but the success he obtained could only come from downright hard study and work. While in practice he was devoted to his profession, thorough and methodical in the preparation of his cases, and skilled and judicious in their management, always true to his client and equally true to himself and to the court; intensely anx-
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ious to succeed, but always just and courteous to his op- ponents, he took nothing for granted, but went to the bottom of every question, and the members of the bar who were tempted to rake after him found but scant gleaning. In his arguments his earnest and clever manner of presenting each particular case and his complete mas- tery of the questions involved, gave him a rare power and caused him " to be listened to by court, jury and bar with the utmost attention and sincerest respect. His practice was general, and during his twenty-three years at the bar he was constantly crowded with business. Among the cases in which he was thus engaged may be mentioned the Jackman Will Case, 26 Wisconsin, 104; Chapin Will Case, 32 Wisconsin, 557; Culver vs. Palmer, Smith vs. Ford, 48 Wisconsin, 115; Rowell vs. Harris Manufacturing Company, and Sergeant Manufacturing Com- pany vs. Woodruff-the last two being patent cases in the federal courts.
Justice Cassoday's first vote for a presidential candidate was for Franklin Pierce in 1852, but he has been a republican ever since the organization of that party. In 1864 he was a delegate to the Baltimore convention which nominated Lincoln, and was placed upon the commit- tee on credentials, which was that year a very important committee. He was the only member of the Wisconsin delegation who voted for Andrew Johnson, as a candidate for vice-president. In the same year he was elected to the Wisconsin assembly, and during the session served with credit on the judiciary and railroad committees. The thirteenth amendment to the constitution of the United States was ratified by this legislature at this session, and Mr. Cassoday took an active part in the debate upon its passage. In 1876 he was again called upon to rep- resent his district in the same body, and was then chosen its speaker without opposition in his own party. He made up the committees with strict reference to their experience and capacity, and announced their appointment on the second day of the session. By so doing and by his tact and executive ability in the chair, the business was com- pleted in fifty-eight days, being one of the shortest sessions in the his- tory of the state. While he was speaker he confined himself strictly and exclusively to the duties of his office, and made himself master of
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parliamentary law, so that he has since been habitually consulted on that subject.
In 1880 he was a delegate at large to the national republican con- vention at Chicago and was chairman of the Wisconsin delegation. He presented to the convention the name of the late Elihu B. Wash- burne as a candidate for President in a speech that was worthy the man and the occasion. On the morning of the second day of the bal- loting for a candidate for President, sixteen members of the Wisconsin delegation, including General Rusk, General Winkler, Joseph V. Quarles, William E. Carter, Norman L. James, A. J. Turner, the late Edward Sanderson, the late Frank L. Gilson and Mr. Cassoday, before leaving their hotel, resolved to cast their votes for James A. Garfield; and it was left to Judge Cassoday to determine the opportune time for casting such vote. Accordingly, and after six ballots had been taken, and Edmund's strength had gone to Sherman, and Washburne had lost twelve votes from Indiana, Mr. Cassoday announced to his fellow delegates that the time had come for breaking the deadlock; and there- upon and on the thirty-fourth ballot, he announced the vote of the delegation-sixteen of the votes being cast for General Garfield, who was nominated on the second ballot thereafter.
While at the bar Mr. Cassoday kept up a lively interest in all public questions and took an active part upon the stump in every important political campaign from 1856 to 1880, inclusive. He at all times exhibited an unflinching fidelity to the interests of the people and the fundamental principles of the republican party. He was frequently a delegate to state conventions, and presided over the one in 1879. He declined to be a candidate for numerous offices, including circuit judge in 1870, and attorney general in 1875. He was never a politician in any sense.
October 19, 1880, that eminent jurist, Chief Justice Ryan, died, thereby creating a vacancy upon the supreme bench. In a few days the republican press pretty generally came out in favor of the appoint- -ment of our subject for the vacancy. Up to that time he had never had any judicial experience, and was then engaged in stumping the
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state for Garfield and the republican party, and continued to do so until the election, which occurred November 2.
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