USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 6
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Chapter 5 sharply prohibited the rendering of aid to the rebellion, and directed the seizure of arms and munitions of war intended for rebel use that might be found in the state.
Chapter 6 provided for the procurement, by purchase if necessary, of arms and accoutrements, appropriating fifty thousand dollars.
Chapter 8 added five dollars per month to the pay of enlisted men having families dependent upon them for support.
Chapter 13, the final act, authorized the governor, treasurer and secretary of state to issue bonds and borrow money for the purposes of a war fund to an amount not exceeding one million dollars. All the other acts depended for their practical utility largely upon this. The public credit did not then run high and it was clear that the sale of the bonds would be an impossibility if any doubt of their validity was suf- fered to remain.
The money was wanted to aid in the suppression of the rebellion, -- the rebellion of the southern states against the federal government. There was no invasion, insurrection or war within the borders of the state of Wisconsin. The loans could be contracted only under section 7, article VIII, of the constitution of the state, which authorized the borrowing of money "to repel invasion, suppress insurrection or defend the state in time of war." There was an obvious question, therefore, whether the insurrection of the southern states brought the situation within the purview of this constitutional provision.
Under these circumstances, the governor appealed to the judges of the supreme court to give him their public opinion of the constitu-
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tionality and validity of the law. It was doubtless irregular, and under ordinary circumstances improper, that the judges should give an extra- judicial opinion upon a question which might come before them for adjudication. But the exigency of the crisis was supreme, and the judges addressed the following letter to the governor:
"STATE OF WISCONSIN, SUPREME COURT, "Clerk's Office, Madison, June 5th, 1861.
"His Excellency Alex. W. Randall,
"Governor of Wisconsin.
"Sir :- We are in receipt of your communication of the 4th inst. asking our opinion as to the constitutionality of chapter 239 of the general laws of 1861, entitled 'an act to provide for the defense of the state and to aid in enforcing the laws and maintaining the authority of the federal government,' and chapter 13, of the extra session held in May, 1861, entitled 'an act to provide for borrowing money to repel invasion, suppress insurrection and defend the state in time of war,' and as to whether bonds, issued under the above acts and in conformity to their provisions, would be valid and binding against the state.
"Your excellency is pleased to intimate that it has become a neces- sity in the present exigencies of the state and country to appeal to us for an opinion upon the above question. Yielding to this emergency, we have felt it to be our duty to give you our opinion upon the ques- tion suggested in your communication, and we would therefore state that we have considered the above mentioned laws, and from the ex- amination we have given them we entertain no doubt as to their con- stitutionality, and we are of the opinion that the bonds issued in con- formity to their provisions will be valid and binding upon the state of Wisconsin. Respectfully yours,
"LUTHER S. DIXON, Chief Justice. "O. COLE, Associate Justice.
"P. S .- Mr. Justice Paine is at present in Milwaukee and has had no opportunity of acting upon the subject matter of your communication.
"O. COLE."
By the aid of this opinion, the bonds were negotiated and their validity has never been brought in question.
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At the regular session of 1862 a number of amendments were passed to the legislation already mentioned. The five dollars extra pay per month to soldiers having families dependent upon them for support was, by chapter 112, approved March 12th, 1862, confined to organizations then already in the field or in process of formation.
An additional bond issue of two hundred thousand dollars for the benefit of the war fund was authorized by chapter 228, and a special fund of twenty thousand dollars was put at the disposal of the governor for the care of the sick and wounded soldiers of the state. (Chapter 37I.)
At a special session held in September, 1862, a general act was passed, authorizing counties, towns, cities and villages to raise money to pay bounties to volunteers. (Chapter 13.)
By far the most important act of the legislature of 1862, and one of the most important enacted during the war, was chapter II of the special session. It conferred upon the qualified electors of the state, who were in the military service of the United States or of the state, the power to exercise the right of suffrage at the several posts, camps or places where the regiment, battery or company to which the soldier belonged might be on the day of election. The act contained careful provisions guarding such elections in the field and for canvassing and returning the vote. It was passed by the party in power against strenuous opposition. Both its constitutionality and its expediency were strongly questioned. Its constitutionality was tested early in 1863 before the supreme court of the state in an action of quo warranto in- volving the office of sheriff of Dane county. Its validity was sustained and the "soldiers' vote" thus became established as an important factor in political contests. State ex rel. Chandler vs. Main, 16 Wis., 398.
The legislature of 1863 extended the soldiers' right to vote to ju- dicial elections. (Chapter 59.) It authorized an additional issue of bonds to the amount of three hundred and fifty thousand dollars for the war fund. (Chapter 157.) By chapter 196, it appropriated a further sum of fifteen thousand dollars for the care of the sick and wounded soldiers of the state. Chapter 215 authorized the governor to pur-
HISTORY OF THE BENCH AND BAR OF WISCONSIN. : 51
chase new flags for regiments in the service of the United States from this state, to replace those worn out in the service. By joint resolution number 4, a state flag was formally adopted. This flag had been in use before but without formal action on the part of the legislature. An elaborate act "for the enrollment of persons liable to perform military duty, and the organization of the state militia for active service," was passed. (Chapter 242.) A special tax of two hundred thousand dollars was levied for the "war fund." (Chapter 139.)
In 1864 the legislature authorized a further loan for the benefit of the war fund by the issue of bonds to the amount of three hundred and fifty thousand dollars, redeemable in and after the year 1896. (Chapter 360.) At the same time and for like purposes, a loan of three hundred thousand dollars was authorized upon certificates of indebtedness, bear- ing interest at the rate of seven per cent. per annum, and payable at the pleasure of the state treasurer on or before six months from the date of issue. (Chapter 361.) A special tax of two hundred thousand dollars for the war fund was also imposed. (Chapter 349.)
By chapter 117 the laws relating to the payment of five dollars extra per month to soldiers having dependent families were revised and consolidated. By this act, all the enlisted or drafted non-commissioned officers, musicians and private soldiers theretofore or thereafter mus- tered into the military service of the United States or of the state, in pursuance of any law of Congress or of the state, having families de- pendent on them. for support were to receive from the time of being mustered, in addition to the pay provided by the United States, the sum of five dollars per month. Deserters and soldiers dishonorably dis- charged were excepted. This additional allowance was not paid each month but remained in the state treasury to be paid on such orders as might be drawn in accordance with the law for the support and main- tenance of the family of the soldier. The balance remaining was paid to him at the expiration of his term of service. The definition of a "family" within the meaning of the act and the manner of drawing the money were minutely defined in the act. Under this act all Wisconsin soldiers serving in the Wisconsin regiments, who had families dependent upon
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them for support, received five dollars per month extra pay throughout their term of service.
A very large number of special laws authorizing bounties in particu- lar localities to be paid to volunteers for enlistment and providing for raising the money by taxation or loans or both, were enacted at this session.
The legislature of 1865, besides enacting numerous special laws for the raising of bounties for volunteers in specific localities, enacted a general law authorizing the qualified electors of each town, city and vil- lage in the state to raise by tax such sums of money as might be neces- sary to pay bounties to volunteers who might have enlisted or should thereafter enlist under the call of the President of the United States, of December 19th, 1864, for three hundred thousand men, and who should thereafter enlist under any further call of the President. This was the act the validity of which was questioned in the case of Brodhead vs. The City of Milwaukee, already noticed. (Chapter 14.)
Chapter 179 of 1865, made it the duty of the adjutant-general to compile complete muster and descriptive rolls, with all subsequent in- formation obtainable, pertaining to the military history of each indi- vidual member of the several military organizations of the state which were then or might thereafter be in the service of the general govern- ment during the rebellion.
Chapter 465 placed the further sum of fifteen thousand dollars at the disposal of the governor for the care of the sick and wounded soldiers of the state.
By chapter 478 large additional financial provision was made for the "war fund." The governor, secretary of state and treasurer were au- thorized to borrow upon certificates of indebtedness of the state, pay- able on or before seven months from their date and bearing seven per cent. interest, such sums as they might deem necessary, not exceeding in the aggregate eight hundred and fifty thousand dollars; and a special tax to the same amount, to be levied in the year 1865, was authorized to meet their payment.
A memorial addressed by this legislature to the President of the
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United States, not by reason of its importance but for its unique char- acter, may be entitled to notice in this place. It insists "that no propo- sition for peace should be entertained by the government of the United States other than full submission" on the part of the rebels in arms; and renews the pledge of the state to bear its full share of the burdens and hardships imposed; but finds fault with the distribution of the burdens of recruitment of the armies imposed by the government of the United States, and of the great injustice which has been especially done in the case of the state of Wisconsin. It contains, among others, the following reflection: "Your memorialists are of opinion that General Fry (the provost-marshal-general) has a new arithmetic, the principles of which he alone understands; that by its practical application, when he sub- tracts the credits which a district is entitled to, from the quota re- quired from such district, such quota is thereby enlarged." The memorialists ask "respectfully, though earnestly" that this weak arith- metician be removed from his present position, and "that the same be given to some person competent to discharge the duties thereof, and who will have some regard for equality and right."
The legislature at this session incorporated the Wisconsin soldiers' home. The original act incorporated fifty ladies, chiefly of Milwaukee, to constitute a body corporate of the name and style of "Wisconsin soldiers' home," to be permanently located at Milwaukee, for the pur- pose of providing and caring for the sick, wounded and disabled soldiers temporarily sojourning in the state of Wisconsin. This organization, it is well known, raised a large sum of money, which was subsequently turned over to the United States upon the establishment at Milwaukee of the national home for disabled volunteer soldiers.
It has been thus attempted roughly to sketch the most important legislation bearing on the war enacted during the years of its dura- tion. A few acts of subsequent years, of a germane character, remain to be noticed.
Chapter 5 of the laws of 1866 authorized towns, cities and villages to erect monuments to the memory of deceased soldiers of the war. This law is still in force. (Section 937, R. S.)
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By chapter 69 of the same year a "Soldiers' orphans' home" was established. It was located at Madison. It was supported by annual appropriations by the state until the year 1876, when by chapter 21 of the laws of that year, its property was turned over to the state university. The trustees of the orphans' home had been authorized, by chapter 72 of the laws of 1874, to find homes for orphans over fourteen years of age outside of the home. For orphans so placed, the state continued to provide through the trustees of the soldiers' orphans' home after the home itself had been discontinued.
In 1887 the legislature, by a series of acts, provided for a separation of indigent soldiers of the late war, and their families, from other poor and indigent persons supported more or less at the public expense. It was made the duty of the several counties to levy a separate tax for the relief of "indigent or needy Union soldiers, sailors and marines, and the indigent or needy wives, widows and minor children of indigent or deceased United States soldiers, sailors or marines;" and three com- missioners, of whom at least two were to be honorably discharged sol- diers, to be appointed by the county judge, were charged with the disbursement of this fund. Provisions were also made for supporting destitute Union soldiers and their families at the "Wisconsin veterans' home," then recently established under the auspices of the grand army of the republic at Waupaca. (Chapters 513, 518 and 304.)
These enactments have been more or less amended, but in their gen- eral scope and spirit remain in full force.
CHAPTER III. JUDGE DOTY'S COURT AND THE LAND TRIBUNAL OF MILWAUKEE.
It is not within the scope of this work to go extensively into pre- territorial judicial history, which consists mainly of the proceedings of military tribunals, trials before justices of the peace in a limited number of places now within the state, and the acts of the judges of the county courts of Brown and Crawford counties, which were organized in 1821, and, later, of the Iowa county court. Concerning all these tribunals and their proceedings there is much more tradition than history. The court presided over by James Duane Doty will be considered as the proper starting point.
In January, 1823, Congress passed an act providing for an additional judge of the territory of Michigan, whose jurisdiction was co-extensive with the counties of Brown, Crawford and Michilimackinac-the two former embracing the territory comprised in the present states of Wis- consin, Iowa, Minnesota, and part of that in the Dakotas. Previous to that time the only separate courts established in that vast expanse of territory were county courts of very limited civil and criminal jurisdic- tion and justices' courts. All important civil cases and all criminal cases, except for petty offenses, were, tried by the supreme court at Detroit. The first judge of this new court was James Duane Doty, appointed by President Monroe in the winter of 1823.
Mr. Doty was born at Salem, Washington county, New York, in 1799. In the year of his appointment as judge he married the eldest daughter of General Collins, of New Hartford, Oneida county, New York. In 1818 Mr. Doty settled at Detroit, and in 1819 became a mem- ber of the bar of the supreme court of the territory of Michigan. Sub- sequently he was secretary of the legislative council and clerk of that court. Soon after his appointment as judge he went to the territory
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comprising his district, organized the judiciary and opened court. His first residence in what is now Wisconsin was at Prairie du Chien; he re- mained there but a short time before removing to Green Bay, where he made his home for twenty years. He discharged his judicial duties until 1837, when he was succeeded by Judge Irvin. Of his record as a judge but little has been written, probably because his subsequent career in the field of politics and as a speculator in lands was the subject of so much discussion that his judicial career was lost sight of.
The law creating the court over which Judge Doty presided did not give the tribunal a name, but he called it the "circuit court of the United States" for each particular county in which it was held. It had concurrent jurisdiction with the county courts in the counties of Michilimackinac, Brown and Crawford, and soon after Iowa county was formed, in that county likewise, and in all civil cases appeals might be taken to it from such courts. The court was vested, within the three counties first named, with the jurisdiction and power possessed by the supreme court of Michigan territory "to the exclusion of the original jurisdiction" of the latter; but the supreme court was to have full power, to issue writs of error in all civil cases. The proceedings of the new court in criminal cases were final. One term was required to be held in each county yearly: At Prairie du Chien on the second Monday in May; at Green Bay on the second Monday in June, and at Mackinac on the third Monday in July. Consul W. Butterfield, in an article in vol. 5 of the Magazine of Western History, p. 699, says that Judge Doty held his first court in the county of Michilimackinac in July, 1823,* on his way, really, to Prairie du Chien, where he proposed to live. At this
*The writer quoted says that the first term of "Judge Doty's court was begun on the twenty-first. On the next day Rix Robinson and Varnum J. Card were admitted attorneys and counsellors of the court-Henry S. Baird having been admitted, it seems, the day previous, although no mention is made of it on Doty's record, which is before me. Joseph Bailey was appointed prosecuting attorney pro tem. The first case on the docket was Card vs. Eaton and Harmon, on an appeal from the county court. [The dates given above, and those which follow, as to the holding of special and regular terms by Judges Doty and Irvin, of their courts, I have taken from Doty's MS., record.]"
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term an Indian named Mat-way-way-go-zhic.t was tried for the murder of another Indian named Aish-Kaunz. - The persons called as witnesses for the prosecution were all Indians-male and female. The wife of the dead Indian was questioned as to her qualifications to testify in the case. She said she stood in the fear of the Great Spirit. She believed those who are good go to a good place after death, and those who are bad, to a bad place. "If I should tell a lie now before these men (the jury) about this matter I should be punished hereafter-I should go to the bad place." She was permitted to give evidence. The next person called was an Indian of the male sex. He did not know whether there was a Great Spirit or not. He had never seen him. He did not know him. He did not know where his (the Indian's) forefathers had gone. He did not see them go anywhere. This "noble red man" was required to stand aside. The father of the dead Indian was now called to the stand. He believed there was a Great Spirit. When he was young he used to pray to him if in trouble or in want; but now he was old, and he did not think it necessary; if he were still young it might be different. "I do not know that there is a good or bad place to which we go after death-I rather think there is neither. I am an old man-many of my friends have died, and if there is any such place I think I should have heard of it from some of them. No one ever came back to tell me." This Indian was not allowed to testify. Mat-way-way-go-zhic was found not guilty.
The writer in the Magazine of Western History continuing, said: Judge Doty held his next court, beginning on the tenth of May, 1824, in Prairie du Chien. This may be said to have been the first real court ever held within the limits of what is now the state of Wisconsin. County courts, it is true, had been held both at Prairie du Chien and Green Bay, as already stated; but when Judge Doty, at his first term at the former place, declared in open court that judicial proceedings were entirely new to the inhabitants of Crawford county, he simply affirmed what everyone knew was the fact.
*Baird and Card were assigned by the court as attorneys for the defendant.
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Joseph Rolette was one of the associate justices of the county court at Prairie du Chien. He did not look kindly upon the proceedings when appeals were taken from his tribunal to the one presided over by Judge Doty. He was not accustomed to have his decisions gainsaid. He waxed wroth, and cursed the new court. He would rather see a band of Winnebagoes in the building then used as a court house "than such a damned court." The result of all this was that his honor, Judge Rolette, was arrested by the sheriff and brought before the "circuit court of the United States for Crawford county"-his honor, Judge Doty, on the bench-to answer for contempt. This cooled the irate associate justice of Crawford county; and he declared he had drank, on the day he had spoken the contemptuous words, "one and a half bottles of wine and brandy"-in short, that he was intoxicated. He was fined ten dollars and costs.
The third session of "Judge Doty's court" was the second regular . term in Michilimackinac county. The fourth session was a special term at Green Bay, in Brown county, for the trial of criminal cases only-the first one in that county. It commenced on the 4th of Oc- tober, 1824. Here the first grand jury in Wisconsin was empaneled. The following account shows the nature of the business before the court at that term and is probably indicative of what was characteristic of other terms of court. There were forty-five indictments found by the grand jury-twenty-eight of which were for illicit cohabitation, the aim being to break up the prevalent custom of taking Indian women as wives of the traders and trappers without the formality of a legal mar- riage, merely buying them of their fathers, as a canoe or a pony would be bought for a price. At first the inhabitants were disposed to resent this interference with established customs, but they found the suave and courtly judge a man of iron and without fear. They for the most part pleaded guilty, and the judge suspended sentence whenever they con- sented to legally marry the dusky mothers of their children. One sturdy fellow refused to marry, paid his fine of fifty dollars, and continued to live with his unwed Indian mate. He was again indicted, and the court kindly advised him to marry before the opening of the court next day.
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He at first stood out, but appeared in court next morning, presented his marriage certificate and said: "There, I hope the court is satisfied. I have married the squaw."
On the 18th of June, 1828, the jurisdiction of the county courts of Michilimackinac, Brown and Crawford was abolished, and all suits, in- dictments, recognizances, processes, writs, appeals and all other matters and things whatsoever pending in or returnable thereto were transferred and made returnable to Judge Doty's court. This continued until July 31, 1830, when the jurisdiction of the county courts was restored. On the 2d of April previous Congress changed the place of holding the court presided over by Judge Doty, upon the division of Crawford county, from Prairie du Chien to Mineral Point, the county seat of Iowa county. Courts were thereafter regularly held by Judge Doty, not only at Green Bay, but at Michilimackinac and Mineral Point, until the ex- piration of his second term, February 1, 1832, when he retired from the bench, and was succeeded by David Irvin, who continued to be judge until the organization of the territory.
In the discharge of his judicial duties and as a speculator in lands Judge Doty had traveled over much of the territory now constituting Wisconsin, and in connection with the former governor of Michigan had bought the land on which the city of Madison is located. By his energy and tact he secured the enactment of a law designating Madison as the capital of the then territory of Wisconsin. In 1838 he was elected delegate to Congress,* and held that office until 1841, in which year he was appointed by President Tyler as governor of the territory. He served in that capacity about three years. "His administration, owing to local causes, was a stormy one, and the records and press of the period are filled with details of bitter contention."f Soon after the expiration of his service as governor he was a commissioner to treat with the Indian tribes of the northwest, with whom treaties were made.
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