USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 26
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the supreme bench, to succeed Judge Newman, on February 4, 1898. In April, 1898, he was elected, without opposition, for the unexpired portion of Judge Newman's term, or until January, 1904.
In view of the above record it is evident that Judge Bardeen has been remarkably successful both as a practitioner and as a fair-minded and learned counselor. As a fact he has been employed in much heavy and important litigation, both civil and criminal. One of the most noted cases of the latter nature in which he has been engaged was the Mead murder trial, held at Waupaca. Whatever, in fact, he has done has been accomplished conscientiously and ably, and his steady advancement from the position of a hard-working attorney to the highest judicial honor in the state is sufficient evidence that his worth has been recognized by the people and the profession.
Judge Bardeen is a republican, but has never been a politician in the narrow sense of the word. He is a Mason of high degree, being a member of the Forest Lodge, No. 130; Wausau Chapter 51, and St. Omer Commandery, K. T., No. 19. In 1892 he was elected grand high priest of Wisconsin, R. A. M. Married on June 17, 1876, to Frances H. Miller, of Albion, he has had three children: Eleanor, Charles V., Jr., and Florence.
As a lawyer and judge of the circuit court Judge Bardeen had es- tablished such a reputation for industry, good judgment, knowledge of the law and ability to apply its principles to the ever-varying states of facts which are disclosed in litigated cases that not only the bar of his circuit but the bars of adjoining circuits and lawyers in various other parts of the state who had tried causes before him were enthusiastic in their endorsement of him as worthy to become a member of the supreme court. Some written opinions of his as circuit judge in causes appealed showed a measure of ability and degree of industry which added largely to his reputation throughout the state. Judge Bardeen's work as a member of the supreme court thoroughly sustains the repu- tation he made on the circuit bench and the claims of his friends as to his fitness for the place he occupies.
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Sixteen persons have been members of the supreme court since its organization as a separate tribunal June 1, 1853. Of these Judge Cole served the longest-from June 19, 1855. to the first Monday in Janu- ary, 1892. Judge Lyon's period of service was the next in length- from January 20, 1871, to the first Monday in January, 1894. Judge Paine's is the only case where an interregnum intervened between two periods of service. No person appointed to fill a vacancy has failed of an election by the people. But one judge has failed of reëlection. where he has been a candidate therefor before the people-Judge Craw- ford. Judge Smith is understood to have much desired reëlection, but was set aside by the managers and leading men of his party on account of his state-rights views. But four men have been chief justice during the time that office was filled by election-Whiton, Dixon, Ryan, Cole. Of the members of the court six have died in office-Whiton, Ryan, Paine, Taylor, Orton and Newman. There have been three resigna- tions-Dixon, Downer and .Paine. But two former members of the court are now living-Cole and Lyon. No member of the court, while serving or afterward, has been elected or appointed to high official station, though Judge Lyon, after a period of rest, served the state with great acceptability in the responsible position of a member of the state board charged with the duty of maintaining and super- vising the charitable, correctional and penal institutions of the state.
Four persons have occupied the position of clerk of the supreme court since the formation of the state government-J. R. Brigham, appointed August term, 1848; Samuel W. Beale, appointed December 12, 1851; La Fayette Kellogg, appointed June 1, 1853, and Clarence Kellogg, appointed June 1I, 1878. During that time five persons have discharged the duty of reporter-D. H. Chandler, 1849-1852; Abram D. Smith, 1853-1860; Philip L. Spooner, 1860-1862; O. M. Conover, 1862-1883; F. K. Conover, 1883-1898.
CHAPTER VIII. JOHN R. BENNETT'S ADDRESS TO THE STATE BAR ASSO- CIATION.
On the 7th, 8th and 9th of June, 1898, the fiftieth anniversary of the . organization of the state of Wisconsin was observed at Madison. Vari- ous meetings and reunions were held. On the 8th a meeting of the state bar association was held in the supreme court room, presided over by the president of the association, John B. Cassoday, the chief justice of that court. Seated with him on the judges' bench were Orsamus Cole and William P. Lyon, former members of that court, and John R. Bennett, judge of the twelfth circuit. The latter delivered the follow- ing address:
Mr. President and Gentlemen of the State Bar Association:
I commenced the study of law on the 27th day of April, 1844, with Western W. Wager, of Brownville, Jefferson county, New York, read- ing with him for six months, teaching school the following winter for twenty-four dollars a month, boarding myself; and on the 21st of April, 1845, resumed the study of law with Dyre N. Burnham, of Sacketts Harbor, New York, with whom I continued my professional studies until the 2d day of October, 1848, when I started for Wisconsin. I little dreamed when I was reading law at Sacketts Harbor that there was residing there, at Madison Barracks, a young captain in the United States army, then about 23 years of age, destined to become the greatest general of his time and one of the greatest of any age or country; and also to become the President of the United States for eight years. But such was the fact. For Captain Ulysses S. Grant was then at Sacketts Harbor in Madison Barracks. And Simon B. Buckner was also there, who, as brigadier general in the Confederate states army, on the 16th day of February, 1862, surrendered Fort Donelson to then Brigadier General U. S. Grant, with about 15,000 prisoners. I did not know
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Grant at Sacketts Harbor, but did know Buckner, and often saw him walking the streets of the village, erect and soldier-like, not looking to the right or left, but carrying himself like most of those graduating at West Point.
I also knew Charles S. Lovell at Sacketts Harbor, who became a Union general during the rebellion, and Nathaniel Lyon, quite inti- mately, as he belonged to our young men's association, and took part in their debates. He visited Sanford A. Hudson and myself just before the breaking out of the rebellion. He was killed at the battle of Spring- field, Missouri, or, as it is called, the battle of Wilson's Creek, on the Ioth day of August, 1861. Had he lived until the close of the rebellion he undoubtedly would have become one of the great Union generals, for no one had accomplished more than he at the time of his death.
On the 13th day of October, 1848, as the shades of evening were settling down upon the landscape, I reached Janesville, then a little hamlet of about 1,000 inhabitants, stopping at the Janesville "Stage House," a two-story frame building, where now stands the fine four- story brick hotel, the "Myers House." I greatly admired the beauty and fertility of the surrounding country and the intelligence and high character of the people dwelling there; so much so that I at once con- cluded to cast my lot with them, and have ever since remained in Janes- ville.
I have been unable to find what the population of the state was in 1848, but in 1840 it was 30,000; in 1847, 210,516; in 1850, 305,391. So that I presume in 1848 the population was about 225,000. At all events, at the general election in November, 1848, the state elected three members of Congress; we were in the second district, and that fall three candidates were running for Congress in that district, viz., A. Hyatt Smith, hunker democrat, of Janesville; General George W. Crabb, free soil democrat, also of Janesville, and Hon. Orsamus Cole, of Potosi, Grant county, the whig candidate.
On the 16th day of October, 1848, only three days after I arrived in Janesville, there was a political meeting of the whigs held there, which was addressed by Orsamus Cole, the whig candidate, and the
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gallant and eloquent Edward D. Baker, who fell at the disastrous assault at Ball's Bluff, while bravely leading his brigade, on the 21st day of October, 1861. As he mounted the speaker's platform every act and motion of his showed the great orator that he was. One can never forget the glowing tribute he paid to his old commander, Major General Zachary Taylor, under whom he fought in the war between this country and Mexico. And when he came to speak of local matters, he said "I greatly admire your exceedingly beautiful country and the equally noble people who reside here. I like the way you do things, for I see you have put a live Cole on the back of a Crabb; and I prophesy that the Crabb will crawfish before the end of the contest." And he did. It seems hardly necessary to add that Cole was elected by a good majority, and that he made a valuable and useful member of Congress, representing his state with honor to himself and entire satis- faction to the people; so that soon after they called him to a higher and more honorable position in the state. For on the 19th day of June, 1855, he was chosen associate justice of the supreme court of the state, holding the office until November 1Ith, 1880, when he was made chief justice; holding the latter position until the first Monday in January, 1892, making a period of continuous judicial service of more than thirty-six and one-half years. It seldom falls to the lot of any lawyer to continue in so high and responsible an office so many years. It shows that the people of the state appreciated the purity of his life, and the eminent qualifications he brought to the exalted position he so ad- mirably filled. It has been said, "It is always unsafe to praise the living. It is only when death has sealed life that we can speak with confidence." I hardly agree with the above statement, and believe we can say now with the greatest assurance that the public life of the Honorable Orsa- mus Cole has been a long trail of "honorable memories." It has ever been above reproach and without the slightest stain. His great learn- ing in the law, his entire impartiality, his clearness of perception and soundness of judgment made him a model judge; and the state will long continue to receive the benefit of his learned and upright judicial career.
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At the May term of the circuit court for Rock county, in the year 1849, I first made the acquaintance of the Honorable Matthew H. Carpenter. He was then little past twenty-four years of age. He un- doubtedly became more learned in the law and riper in scholarship later in life, but never more witty and brilliant than he was then. He argued four certioraries with great clearness and brevity, ending each argument with the ring of a hammer striking an anvil. Judge Whiton took the papers in the four cases, saying he would decide them the fol- lowing morning. The next day at the opening of court he took up one case and decided it in favor of Carpenter; the next one against him; and the third one in his favor, and the fourth against him. Carpenter turned to Jordan and myself, who were sitting quite near him, in a whisper said, "By Jupiter, boys, I wish I had another case, as I would like to see what he would do with it." But I think I should state that Whiton's decisions in the four cases were so correct and satisfactory that not one of them was ever taken to the supreme court.
Soon after reaching Janesville I made the acquaintance of Charles Stewart Jordan, a son of Ambrose S. Jordan, one of the great lawyers of New York, and attorney general of that state during the anti-rent excitement. Charles S. Jordan was, at the time I made his acquaint- ance, a partner of A. Hyatt Smith, at that time one of the most influ- ential and important personages of the state. Jordan was one of the revisers of the revised statutes of 1849. And I desire to say in this presence that I ever regarded him as one of the most brilliant and able men that I have ever met in Wisconsin or anywhere else. He was a great jury lawyer, and equally strong before the court. And in constru- ing statutes of obscure or doubtful meaning I have never seen his su- perior. I was his partner from 1852 to about 1856, when he left the state to go into business with his aged father in the city of New York; but he remained there only a short time when he came west again, stopping a short time with his father's brother at Morris, Illinois, but finally settled in Chicago, where he died about fourteen years ago.
The first time I saw him after he came to Chicago I said to him, "Jordan, I have been looking in the Chicago papers, hoping to find
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you engaged in some of the trials of that city, well knowing if you once get a foothold you were abundantly able to sustain yourself." Looking me full in the face, he replied, sadly, "No, John, I have sinned away 'the day of grace.'"
He and Carpenter were great personal friends, and were always to- gether when they could be. They were frequently heard discussing questions of law. Carpenter generally gave up to the more weighty and conclusive arguments of his friend. And I am firmly persuaded that in original mental endowments Jordan was the superior man; but in their subsequent careers, Carpenter far excelled him as a lawyer and statesman; but to one who knew them both this is readily accounted for.
Soon after Janesville became a city a public meeting was called for the purpose of voting aid to the "Rock River Valley Union railroad," now the Chicago & Northwestern. The more wealthy men of the city were violently opposed to this. At this meeting a gentleman of con- siderable wealth, who had been in the habit of loaning money at fifty per cent, made a strong argument against the proposition, and when he sat down Jordan was called upon to reply to him. As he took the plat- form, this wealthy gentleman noticing that his shoes were muddy shouted out in loud tone, "Take off your shoes!" Jordan instantly re- plied, "God said to Moses at the burning bush 'take off thy shoes from off thy feet, for the place whereon thou standest is holy ground.' My friend is mistaken in thinking that this hall is like the place on which Moses was standing, holy ground. But there is still another more im- portant distinction. That command was given to Moses by God Himself. And I presume my friend has not carried his self-deception to the extent of thinking he is God Almighty. And if he has not, he is inexcusable for giving any such command to me."
This gentleman had been quite severe upon those who favored voting aid to the company. Jordan proceeded with his argument, but was soon interrupted again by the same gentleman; Jordan then said, "I desire to call my friend's attention to one of the Psalms of David which seems appropriate to his case," and repeated the 15th Psalm as follows:
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"Lord, who shall abide in thy tabernacle? who shall dwell in thy holy hill?
"He that walketh uprightly and speaketh the truth in his heart.
"He that backbiteth not with his tongue, nor doeth evil to his neighbor, nor taketh up a reproach against his neighbor.
"In whose eyes a vile person is contemned; but he honoreth them that fear the Lord. He that sweareth to his own hurt, and changeth not.
"He that putteth not out his money to usury," and as the last words fell from his lips he pointed his finger at his opponent. The effect was electrical, and a storm of applause burst from the people in every part of the hall. The debate ended there, Jordan carrying his point by a very large majority.
And I will further say that while Jordan remained in Rock county, there was hardly an important contested case in which he was not em- ployed, always taking a leading part.
· He was a thorough and appreciating reader of Shakespeare and one of the finest readers of the poet that I ever listened to. One day he was reading the Merchant of Venice in our office, and became deeply inter- ested in the play, and coming to the place where Portia, as judge, says:
"Come, merchant, have you anything to say?"
And Antonio replies:
"But little, I am armed and well prepared; Give me your hand, Bassanio, fare you well! Grieve not that I am fallen to this for you; For herein fortune shows herself more kind Than is her custom; it is still her use To let the wretched man outlive his wealth,
-
To view with hollow eye and wrinkled brow An age of poverty; from which lingering penance Of such misery doth she cut me off. Commend me to your honorable wife; Tell her the process of Antonio's end; Say how I loved you, speak me fair in death;
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And when the tale is told, bid her be judge,
Whether Bassanio had not once a love.
Repent not that you shall lose your friend, And he repents not that he pays your debt; For if the Jew do cut but deep enough,
I'll pay it instantly with all my heart."
As he reached the conclusion of Antonio's reply to Judge Portia's question, his feelings overcame him, and he could not proceed further, and with tearful eyes and in broken accents he said, "Boys, Antonio is busted!"
Another instance which I fear you will hardly think worth repeat- ing, I will call attention to, as it shows the poetic temperament of the man. He and I had been eighteen miles out to Magnolia to try a case involving the fraudulent transfer of personal property, trying it all day and all night, until about four o'clock in the morning, when we started home in our carriage. The morning was calm and beautiful, the land- scape covered with a slight haze. Jordan, being weary, had fallen asleep, when the carriage gave a sudden jolt, causing him to open his eyes, and looking east, he saw the sun just rising above the "Magnolia Hills," when he exclaimed, "Night's candles are burnt out, and jocund day stands tiptoe on the misty mountain tops," and immediately went to sleep again.
You may think I have dwelt longer in speaking of him than the oc- casion calls for. But being warmly attached to him on account of his kind and gentle nature, as well as his brilliant abilities and manly quali- ties, and not knowing that a single line has ever been written in this state concerning him, I could say no less.
As before suggested, I first saw Judge Whiton presiding as a circuit judge at the May term of the circuit court for Rock county in 1849. He looked, spoke and acted like the almost perfect judge that he really was. I have seen many men on the bench, but never saw one excel him in noble judicial bearing. He was then about forty-five years of age, having been born on the 2d day of June, 1805. He seemed to me then much older than he was, but no wiser than I then believed and
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afterwards knew him to be. He resembled in learning, impartiality, clearness of judgment and great dignity of manner that greatest jurist of the northwest, the late Thomas Drummond of Chicago, for more than thirty-four years United States district and circuit judge for the northern district of Illinois, more than any other judge to whom I can compare him.
He was circuit judge only about four years, being elected in Sep- tember, 1848; and in 1853, when a separate supreme court was or- ganized in the state, he was chosen chief justice and held that position until his death, April 12th, 1859, so that he was not quite fifty-four years old at the time of his death. I looked upon him then as quite an aged man, and can hardly realize that he died so young, for now I look upon a man of only fifty years as quite a young man. I sat up with him one week before his death. He knew I was coming, and his wife said, be- came quite anxious before I reached there, which was some time after dark. As I went to his bedside, he smiled, reached out his hand, taking hold of mine, and giving it a gentle pressure, from all which I perceived that he knew me perfectly well; but he had so far lost the power of speech, that while he tried to talk, I could not understand a word he said, but his wife could, and explained the words he used. I was to sit up with him again in one week, but on the afternoon of that day death relieved him from further suffering and pain. I heard a lawyer of con- siderable wealth and good standing in the profession argue a question at length before him, to which the judge paid the strictest attention, and when the counsel took his seat, Judge Whiton decided the question against him, and while proceeding to give his reasons for the decision, the counsel again sprang to his feet, and said with considerable vehe- mence, "Your honor, I am astounded at your decision; I repeat, I am astounded at your decision; it is in conflict with all the authorities to which I have called your attention!" The judge waited until he took his seat, and then quietly remarked, "Mr. -, I cannot say that I am astounded at anything you have said; but will say that I will not sit here and listen to such language again with impunity." This re-
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buke was quite sufficient, and the lawyer was never known again to offend in like manner.
In 1856 or 1857 I had a criminal case pending in the supreme court, in which my client had been convicted of stealing a plow, in the circuit court for Rock county, held by A. S. Collins, then circuit judge for Dane county. After the jury came in and delivered their verdict I re- quested that the jury be polled. This being done, one of them said while he had agreed to the verdict, he had doubts about the defendant's guilt. The judge told him he need not argue the case, but should give a direct answer to the question. "Was that, and is that still your ver- dict?" The juror then answered, "I will say yes, because I subscribed to it." The judge again told the juror that it was his duty to give a direct answer, yes or no, and the juror answered yes.
While the case was pending in the supreme court my client, without my knowledge, called upon Judge Whiton at his home in Janesville, and coming into my office soon after, with a frightened look and manner, gave me this account of his interview with the judge: "I called on the judge and asked him when my case would come on, and he informed me when the term commenced. I then took out a twenty dollar gold piece and handed him, expecting he would take about three dollars for his trouble and hand me the balance, but he flew mad in a moment, and with intense indignation said: 'You scoundrel! £ You offer me a bribe? Get out of my house quick or I will kick you out,' " and the client added, "I left as soon as possible." And he then said further, "The judge was awful mad, and do you think he will now pitch into me up in the supreme court?" I replied, "No, he will decide your case according to law, notwithstanding your bad, or at least, your questionable con- duct at his house." Soon after my client left the office Judge Whiton called on me with an indignant and honest severity beaming from every feature, and said, "Mr. Bennett, what kind of a client have you got? Did you know he was coming to my house?" I said, "Your honor, I did not," saying further, "He has just left the office greatly frightened;" and I gave him an account of the interview as related to me by the client. The judge then stated that he came to his house, and said he had a case
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in my court, and asked when it would be heard, and I told him, as near as I could. Then he added, "Well, judge, I suppose it will go pretty much as you say up there." at the same time handing me a twenty dollar gold piece, when I said "You scoundrel! get out of my house quick, or I will kick you out." I may add that Judge Whiton did not pitch in against my client in the supreme court, but all the judges were unanimous for reversal.
In the year 1857 I had occasion to go to Vernon county to try a case for a man named Plummer, of New Hampshire, a partner of a gentleman in that county, the partnership being engaged in the manufacture of lime and barrels. After the evidence was all in I requested the court to give an instruction to the jury that "it was only in a business strictly mercantile that one partner could bind the other by giving a promissory note." Judge Gale, the presiding judge, thinking of ordinary mer- chants, and not seeing that the business in which the firm was engaged was not strictly mercantile, said "Mr. Bennett, I do not think that is the law." I said, "Your honor, there is no question but what that is the law," and taking up Smith's Mercantile Law which I had with me, I read from it the very language of the instruction I had requested him to give. He hesitated a moment, moving uneasily on the bench, and said, "I will bet you fifty dollars that is not the law." I replied, "It is against my principles to bet, and besides, I was not aware that legal questions in our courts were settled in that manner." LeRoy Tucker, a lawyer of La Crosse, who was present, said I should have taken the bet, as then the judge would have been compelled to back down as he would not have dared to make bets while sitting as judge. At the supper table Judge Gale said to me, "I owe you an apology; I had no idea of betting, but made that expression to show my strong dissent from your position." I replied, "That is the way I understood you."
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