USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 9
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Many stories are told of eccentric orders and judgments of Judge Frazer which, if authentic, would fully justify the charge of gross un- fitness for the office he held. The records of the court while he was judge show no trace of these singular proceedings. On the contrary, they indicate a strict regard for judicial forms and proprieties. This is perhaps largely due to the fortunate circumstance that the clerk who kept its records during this time-Mr. Cyrus Hawley-was a man of superior intelligence and carefulness in the discharge of his duties.
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A somewhat peculiar judgment entered by Judge Frazer at his first term, in a criminal case, would seem to indicate special solicitude for the rights of the accused. An. Indian named "Ash-e-co-bo-ma" was tried for murder, convicted and sentenced by the judge to be executed on the Ist of September, 1837. Ash-e-co-bo-ma and another were next tried for an assault with intent to kill, and both were convicted. Each was sentenced to pay a fine of three hundred dollars and the costs of the prosecution, "and be imprisoned by solitary imprisonment in the common jail of the county of Milwaukee for the full term of five years from this date;" but the judge carefully pro- vided against double punishment by adding as part of the sentence, "The latter sentence to go into effect in the case of Ash-e-co-bo-ma if he is pardoned on the sentence previously pronounced for murder by his excellency, the governor."
The first day's proceedings in Judge Frazer's court included the ad- mission of Henry S. Baird, Hans Crocker, Augustus Story, Marshall M. Strong, Nathaniel F. Hyer, William N. Gardner, John P. Hilton, John H. Tweedy, Rufus Parks, Franklin Perrin, Horatio N. Wells,
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Jonathan E. Arnold, John Hustis and William Campbell as attorneys. The grand jury was composed of William A. Prentiss, foreman, Everson P. Maynard, Allen O. T. Breed, Samuel Sanbourn, Benoni W. Finch, Samuel Brown, Samuel Hinman, James H. Rogers, William B. Sheldon, Pleasant Field, James Sanderson, George Bowman, John T. Haight, Calvin Harmon, George S. West, Alamon Sweet, Benjamin H. Edger- ton, Henry M. Hubbard, William R. Longstreet.
When the testimony on the trial of Ash-e-co-bo-ma for murder was all in, Judge Frazer took out his watch and, noting time, laid it upon the table, thus addressing the lawyers engaged for the prisoner: "I will give you fifteen minutes each to make your arguments to the jury in this case and no more." Vainly did they protest against such tyranny. Mr. Arnold had hardly entered into the first of his argument when time was called. He and Horatio N. Wells were each allowed ten dollars by the court for defending the case.
During the course of the term the following, in addition to those already mentioned, were admitted as attorneys: Erasmus D. Phillips, William A. Frazer, John Richards, Eliphalet Cramer, Clinton Walworth and Aaron Woodman. With the latter the court had some trouble. On the record on the 20th of June it was "ordered by the court that Aaron Woodman take his seat, and he replied that he would not. Ruled: That he show cause for contempt of court, returnable at ten o'clock to-morrow morning. Service acknowledged by said Woodman in open court."
Upon calling court the next morning the first business was the matter of "contempt;" and Mr. Woodman was called upon to answer. Thereupon a member of the bar arose, and calling attention to a petition held by him, asked leave to read the same, which was granted. The petition was signed by "Rufus Parks, chairman," and "J. E. Arnold, secretary," and read by the former. It expressed that the subscribers, members of the bar of Milwaukee county, believed that the difficulty arose from a misapprehension in the mind of the court, and that the statement of facts, drawn up and unanimously agreed upon at a regular meeting of the bar, at which all the members were present, and which
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were given, was, in brief, that the language which the court thought Mr. Woodman had addressed to it was directed to a brother lawyer. The petitioners asked that the offensive words be expunged from the records, and that the rule made in consequence thereof be discharged. This prayer was granted.
The Magazine of Western History (vol. 5, pages 820, 821, 822, 823) is the source of the preceding four paragraphs. The article there pub- lished contains the following concerning Judge Frazer's conduct on his first arrival in Milwaukee. "The judge reached Milwaukee in June, 1837, on a Sunday evening, from holding court in Green Bay. He put up at a small hotel then kept by a Mr. Vail. He at once fell in with some old friends, who invited him to a private room for the pur- pose of having an innocent game of poker. There were in the party, besides Frazer, an United States official connected with the land office, and two or three others. They commenced playing for small sums at first, but increased them as the hours passed. By the dawn of the next morning small sums seemed beneath their notice. The early hours were heralded to them by the ringing of the breakfast bell. The judge made a great many apologies, saying, among other things, that as this was his first appearance in the territory (Milwaukee), and as his court opened at ten o'clock that morning, he must have a little time to prepare a charge to the grand jury. He, therefore, hoped they would excuse him, which the residue of the party did, and he withdrew.
"The court met at the appointed hour, Owen Aldrich acting as sheriff and Cyrus Hawley as clerk. The grand jury was called and the mem- bers sworn. The judge, with much dignity, commenced his charge; and seldom, perhaps, was there such a charge given from the bench. After dwelling upon several laws that it was thought necessary and proper to call their attention to, he alluded to the statute against gambling. The English language was too barren to describe his abhor- rence of that crime. He said that a gambler was unfit for earth, heaven, or hell, and that 'God Almighty would even shudder at the sight of one.' "
CHAPTER V. THE FIRST STATE SUPREME COURT AND ITS JUDGES.
The constitution provided that, for the term of five years and there- after until the legislature shall otherwise provide, the judges of the sev- eral circuit courts shall be judges of the supreme court, four of whom shall constitute a quorum. That instrument also divided the state into five judicial circuits. The first was composed of the counties of Racine, Walworth, Rock and Green; the second, of the counties of Mil- waukee, Waukesha, Jefferson and Dane; the third, of the counties of Washington, Dodge, Columbia, Marquette, Sauk and Portage; the fourth, of the counties of Brown, Manitowoc, Sheboygan, Fond du Lac, Winnebago and Calumet; the fifth, of the counties of Iowa, La Fayette, Grant, Crawford and St. Croix. It was further provided that for each circuit there shall be a judge chosen by the qualified electors therein; that one of said judges shall be designated as chief justice (of the su- preme court) in such manner as the legislature shall provide.
Pursuant to the foregoing provisions the first circuit elected Ed- ward V. Whiton judge; the second, Levi Hubbell; the third, Charles H. Larrabee; the fourth, Alexander W. Stow; the fifth, Mortimer M. Jackson. Alexander W. Stow was chosen chief justice by his asso- ciates on the organization of the court. Jerome R. Brigham was ap- pointed clerk and David H. Chandler reporter. The judges qualified by taking the oath of office August 28, 1848. After some two and a half years' service Judge Stow left the bench, and was succeeded by Timothy O. Howe, who qualified January 1, 1851, and served until June 1, 1853. On December 11, 1850, Wiram Knowlton, judge of the recently created sixth circuit, took his seat for the first time as a mem- ber of the supreme court, though he qualified as circuit judge August 6, 1850. There were no further changes in the personnel of the court,
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which went out of existence June 1, 1853. Judge Stow drew the short term, which expired in 1850.
The original supreme court of the state sat for the first time Jan- uary 8, 1849. There were present Alexander W. Stow, chief justice, M. M. Jackson, Edward V. Whiton and Charles H. Larrabee, associate justices. Jerome R. Brigham is noted on the journal as present in the capacity of clerk. The court was opened by proclamation of Peter W. Matts, sheriff of Dane county. The first act of the court was the adoption of a general rule that all attorneys of the late territorial supreme court should be admitted attorneys of this court on taking the official oath. All other persons entitled to admission, either as attor- neys of a circuit or of another state, were to pay an admission fee to the clerk of three dollars.
Those admitted as attorneys on the first day the court sat were Moses M. Strong, Alexander Botkin, Parley Eaton, Alexander L. Col- lins, Joseph T. Mills, Edward Elderkin, Marshall M. Strong, George W. Lakin, S. S. N. Fuller, Wallace W. Graham, Amzy L. Williams, George Gale, Alfred Brunson, Charles E. Jenkins, J. Gillett Knapp, Ben C. East- man, Frederick S. Lovell, Charles S. Bristol, Lyman Cowdery, David Agry, James M. Gillett, Jonah Bond, Henry W. Tenney, Montgomery M. Cothren, Robert Robinson, Sydney Sea, William R. Smith, Orsamus Cole, Amos F. Culver, Andrew G. Chatfield, George B. Smith, E. Webster Evans, Abram D. Smith, Samuel Crawford, Francis J. Dunn and John Delany.
The first proceeding in a cause was in the case of Nicholas Flanegan vs. McCoun and Ernest by way of a motion on behalf of the former, by his attorneys, Eaton, Cothren, Culver and Robinson, to compel the clerk of the court of La Fayette county to send up a transcript of the record.
The attorneys who had business before the court on the first day of its sitting were Messrs. Eaton, Cothren, Culver, Robinson, Eastman, Brunson, Lakin, Mills, Lovell, Bond, A. D. Smith, Dunn, Crawford, Evans, Strong.
The first record of a written opinion is in the journal of January II,
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1849, it being stated that in the case of James H. Lockwood vs. Robert Rogers the opinion of the court in writing was delivered by Chief Justice Stow.
A proceeding somewhat out of the usual course was had on January 12, 1849. In the language of the journal: "The Hon. Charles Dunn, late chief justice of the supreme court of the territory of Wisconsin, having taken the official oath, administered by his honor, Chief Justice Stow, is admitted an attorney of this court."
The last sitting of the first supreme court of the state was on the 30th of December, 1852. There were present Whiton, chief justice; Hubbell, Larrabee, Jackson and Knowlton, associate justices.
Following are sketches of the lives of the judges of that court:
ALEXANDER W. STOW.
The fourth judicial circuit, comprising the counties of Sheboygan, Manitowoc, Brown, Winnebago, Calumet and Fond du Lac, had for its first judge after the organization of the state Alexander W. Stow, of whom Morgan L. Martin, his lifelong and honored friend, wrote as follows: "Alexander W. Stow was born at Lowville, N. Y.,* 5th of February, 1805. His father, Silas Stow, was a prominent federalist in the early political struggles of that state, was chief justice of the county court, which made him the associate of the supreme judge at nisi prius, and for one term represented the district in Congress. He was a man of superior ability and culture and possessed a fund of general knowledge which placed him in the front rank of the public men of his day. The son inherited much of the talent of the father.
Judge Stow was never a close student, but under the tutelage of his father and the eminent men with whom he was brought into asso- ciation in early life he became, almost by tuition, an accomplished scholar.
"At the age of sixteen, he was placed at the military academy, where
*Reed's Bench and Bar gives Middletown, Connecticut, as the place of Stow's birth, and the time as 1804. Page 50.
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he remained only a single year,* and returned to enter his law office in his native village. In due time he was admitted to practice, and formed a partnership with Hon. Justin Butterfield, late commissioner of the general land office, then residing at Sacketts Harbor. That the superior ability of young Stow was fully appreciated by him may be in- ferred from a remark of his in 1826, that he 'had never known a man of superior constitutional powers.' A few years of routine practice, dur- ing a short respite from which he spent a few months in European travel, bring him to the time of his election as chief justice of our state.
"His eccentricities were many and peculiar. There were some by which his general character was judged of harshly and unfavorably by those little acquainted with him; there were many which should go far to redeem it from reproach. He was peculiarly jealous of the independ- ence of the judiciary, and would only accept a position on the bench under a pledge not to serve a second term. It must be unincumbered by obligations of any character save such as appropriately attached to the office to maintain its dignity and to preserve its purity. If any attempt was made, by solicitation or otherwise, to influence him in the discharge of its duties, the act was indignantly rebuked or summarily punished. He was particularly cautious to avoid any influence of favoritism on the one hand, and equally so that his rulings upon the bench should be free from a taint of prejudice on the other.
"As presiding officer of the supreme court, his highest eulogium may be found in the opinions he pronounced during his short official term. They exhibit great comprehensiveness of thought; are terse, excisive and pungent in diction, and furnish models of judicial composition. The common law is well defined as the common sense of mankind, and
*Mr. Reed says that but little can be learned of Stow's early life, excepting that he was a college graduate, after which he traveled extensively in Europe; that he studied law, and after his admission to the bar practiced the profession at Rochester, New York. In 1845 he came to Wisconsin and settled at Fond du Lac, near which city he purchased a farm, but did not become a farmer. His time was divided between Fond du Lac and Milwaukee, at which latter city he had a law office, but not
much business. He was never married, and died in Milwaukee, September 14, 1854. There is some difference of opinion as to whether Mr. Stow was married or not; the more charitable view is that he was united by a common law marriage to an Indian.
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he imitated the virtues of the most eminent jurists by making it the broad foundation upon which his decisions were uniformly based."
The late Chief Justice Ryan held a more favorable view of Judge Stow's ability than did Mr. Martin. He says that he did not know him before they met in Wisconsin. From thence till the judge's death, the writer is proud to say that they were intimate and fast friends. Know- ing the judge, then, in the prime of his professional life, the writer finds it difficult to believe that the late chief justice had not been at some time a close and extensive student. His acquaintance with books, in and out of the line of professional reading, was varied and extensive. He might have been called almost a scholar in general literature, and he most surely was one in professional learning. He was one of the best, if not the very best, common lawyer whom the writer has ever met. He was not one of those to whom the common law was a frag- mentary confusion of disjointed rules. He had mastered not only its details, but the history out of which it grew. And his vigorous and broad mind grasped it as a system in its full spirit and comprehended the mutual relations and symmetry of all its parts. He well understood that it is not a mere system of municipal law, but that it is, with all its blemishes, the noblest code of personal rights which the world has ever known; which educates men in free and self-reliant manhood, and which has done.more than all written systems or constitutions for the freedom of the nations who are blessed in its possession. Judge Stow was certainly an accomplished common lawyer.
In the learning of modern decisions, the multitudinous reports of the last quarter of a century or more, which perplex too many of us with bewildering variety of rule, Judge Stow could not be said to be a scholar. He was not a case lawyer; but he was a better lawyer than mere case learning can make. The fundamental principles which under- lie all sound judicial decisions were familiar to him, and mainly guided his judgments. The common law was his judicial creed. And there is a soundness of judgment, a strength of sense, a massiveness of reason- ing, and a manliness of language in his opinions, which are not attained in the study of modern reports; which none of his successors have ex-
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celled, if, indeed, any of them have equaled. He held the scales of justice with a strong but nice hand. His opinions are very generally sound in matter and really admirable in manner. He owed this partly to his common law, partly to the strength of his character, and the energy, accuracy and justice of his intellect.
For his character was singularly solid and firm, and his faculties were of high order. There were indeed occasional eccentricities in his thinking as well as in his acting. Making some allowance for these, he was surely a great man intellectually. The writer doubts if he ever knew an abler. His views were always vigorous, often profound, and generally discriminating and just. He was indeed a man of strong prejudices, but these rarely, if ever, influenced him on the bench; never. consciously. He loved truth for truth's sake, with intense love. He loved justice for itself, with natural and professional devotion. Many disliked the man, but none ever doubted the judge. He reverenced the judicial office; and while he held it, he made all men respect it. He had a high sense of judicial dignity and authority; and there was no trifling with the court in which he presided. On the bench he looked what he was, a great judge.
He was strongly opposed, on principle, to elective judiciary. He believed that the system had a tendency to make judges representa- tives of the popular will. He feared that it had a tendency to make judges court favor on the bench. This led him, when solicited to be a candidate at the first judicial election, to declare that, if elected once, he would not suffer himself to be re-elected. He chose to place the judicial office in his keeping above suspicion. The system was then untried; and he failed to give due consideration to the self-respect and professional pride which raise all fit for office above the mean ambition of keeping it by sinking into unfitness for it. He would have been re-elected after his brief term, but for his own truth to his own promise to himself. That honorable but mistaken pledge cost the state a great judge; how great his short judicial service can only indicate. He is now com- paratively unknown and unappreciated. A longer judicial career would undoubtedly have placed him in the front rank of American judges.
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With all our boast of the present, judicial eminence is not what it was. And thoughts of him and of those who preceded and followed him in his place in this court, and who honored it as he did, Dunn, Whiton and Dixon, make the present writer feel of himself,
ATTAL1,
IGNOTUS HAERES, REGIAM OCCUPAVI.
Judge Stow left the bench after some two and a half years' service; and lived in private some five or six years, never again resuming his profession. He died with the deep respect of the profession throughout the state.
He was not a man of many attachments; but all his affections were faithful and lasting. Those only who knew him well, knew that beneath an outside rarely gentle and often harsh, he had a generous and noble nature, and led a life of genuine kindness and consideration for all whom he honored with his intimacy. He was perhaps deficient in some of the gentler qualities of our nature. But none of his peculiarities arose from mean or false qualities. There was nothing small in his nature. All his eccentricities were excesses of strength. A high integrity pervaded his whole character. He bore to his grave the profound regard of all who were happy enough to know him as he really was. And the pres- ent writer gives feeble expression to his sense of Judge Stow's excel- lence by this crude and hasty reminiscence of a good man and just judge.
Mr. Bryant has collected some anecdotes of Judge Stow which were published in his contribution to the Green Bag, heretofore referred to. The judge was long remembered in Madison, where he presided as chief justice, by his tastes, so strange to the western people. He had acquired in foreign travel the taste for game well "ripened." It was told with disgust that the chief justice required his prairie chickens to hang out of his bedroom window till the legs and bills were green, and the feathers rubbed off by a stroke of the hand, and the odor told of decay before he would allow them to be cooked. He was a proud man and stood upon his dignity. It is told that he had a client, one Captain
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B., who had been an officer in the British service, and being a man of wealth, had settled in Wisconsin. He was a little peremptory in his bearing, yet he and Stow were warm friends, and the latter was his trusted counsel. One day Captain B. rode up to the door of Stow's office and, not wishing to dismount, which was something of a task to a man of his bulk and years, he called to Stow through the open door: "Judge Stow, come out here a moment." The lawyer, offended by the brusqueness of manner and dominating air, which had often nettled him before, sung out, "See you d-d first: if you want to see me, come in here." A general substitution of attorney followed this episode.
Another anecdote is told of this jurist. One of his cases decided at the circuit had been reversed by the supreme court, of which he was chief justice. The remittitur confronted him at the circuit, and he was reminded that his decision was reversed. "Then," said he, "I have only one other decision to make, and that is, that the supreme court are con- summate blockheads."
EDWARD V. WHITON.
Edward Vernon Whiton, distinguished as legislator, constitution framer and jurist, was born June 2, 1805, at South Lee, Berkshire county, Massachusetts. He descended from James Whiton, who came from Hingham England, in 1640, and settled at Hingham, Massachu- setts, and whose second son. Joseph, removed to Ashford, Connecti- cut, in 1730. Edward was the son of Joseph Whiton, who descended from this line, and was born at Middleton. He served under General Gates in the revolutionary war, and settled at South Lee soon after its close. In the war of 1812 he was major-general of one of the divisions called into service to defend Massachusetts from threatened invasion in 1814, and commanded the defenses at Boston. On the restoration of peace he returned to South Lee, and represented the town of Lee nine years in the general court of the commonwealth. He had three sons, all of whom became judges: Joseph Lucas, who settled in Lorraine county, Ohio, and was there the founder of a distinguished family; Daniel Garfield, who resided awhile in Ohio, and then came to Wis-
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consin, where he died, and Edward Vernon, the subject of this sketch. The latter resided in his native town until he was about thirty years of age, "read law" there and served as librarian of the town library. It is supposed that he here acquired a considerable part of that accurate historical knowledge that he afterwards made such good use of.
In 1835 Mr. Whiton left his native town for the west; he remained in Lorraine county, Ohio, until 1837, when he came to Wisconsin and settled on a tract of prairie land near the present site of Janesville. In his youth he had learned the trade of millwright and carpenter, and it was an easy matter for him to build his own cabin, and afterwards the more pretentious house in which he lived and died. For several years after he became a resident of the territory Mr. Whiton lived alone, his marriage having occurred in 1847.
In 1838 he was elected a member of the territorial house of repre- sentatives, though he was, politically, a whig and the prevailing senti- ment of his district (Rock and Walworth counties) was democratic. He served during the sessions of 1838, 1839 and 1839-40, and during the last was speaker. He also served as a member of the committee which prepared the statutes of 1839, and superintended the printing thereof. He was twice re-elected to the house, and served during the sessions of 1840-41, 1841-42. In 1842-43, 1843-44, 1845 and 1846 he was a mem- ber of the council. In 1847 he was elected a member of the second constitutional convention, and served in that body as a member of the judiciary committee.
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