USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. II > Part 16
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Return, oh Bronson! from our Indian neighbors, Stand at their front and ease their legal labors- And should they plead "their clergy" then 'tis thine To open the Book and judge, Oh Dyer Divine!
The names of many of these men are familiar to members of the present bar; particularly .(though in many cases they subsequently took a prominent part in public affairs) as workers under, and largely makers of, our early political and judicial institutions. All did not belong to the "bar of Grant," at least not all resided in Grant county. The names of several in the above list were residents of Mineral Point-Strong, Jackson, Eaton and perhaps others. To many of these pioneer attor- neys the state owes an incalculable debt of gratitude. Coming to the
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"lead mines" as the result of inducements a newly discovered mining country always holds out to the profession in the way of important con- troversy and high rate of compensation, they brought with them, besides youthful vigor and courage, ability of a high order, conspicuous integ- rity, and the progressive and healthful ideas necessary to the proper de- velopment of the country. They gave balance to the settlements, cooled the feverish atmosphere of speculation, and, above all, exerted an enormous influence upon the policy of the commonwealth, as judges, legislators and in humbler stations.
In the list given by Mr. Smith are to be found the first governor of the state, the first judges of the fifth and sixth judicial circuits, rep- resentatives in Congress, United States attorneys, members of the legis- lature, framers of the state constitution-in short, men whose names are indelibly written in the pages of our state history.
THE BENCH.
Sketches of the lives of the judges of the fifth circuit (except Judge Jackson, whose career is mentioned in another chapter) and of such of the lawyers as information has been obtained of, follow. As previously stated, the first judge under the state organization was M. M. Jackson. He was succeeded by
MONTGOMERY M. COTHREN.
Mr. Cothren was born in Yates county, New York, September 18th, 1819. The moderate means of his parents did not permit of their pro- viding for their son educational advantages other than such as were fur- nished by the common schools of the vicinity. When he was about ten years old his father removed to the territory of Michigan, then the fron- tier of the "far west," where educational facilities were more limited than those he had left behind him. Here he remained for nine years, assisting his father in opening up and cultivating the farm upon which he had located, devoting the little time which this duty left at his com- mand in acquiring such an education as the circumscribed opportunities of his situation in so new a country permitted. Here he also spent a part of his time in mastering the elementary principles of that profes-
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sion of which he then little thought he was to become so distinguished a member.
At the age of nineteen Mr. Cothren left Michigan for Wisconsin ter- ritory, with the purpose of teaching school and at the same time pursu- ing the study of his chosen profession to such an extent as his peda- gogical duties would permit. On his way to Wisconsin he reached Rock River, near Rockford, where he had some acquaintances. Here he passed a year or two, and then went to New Diggings, in Wiscon- sin, where, when about twenty years of age, he entered upon the busi- ness of school teaching, continuing at the same time his legal studies. He followed this occupation until 1843, when he was chosen clerk of the county board of Iowa county and removed to Mineral Point, the county seat, remaining there until the time of his death.
In the same year (1843) he was admitted to the bar and formed a partnership with Parley Eaton. The firm of Eaton & Cothren soon had an extensive practice, and the junior member of the firm at once at- tained a high standing at the bar, which grew more and more with in- creasing years and was marked by a corresponding success.
Mr. Cothren was a member of the house of representatives in the territorial legislature during the years 1847, 1848. In 1848 he was elected state senator from the fifth senatorial district, embracing the counties of Iowa and Richland, holding the office until 1851. During this later period the general laws of the state were revised and collated as the "revised statutes of 1849." Mr. Cothren, as chairman of the senate judiciary committee and member of the commission appointed to undertake this work of revision is entitled to much of the credit for its accomplishment.
In 1852, the term for which Judge Jackson had been elected as judge of the fifth judicial circuit being about to expire, Mr. Cothren was nom- inated by the democratic party of the circuit to succeed him, and was elected by a large majority over his opponent. The platform upon which he ran affirmed the necessity of political party nominations, the first resolution of the kind in the state, and a declaration which was se- verely censured by many in both parties.
In 1852 Judge Cothren was one of the democratic presidential elec-
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tors, with his colleagues casting the five votes of Wisconsin for Franklin Pierce and William R. King.
In 1863 he was democratic nominee for chief justice of the supreme court, but was defeated by Judge L. S. Dixon, the scale being turned by the vote of soldiers in the field. In 1880 Mr. Cothren was an unsuc- cessful candidate for Congress.
After a service of twelve years upon the bench, he resumed his law practice, and in 1876 again became a candidate for the circuit judgeship. The republican party had placed a candidate in nomination, W. E. Car- ter, then of Platteville, and an "independent" candidate was also in the field, self-announced. The hold which the former judge had secured upon the confidence of the people, the satisfaction he had given upon the bench, and his wonderful personal popularity overcame all opposi- tion. He was easily elected and served his third term from 1877 until 1883. In 1882 he was defeated by George Clementson, the republican nominee. In 1889 Judge Cothren was nominated for associate justice of the supreme court by a caucus of democratic members of the legisla- ture. He made a somewhat extended personal canvass of the state. His opponent was Judge Cole, whose election followed by a majority of more than 33,000.
Upon retirement from the bench he again took up the active prac- tice of the law, continuing in it until his death, which occurred October 27th, 1888. He died ten days before the election in which he would have figured as democratic candidate for state senator.
Judge Cothren was married in 1848 to Esther Maria Pulford, who, with five children, two sons and three daughters, survived him.
He was a man of unswerving integrity, dignified, kind-hearted and charitable. The predominant trait in his character was generosity to- wards the faults and failings of his brethren of the bar, particularly, and all mankind, generally. He never indulged in malicious gossip. It was his habit to speak evil of none, and his desire to speak well of all. If he could not conscientiously praise, he was charitably silent. Nor was his benevolence limited to this. "He visited the sick, clothed the naked, fed the hungry, and never refused aid to the deserving poor."
Judge Cothren was a thoughtful man, and, while not unsociable, was
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not very communicative. Nevertheless he was quite approachable, and delighted to give advice, assistance and counsel to young men, espe- cially to young lawyers. As a natural result of his meditative cast of mind, we find him pondering deeply over religious matters, and, quite as naturally, shifting about as his convictions altered in the effort to find firm ground. He was brought up in the Presbyterian sect. In 1857 he was confirmed by Bishop Kemper in the Protestant Episcopal church, but did not permanently continue the relation. At one time he was a devout Methodist; at another he investigated the Catholic creed, ritual and ceremonies, declaring it to be the only true church. He did not, however, give practical effect to his inclinations in this di- rection. Later he stated that Beecher was preaching the only con- sistent doctrine of the age, and still later took up the study of Sweden- borg's writings and was so deeply interested in them that he became a firm disciple of his faith, which he openly avowed and consistently prac- ticed until his death. He was a believer in the communication of those : gone before with those still in mortal garments dressed, affirming his own experience of the truth of the tenets of Spiritualism.
"The prominent defect in the character of Judge Cothren as a law- yer was that his professional, like his scholastic, education had been ยท fragmentary and without system. He had none of the advantages of law schools or lectures, nor even the benefit of a regular course of study under the supervision of any competent lawyer. Notwithstanding these embarrassments, which he alone appreciated at their full importance, the uncommon strength of his native intellect, his quick intuitive per- ception, and his ready faculty of making the appropriate application of the proper legal principles to each case as it arose, enabled him to over- come the latent defects of his professional education to such an extent that to the layman and to the superficial lawyer, genius had the appear- ance of education, and tact and intuitive perception effectually con- cealed any lack of professional education. It was in the trial of jury cases, the examination of witnesses, and in arguments to the jury that Judge Cothren won his principal distinction as a lawyer. To his in- tellectual and perceptive faculties, to his genius and tact, were added a . wonderful knowledge of human nature and of the influences which af-
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fect human action. The confidence which was reposed in his integrity and his unswerving devotion to truth and honesty by all with whom he came in contact was unlimited. His warm sympathy with all the better feelings of our nature permeated his whole life. His gener- ous and noble nature and his universal self-sacrificing love of his fellow- men seemed to attach all to him. These elements of his character gave to him such an influence over the hearts of witnesses, jurors, and all whose concurrent thought and action he desired, that his power over them may most appropriately be called magnetic. Possessing these faculties, he supplemented them in arguing a case to the jury by an in- telligent and attractive mode of arranging for their consideration the issues presented by the case; a clear and fair statement of the facts and evidence of facts existing in the case, as well against him as in his favor; and superadded to which he made the most powerful arguments, sus- tained by analytical and synthetical reasoning, of which the case ad- mitted. His arguments were always adorned with finished rhetoric and fervid eloquence.
"Called to the bench at the early age of thirty-three, with only nine years' practice at the bar, it would have been wonderful in- deed if the manner in which he discharged the duties of his novel posi- tion had not elicited criticism. He had from the beginning of his term a modest diffidence of his ability, but it was overweighed by a sensitive consciousness of the integrity of his intentions and an inflexible deter- mination that truth and justice should be his guiding star, which under all circumstances he would impartially follow without fear or favor, and that he would administer the law as he understood it, according to the best lights which had been vouchsafed to him. This determination, upon which he ever acted, always sustained him, and if it led him into any error, he knew and all knew that it was of a character which is ever liable to result from the infirmities and ignorance of the most perfect of men. To parties litigant every reasonable opportunity was always af- forded of presenting their whole cause of action or their whole line of defense. To attorneys and counsel the judge, while careful to main- tain the observance of the duty due from them to the bench, was as scrupulously observant of every right and courtesy due to the members
Vol. II .- 11
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of the bar. He appeared to act upon the apothegm of Lord Bacon in his essays, that 'patience and gravity of hearing is an essential part of justice, and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he might have heard in due time from the bar; or to show quickness of conceit in cutting off evidence or counsel too short.' To jurors he was (to quote Bacon again), 'a light to open their eyes, but not a guide to lead them by the noses.' His charges were always fair and perspicuous, and, if exceptionable, a fair bill of exceptions could always be obtained. Witnesses were always protected by the judge from any improper or impertinent examination."
It may be said, to sum up, that Judge Cothren was one of the most distinguished and promising members of that pioneer bar which, at- tracted to the mineral region of southwest Wisconsin from the states of the east and south, exerted an all-pervading influence in public affairs from Lake Michigan to the Mississippi, and to whose learning, integrity and high qualifications we are indebted for many of the brightest pages in our commonwealth's history. "He was entitled to rank high as a jurist in the great body of American lawyers." He loved and honored his profession with an unchangeable devotion and never violated its ethics or its amenities. His faults were the result of frontier civiliza- tion. They were superficial. The sterling worth of the man shone through them as the sun through mists. His frailties will be soon for- gotten, while his good heart and right mind will live on.
Judge Cothren's successor was
J. T. MILLS.
Joseph Trotter Mills was born at Cane Ridge, near Paris, Bourbon county, Kentucky, December 18, 1811, making him eighty-six years of age at the time of his death. He belonged to a family of influence in his native state, his father being a judge in some of the lower courts and his uncle, Benjamin Mills, was for many years a justice of the Kentucky court of appeals. At an early date, probably about 1826, the family removed to Bond county, Illinois, leaving their son Joseph behind them, who remained to study with his uncle. Of this uncle, Benjamin Mills, he always spoke with great regard, saying that no young person
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could come, under his influence without being inspired to study and to self-improvement. While in his uncle's family he had tutors, as was the fashion in the south in those days. One of these was McGuffey, who afterward published the well-known "McGuffey's readers" and spelling- books. Another was a Quakeress named Ferguson, who exhibited to her pupils a picture of Satan dragging a slaveholder to hell. This was the earliest intimation he ever received that anybody thought slave- holding wrong.
Before he was twenty years old he became clerk for Porter Smith, the clerk of court for Bourbon county. During this period of his life he personally knew the Clays, the Breckenridges, the Blairs, the Har- neys, and other leaders of state and national life.
In 1831 he joined his family in Bond county, Illinois, and soon thereafter went to Illinois college at Jacksonville. Edward Beecher, brother of Henry Ward Beecher, was president of the college. Among Judge Mills' classmates were Richard Yates, afterwards the war gov- ernor of Illinois; Rev. Drs. Post, of St. Louis, and Robert Patterson, of Chicago.
He left the school and came to the lead region in 1833, but not find- ing wealth there returned to school. The following year Col. Taylor, afterwards President Taylor, who was in command of Fort Crawford at Prairie du Chien, Wisconsin, sent a request to President Beecher to furnish him a teacher for his children. The choice fell upon Mr. Mills, and in September, 1834, he came to Wisconsin. He taught for a time in Col. Taylor's family and then became a clerk in the Indian agency. He settled in Lancaster, Grant county, about 1840, and that was his home until the death of his wife, in 1893, led to his removal to Manito- woc, Wis., where he lived with his daughter.
At the time of his death, which occurred Nov. 22, 1897, he was vis- iting his son in Denver, Colorado.
Judge Mills was married three times. His first wife was Evelina Warner, the eldest daughter of a prominent lumberman of Millville, Grant county. She died in 1839; in 1842 he married her youngest sis- ter, Rebecca. By this wife he had seven children. Three died in in- fancy. One, Joseph Milton Mills, became a promising attorney at
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Gunnison, Colorado. He died in 1885. Three yet survive. These are a daughter, Eva, wife of J. S. Anderson, of Manitowoc, Wisconsin; George Mills, United States deputy and mineral surveyor of Mancos, Colorado, and J. Warner Mills, a prominent attorney and law book author of Denver, Colorado. His second wife died in 1857, and in 1861 he married Mary A. Coumbe, who died in 1893 without issue.
Judge Mills often said he had no natural predilection for the law. In his youth he thought he preferred the pulpit or teaching, but almost the first person he met on arriving at Prairie du Chien was Hon. Thomas P. Burnett, an eminent lawyer and reporter of the first territorial re- ports. Mr. Burnett had been a law student of Judge Benjamin Mills, and had also been a clerk in Porter Smith's office when Mr. Mills was there. He was older than Mr. Mills, and took a very kindly interest in his young friend; and, knowing his qualifications, insisted upon his entering the legal profession. As Mr. Mills often said: "Tom Burnett just picked me up and threw me into the law."
Accordingly we find that he was admitted to the bar of the territorial district court, held at Lancaster, March 27, 1844, on motion of Thomas P. Burnett, he, Ben C. Eastman and Nelson Dewey being the exam- ining committee, and Charles Dunn, chief justice of the territorial su- preme court, judge presiding.
His contemporaries in his early practice were Thomas P. Burnett, Nelson Dewey, Orsamus Cole, J. Allen Barber, William R. Biddlecome, William Hull, Ben C. Eastman, George W. Lakin, S. O. Paine, Charles and Frank M. Dunn, M. M. Cothren, Moses M. Strong, Samuel Craw- ford, Mortimer M. Jackson, James H. Knowlton, and Wiram Knowl- ton. All these readily acknowledged him as their peer, and the best of them knew that if he had "Joe Mills" as opposing attorney he had a foe worthy his best efforts.
His relations with Hon. J. Allen Barber were peculiar. For years they were upon opposite sides of almost every important case tried in Grant county. They were essentially unlike in character, in habits, in appearance, in tastes; yet each had that respect for the abilities of the other which made them the best of friends.
The writer well remembers the occasion of the bar memorial exer-
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cises held in Lancaster in honor of Mr. Barber at the court term fol- lowing his decease. The usual resolutions were reported, several ad- dresses, more or less perfunctory, were made, when all eyes were turned to Judge Mills, who had not yet spoken. He, too, sat silent, apparently struggling to obtain control of his emotions. Then he arose and began a discourse upon the immortality of the soul-the unending existence of the intellect. All arguments which philosophy has educed from either Christian or heathen sources in favor of that doctrine he sum- marized in that address. He closed with a personal tribute to his de- . parted friend, in which his finer characteristics were illumined and so vividly portrayed that the departed appeared to stand transfigured be- fore us, the air seemed filled with his presence, the walls seemed to echo his voice. The audience was awed, and when he had concluded it was long before any one found voice for concluding the exercises.
As a lawyer Judge Mills was thoroughly conscientious. "Honest Joe Mills" was the sobriquet by which he was well known in Grant county. He loved a hard-fought case, seemingly not for the reputation attach- ing to the winner, still less for the fee to be gained, but entirely for the conflict. As he put it, "he didn't like to be beaten" in anything he undertook, and he never gave up until he had either won or until every possible resource had been exhausted. His practice extended to the highest courts, and a case lost in the lower courts was frequently won in the higher tribunals upon some point saved for review. He seized the salient points, and his briefs were concentrated upon those, as he always maintained a case was weakened by introducing minor consid- erations. Neither did he have great patience with many technicalities, and has often been heard to say that lawyers who fought mainly on the technicalities of practice were making law too expensive and were "kill- ing the goose which laid the golden egg."
Probably the most lasting service which he rendered the bar of this state was in securing the early adoption of the code. That Wisconsin was the second state to adopt a code which has since been adopted by at least thirty other states was due to the efforts of Judge Mills, who succeeded in getting the measure passed by the legislature in 1856.
He was elected to the popular branch of the legislatures of 1856,
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1857, 1862 and 1879. So popular was he in Grant county that he might have served continuously had he chosen to do so; but when he did go it was always at a personal sacrifice and because he wanted to secure some particular legislation. A reference to the journals of those ses- sions will show that his name was associated with a large proportion of the work done. He was especially interested in any changes in the general laws which would make them more conformable to the changed conditions of the people, changes resulting from the great develop- ment of the material resources and rapid progress of applied science. He was at all times an upholder of the law, and on at least one occasion . prevented a crime which would have been a lasting stigma upon the county of Grant and the entire state.
The affair referred to occurred during the '50s, when there was still a garrison maintained at Fort Crawford. A young recruit deserted and, being pursued, was overtaken near the village of Lancaster. As he did not obey the command to halt, the officer in charge of the pur- suing party shot and killed him. The officer was at once arrested. The people were greatly excited and a mob was formed who threat- ened to hang him. Judge Mills placed himself before their intended victim and pleaded, not his cause, but the cause of the law and the regard of all good citizens for the good name of their state and locality. Frequently he was interrupted by cries of "hang him, hang him," and the infuriated crowd shook the rope which they threatened to make the instrument of their vengeance in the officer's face. When argu- ment seemed ready to fail Judge Mills resorted to humor. Never did his ready wit and faculty for story telling, in which he was often likened to Abraham Lincoln, stand him in better stead, and when he got the crowd to laugh he had won his case.
Judge Mills was elected district attorney of Grant county several terms and conducted a number of noted criminal prosecutions. He was elected judge of the fifth judicial circuit in 1864 and continued on the bench for twelve years. As a judge he was eminently fair, upright and conscientious. Many of his charges to juries were notable for clear and succinct statement. One in the case of the State vs. Robert Turner attracted wide attention at the time. The charge was murder and the
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defense emotional insanity. Judge Mills, after reviewing the facts in the case and briefly classifying different forms of mental delusion, said: "But whatever be the form or character of the mental incapacity, whether idiocy, delusion or mania, the test of criminality must be this: Did the accused party at the time the act was committed know that it was wrong and did he possess the power to control his will at the time?"
This charge was given when the defense of emotional insanity was comparatively little used in this state in criminal trials, but probably greater familiarity with it has not improved upon Judge Mills' statement of the proper test in such cases.
Judge Mills was a determined abolitionist. His family in Kentucky was an anti-slavery family and voluntarily manumitted their slaves. He naturally found his home with the republican party, and was one of the founders of that party in this state. His house was once threatened by a mob of angry men who demanded the surrender of an abolitionist lec- turer named Matthews who had taken refuge there. The mob, armed with guns and other weapons, among which was an old anvil for firing projectiles, drew up in front of the house and made their demand. Mr. Mills placed himself in the doorway with his gun and warned them that he would shoot the first man who came inside the yard or who pulled a trigger. As he was known to be a dead shot, no one ventured beyond the prescribed limits and the crowd gradually melted away.
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