USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 27
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
In the year 1852 the Honorable I. C. Sloan came from the east and settled in Janesville, and in 1854 his equally distinguished brother, A. Scott Sloan, came to the state and settled at Beaver Dam. You all know the great ability and learning of those two lawyers. I do not remember that I ever personally met a stronger lawyer than I. C. Sloan. But I
279
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
do not intend to dwell upon the great ability of either; but mention them here for the purpose of relating an anecdote of Abraham Lincoln respecting them, which I have never seen in print. In 1860 we had only three members of Congress from this state, and A. Scott Sloan was elected the same year that Lincoln was elected President; they were both over six feet and three inches tall, and a very warm friend- ship sprang up between them. After the census of 1860, we had six members, and I. C. Sloan, who was at least an inch shorter than his brother, was elected in 1862, and represented part of the district his brother had represented. I. C. Sloan went to Washington, and was introduced to the President by his brother, and as they both stood before Lincoln he said he saw the President running his eyes up and down them, when he smilingly said, addressing the shorter of the two, "Mr. Sloan, it seems to me the republicans of Wisconsin are lowering somewhat their standard of republicanism." He replied, "No, Mr. President, we think we are keeping our banners as high as ever," when the President replied, "Ah! Mr. Sloan, you know, we read that those who had seen the new temple only rejoiced, while those who had seen both the old and the new wept." "Well, Sloan," said I, "what did you say to that great compliment to you, and the greater one to your brother?" He replied, "I did not know whether the President was quoting from profane or sacred history, and did not know what reply to make, and therefore said nothing."
We are met here to take part in the semi-centennial celebration of the state, and what miraculous changes have taken place all over the grand commonwealth in the last fifty years. The little village where I located, of one thousand inhabitants, has become a city of between thirteen and fourteen thousand, and the population of the state has in- creased from 225,000 to over 2,000,000. And all over the state the in- crease in population, in institutions of learning, in wealth and power, has been equally great and marvelous. And we, unlike the seven noble youths of Ephesus, called the Seven Sleepers, who fled from perse- cution to a cave in the side of a mountain, in the reign of Publius Decius, the Roman emperor, known as the Christian persecutor, and were
280
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
walled in and remained there one hundred and eighty-seven years, where their lives, as the legend tells us, were preserved in a miraculous manner by the power of God; and when they came forth were greatly astonished at the great changes that everywhere met their eyes, they supposing they had slept only a few hours, while we, unlike these sleep- ers, during the passing of the last fifty years, have been awake, taking cognizance of the wonderful changes constantly going on. And I think it should be a source of great gratification to the legal profession in this state to know that they have been a most powerful factor in this great and rapid development. For, without good laws and a wise and just administration of them, there can never be any sub- stantial and permanent improvement and prosperity in the state. And everyone knows that the constitution and laws of the state are mainly the result of the labor of the members of the bar. And the wise, im- partial and just administration of those laws by the lawyers and judges of the state tend equally to advance its great prosperity. But the old judges and the old lawyers who first took part in forming the consti- tution and laws of this state have passed or are rapidly passing away.
Abraham Lincoln, at the close of his address delivered before the state agricultural society on the 30th day of September, 1859, said, that a certain eastern monarch once charged his wise men to invent for him a sentence to be ever in view, and which should be true and appro- priate in all times and situations. And they presented him these words: "And this, too, shall pass away!" How much it expresses! How chastening in the hour of pride! How consoling in the depths of afflic- tion! "And yet," he added, "let us believe it is not quite true. Let us hope, rather by cultivating the physical world beneath and around us, and the intellectual and moral world within us, we shall produce a state, rich, powerful and prosperous, and a people highly moral, intellectual and generous, possessing political prosperity and happiness, and which, while the earth endures, shall not pass away!"
CHAPTER IX. WISCONSIN LEGAL BIBLIOGRAPHY.
BY JOHN R. BERRYMAN.
Since Wisconsin has passed the fiftieth year of her statehood, it may be worth while to note what has been accomplished by her citizens in the line of legal authorship. During the first thirty years of the state's existence but little was attempted in that direction, perhaps, for the reason that the men of those times were less inclined to undertake the confinement and seclusion which are necessary to the production of works on legal topics than are those of these days. The earlier times were more stirring than the later. Ambitious men, striving for fame and fortune, are not enamored of the hidden toil and meager compensa- tion which are the lot of authors of law books. The road to popular fame or to fortune does not lie in that direction. He who seeks the plaudits of the multitude or the approval of the people must look else- where than in the library of him who is testing, arranging, harmon- izing and trying to formulate principles from the multitudinous de- cisions of the courts of fifty or sixty jurisdictions. But all men do not seek distinction along these lines. There are those to whom the quiet of the library and the patient application needed to prepare a work on a legal topic is agreeable, far more so than thronging, surging crowds and the plaudits they bestow upon the orator who tickles their fancy or stirs their emotions. The number of such in Wisconsin has increased of late years, and will doubtless continue to increase in augmented ratio. It is not the purpose of the writer to review the productions of the law writers of the state; but rather to place before the reader the sub- stance of what has been done by them.
REVISED STATUTES.
Of first importance to the legal profession and the public is the written law; especially as it appears periodically in the form of revisions
281
282
1
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
or compilations. Books of the first class are prepared by commis- sioners or revisers appointed by the legislature or pursuant to its authority. Of these, Wisconsin, as territory and state, has had five. The first revision was provided for by a resolution adopted by the terri- torial legislature in December, 1838, and which appointed Messrs. Morgan L. Martin, Marshall M. Strong and James Collins, of the council (the upper house), and Messrs. Edward V. Whiton, B. Shackel- ford and Augustus Story, of the house of representatives, a committee to revise the laws of the territory, and report the result of their labors at an adjourned session. This committee, during the recess of the legis- lature, which continued only about thirty days, prepared, and, at the session which succeeded, reported numerous bills, which, after being amended by the legislature, were enacted and composed the prin- cipal part of the statutes of 1839, a volume, including the index, of 456 pages.
The circumstances under which these statutes were prepared neces- sarily precluded them from being a revision in the sense in which that term is now used. It lacks a table of contents; is not divided into chap- ters, nor is the matter so classified as to meet the demands of the present time. But a fair consideration of the conditions under which the com- mittee did its work leaves no room to doubt the capacity or industry of its members. Indeed, so far as some of them are concerned, it may be questioned whether the intervening years have produced their su- periors; without any disrespect to the memory of the other members of the committee, this is especially true of Edward V. Whiton and Marshall M. Strong. The duty of superintending the printing, making the mar- ginal notes and index was devolved by the legislature upon Mr. Whiton. The time allowed him for that purpose was brief, the act appointing him having been passed March II, and his task having been completed, ap- parently, June 15.
The revisers of 1839 were all members of the legislature of 1838. Morgan L. Martin was a member of the council from Brown county; Marshall M. Strong, from Racine county, James Collins, from Iowa county; Edward V. Whiton was a member of the house from Rock and
283
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
Walworth counties; Barlow Shackelford, from Brown county, and Augustus Story, from Milwaukee and Washington counties.
The genesis of the revised statutes of 1849 is found in an act ap- proved July 13, 1848, which provided for the selection of three commis- sioners by the senate and assembly whose duty it was to prepare and lay before the next legislature a bill revising the statutes; provision was made for filling any vacancy which might occur in the commission, the governor being authorized to appoint. The compensation of each commissioner was fixed at three dollars for each day while engaged in the work, and the employment of a clerk at two dollars per day was authorized. In July, 1848, the legislature elected M. Frank, Charles S. Jordan and A. W. Randall commissioners; the latter, declining to act, Charles M. Baker was appointed by the governor in his stead. James Simmons served as clerk to the commission.
The commissioners began their labors in August, 1848. Owing to the fact that the constitution had been recently adopted and that but a comparatively small body of law had been enacted under it, they found their labors so great that the conclusion was early reached that the time allotted for doing the work was insufficient to permit a revision of the entire body of the laws; they, therefore, began upon and com- pleted such parts as most needed change by reason of the altered condi- tions arising from statehood. In January, 1849, sixty-four chapters were reported to the legislature. These, with the exception of a very few of minor importance, were adopted by the legislature, generally without any, or with but slight, amendment. The commissioners con- tinued their work during the session of the legislature, reporting chap- ters from time to time as they were completed. In order to secure the printing of such laws as could not be revised, for lack of time, in the same volume as the parts thereof which were revised, the legislature ap- pointed a joint committee consisting of M. M. Cothren, George W. Lakin and William M. Dennis, on the part of the senate, and James B. Cross, Marshall M. Strong, Morgan L. Noble, Paul Crandall and Tim- othy Burns, on the part of the assembly, to compile and report such laws as the commissioners should be unable to revise and report during the
284
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
session. The result of the labors of the commissioners and the com- mittee was the Revised Statutes of 1849.
Mr. Baker was appointed to superintend the printing of the statutes, make marginal notes and an index. He was given authority to arrange the chapters into parts and titles as he thought proper, to rearrange the order of the sections or transpose them from one chapter to another, whenever it would not alter the meaning of the law, and the proper order of arrangement required it. This authority he freely used, as the preface indicates, though. probably, he never exceeded it. It seems, in the light of recent adjudications, that it came dangerously near being a delega- tion of legislative power. But there is no record that such an objection was ever made.
These statutes, in arrangement and general form, were far in ad- vance of those of 1839, being divided into parts, titles and chapters, and the last being subdivided into subtitles and sections.
Of the revisers of 1849 Judge Baker is the best known; a sketch of his life appears elsewhere in this work. Mr. Jordan was a member of the Rock county bar; a lawyer of ability and a man of great wit. Like many of the profession in his day he was somewhat given to con- viviality. He left the state a good many years ago, and about the time of the Chicago fire was practicing there. It is understood that he has been dead some years. Michael Frank, the other member of the com- mission, was not a lawyer, though he had studied law somewhat in his youth. He is best known as the father of the present school system of this state. He was born in Virgil, Cortland county, New York, Decem- ber 12, 1804; his father was a German, and served in the revolutionary army. The son lived his first twenty years on a farm; was much given to study and political discussion; he organized the young people of his section into societies for mutual improvement; he aided in the organiza- tion of the first Sunday school in central New York; was active in the advocacy of temperance, and adhered to his convictions to the extent of resigning the captaincy of an artillery company rather than abandon them; the anti-slavery cause also found in him a warm champion. From the time he attained his majority until he left his native state he
285
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
was inspector of common schools, and for a time served as county su- pervisor. In 1839 he came to Wisconsin, settling at Southport (now Kenosha), where the remainder of his days were passed. Two months after his arrival he succeeded in organizing a lyceum; he was one of the speakers at the first territorial temperance convention, held at East Troy, Walworth county, in February, 1840, and chairman of the com- mittee appointed to prepare an address to the people; in June, 1840, he became joint editor with C. Latham Sholes of the Southport Tele- graph and maintained his connection with that paper many years. He was the first president of the village of Southport (1840) and the first mayor of Kenosha (1850). In 1840 he was commissioned by Governor Dodge colonel of militia; he served in the upper house of the territorial legislature in 1843, 1844, 1845 and 1846, and in the assembly in 1861. It is said that he was the first agitator in favor of the admission of the territory as a state. In 1840 he began the agitation in his paper of the subject of free schools, and in 1843 introduced a bill on that subject, which failed of passage; in 1845 he succeeded in obtaining the enact- ment of a law permitting the establishment of a free school in the village of Southport, subject to approval of the electors. At the first meeting held to vote on the proposition the excitement was so intense that a vote could not be taken. The ground of opposition was that it would be unjust to tax the property of those who had no children to pay for the education of the children of other persons. At a second meeting the law was approved, and the first free school in Wisconsin was estab- lished at Southport.
Colonel Frank's especial duty as a member of the commission to revise the Statutes of 1849 was the preparation of a school code. The chapter prepared by him was antagonized by Marshall M. Strong on the ground that the commissioners had exceeded their power, which was to revise existing laws and not to draft and recommend the enactment of new ones. The answer was that the constitution had made existing school laws inapplicable, and that there was nothing to revise.
The other principal facts in the career of Colonel Frank must be passed over rapidly. In 1850 he was editor of the Wisconsin Journal of
286
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
Education; in 1861 was appointed postmaster at Kenosha and held the office five and a half years; was a regent of the state university six years; county treasurer four years, and held other local offices; attended the state convention at which the republican party was organized, and remained a member of it; in 1869 bought the Beloit Free Press, but did not remain owner of it long; occupied a position in the treasury de- partment at Washington for twelve and a half years; returned to Kenosha in 1882 and assumed the editorship of the Telegraph, in which position he remained until early in 1889. His death occurred Decem- ber 26, 1894.
The adoption of the code of procedure in 1856 made a revision of the statutes necessary; accordingly, at the adjourned session of the legislature which met September 3, 1856, and adjourned October 14, 1856, a law was enacted authorizing the governor to appoint three re- visers, whose duty was declared to be to collect, compile and digest the general laws; they were to report to the legislature as soon as may be, and to receive such compensation as the legislature may deem just and reasonable, not less than five dollars per day for not exceeding two hundred days' service. The act directed that the appointments should be made without delay. The revisers were David Taylor, Samuel J. Todd and F. S. Lovell. The date of their appointment is not shown in the preface to the revised statutes of 1858, but it is stated there that they entered upon the performance of their duties in the spring of 1858, and that the time limited for completion of the work was very short (about twenty-eight weeks); the time for which the legislature had provided for compensation.
The revisers submitted their report early in the legislative session of 1858. "It was not" their "object or intention to change the system under which the state had grown up, but to endeavor to simplify and harmonize it; and to this end they recommended several important amendments. Owing to the absorbing interest taken in mat- ters then pending in the legislature, the report of the revisers was left unacted upon until a late day in the session. Several of the amend- ments recommended by the revisers were lost in the legislature, and
287
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
many amendments were made, some of which were not sufficiently con- sidered in their bearing upon the whole revision." The result of the labors of the revisers was the revised statutes of 1858. The printing of the volume was superintended by Mr. Lovell.
Except so far as amendments of the revisers' bill were made by the legislature, the revision of 1858 was based upon the laws in force before the legislature of that year met. Hence the laws of 1858, which were not revised but were compiled and arranged in the revision by Mr. Lovell, were not always in harmony with the revision. The result was uncertainty as to the controlling provisions. Whether any attempt was made to secure an adjournment of the legislature or the calling of an extra session in order to give time for the incorporation of the laws with and as part of the revision, is not known. The revisers' work stood the test of twenty years and was as free from defects as any other revision, except as indicated, and for such no responsibility attached to them. The volume was well printed; the classification of its contents into parts, titles, chapters, subdivisions of chapters and sections made them access- ible. No references were made in it or in either of the previous revisions to the sources from whence the several sections were drawn, nor to decisions upon them.
Sketches of Judge Taylor and Mr. Lovell appear elsewhere. Mr. Todd was a member of the Rock county bar, and is living, at the time of writing this, in Beloit, though he has been an invalid for several years. He served as state senator in 1867 and 1868. His professional standing was always good. He was not partial to contested business, and avoided rather than sought it.
The inevitable result of the action of seventeen legislatures upon the revision of 1858 was to tear it into many fragments and to pile up a vast body of statutes which contained many inharmonious and irrecon- cilable provisions. The demand for a revision was indeed urgent when the legislature of 1875 authorized the justices of the supreme court to appoint three competent persons to collect and revise the general laws; they were also authorized to fix the compensation of the persons ap- pointed and to make such allowances for clerk-hire as they deemed just
288
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
and reasonable. It was also provided that the revisers should enter upon their work as soon as practicable, and when the whole work was completed report it to the next succeeding legislature.
This was the first adequate provision made for a revision. The earlier revisers were limited, directly or indirectly, as to the time in which their task should be performed. The authority conferred upon the justices of the supreme court was so exercised as to produce the best results to the state; they fixed the compensation of the revisers at fif- teen dollars per day each, and appointed David Taylor, William F. Vilas and J. P. C. Cottrill to prepare the revision. These gentlemen entered upon their labors in April, 1875, and prosecuted them until some time after the opening of the session of the legislature in 1878. In the mean- time, the legislature became impatient for the result of the revisers' work, and inquiries were put by it, from time to time, as to the progress made. In 1877 the legislature, in order to secure the completion of the work within the next year, authorized the appointment of two addi- tional persons to whom might be assigned portions of the work as pro- jected by the revisers; pursuant to such authority Harlow S. Orton and J. H. Carpenter were appointed; the former prepared part four of the revision, relating to criminal law, the latter title twenty-nine, entitled "proceedings in county courts." The revisers were assisted from the beginning by A. C. Parkinson and during the last few months of their labors by R. C. Spooner. In their report, submitted with their bill, the method pursued by them and the objects aimed at are stated at length; the necessity of the time devoted to the work is vigorously de- fended, presumably because of legislative and public impatience on ac- count of the delay in completing it.
In addition to reporting a bill the revisers submitted also a volume containing their formal report and notes made by them showing the sources from whence the several sections were drawn, and the changes of substance made therein, and, in some cases, briefly stating the reasons for recommending such alterations. This report proved to be very valuable and was in such general demand that it soon became im- possible to obtain copies of it. The notes contained in it were reprinted
289
HISTORY OF THE BENCH AND BAR OF WISCONSIN.
in Sanborn and Berryman's supplement to the revised statutes of 1878, and thereby made accessible to the profession. Another point of differ- ence between the bill which became the revised of statutes of 1878 and previous revisions was that the former was sectionized consecutively ; and yet another, that it contained references to the decisions of the supreme court affecting the sections or illustrating in some way pro- visions contained in them.
The inconvenience caused by the enactment of the revised statutes of 1858 without harmonizing the laws of 1858 therewith induced a dif- ferent procedure in 1878; the re,visers' bill was referred to a joint legisla- tive committee consisting of L. W. Barden, T. R. Hudd and W. T. Price, on the part of the senate, and E. E. Bryant, Wm. E. Carter, E. C. Mc- Fettridge and H. J. Ball, on the part of the assembly; the committee was instructed to incorporate the general laws of 1878 as well as to ex- amine the revisers' bill. In order that this might be done the legis- lature, having finished its other business, adjourned on March 21, with the understanding that when the committee on revision was prepared to report the governor would call it together in extra session. This was done and such session convened June 4. The committee reported one hundred and fifty-five amendments to the revisers' bill, nearly all of which were adopted; a few amendments offered by members on the floor were also adopted; these were not material. The extra session adjourned June 7.
As has been suggested, the conditions under which the revised statutes of 1878 was prepared were favorable for improved results as compared with the circumstances attending previous revisions. Such results were obtained, and to an extent sufficient to justify the language used by the joint legislative committee in their report: "Your com- mittee cannot too highly commend the orderly arrangement and care- ful natural analysis of the revision. It is written in a terse, clear, per- spicuous style, with remarkable condensation. The general plan of the work laid out by the revisers, the ability and painstaking fidelity with which it has been executed, command our approbation." Messrs. Vilas and Carpenter superintended the printing of the statutes, and were as-
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.