USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 7
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*Judge Doty's right to a seat in Congress was contested by George W. Jones, the sitting delegate, on the ground that the latter's term had not expired. See Strong's History, p. 275.
¡Fathers of Wisconsin, p. 72.
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In 1846 he represented Winnebago county in the constitutional conven- tion, in which he was chairman of the standing committee on the boundaries and name of the state, and a member of the committee on miscellaneous provisions. "Owing to the bitter memories and jealousies of the period, the part he took in the general proceedings was not especially prominent, yet his minute geographical knowledge and long personal experience from actual travel and investigation rendered his services invaluable to his associates."* In 1849 Governor Doty was elected to Congress, and in 1851 was re-elected; he "procured by his in- dustry and influence important legislation for the state and his con- stituency; serving both terms with great honor to himself and to the satisfaction of the people of his district.
"In 1853 he retired to private life, and was recalled by President Lincoln in 1861, first as superintendent of Indian affairs and afterwards as governor of Utah, holding this last position at the time of his death at Salt Lake City, June 13, 1865.
"Governor Doty was what is termed a self-made man. Without the advantages of a collegiate education, yet by constant study and a close observation of men and things, he well supplied its place. His vigorous mind was eminently practical and his reading very extensive, especially in all that related to the government of the country and the history of the northwestern territory.
"Personally he had the advantage of a fine and commanding per- .sonal presence: an open, intelligent and pleasing countenance, and a most winning address; and though he had passed nearly all his life on the frontier, he will be long remembered by all who had the pleasure to know him as a gentleman of polished manners and of most courtly and dignified bearing."t
Judge Doty's judicial duties were performed under great difficulties. In 1825, 1826, 1827 and 1828 he and H. S. Baird traveled from Green Bay to Prairie du Chien in a bark canoe by way of the Fox and Wis- consin rivers, their crew being composed of six or seven Canadians or
*Fathers of Wisconsin, p. 72.
tThe last three paragraphs are from the preface of vol. I. Pinney's Reports, p. 44.
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Indians; the time occupied in making the trip was seven or eight days going and the same in returning. In May, 1829, Judge Doty, M. L. Martin and H. S. Baird went from Green Bay to Prairie du Chien on horseback, taking about seven days for the journey. They were the first party of white men that had accomplished that journey by land.
In those early days the accommodations for holding the court were neither extensive nor elegant. There were no regular court houses or public buildings, and the courts were held in log school houses, where there were such, or in rooms provided for the special occasion, destitute of comfortable seats and other fixtures for the convenience of the court, bar and jurors. In May, 1826, when the term of the court was to be held at Prairie du Chien, the judge, on arriving there, found the town entirely under water, the inundation being caused by the overflowing of the Mississippi and Wisconsin rivers. The troops had abandoned the old fort, and the inhabitants had fled to the high grounds near the bluffs; but two or three houses were occupied, and only the upper stories in those. It will naturally be imagined that under such circumstances the court could not be held. But not so. A large barn situated on dry ground, was selected and fitted up for the accommodation of the court, bar and suitors. The court occupied the extensive threshing floor, about fourteen by thirty-five feet. The jurors occupied the hay and grain mows on either side of the judge. When a jury retired to consider of their verdict they were conducted by an officer to another barn or stable.
The following account of an informal tribunal which served the public most excellently is from chapter 30, vol. I, History of Milwaukee county, and was written by Joshua Stark. It shows the intelligence, love of order and high sense of right and justice which characterized the early settlers of the region in and about Milwaukee:
Until 1835, the eastern half of what is now the state of Wisconsin was known as Brown county, of which the county seat was Green Bay. In that year that part of Brown county lying south of the present counties of Sheboygan and Fond du Lac, and including an area of more than eighty miles square, was set off by the territorial legislature of
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Michigan as "Milwaukee county," with its county seat at the mouth of the Milwaukee river. For judicial purposes, however, this district re- mained attached to Brown county until after Wisconsin became a sep- arate territory. Milwaukee county at this time was virtually an un- broken wilderness of forest and prairie. The title of the native Indian tribes had just been extinguished by treaty, by the terms of which the territory south and west of the Milwaukee river remained still in their rightful occupation. The lands in that part of the present Mil- waukee county, described as townships seven and eight, in range twenty-two, were surveyed in the winter of 1834-35, and were offered for sale in August, 1835, at the government land office in Green Bay. The survey of the rest of the county was begun in the winter of 1835-36, and completed in 1837, but the lands were withheld from sale until February, 1839.
Solomon Juneau had maintained an Indian trading-post on the site of the present city of Milwaukee for several years prior to 1834. The first indications of a permanent settlement of the region manifested themselves in the latter part of the year 1834, when emigrants from the eastern and middle states began to arrive at the post and in its vicinity. Their number increased quite rapidly in 1835, and the land sale of that year found many purchasers eager to invest in and about the future city. Anticipating the speedy organization of the new ter- ritory of Wisconsin, and expecting that the lands about the Milwaukee settlement would be at once opened to occupation and purchase, and allured by reports of the extraordinary beauty and fertility of the region and the brilliant prospects of the infant colony at the mouth of the river, emigrants came flocking into the district in 1836 and 1837 in rapidly increasing numbers. Many located in Milwaukee, but the greater number struck out into the forest, and sought to establish by occupation and improvement a certain proprietorship-or priority of right-over portions of the public domain. Controversies, of course, quickly arose among these pioneer settlers. What amount of land each person should be entitled to claim, what improvements must be made to secure his claim, within what time such improvements should be
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made and similar questions quickly came up for settlement. Conflicts arose respecting the boundaries of claims, and the possession of claim- ants was frequently disputed by those desiring to secure their land. Disputes of this sort grew more frequent and serious as people realized that there was neither law nor court to regulate the rights of parties and adjust their differences. There was no statute securing a right of pre-emption. The policy of the government on this question was not yet settled. The lands had not been offered for sale, and were not subject to entry. The settler could not buy until the government chose to sell, and his very occupation meanwhile was unlawful-a trespass upon the public domain of the United States. Congress gave no heed to the appeals of the settlers for an extension of the pre-emption laws of this territory. In this condition of affairs the people of Milwaukee and vicinity proceeded with wise deliberation to provide themselves with a remedy for the evils of lawlessness and violence which threatened them. They met at the court house in Milwaukee, March 13, 1837, and solemnly adopted a code of laws prepared by Byron Kilbourn- one of their number-which assumed in brief and clear terms to define the rights and duties of the settlers upon the public lands and to pro- vide machinery for their adjudication and settlement.
By this code the county of Milwaukee-then including Waukesha county-was divided into precincts, each having its "precinct club." Committees were appointed by these clubs to hear evidence and decide disputed claims. Aggrieved parties to such disputes were given the right of appeal to a "judiciary committee" of the county which sat in Milwaukee, and whose decision was final. A formal registry of claims was provided for, and Doctor J A. Lapham-afterward eminent as a scientist-was appointed register, and served as such without charge until after the public land sale in February, 1839, when the settlers had their first opportunity to secure the title to their lands by purchase. Fifteen prominent residents of the county served as the judiciary com- mittee.
Under this code of laws the county was settled and improved with- out serious trouble. These laws (so called) and the decisions of the
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tribunals established by them, were implicitly obeyed, or were en- forced with exemplary justice and rigor. Each man holding a cer- tificate of the registry of his claim felt as secure of his homestead as if he had the government patent in his pocket. Under the protection thus afforded, the forests were cleared away, fences were made, cabins, stables, barns and even more stately structures were built; fields were cultivated and considerable progress was made in farming and in many other industrial pursuits, while the settlers were waiting for an oppor- tunity to purchase their lands from the government. As a result, each of the settlers, whose claim was duly registered under the settlers' code, finally secured his land and his improvements without difficulty at the minimum price. In all this the only aid or support given to the pioneers of Milwaukee by legislation or the established courts, was that afforded by an act of the territorial legislature approved Jan- uary 19, 1838, which gave to any person who might be settled on any of the public lands in the territory, where the same had not been sold by the general government, the same rights of action for the protection of his possession, to the extent of his claim, without proof of actual en- closure, as if he had the title in fee; provided, that such claim should not exceed in number of acres the amount limited to any one person "according to the custom of the neighborhood" in which such land was situated, and should in no case exceed three hundred and twenty acres, and that such claim should be marked out so that its boundaries could be readily traced, and that no person should be entitled to sustain any action for possession of, or injury to, his claim, unless he had actually made an improvement "as required by the custom of the neighbor- hood" in which his claim was situated.
CHAPTER IV.
THE TERRITORIAL SUPREME COURT AND ITS JUDGES.
The territorial government of Wisconsin was established by act of Congress approved April 20, 1836. The territory of Wisconsin em- braced within its boundaries all the territory now included in the states of Wisconsin, Iowa and Minnesota, and a part of what was formerly the territory of Dakota. After July 3, 1836, Congress declared that such territory should be separate for the purposes of a temporary gov- ernment. The judicial power of the territory thus created was vested in a supreme court, district courts, probate courts and justices of the peace. The supreme court consisted of a chief justice and two associate justices. It was provided that a term of court should be held at the seat of the territorial government annually.
The territory was to be divided by the legislative assembly into three judicial districts, in each of which a district court was to be held by one of the judges of the supreme court at such times and places as should be prescribed by law. The jurisdiction of the several courts, both appellate and original, and that of the probate courts and justices of the peace, was to be fixed by law, but the act of Congress provided that the supreme and district courts should possess chancery as well as common law jurisdiction, and that each of the district courts should have and exercise the same jurisdiction as was vested in the circuit and district courts of the United States. Writs of error and appeals from the supreme court were allowed and were to be taken to the supreme court of the United States in the same manner and under the same regula- tions as from the circuit courts of the United States when the amount in controversy exceeded two thousand dollars. The jurisdiction of justices' courts was limited to cases in which the amount claimed did not exceed fifty dollars, and excluded cases in which the title to land was in dispute. The members of the supreme court were to be appointed
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by the President by and with the advice and consent of the senate. Probate judges and justices of the peace were to be appointed by the governor by and with the consent of the council.
The first appointments of judges were Charles Dunn, chief justice; David Irvin and William C. Frazer, associate justices; W. W. Chapman was appointed attorney and Francis Gehon marshal. On the 4th of July, 1836, the governor, secretary and judges took the oath of office at Mineral Point, which event constituted a novel and interesting element in a grand celebration of the national anniversary which was generally participated in by the inhabitants of the lead mine region, of which Mineral Point was then the recognized metropolis.
At the first meeting of the territorial legislature, at Belmont, in what is now La Fayette county, October 25, 1836, the territory was divided into judicial districts, and the judges were assigned thereto. The counties of Crawford and Iowa constituted the first district, with Chief Justice Dunn as judge; the counties of Dubuque and Des Moines the second, with Irvin as judge; the counties of Milwaukee and Brown the third, with Frazer as judge.
The first session of the supreme court of the territory of Wisconsin was held December 8, 1836, in the council chamber of the legislative assembly at Belmont, then in the county of Iowa, now in La Fayette county. The judges present were Charles Dunn, chief justice, and David Irvin, associate judge. The proceedings of the court were con- fined to its organization, no judicial business being ready. John Catlin was appointed clerk and qualified as such. Justus Deseelhurst was ap- pointed crier. The record expresses that "Hon. David Irvin presented a commission from Andrew Jackson, President of the United States, as one of the associate judges of the supreme court of the territory of Wisconsin, and a certificate of qualification from Henry Dodge, gov- ernor of said territory."
Henry S. Baird, Peter Hill Engle, Daniel G. Fenton, James Duane Doty, James B. Dallam, Thomas P. Burnett, William W. Chapman, Lyman J. Daniels, Barlow Shackelford, William W. Gardner, Hans Crocker, Joseph Leas, William Smith, James H. Lockwood, John S.
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Horner and James Nagle were admitted as attorneys and counselors of the court.
Henry S. Baird, having been appointed attorney general, took the oath of office and was duly qualified.
D. G. Fenton made a motion that the court appoint Thomas P. Burnett reporter of the court, which motion, after the court had taken a recess, was granted. Thereupon, the court adjourned without day.
The time fixed by law for holding the next term was July 3, 1837, and the place Madison. Two judges of the court not being then in attendance, the court was adjourned until the next day; and because of the absence of a quorum the same course was taken each day until July 8, when an adjournment was taken "until court in course."
The next term was fixed for the third Monday of July (16th day), 1838. At the opening of court Judge William C. Frazer was the only member present, and an adjournment was taken until 3 o'clock p. m., at which hour Judge Dunn appeared and court was opened by Francis Gehon, marshal of the territory. William H. Banks, F. S. Lovell, H. W. Wells, Francis J. Dunn and Jonathan E. Arnold were admitted as attorneys.
The first proceeding in a cause was the entry of a rule in the case of Mau-zau-mon-nee-kah, plaintiff in error, vs. The United States, de- fendant in error, requiring the former to assign errors on or before the first day of the next term and continuing the cause until that time.
A number of motions were heard and acted upon; three rules were adopted, and the term was adjourned.
At the July term, 1839 (15th day of the month) the court was composed of Charles Dunn, David Irvin and Andrew G. Miller. Nu- merous motions were made and considered. The first mention of a writ- ten opinion being filed in a case is that of Elizabeth Mills vs. United States, on a motion to quash the writ and dismiss the proceedings. This term lasted from the 15th until the 17th of July.
The last session 'of the territorial supreme court was held August 2, 1847, and the last entry of a cause is in the case of Alexander W. Stow vs. Rufus Parks, which was taken under advisement.
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There was no change in the members of the court during the period of its subsequent existence. At the July term, 1839, Simeon Mills was appointed clerk in place of John Catlin, resigned, and La Fayette Kel- logg was appointed deputy clerk. At the July term, 1840, Mr. Mills re- signed as clerk and Mr. Kellogg was appointed. He held the office until the organization of the state supreme court.
Following are sketches of the lives of Judges Dunn, Irvin and Frazer. A sketch of Judge Miller's life is given in the chapter which treats of the federal courts in Wisconsin and their judges.
CHARLES DUNN.
By far the most prominent personality in the legal profession in the western part of Wisconsin during her territorial existence and early statehood was Charles Dunn. He was born December 28, 1799, at Bullitt's Old Lick, Bullitt county, Kentucky, about sixteen miles east of Louisville, and died April 7, 1872, at Mineral Point, Wisconsin. His father, Captain John Dunn, was a salt manufacturer at the Lick and was born in Dublin, Ireland. His mother's maiden name was Amy Burks, of the Burks family of Burks Valley, Virginia. Charles was the oldest of a family of five sons and four daughters, and at the age of about nine years was sent to school at Louisville for about nine years, when he was called home and sent on a business tour to Virginia, Maryland and Washington. On his return home he read law for a short time with Warden Pope, a distinguished lawyer of Louisville, and afterwards he proceeded to Frankfort and continued his law reading for about two years with the eminent John Pope, then secretary of state, and who was the first law professor in the Transylvania university at Lexington.
He then removed to Illinois, and arrived at Kaskaskia, the capital of the state, in May, 1819, where he completed his law studies under the direction of Nathaniel Pope, district judge of the United States for the district of Illinois. In 1820 he was admitted to the bar. He then com- menced practice at Jonesboro in Union county, Illinois, and in 1821 married Miss Mary E. Shrader, daughter of Judge Otho Shrader, who had been an United States judge in Missouri territory. Mr. Dunn re-
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mained in practice at Jonesboro for several years, and then removed to Golconda, in Pope county. For two sessions he was engrossing clerk of the Illinois house of representatives, and for about five years its chief clerk. In 1829 he was appointed by Gov. Ninian Edwards acting com- missioner of the Illinois and Michigan canal, and with his associates, Edmund Roberts and Dr. Jayne, surveyed and plotted the first town of Chicago. In the early part of 1832 Indian troubles commenced and a requisition was made upon the state for troops to engage in service against the native Indians headed by Black Hawk. Three brigades of volunteers responded to the call, and Mr. Dunn entered the service and engaged in the Black Hawk war as captain of a company which he raised in Pope county, where he then resided. His company was as- signed to the second regiment, commanded by Colonel John Ewing, attached to the first brigade, commanded by General Alex. Posey. General Posey's command crossed the Rock river at Fort Dixon, and, marching next towards Kellog's grove, received intelligence of a severe conflict between Colonel Dement's spy battalion and the Indian forces under Neopope. After a rapid march General Posey's forces reached the grove and found that Colonel Dement's command had routed the Indians, whereupon they followed the trail of the retreating Indians up Rock river, out of Illinois, and into Wisconsin. Captain Dunn was severely, and it was thought fatally, wounded in what is now called the town of Dunn, in Dane county, by a cowardly sentinel whom he, as officer of the day, was proceeding to relieve. He was taken back to Fort Dixon, where he remained until the close of the war by the battle of Bad Axe.
As soon as he had sufficiently recovered he returned to his home, and in the spring of 1833 acted as assistant paymaster in paying off the first brigade; and during that year resumed the practice of his profession. In 1835 he was elected from Pope county to the house of representa- tives of the state legislature, and was chairman of the judiciary commit- tee during the session. In the spring of 1836 he was, upon the recom- mendation of the Illinois delegation in Congress, and the delegate from Wisconsin, George W. Jones, appointed by President Jackson chief
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justice of Wisconsin territory. He arrived at Mineral Point on the 4th day of July, 1836, and was then sworn into office, which position he con- tinued to hold until the state judiciary was organized, holding his last term of court under the territorial organization at Mineral Point in Oc- tober, 1847.
The first term of the supreme court of the territory, as well as its first legislature, convened at Belmont, now in La Fayette county, in the fall of 1836. Judge Dunn about this time took up his residence at Belmont and lived there until his death in the month of April, 1872. The present village of Belmont, on the C., M. & St. P. R. R., is three miles to the southeast of the territorial capital. Leslie station, on the Lancaster and Galena branch of the C. & N. W. R. R., is within a half mile of the site of the old capitol and a little nearer to the Dunn resi- dence. There is not a vestige left of the capitol building; tradition says that its substantial frame was removed to a neighboring farm and was there made over into a barn.
The location is one of great natural beauty. Within a radius of a mile, and directly east from the site, is the Belmont mound. A little south of west and three miles from Belmont mound, stands the Platte mound. These mounds are upon a high plateau, and are both about a half mile in diameter at the base and about five hundred feet high. In the gently undulating prairie country which surrounds them they are very prominent objects, and from their summits can be seen the three states of Wisconsin, Illinois and Iowa. When Judge Dunn made Bel- mont his residence it was with the hope and expectation that it would be the permanent seat of government of the territory and future state. Madison, the City of the Lakes, soon after won the prize, but Judge Dunn's attachment for Belmont, its natural beauty and quiet, never waned.
Judge Dunn's term of office as territorial chief justice from 1836 until the admission of the state into the Union in 1848, was no sinecure. He not only presided over the appellate court but in addition was nisi prius judge of the first district, comprising the present counties of Dane, Green, La Fayette, Grant and Iowa, and all the territory north and
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west of the Wisconsin river and east of the Mississippi. These onerous and manifold duties he discharged well and honorably.
He was a member of the last constitutional convention of the state, from La Fayette county. He was president pro tem. of the convention and chairman of the judiciary committee, over which body he exercised a commanding influence. The valuable reservations and provisions of the constitution in the interests of the people were largely the result of his broad, far-seeing mind and absolute integrity. The power reserved to the legislature to alter or repeal the charter of any corporation created by it was his work.
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