USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 23
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October 23, 1880, the Rock county bar held a meeting and unani- mously resolved to urge the governor to appoint Mr. Cassoday to the office made vacant by the death of Chief Justice Ryan, and sent the following communication to the governor:
Janesville, October 25, 1880.
Hon. William E. Smith,
Governor of Wisconsin :
Dear Sir: We desire to present for your most favorable considera- tion the name of the Hon. John B. Cassoday of this city, for a candi- date for appointment as chief justice of the supreme court of this state. From an intimate acquaintance with him, by most of us for more than twenty years, we take pleasure in saying that he is a gentleman of irreproachable public and private character. As a lawyer, he is in- dustrious, able and learned in his chosen profession, and, in our judg- ment, he will honor and adorn the place made vacant by the late learned and illustrious chief justice.
Yours with highest respect,
Ogden H. Fethers. F. N. Hendrix.
John Nichols. J. W. Sale.
Geo. G. Sutherland.
William Street.
John Winans.
John R. Bennett.
T. J. Emmons.
Pliny Norcross.
J. J. R. Pease.
Ed. F. Carpenter.
Tom. S. Nolan.
B. B. Eldredge.
H. H. Blanchard.
Frank Brooks.
E. M. Hyzer.
A. Hyatt Smith.
M. S. Prichard.
B. F. Dunwiddie.
Wm. Ruger.
L. F. Patten.
M. M. Phelps.
A. C. Bates.
Wm. Smith.
A. O. Wilson.
S. A. Hudson.
The bar of numerous counties and cities throughout the state fol- lowed the action of the Rock county organization, and leading attor-
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neys and business men from all sections of the state urged his appoint- ment on the governor. To illustrate the opinion regarding the fitness of our subject for the high position to which his appointment was urged, we quote herewith two of the many letters received by Gov- ernor Smith in his behalf. The first is of the same date as the death of Chief Justice Ryan and is a worthy tribute from one of the most emi- nent men that Wisconsin has ever produced.
Washington, October 19, 1880.
His Excellency, William E. Smith,
Governor, etc .:
My Dear Sir: Upon you is cast the duty of appointing a successor to Hon. E. G. Ryan, chief justice. Hon. J. B. Cassoday, of Janesville, will be presented for your consideration and I desire to say that I know him well and believe that he would be an excellent appointee. He is a good lawyer, a gentleman, and perfectly honest in thought as well as act, and I should be greatly mistaken if his appointment did not prove to be a good one.
Very truly yours, MATT H. CARPENTER.
The second letter is from one who had been intimately associated with our subject, both professionally and socially for many years, and who probably was as well qualified to speak of his abilities and true worth as any man in the state. Tlie letter is as follows:
Milwaukee, Nov. 4, 1880.
Governor William E. Smith,
Madison, Wis .:
Dear Sir: I left home the middle of October and only returned last Saturday night, or I should have written you before, making some suggestions as to the vacancy on the bench of the supreme court. I have known Mr. Cassoday, of Janesville, over twenty years, and during the last five years of my residence there I was his law partner. He is an exceedingly industrious and studious lawyer; has had a very large and successful practice; has a judicial turn of mind; is a man of the most unbending integrity; and, in my judgment, is eminently fitted for the supreme bench. I have had no communication with Mr. Cas-
1
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HISTORY OF THE BENCH AND BAR OF WISCONSIN.
soday on this subject, but I have seen the action of the Rock county bar, and I most heartily endorse that action, and I hope your view of Mr. Cassoday's fitness will lead you to appoint him. Should you appoint Judge Cole to the chief justiceship and then appoint Mr. Cassoday to the position now held by Judge Cole, I am sure Mr. Cassoday's friends would recognize the fitness of such action and would cordially approve it.
I do not think it necessary to write at great length, for you are well acquainted with Mr. Cassoday, but I have had special opportunities to become familiar with his sterling qualities, and I trust you believe I would not recommend his appointment unless I thought such action would be for the interest of the people of the state.
Very respectfully yours, WILLARD MERRILL.
November 11, 1880, Mr. Justice Cole, who had been a member of the court for more than twenty-five years, was appointed by the governor to the office of chief justice. He at once accepted the same, and there- upon Mr. Cassoday was appointed to fill the vacancy created by the resignation of Justice Cole.
Upon receiving notice of his appointment, Mr. Cassoday, in the following terms, formally accepted the trust tendered him:
Janesville, Wis., Nov. 13, 1880.
To His Excellency, William E. Smith,
Governor of Wisconsin:
My Dear Sir: I have received, through your private secretary, Hon. George W. Burchard, your letter of the IIth instant, inclosing a com- mission to me as associate justice of the supreme court of this state in place of Justice Cole, resigned.
Profoundly sensible of the high honor and the great confidence implied, and the sacred trust and weighty responsibility imposed; and trusting to the guidance of the great lights of the law, whose thoughts, reasons and judgments have been preserved in the books; and relying upon that Divine Providence, who so often lights up the darkened path- way. I hereby accept the office so generously tendered.
Your most obedient servant,
J. B. CASSODAY.
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HISTORY OF THE BENCH AND BAR OF WISCONSIN.
In April, 1881, both Chief Justice Cole and Justice Cassoday were elected to the respective offices, which they held by appointment, upon calls of the bar, the legislature and the people, without regard to party, and with the exception of a few scattering ballots, received the entire vote of the state-Chief Justice Cole having 177,522 and Justice Casso- day 177,553. In June, 1881, Beloit college conferred upon Justice Cas- soday the degree of LL. D. In 1889 Justice Cassoday was reelected without any opposition, upon calls from the bar of every county in the state, every member of the state legislature and every state officer, and received 210,899 votes, being all but 212 of the total number of votes cast.
Since 1885 Justice Cassoday has lectured to the senior classes in the college of law of the university of Wisconsin upon wills and consti- tutional law. His lectures on wills were published, in 1893, in a book entitled "Cassoday on Wills," and the same is now used as a text book by law students in the Wisconsin university under the instruction of John M. Olin, a prominent member of the Wisconsin bar, and also in other law schools. Judge Cassoday continues, however, to lecture once a week during the college year on the subject of constitutional law.
On the bench, Justice Cassoday has been indefatigable, and his opinions, appearing in forty-seven volumes of the Wisconsin reports, commencing with the fiftieth, have been cited throughout the land as authority by the bench and bar of many states. He has written several opinions in very intricate cases on the subject of wills, which have at- tracted more than usual attention from the profession, and we therefore mention some of the most important. Will of Mary P. Ladd, 60 Wis., 187; Scott vs. West, 63 Wis., 529; Newman vs. Waterman, 63 Wis., 612; Will of Ward, 70 Wis., 251; Ford vs. Ford, 70 Wis., 19, and the same case, 72 Wis., 621; Will of Slinger, 72 Wis., 22; Will of Ehle, 73 Wis., 445; Baker vs. Estate of McLeod, 79 Wis., 534; Burnham vs. Burnham, 79 Wis., 557; and Saxton vs. Webber, 83 Wis., 617. He has likewise written several opinions in cases involving important ques- tions of constitutional law, among which may be mentioned Wisconsin Central Railway vs. Taylor County, 52 Wis., 37; Raker vs. State, 54
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HISTORY OF THE BENCH AND BAR OF WISCONSIN.
Wis., 368; Cathcart vs. Comstock, 56 Wis., 390; Chicago & North- western Railway Company vs. Langlade County, 56 Wis., 614; Bald- win vs. Ely, 66 Wis., 171; State ex rel. vs. Forest County, 74 Wis., 610; State ex rel. vs. Ryan, 70 Wis., 676; J. S. Keator Lumber Company vs. St. Croix Boom Company, 72 Wis., 62; State ex rel. vs. District Board, 76 Wis., 203; State ex rel. vs. Mann, 76 Wis., 469; State ex rel. vs. Cun- ningham, 82 Wis., 39, and 83 Wis., 90; State ex rel. vs. Stewart, 60 Wis., 587. This last case was upon the much mooted question of inter-state extradition, and was in conflict with some previous decisions in state courts, and was subsequently disapproved by one text writer and two or three state courts; but more recently it has been expressly approved by other text writers and by the highest courts in Colorado, Georgia, New York, Massachusetts, North Carolina and by the supreme court of the United States in the case of Lascelles vs. Georgia, 148 U. S., 547. Other cases might be cited which have been of more or less public in- terest, but they are too numerous to mention here. Since July 4, 1895, Mr. Cassoday has been chief justice of the supreme court.
In addition to his official duties and work in the law school, Justice Cassoday has prepared and read before literary gatherings or societies various papers upon Law and Lawyers, Lord Mansfield, The American Lawyer, American Citizenship, our Magna Charta (which is the first chapter of this work), and John Scott, and John Marshall, being his subjects. During the eighteen years he has been upon the bench he has entirely refrained from participating in any affairs or gatherings of a political or public nature, except that he delivered an address on one fourth of July and a memorial address upon the death of General Grant, August 8, 1885-both to his old neighbors and friends in Janesville and Rock county. The latter address is herewith reproduced:
"When great deeds are to be mentioned, apt words are most diffi- cult to find. When great sorrow is experienced, the heart is most thoroughly subdued.
"To-day the younger portion of American citizens are enquiring of themselves, What is the cause of this extended sorrow? What has induced this great personal devotion? What has prompted these lavish
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expressions of sympathy and honor? Why this immense cortegè ex- tending throughout the republic and in other lands? Why should this man be singled out from the many millions and thus crowned with universal homage? These are the questions on the lips of the young.
"To those more advanced in life, the occasion revives the memory of a thousand issues, each at the time portentous for good or evil; and now, as the spirit of the great hero has crossed the silent river and dust is returned to dust, it is fitting that we take a retrospective glance at the events which gave him the opportunities for proving his heroism and greatness-for these qualities existed though concealed in the man, before being called into action. What person whose hair has been frosted by the lapse of time does not remember the sad mutterings of war along the whole southern sky during the five months immediately pre- ceding the outbreak? During those months defiance was constantly uttered, states seceded, and a new government organized within our borders, amidst complications which seemed to forbid a national pro- test.
"During those months the false were clamorous for surrender; the timid, ready to compromise or divide the republic for the sake of peace; and even the brave and patriotic were filled with terrible forebodings on account of pending possibilities. Amid scenes of that character, there would occasionally be a voice, louder, firmer and more inspiring than the rest, to the effect: 'Stand for the right! Stand for your coun- try! Trust in God! Do your duty and all will be well!'
"Finally the red cloud of war flew athwart the sky, and the nation was confronted with the terrible alternative that either one-half of the republic must surrender to the so-called Confederacy, or that blood and treasure must flow in large quantities for the preservation of the Union. The weak-hearted fainted. The cowardly emigrated. The brave quietly, but with firmness and determination, took sides for or against their enemy. Many of the more heroic at once voluntarily left the plow in the furrow, the tools in the work-shop, the goods on the counter, the pen in the office, and hurried away to the post of duty. Among the hundreds of thousands who thus went to the front at the first call of patriotism, was a simple, quiet, modest clerk in a leather store of a neighboring city-notwithstanding he had a family on his hands with little means of support, but with priceless treasures of mind and heart not then revealed to his nearest neighbors. For ten months
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but little was heard of him. Men who had proved their capacity for leadership in any former war were either too old for active duty or in sympathy with the rebels. All were therefore looking for a coming leader, but none suspected the Galena clerk.
"Washington and the Potomac, Richmond and the James were the great theaters of action. Time rolled on. Expected victories failed to be realized. Disappointments and defeats became more frequent and disastrous. Many brave men lost all hope, save in the God of battles through the efficacy of prayer. By and by the Galena clerk was given a command and allowed to venture out in the dead of winter. He boldly struck the rebels in their fortifications, and in quick succession Forts Henry and Donelson surrendered with many thousands of prison- ers. The news came like claps of thunder from a clear sky. The people of the west began to feel they had at last found the coming leader. But his capacity for commanding a large army or several armies in combina- tion was not yet demonstrated, and by many denied. Then followed the great battle of Shiloh, against one of the ablest and most skillful leaders of the enemy, and, although victorious, yet the price paid left the ques- tion of his capacity for great deeds still debatable. But the campaigns which followed in the face of cruel criticisms, especially that of Vicks- burg and Chattanooga, settled the question in the west, and with many in the east. Finally, called by Congress and the President to take com- mand of all the Union armies, he moved forward with a simplicity of manner, a singleness of purpose and a firmness of tread, indicative of a clear perception of what ought to be done and a conscious ability to do it. This purpose was pursued with an unyielding pertinacity to the very end. With an abiding confidence in the rank and file of liis army, and an unselfish generosity toward all his subordinates, he moved for- ward like one born to conquer, and by continually pressing the enemy along all the lines and in every quarter he was within a year enabled to force a complete surrender on his own terms.
"Having restored peace to his shattered country, he returned to Washington and his home, not as an ambitious conqueror, anxious for applause of men and exaltation at the hands of his countrymen, but as a simple, quiet citizen, fully satisfied with having performed the duties which, under an overruling Providence, he had been called upon to do. The same singleness of purpose and unyielding pertinacity which
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crowned his military efforts with glory and honor marked his career as a civil magistrate.
"But twenty years have elapsed since peace was restored, and the men comprising the two armies returned to their respective homes and to the ordinary avocations of life. Twenty years have elapsed since the kind-hearted and magnanimous Lincoln fell a victim to cruel hate. Emblematic of a better future, to-day ex-Confederate and Union sol- diers join in the mournful procession and bow over the grave of him who did so much to restore the nation as a permanent blessing to all the people thereof; to the new south as well as the north, and to the posterity of both. So it is not always true that the people are fickle, nor that republics are ungrateful. But what were the qualities of head and heart which, under such peculiar circumstances, could thus challenge the admiration of all his countrymen and the great and good throughout the civilized world? Without sufficient property to supply the ordinary wants of his family, without any influential friends except as attracted by his genius, without any special gifts of speech or of language, with- out any of the qualities which the world calls brilliant, he rose, never- theless, in four years from absolute obscurity to the very highest pin- nacle of military fame. This was not the result of mere luck or accident. The numerous victories achieved were never secured by mere tenacity of purpose. The contest was one of brains as well as valor. With a con- tempt for all pretense or military blandishments; with an abhorrence for mere newspaper notoriety, evidenced by his exclusion from the lines of all newspaper correspondents; with a singleness of purpose to capture or destroy the enemy in front of him, which was never frustrated, even for his own personal reputation or advancement; with prescience capable of seeing things in advance in their true relations; with an accuracy of reason and a largeness of comprehension seldom present in the midst of great excitement; with a cool deliberation incapable of being dis- turbed by the severest shock of battle; with the capacity for adapting adequate means to appropriate ends, with a decision of character and a fearlessness in taking upon himself grave responsibilities seldom equaled; with a reticence which never in advance revealed his plan of battle; with a confidence in the wisdom of his conclusions which at times was perfectly sublime; with an unyielding persistency in carrying all his plans into complete execution, he was, from the very nature of things, almost irresistible in every battle in which he was engaged.
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HISTORY OF THE BENCH AND BAR OF WISCONSIN.
With an individuality distinctly marked; with a make-up and methods peculiarly his own; with a character unique and incomparable, he seems to have been created and especially trained by Almighty God for the great deeds which he did and for the doing of which his name will go forward with Lincoln's and Washington's to the remotest generation.
"But we are not to blindly worship General Grant nor any human being. He had faults which were radical. In some directions he transcended in greatness any of his countrymen, living or dead. In other directions he was surpassed by many. On his return from his trip around the world, had he gone into absolute retirement from all busi- ness and politics, his life work would undoubtedly have been far more satisfactory to himself, and, if possible, more highly appreciated by his countrymen. The great mistake of his life consisted in blindly trusting occasionally in some unworthy of becoming his associates, and who, when fully revealed, were found to be scoundrels in the disguise of friends, feeding upon his credulity and fattening upon his great reputa- tion. But notwithstanding this weakness the verdict is unanimous. He was absolutely without duplicity or guile, thoroughly sincere, strictly honest, uncommonly generous and grandly magnanimous.
"From all this we may learn that above every citizen, above the wisest magistrate, above the greatest hero, above the grandest potentate on earth, there is one ever-living and true God presiding over the des- tinies of nations and peoples; creating by His fiat; shaping with His hands; guiding with His finger; chastening through sorrow and af- fliction; nurturing by His care; winning by His love; saving by His grace. Humbly submitting to His eternal laws, reverently seeking guidance from His everlasting wisdom, let us, as a common brother- hood, seek, by doing His will, to finally become citizens of His kingdom, the future republic of the soul."
In February, 1898, Judge Cassoday was elected president of the state bar association. A meeting of that body was held on the 8th of June, 1898, in connection with the semi-centennial celebration of the organization of the state government at Madison. After calling that meeting to order he delivered the following address:
I can hardly realize that fifty years have transpired since Wisconsin was admitted into the Union and that I have been a citizen of this state
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during all of that time, except the first nine years. Nor can I fully real- ize that Wisconsin is only sixty years younger than our national gov- ernment. This was the last of the five great states carved out of the northwest territory, and only sixty years prior to the admission of Wis- consin into the Union, the first attempt at any civil government in all that territory lying east of the Mississippi river, north of the Ohio and west of Pennsylvania, was instituted at the place where the city of Marietta, Ohio, is now located. The centennial of the civil government in the northwest was celebrated at that place ten years ago, and it was my high privilege to be present and participate in the proceedings. At that time Spain owned Mexico and all the territory west of the Missis- sippi, except what is now Oregon, besides many islands of the sea. To-day she is not quite certain that she can hold together the old home- stead-less than four times the size of Wisconsin and with a population only a trifle more than is now embraced in these five great states which have since that time sprung into being. So it is only 110 years between Putnam and Marietta and Dewey and Manila. Thus God deals with nations and men in the making of history.
Twenty-nine states were in the Union prior to Wisconsin, and yet all of our citizens are proud of its history-proud of its inheritance-proud of the variety of blood-of nationality-of experience-of religion, which pervades our grand commonwealth. The result is, that our citi- zens have achieved a broader education-a broader intelligence, and thus they have become a grand-patriotic-conservative-cosmopolitan people. The legal profession has done its full share in making this history. I regret that the state bar association had not, in February last, arranged to present to this meeting an account of some of the agencies of lawyers in making, administering and enforcing the consti- tution and laws of our state, and the federal government, and, also, to give us a sketch of at least some of the many lawyers who have gone out from our borders and become distinguished in other states, and a few even in the nation. Impartial history will, necessarily, mention some of them, but the memory of many able and worthy lawyers rests in tradi- tion only, and hence we owe it, as a duty to those who may come after us, to preserve the memories of those who have passed away, as rich legacies to coming generations. Strike out from our history the influ- ence of lawyers in making our constitution and laws, and our state would, to-day, make a far different and less praiseworthy showing. In
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the convention which framed the first constitution, preparatory to ad- mission into the Union, there were 27 lawyers out of 124 members. Among them were two, whose faces adorn the walls of this court room- Judge Dunn and Chief Justice Ryan. That constitution was rejected, but the labors of the convention which framed it were highly beneficial in aiding the next convention to frame an acceptable constitution, and one of the best that can be found in any of the states. In that second convention, 16 out of 69 members were lawyers, and the paintings of two of that number grace the wall of this court room, in the person of Chief Justice Whiton, who always looked the judge, acted the judge and was the judge, and the other was Chief Justice Cole, then only twenty-eight years of age and who, after one term in Congress, occupied a place upon this bench for thirty-six and one-half years-longer than any person ever occupied the supreme bench of the United States where the appointments have been for life. Judge Cole listened to every argu- ment I ever made in the supreme court of this state, and it was my high privilege to be a co-worker with him upon the bench for eleven years, and, thank God, he is able to be with us on this semi-centennial occa- sion. I am, moreover, pleased that my old friend and one of my first partners, and one from whom I early learned some valuable lessons in trying lawsuits, Hon. John R. Bennett, is present and will address us to-day .* I am, also, gratified that we have with us to-day, one whom I first saw 39 years ago, presiding in another wing of the capitol, and be- fore whom, as judge, I practiced at the bar for fifteen years, and with whom I was a co-worker upon this bench for thirteen years, Chief Jus- tice Lyon. As a mark of honor to him and as an act of propriety for the occasion, I have requested him to preside over this meeting, and so I present to you Chief Justice Lyon-who needs no introduction.
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