USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 8
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He favored a limitation in the constitution of the right of suffrage to citizens of the United States who had lived in the state one year, only excepting those who resided in the territory at the time of the ad- mission of the state. In the rejection of this proposal he was disap- pointed. With the experience of the state, it is not certain that at this day his advice would not be followed in that respect.
Judge Dunn was a candidate for the United States senate in the democratic caucus of the first state legislature, but was defeated by General Dodge. This disappointment, with the advent to power soon after of the republican party, terminated his political career. He was not a politician and knew nothing of the methods essential to political success, nor had he a desire to learn them. His manhood revolted against the scheming and trickery of the inveterate office-seeker. He lived and died in the Mississippi valley, never having seen the capitol of the nation, or either ocean which washes the shores of the republic .*
From the time Wisconsin became a state Judge Dunn lived quietly at Belmont and practiced law, meeting his clients for consultation gen- erally in his country home, and traveling about the circuit in his own conveyance, attending the terms of court in the different counties. It was during this period that the older members of the bar remember him, his associates prior to that time having all passed away. In those
*In 1858 Judge Dunn was a candidate for Congress against C. C. Washburn, and in 1869 was induced to accept the democratic nomination for chief justice of the supreme court and became a candidate against Luther S. Dixon. He was defeated in both instances; in the latter the vote was 65,683 for Dunn and 72,470 for Dixon.
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days hotel accommodations were limited and inferior. Judge Dunn's room was always the best room in the best hotel of the town where court was in session, and was universal headquarters for members of the bar, no matter how distinguished or humble. Frequently every facility for seating his guests, even to his bed, would be taxed to the utmost capacity, and there the long evenings were spent in social communion, eminently satisfying to all, in which the judge was the principal actor. His hospitality was genuine and unlimited. Every worthy member of the bar had in him a friend. He had no use for the unworthy members of the profession, and they instinctively knew it.
During this period Judge Dunn was employed in many important cases. He commenced very few of them, but was employed to assist at the trial, and no more effective advocate has ever practiced at the Wisconsin bar. He was not demonstrative in argument. His strength consisted in the strength of his own convictions, beyond which he would not go, expressed in a quiet way, in plain but classic diction, and as forcible as language could be made. His character for integrity added force to his arguments with the court or jury. No one could withhold respect for the man. He was well-versed in the principles of the law, and was possessed of a mind preeminently analytical.
While at the bar he paid little attention to the reported cases, never troubling with them except when they were thrust upon his considera- tion by his opponent. He was a great moral power, untainted with false- hood in any form, and this power was directed by the most undaunted courage. He was universally courteous and considerate in his inter- course with the court and bar. If he had resentment to vent, a keen rapier wielded with a bow did the work more effectually than anger's bludgeon could have done it. The following incident will illustrate:
The judge was the attorney for the husband and defendant in a di- vorce case in La Fayette county, which excited great public interest and filled the court house with spectators during a trial which consumed nearly two weeks. The sheriff was the late Major Kyle, a prince of good fellows, a great friend of Judge Dunn's, very polite and inclined to gal- lantry. It was noticed during the trial that whenever the fair plaintiff
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and her female friends who attended her came into the crowded court- room the sheriff met them at the door and conducted them through the crowd to seats reserved for them, while the modest defendant was permitted, alone and unaided, to edge his way through the press to the side of his counsel.
This annoyed Judge Dunn, but no one was aware of it until he commenced his plea to the jury. In opening he alluded to the sympathy for the wife which pervaded the court-room and doubtless to some ex- tent affected the jury. "Even," said the judge, "my friend, Major Kyle, has shown himself during this trial to have been affected by this in- sidious influence, and while the defendant, my client, has been per- mitted to make his way through the crowded court-room to the side of his counsel, as best he might, the fair plaintiff with her numerous attendants has been met by the gallant sheriff at the door of the court- room, and conducted by him to seats reserved for them, in a manner which seems to say: here comes the distinguished plaintiff and her retinue, make way before them." The jury and spectators appreciated the point, and Major Kyle's pride received a severe blow from which it took him some time to recover.
Personally, Judge Dunn was large and stalwart, capable of great en- durance. He was fond of hunting in his early and middle life, when the country abounded in game. The wound he received in the Black Hawk war made him a little lame ever afterwards. His gestures while speaking were very peculiar, consisting exclusively of movements of the hand and forearm, the arm above the elbow remaining stationary.
An inveterate old litigant of Grant county, who knew the judge well and had felt his great power with a jury frequently, said of the judge's only gesture that it reminded him of a "pump-handle." He had, however, the greatest confidence in the "pump-handle" and its worker when enlisted on his side of a case, and the greatest fear of the combina- tion when enlisted on the side of his opponent.
The courage of Judge Dunn was marked. The following incidents as described by the pen of the late Moses M. Strong will illustrate:
"In 1836 an atrocious murder had been perpetrated in Grant county,
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and the person charged with the crime committed to jail to await the action of the grand jury. He was brought before Judge Dunn upon a writ of habeas corpus, who, after a full investigation, admitted the prisoner to bail, which he obtained and was set at liberty. The inhab- itants in the vicinity of the murder were very much incensed, and as- sembled in large numbers, with the avowed intention of lynching the accused, who only saved his life by flight. His sureties were also com- pelled to leave the territory at the hazard of their lives. The mob, in which were some very respectable citizens, also passed a resolution (of which they notified the judge) that if he attempted to hold another term of court in that county, it would be at the risk of his life.
"On the day appointed for the holding of the court, the judge ap- peared as usual, without guard or escort, as calm and undisturbed as - though he was entirely ignorant of the menaces of the mob, many of whom, as he knew, were in attendance, and, without having even spoken to any member of the bar or to the sheriff of the danger with which he was threatened, he took his seat upon the bench, with his accustomed quiet dignity, and ordered the sheriff to open court. It was observed that he took with him to his seat his saddle bags, and placed them immediately by his side. This was his arsenal. The firm, deter- mined and resolute purpose of the judge to hold court at that time and at that place, in despite of all threats of personal violence, was so un- mistakably developed in every lineament of his unblanched features that all appearance of mob violence was effectually subdued. The sheriff opened court, and its business proceeded in the usual orderly manner."
This occurrence brings to mind the case of the prosecution of Vine- yard of Grant county, for the killing of Arndt, in the territorial council chamber in Madison, on the IIth day of February, 1842. The quarrel arose over the confirmation by the council of the nomination of one Baker as sheriff of Grant county, made by Governor Doty, which Vine- yard opposed and Arndt favored. In the heat of debate Vineyard in effect charged Arndt with falsehood, which charge Arndt, immediately upon the adjournment of the council, demanded Vineyard should re- tract. This the latter refused to do, and Arndt struck him one or two
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blows with his fist. Vineyard thereupon shot Arndt with a pistol, kill- ing him instantly.
The public was intensely excited over the event, which was the more terrible from the fact that Arndt was shot down in the presence of his aged father, who was then visiting him. Prejudice ran very high against Vineyard, and, on the 14th of February, he was expelled from the council by a vote of ten to one. He remained in jail at Madison until the 10th of March, when he was taken before Judge Dunn on a habeas corpus at Mineral Point, when, after a thorough examination of the facts, the judge admitted him to bail in the sum of $10,000.
Here again Judge Dunn was severely criticized, and Charles Dick- ens, the novelist, who was then in America, and incidentally engaged in collecting material for his "American Notes," subsequently published, refers to this action of Judge Dunn's as an incident showing the reck- less disregard of life in this country. The judge's course was, however, subsequently vindicated by the acquittal of Vineyard by a jury of Green county, where he was tried.
Much has been said about the trial of Vineyard. The sentiment of the time attributed Vineyard's acquittal to the matchless eloquence of his counsel, the late Moses M. Strong, of Mineral Point; and, as in those days the standard of an advocate's moving power was supposed to bear a close relation to the quantity of liquid stimulant imbibed, it was said that Mr. Strong, during his plea to the jury for the accused, frequently regaled himself with whisky diluted with water. A statement of the kind was published in the New York Tribune.
Mr. Strong, however, later in life, when the events of the trial could be dispassionately referred to, repudiated the idea that he addressed the jury while intoxicated to any extent, and stated the fact to be that the result of the trial was brought about in a manner more consistent with the experience of the lawyer of to-day, and much more in keeping with the prevailing characteristics of Mr. Strong, whose indomitable energy and attention to details all who knew him well must acknowledge, and that hard work before the trial rather than stimulant accomplished the result.
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Mr. Strong is authority for the statement that his agents, for months before the trial, traversed Green county, adroitly eliciting from different individuals their views as to the degree of personal insult which would justify the taking of life. The information thus obtained enabled Mr. Strong to pass or excuse jurors as the interests of his client required. The population of Green county at that time was less than 1,600, so that the number of qualified jurors in the county did not exceed 300.
In presenting to the supreme court the resolutions adopted at a meeting of the bar of the state, held not long after the death of Judge Dunn, E. G. Ryan (so soon to join his great contemporary) said: "It was Judge Dunn's lot in life to fill many stations-professional and lay, executive, legislative and judicial. So far as I know, or have been able to learn, these sought him rather than he them. He certainly intruded himself into none of them. There was a modesty in the man which was rare in his generation. I think that his own estimate of his powers was below, not above, the estimate of all who knew him well. And he was a thoroughily earnest man. He filled all his offices with a singular fidel- ity and zeal, as if each in its turn were the chief end of his life. To say that he filled them with ability would be but faint praise. He did not achieve success in them by just escaping failure. He was a faithful of- ficer; his offices were never below him, but he was above them. None of them gave opportunity of showing all he was, of calling out the strength that was in him. They were all respectable, some of them high; but his intellect, his culture, his general capacity towered far above any station he ever occupied. We mourn for the untried powers which die out of the world with the young. Let us mourn for the world when it suffers great powers to die, unused in its service, with the old.
"In his life Judge Dunn saw many men around him reach stations which he did not reach. Some of them rose worthily and usefully. Some rose only to show their unfitness. With like pliancy or like arti- fice he, too, might have risen where his inferiors rose. But he was above these, and, standing below on the solid level of his own life and character, he ranked the superior of most and the equal of any of his
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contemporaries. He might have ennobled many positions filled by them-none of them could have ennobled him.
"His character was solid, strong and resolute, but not stern or harsh. His stronger qualities were softened by great sense of humor and kind- ness of heart. He was generous and trustful to a fault. His foibles, for, like all born of woman, he had them, all arose from his genial char- acter, the warmth of his heart and the kindness of his temper. Strong in character among the strongest, he was, in carriage and manner, gentle among the gentlest. His culture was of a high order, in and out of his profession. His knowledge of men and things, of the world and its ways, was profound. There were singularly combined in him the sagacity of a man of the world and the personal simplicity of a child. His sense of self-respect was unerring, and never deserted, never betrayed him. It is little to say that he was the soul of honor. He could be nothing that is false or mean. He did not know what treason was. That which he believed, that which he loved, that to which he gave his faith, were parts of himself. He could not desert faith or friend or duty, without be- traying his own life. Dishonor in him would have been moral suicide."
DAVID IRVIN.
Judge Irvin succeeded Judge Doty as judge of the new court created by Congress as a part of the judicial system of the territory of Michigan. His birthplace was in Albemarle county, Virginia, about 1794. His parentage was Scotch-Irish, his father being a Presbyterian minister and a teacher of the dead languages. As a practitioner in the Shenandoah valley, Virginia, Mr. Irvin did not meet with marked success. In 1837 President Jackson appointed him as judge of the court mentioned, and subsequently, on the organization of the territory of Wisconsin, ap- pointed him as associate justice of the territorial supreme court. In the preface to vol. I of his reports of that court Mr. Pinney (now justice of the supreme court) says of Judge Irvin: "He was not considered a profound lawyer, but with a strong vein of practical common sense and a natural love of justice, after hearing the arguments and ex-
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amining the authorities, he was generally enabled to give correct and satisfactory decisions. He had a retentive memory and was a close and discriminate observer, which enabled him to accumulate a vast stock of information of a practical character and of much minuteness. He had a keen relish for field sports, and felt a particular interest in his horse, his dog and gun.
"He detested all vices, and in that respect was an exemplar worthy of all imitation. For his social virtues he stood high with the bench, the bar and the people. The discharge of his judicial duties always seemed irksome and disagreeable to him, and he passed no more of his time in Wisconsin than was necessary to hold his courts, and was as much a citizen of St. Louis as Madison-of Missouri or Virginia as Wisconsin. He always preferred southern society, and as soon as his term of office was ended he went to St. Louis, where he remained some time, and subsequently went to Texas," where he made large invest- ments in wild cotton lands, which brought him wealth. He continued to reside there during the civil war and supported the Confederate cause. His death occurred June 1, 1872.
Edwin E. Bryant, in his contribution to the Green Bag (vol. 9, page 27) on The Supreme Court of Wisconsin, relates these incidents of Judge Irvin: Among the traditions of Green county, where he some- times held the term, it is remembered that he would adjourn court at a moment's notice to go shooting chickens. He used to say that "his horse, Pedro, had more sense than any lawyer in his court." He was in the habit of consulting Mr. Whiton before deciding a cause, to get an idea of what the law was. It is recorded that in 1841 he gave the fol- lowing charge to a jury: "It appears from the evidence that the plaintiff and defendant in this action are brothers-in-law. On the Wabash river, in Indiana, they associated themselves together for the purpose of swindling their neighbors. Not content with that, they got to swindling each other, and I am like the woman who saw her husband and a bear fight. 'Fight husband, fight bear. I don't care which whips.' And, gentlemen of the jury, it is a matter of indifference to me how you bring in your verdict." Five minutes after the jury had retired the sheriff was
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instructed to see if they had agreed. Informed that they had not, he im- mediately ordered in the jury and discharged it.
Another incident of him was told by Andrew E. Elmore, well known in the state for half a century as the "sage of Mukwanago." In a speech in the legislature, to illustrate the uncertainty of the law, he said that he once had a case on trial before Judge Irvin. The case seemed very clear for him, and the jury brought in a verdict in his favor for the amount of the claim. Just then, as the winner of the suit sat in the bar with his counsel, the judge's dog "York" became annoyingly familiar, and he unluckily gave the dog a kick, which caused a yelp to reach the master's ears. The judge's brow instantly grew dark and he set the verdict aside.
WILLIAM. C. FRAZER.
President Jackson appointed William C. Frazer, of Pennsylvania, an associate justice of the supreme court of the territory on the organiza- tion of the latter in 1836. But little is known of the career of Judge Frazer, except that he held that office to the time of his death, which occurred at Milwaukee, October 18, 1838, aged sixty-two years. It is said of him in vol. I, Pinney's Reports, that "his career in Wisconsin was so brief and unimportant that but little is now remembered of it beyond the anecdotes found in the published collections of the Wiscon- sin historical society, except that which is in a great degree traditional. The only written opinion given by him in the discharge of his judicial duties, of which there is any trace, will be found in the report of the case of the United States vs. Mau-zau-mau-ne-kah (I Pin., 124), who was indicted, tried and convicted before him at Green Bay for the murder of Pierre Paquette, the interpreter of the Winnebago nation of Indians.
"At the time of his appointment he was considerably advanced in years, and his intemperate habits rendered him unfit for the position, though it is said he had been a lawyer of average learning and ability."
Strong's Territorial History* gives a more detailed account of Judge Frazer's first terms of court, and that account varies a little in one par-
*Page 249.
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ticular from that already quoted: "On the 22d of May (1837) Judge William C. Frazer held at Depere (near Green Bay) his first term of court, which continued until the 30th of May. No civil cases were tried in consequence of the disarrangement of the records and papers. The criminal calendar, however, was generally disposed of." Mention is made of the trial of the Indian before referred to, and of the fact that he was defended by John S. Horner, who was appointed by the court for that purpose. The cases of Amable Carbonno, for the murder of his wife, and of two Indians for the murder of Ellsworth Burnett, were trans- ferred to Milwaukee county for trial. Joseph Dutcher was convicted of burglary and sentenced to seven years' solitary imprisonment in the county jail at hard labor and a fine of one hundred dollars. John O'Donnell was convicted of keeping a disorderly house and selling liquor to an Indian, and was fined fifty dollars for the first offense and one hundred for the second. Judging by newspaper comments, Judge Fraz- er's first appearance on the bench in Brown county was highly credit- able, and in marked contrast with the manner in which his judicial functions were subsequently performed.
"Judge Frazer's first term of court at Milwaukee was held on the 14th of June (1837). The two Menomonee Indians, Ash-e-co-bo-ma and Ash-o-wa, indicted in Brown county for the murder of Ellsworth Burnett, on the bank of Rock river, in the month of November, 1835, were tried. Their trials were separate. The counsel for the prosecu- tion was W. N. Gardner, district attorney, and Hans Crocker; for the defense, H. N. Wells and J. E. Arnold. The jury returned a verdict of guilty against Ash-e-co-bo-ma, the father, who was sentenced to be hung on the first day of September. A nol pros. was entered by the dis- trict attorney, by the advice of the court, in the case of the younger Indian.
"Amable Carbonno, indicted for the murder of his wife in Brown county, was so reduced by sickness and long confinement that he had to be brought into court on a bed, in which condition he was tried. The prosecution was conducted by F. Perrin and J. E. Arnold, and the defense by Henry S. Baird. He was found guilty of manslaughter and
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sentenced to ten years' imprisonment in the common jail of Brown county and to pay a fine of one thousand dollars. The sentence was superseded by his death, which resulted from his disease within twenty- four hours after the rendition of the verdict."
A fuller account of Judge Frazer's judicial career in Wisconsin than is known to exist elsewhere is given by Joshua Stark in chapter 30, vol. I, History of Milwaukee County: Judge Frazer opened his first term of the district court in Milwaukee county, June 14, 1837. He was a resident of Pennsylvania at the time of his appointment, and never removed to the west. Although a man of fair ability and many years' experience as a lawyer, he had fallen into intemperate habits, and his health, both physical and mental, had become seriously impaired by excesses. He was sixty years old, and nervous, impatient, arbitrary and often harsh, overbearing and offensive in his judicial conduct and in his treatment of the members of the bar. The few lawyers who ap- peared before the judge at his first term were nearly all young men, but men of unusual ability and preparation for professional life. Lead- ers among them were Jonathan E. Arnold, of Rhode Island, a graduate of Brown university, and John H. Tweedy, of Massachusetts, who had been graduated from Yale college. Both of these gentlemen had taken up their residence in Milwaukee in 1836. The first term lasted but two weeks. In November, 1837, the second term was held, at which the disagreeable traits and habits of Judge Frazer were so emphasized as to arouse a general feeling of disgust, and to induce the bar and many citizens to exert themselves to secure his removal. A committee was appointed to wait upon him and request his resignation, which he re- fused in offensive terms. The winter following was spent by the judge at his home in Pennsylvania; but in June, 1838, he reappeared and held the term. Little business was done. There was no confidence in the court or in judicial proceedings as conducted by the presiding judge. In September, 1838, the report became current that Judge Frazer, in a card addressed to the publisher of a Green Bay paper, had announced his intention to resign his office, to take effect October 2d, "according to a determination long since made."
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The satisfaction felt and freely expressed by the bar and people of Milwaukee at this welcome news was short-lived. For some reason the judge changed his plans, and on the 14th of October, 1838, re- turned to the city by steamboat from Buffalo, via Chicago, intending to hold the fall term of the court. The passage had been very rough, and his weak and debilitated frame could not endure the excessive strain of illness and fatigue to which he was exposed. He was taken on shore in a dying condition, and on the 18th of October, 1838, died.
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