USA > Wisconsin > Milwaukee County > Memoirs of Milwaukee County : from the earliest historical times down to the present, including a genealogical and biographical record of representative families in Milwaukee County, Volume I > Part 54
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unable to pay it. The judge enquired what his occupation was. He answered that he was a fisherman. Says the judge: 'Can you pay it in fish?' The defendant replied that he did not know but he could, if he had time to catch them. The judge turned to the clerk and told him to enter up a judgment, payable in fish, and to grant a stay of exe- cution for twelve months, at the same time remarking to the defendant that he must surely pay it at that time, and in good fish-for he would not be willing to wait so long for stinking fish."
Judge Frazer was not blessed with any great amount of legal learning to counterbalance his peevishness and harshness, which were prominent traits of his disposition, and at the close of the first term of court the members of the Bar determined, if it were a possible thing, to force him to resign. A meeting was accordingly held at the court house on the evening of Nov. 17. 1837, to "take into consideration the ineasures necessary to be adopted to obtain a reform in the judiciary in this district." William A. Prentiss acted as chairman, and the meeting was largely attended. Resolutions were adopted, which, after announcing the right of American citizens to assemble and petition for a redress of their grievances, went on to say that "in repeated in- stances, Judge Frazer declared he would pay no regard to the law of the territory, contending that he was to determine when it was applic- able to the wants of the people," that the charge to the grand jury was a "perfect farce"; that in the Burnett murder case referred to, the judge showed "a manifest anxiety to procure the conviction of men for capital crimes, outstripping the zeal of the district attorney": that "in capital cases, where the lives of human beings have been in jeopardy, he has evinced a cold, blood-thirsty spirit" ; that he has refused trial by jury and has come into court prejudiced, deciding one day, and, being so- licited, reversed the decision the next ; that his opinions were hasty and ill-digested, and that he assumed to himself all authority ; that he was pecvish, irritable and obstinate. The paper ended by requesting Judge Frazer's resignation. The next day the committee, headed by the chair- man, called at the judge's boarding house. At II o'clock a. m. hc came before the members of the committee, presenting himself in gown and slippers, and seemed inclined at first to treat them with great con- sideration. He had not learned of the proceeding of the night before, but when the gentlemen explained their errand, the storm burst, and the language he used could not well be reported. He cooled down soon, however, and the committee understood that he would resign after holding a term of court in Racine county, which commenced the fol- lowing week. If Judge Frazer had intended to leave the impression on the minds of the committee that he would resign, he evidently changed
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his mind, and he was encouraged to return, no doubt, by the spirit evinced in a card which appeared in a Milwaukee paper, and signed by a number of citizens, and dated Nov. 21. This document disap- proved of "intimidating the highest functionary of the courts" and of "fostering resistance to the administration of justice." "If the course pressed upon the community by members of the Bar were followed. the honest and industrious yeomanry and mechanics of this country would have suffered, through the instrumentality of the court, calami- ties greater in intensity than have ever been inflicted upon any other section of our beloved country." The resolutions of the admirers of the judge asserted "that the people of Milwaukee are not prepared to submit their necks to a yoke prepared for them by an aristocracy com- posed of a score of fledglings of the law. a few would-be wealthy lead- ers, and their organ. the editor of that contemptible paper, the Milwaukee Advertiser, but that they are content that this cabal should stick to each other to the last-par nobile fratrum-'fit body for fit head'-and would assure them that the people are sufficiently intelli- gent to guard their interest without their aid, and that they will do so. and particularly against their sinister and selfish machinations." In publishing the report of the "two sides of the case," and a card from the eighteen grand jurors who were impaneled at the June and November terms, which upheld Judge Frazer. the Advertiser remarked that of its own personal knowledge, thirty of the most prominent who sustained him were interested in suits yet pending. This sentiment evidently changed the judge's determination-if the committee had rightly under- stood him-and after holding court in Racine county he went to Pennsylvania, where he passed the summer of 1838, returning in Oc- tober with the intention of holding a November term in Milwaukee. He came up by boat from Buffalo, but a northeast gale carried it past the port to Chicago. On the return Judge Frazer was taken sick and sent ashore to a small hotel kept by Mr. Childs on Walker's Point, at which place he died. Ile was buried in the old First ward cemetery, near where the dam was subsequently built, and some years afterward a son who desired to give his father another resting place, removed the remains to the burying ground beyond Burnham's grove on the South Side. And there lies all that is mortal of the judge who held the first term of the district court in Milwaukee. He was sixty-two years old at the time of his death. "The only written opinion given by him in the discharge of his official duties of which there is any trace," says Pinney's Wisconsin Reports, "will be found in the report of the case of The United States vs. Mau-zau-man-ne-kah, who was indicted. tried and convicted before him of the murder of Pierre Paquette. the
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interpreter of the Winnebago nation of Indians. At the time of the appointment he was considerably advanced in years, and his intemperate habits rendered him unfit for the position, although it is said that he had been a lawyer of average learning and ability."
Many stories are told of eccentric orders and judgments rendered by Judge Frazer. The records of the court during the period of his incumbency show no trace of these singular proceedings. On the con- trary, they indicate a strict regard for judicial forms and proprieties ; but this is accounted for by the fortunate circumstance that the clerk who kept the court records was Cyrus Hawley, a man of superior intel- ligence and carefulness in the discharge of his duties. A somewhat peculiar judgment entered by Judge Frazer at his first term. in a crim- inal case, would seem to indicate special solicitude for the rights of the accused. "Ashecocoma," one of the Indians charged with the crime of killing young Ellsworth Burnett, was tried for murder, convicted and sentenced by the judge to be executed on Sept. 1, 1837. The con- demned and another Indian were next tried for an assault with intent to kill, and both were convicted. Each was sentenced to pay a fine of $300 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 Ashecocoma if he is pardoned on the sentence previously pronounced for murder, by His Excellency, the Governor."
Cyrus Hawley, who officiated as the clerk of this first district court, came to Milwaukee from Hampton, Conn. He was a shrewd and con- scientious business man, purchased real estate in large quantities and with great good judgment, and while waiting for a "rise," held many minor offices of trust. He was the first register of deeds and as already stated, the first clerk under Judge Frazer. The last named office hie held many years, until his health became so impaired that he retired to his homestead, in what is now the West Side, and there he died on June 1, 1871.
The few lawyers who appeared before Judge Frazer at his first term of court were nearly all young men, but they were men of unusual ability and preparation for professional life. Leaders among them were Jonathan E. Arnold, who was a native of Rhode Island, a graduate of Brown University and a student of the Harvard Law School, gain- ing admission to the bar before he reached his majority ; and John H. Tweedy of Massachusetts, who had been graduated from Yale College, and who is given more extended mention in another chapter. Both of these gentlemen had taken up their residence in Milwaukee in 1836.
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Andrew Galbraith Miller, of Pennsylvania, an utter stranger to the Milwaukee colony, succeeded Judge Frazer on the bench, being appointed to the position by President Van Buren in November, 1838. Judge Miller was born near the present site of Carlisle, in Cumberland county, Pa., on Sept. 18, 1801, and he was the eldest of a family of ten children. He prepared for college at an academy in his native town. matriculated at Dickinson College, went from there to Washington College of Pennsylvania and was graduated at that institution on Sept. 19, 1819. He read law in the office of Andrew Carruthers, of Carlisle, Pa., and was admitted to the bar in 1822. His father died soon afterward and the care of the large family devolved largely upon him, a burden which he bore with cheerful, manly mien. He practiced his profession in his own and adjoining counties with great success until 1838, in the meantime being attorney-general for three years. Upon his appointment as associate justice of the supreme court of Wisconsin he at once repaired to his new field of work. He reached Milwaukee after a tedious journey of a month ; took the oath of office on Dec. 10, 1838, and entered upon his duties, which he discharged with signal ability for many years. After Wisconsin was admitted into the Union, in 1848 President Polk appointed him judge of the United States district court for the Wisconsin district, which then comprised all the territory in the new state, and so continued until 1870, when the state was divided into the eastern and western districts. Judge Miller was then assigned to the eastern district, and there continued his service, giving honor and dignity to his office and profession until near the close of his long and useful life. After honoring his office for a period of thirty-five years. on Nov. II, 1873, he announced his determination to retire from the bench in the following language :
"Two years ago, then of the age when federal judges are allowed to resign on a continuance of their salaries, I was inclined to accept the terms of the law, but being blessed with good health, and not having the plea of infirmity, in response to the expressed wishes of numerous highly respectable and influential gentlemen of all parties and pro- fessions, to retain my place, and not believing it proper to retire imme- diately upon arriving at the specified age, I concluded to continue in office until the expiration of thirty-five years from the date of my first commission. The time set for my resignation has arrived, and I make the announcement to the president of the Bar Association that this day I resign the office of district judge of the United States for the eastern district of Wisconsin, to take effect on the first day of January next. An carlier day for my retiring would be agreeable to me, and should have been set, but for an amount of business pending. or submitted and
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not disposed of, which requires my attention in the meantime. I am the oldest federal judge in commission, and the sole surviving judge who administered the bankrupt act of 1841. As judge of the territorial Su- preme Court, I attended its annual terms at Madison and held the district courts in the third district of the territory, which before the admission of the state into the Union, was composed of nine counties, and also the terms of the District Court as judge of the United States, without missing a term from sickness or any other cause. Al- though the infirmities of age cannot be pleaded as an excuse for my resignation, yet after passing fifty-four years of my life in the law, as a student in a law office, as a member of the bar, and as a judge thirty- five years of the time in public service, I hope that the members of the bar and my fellow citizens generally may approve of my retiring from official duty in the evening of my days. I love the legal profession and esteem the worthy practitioner as holding the most honorable position in the country. And I shall retire with thankfulness to the bar for the aid they have rendered me by their briefs and arguments in my judicial investigations, and with my best wishes for their prosperity and happiness."
In accordance with this announcement he retired from the bench in the full vigor of his mental and physical powers, carrying with him the highest esteem of those who had been associated with him in his official relations ; of the members of the bar whose professional duties had brought them into close contact with him; and of his fellow citizens of all classes who, by long acquaintance had come to love him for his genuine worth. Less than one year later, and without premonition. on Sept. 30, 1874. while in apparent good health, he was stricken down and his spirit took its flight to that bourne whence no traveler returns.
During his long career on the bench Judge Miller had to deal with questions of the gravest importance, not the least among which was the effort to enforce the Fugitive Slave Act of 1850. An aggravated case involving the violation of this enactment led to a series of procced- ings in the federal courts and the courts of the state, assuming national importance and contributing not a little to preparing the way for the conflict of arms between the free and the slave states in 1861. The particular case referred to and the events leading to it are thus briefly given by one familiar with all the principal facts: A negro named Glover, claimed by one Garland of Missouri to be his fugitive slave. was arrested by a United States deputy marshal at his home in Racine county, under process issued by the district judge, and was brought to the jail of Milwaukee county. The news of the arrest quickly spread. and it was reported that the negro had been roughly beaten by his
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captors, and might be turned over to the supposed owner and hurried out of the state without a public examination. A crowd of excited and sympathetic citizens were drawn together in the court-house park by the efforts of two or three men-Sherman M. Booth and John Rycraft being the most active-and after listening to brief addresses, proceeded to break into the county jail and liberate Glover and aid his escape from United States territory. The chief rescuers, Booth and Rycraft, were prosecuted criminally in the district court for violation of the act of Congress requiring the return of fugitive slaves, and were both con- victed. These trials excited the most intense interest, and were attended by crowds of citizens. The feeling in the city against the law was very strong, and most of those who thronged the court-room daily were in warm sympathy with the accused. Judge Miller presided with calm dignity and unflinching firmness and courage. He believed the law to be valid and his duty to enforce it plain under his official oath, what- ever he might think of its wisdom or abstract justice. In these cases and others which grew out of the same rescue Judge Miller exhibited in a remarkable degree the qualities of firmness and unswerving devo- tion to duty as he saw and comprehended it, which always characterized him.
Another important case came before him in 1859, when bills were filed in the district court for the foreclosure of trust mortgages upon the road, property and franchises of the La Crosse & Milwaukee Rail- road Company, including the lands granted by Congress to the state, and by the state in turn to that company in 1856, to aid in the con- struction of portions of the road. These suits were the beginning of a prolonged struggle for the possession and title of the mortgaged prop- erty, in which every effort which the talent and skill of very able lawyers could suggest was employed to secure advantage, and victory if possible. Novel and intricate questions were raised and pressed upon the court for decision. Matters of the gravest difficulty were the man- agement of the road by the court through its receiver, and the adjust- ment of conflicting equities between contesting claimants, and in these matters but little help could be derived from the practice of other courts in like cases, for precedents at that day were few. The calm, deliberate and unruffled temper of the presiding judge was maintained through- out the contest, though his decisions were often bitterly assailed. He was rarely reversed, despite the fact that appeal after appeal was taken to the supreme court.
Judge Miller was succeeded on the district bench by Hon. James H. Howe, of Kenosha, a nephew of Senator Timothy O. Howe. Judge Howe was born and educated in Maine, was admitted to the bar at
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Green Bay in 1848, and practiced his profession there several years. In 1859 he was elected attorney-general of the state and served from Jan. 2. 1860, until Oct. 7, 1862, when he accepted the command of the Thirty-second Wisconsin Infantry and went into active military service. For several years before his appointment as district judge he had been general solicitor of the Chicago & Northwestern Railway Company, hav- ing his office in Chicago and his residence in Kenosha. Judicial life and duties proved less congenial than he expected, and he resigned the po- sition after a service of little more than a year, resuming the practice of his profession. On Feb. 10, 1875, he was succeeded on the bench by Hon. Charles E. Dyer, of Racine.
Judge Dyer was born in Cicero, Onondaga county, N. Y., Oct. 5. 1834, and was the son of Dr. Edward G. Dyer, who removed from New York to Wisconsin in 1839. The father was the first physician to settle at Burlington, Racine county, and for many years engaged in the active practice of his profession, becoming widely known among the pioneers of Racine and enjoining counties. As a boy, Charles E. Dyer attended the pioneer schools of the neighborhood in which he grew up, and his course of study in those schools was supplemented by home training and instruction which gave him some knowledge of the higher mathe- matics and Latin, as well as of the common English branches. When he was sixteen years old he left home and went to Chicago to learn the printer's trade, becoming an apprentice in the office of the Western Citizen. At the end of a year he reached the conclusion that he would not be satisfied to follow the printer's business permanently, and went to Sandusky, Ohio, where he accepted a clerkship in the office of the county clerk of Erie county, and while serving in that capacity he ac- quired his first knowledge of courts and court practices. Acting upon the suggestion of a friend, he later entered the office of Lane, Stone & Lane, of which Judge Ebenezer Lane was at the head. He pursued a course of reading under the special guidance of William G. Lane, a son of the Judge, and upon whom judicial honors were also conferred in later years. Admitted to the bar in 1857, Mr. Dyer immediately entered into a partnership with Walter F. Stone, later a judge of the supreme court of Ohio, and practiced his profession in that state one year. Hav- ing a strong liking, however, for Wisconsin, he returned to this state in 1859 and established himself in practice at Racine. He made a good impression upon the bar of that city and in 1860 and 1861 served as city attorney. For several years he practiced alone successfully in Racine, and then formed a co-partnership with Henry F. Fuller, which continued in existence up to the time of his appointment as a judge of the United States court. In 1867 and in 1868 he served as a member of
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the legislature of Wisconsin, where he distinguished himself as a care- ful and conscientious legislator, but prior to the time he took his place upon the district court bench he had held no judicial position. Begin- ning in 1875, his term of service as a United States district judge cov- ered a period of thirteen years, and no man ever sat upon the bench in Wisconsin whose judicial acts were more generally approved and com- mended by both the bar and the public. An accomplished and able lawyer, he left the ranks of the practitioners to achieve distinction as a just and upright judge, and in 1888 he resigned his position upon the bench to return again to the practice of his profession. When he re- tired from the bench he accepted the position of general counsel of the Northwestern Mutual Life Insurance Company, which position he retained up to the time of his death, Nov. 26, 1905.
Hon. James G. Jenkins, of Milwaukee, was selected by President Cleveland as the successor of Judge Dyer, and the former occupied the position until in April, 1893, when, upon the appointment of Judge Walter Q. Gresham to the position of Secretary of State in President Cleveland's cabinet, Judge Jenkins was elevated to the bench of the United States Circuit Court. The vacancy thus created in the office of district judge was filled by the appointment of William H. Seaman, of Sheboygan, a lawyer of marked ability and ripe experience, gained by many years of close application to the practice of the law. Judge Seaman occupied the position until the spring of 1905. and then. upon the resignation of Judge Jenkins, he was appointed to the bench of the United States circuit court, and he was succeeded as judge of the dis- trict court by ex-United States Senator Joseph V. Quarles, who is the present efficient incumbent. As extended personal mention is made of Judges Jenkins and Quarles in the biographical department of this work, a repetition here would be unnecessary.
CIRCUIT COURT.
A radical change in the judicial system of Wisconsin was made with the organization of the state government. The constitution took effect on the first Monday of June, 1848, and therein it was provided that the judicial power of the state, both as to matters of law and equity, should be vested in a supreme court, circuit courts, courts of probate, and justices of the peace. The legislature was also empowered to vest such jurisdiction as should be deemed necessary in municipal courts, and to establish inferior courts in the several counties, with limited civil and criminal jurisdiction, provided, that the jurisdiction vested in such municipal courts should not exceed that of the circuit
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court in the same municipalities, and that the judges of such municipal and inferior courts should be elected by the qualified electors of their respective jurisdictions for terms not exceeding in length the term of judges of the circuit court. The organic law divided the state into five judicial circuits, subject to be increased or diminished in number by the legislature, for each of which circuits a judge should be chosen by the qualified electors therein. The five circuit judges first elected were to be classified so that their terms should expire respectively in two, three. four, five and six years, and circuit judges were thereafter to be elected for six years. For five years, and thereafter until the legislature should otherwise provide, the judges of the several circuits were constituted the supreme court. The legislature was empowered, if it should deem it expedient or necessary, to provide by law for the organization, after five years, of a separate supreme court, to consist of one chief justice and two associate justices, elected by the qualified electors of the state. and so qualified that but one of them should go out of office at a time. and their terms of office should be the same as provided for the judges of the circuit court. The supreme court was given a general superintending control over all inferior courts, and power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same. With these exceptions, its jurisdiction was declared to be appellate only. The circuit courts were given original jurisdiction in all matters, civil and criminal, within the state. not excepted in the constitution and not thereafter prohibited by law ; and appellate jurisdiction over all inferior courts and tribunals and a supervisory control over the same, with power to issue the writs above named and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions. The governor was to fill vacancies in the office of judge of the supreme court or circuit courts by appointment, until a successor should be elected and qualified for the residue of the unexpired term. A judge of probate was to be elected in each county for a term of two years, with powers and jurisdiction to be prescribed by law, but the legislature was au- thorized to abolish the office in any county and confer probate powers on such inferior courts as it might establish therein. Justices of the peace were to be elected at town and charter elections in towns, vil- lages and cities, to hold for two years, and to have such civil and criminal jurisdiction as should be prescribed by law. The constitution further made the senate of the state "a court for the trial of impeach- ments by the 'House of Representatives' of civil officers of the state for corrupt conduct in office or for crimes and misdemeanors," the con-
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