The story of a great court; being a sketch history of the Supreme court of Wisconsin, its judges and their times from the admission of the state to the death of Chief Justice Ryan

I '!!!

UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW
LIBRARY

^^g.

EDWARD VERXOX WHITON.

THE
STORY OF A GREAT COURT

BEING A SKETCH HISTORY OF THE SUPREME COURT

OF WISCONSIN, ITS JUDGES AND THEIR TIMES

FROM THE ADMISSION OF THE STATE TO

THE DEATH OF CHIEF JUSTICE RYAN

JOHN BRADLEY WINSLOW, LL.D.CU. W.)

CHICAGO

T. H. FLOOD & COMPANY

1912

Copyright 1912

BY

T. H. FLOOD & COMPANY

STATE JOURNAL PRINTING COMPANY,
Printers and Stereotyperk

MADISON, wis.

*o

THIS BOOK IS AFFECTIONATELY INSCRIBED

THE AUTHOR TO THE READER

Any one who offers another book to a profession already
burdened with books surely ought to give some reason, or
at least some plausible excuse, for his act. My reason or
excuse, whichever it may be, is this: In talking with the
younger members of the bar of the state I have often been
forcibly struck with the fact that many of them had little
or no idea of the remarkable men who sat upon the supreme
bench during the early years of the state, nor of the heated
controversies, political as well as legal, in which the court
and its judges were in one way or another involved during
those years. With the idea of doing something to dispel
this ignorance, I began to prepare a paper covering the
early history of the court, intending to publish it in pam-
phlet form. I had not gone far, however, when I found that
the subject could not be treated in any mere monograph,
and as I proceeded I discovered many matters of surpass-
ing interest which were entirely new to me and thus the
projected pamphlet grew into a book. I cannot but feel
that the book will interest not only lawyers but many lay-
men. If this be not sufficient reason for the existence of
this book then there is none. It will be noticed that I have
called it "The Story of a Great Court," and possibly some
may think that it is scarcely appropriate for one who is now

vi The Author to the Reader

a member of that same court to apply to it so eulogistic a
title. "Let another man praise thee and not thine own
mouth ; a stranger and not thine own lips." I fully consid-
ered this question, however, before adopting the title, and
made up my mind that as my connection with the court did
not begin until May, 1891, there could be no impropriety
in my applying the term "great" to the court of which I
write, namely, the court whose history terminates in 1880.
Whether the same adjective may properly be applied to the
court since 1880 will be a matter for the future historian to
settle. I do not attempt to influence his decision.
Madison, Wisconsin, November, 1911.

TABLE OF CONTENTS.

CHAPTER I

The territorial courts — The growth of American sentiment
in favor of an elective judiciary — The constitutional
conventions.

CHAPTER II

The temporary Supreme Court established by the Constitu-
tion consisting of the Circuit Judges sitting in bank —
Biographical sketches of the judges of that court.

CHAPTER III

The work of the first Supreme Court with brief references
to the most important decisions rendered.

CHAPTER IV

The political struggle for the control of the permanent
Supreme Court in the fall of 1852 — The Democratic
Convention — Biographical sketch of Judge Dunn —
Speeches at the Convention — Nomination of Charles
H. Larrabee for Chief Justice and of Abram D. Smith
and Samuel Crawford for Associates — The independ-
ent convention — Nomination of Edward V. Whiton for
Chief Justice and of Marshall M. Strong and James H.
Knowlton for Associates — Election of Whiton, Smith
and Crawford — Biographical sketches of Smith and
Crawford.

viii Table of Contents

CHAPTER V

Contemporaneous comments on Madison, the Capitol build-
ing and the early Supreme Courts extracted from the
correspondence of Moses B. Butterfield, a Racine
lawyer.

CHAPTER VI

Personal recollections of Chief Justice Whiton, by Henry
M. Lewis.

CHAPTER VII

The Booth case and the conflict with the Federal Courts
over the constitutionality of the fugitive slave law —
The minor decisions of the Court during its first two
years.

CHAPTER VIII

The defeat of Crawford by Cole in 1855 because of Judge
Crawford's attitude in the Booth case — Biographical
sketch of Judge Cole — The question as to the time
when Judge Cole's term commenced.

CHAPTER IX

The contested election for Governor in 1855 — The case of
State ex rel. Bashford v. Barstow — Biographical sketch
of Wm. R. Smith — Rendition of judgment for Bash-
ford — Resignation of Barstow.

CHAPTER X

The adoption of the Code— The election in April, 1857, for
Chief Justice — Nomination of Whiton by call and of
M. M. Cothren by a Democratic Convention — Bio-
graphical sketch of Cothren — Re-election of Whiton.

Table of Contents ix

CHAPTER XI

The expiration of Judge Smith's term — Nomination of
Byron Paine by the Republicans, and of William Pitt
Lynde by the Democrats — The campaign conducted en-
tirely upon the State rights issue. Triumph of Paine
and State rights.

CHAPTER XII

Death of Chief Justice Whiton— Appointment of Luther S.
Dixon in his place — Biographical sketch of Dixon —
His opinion as to obeying the Federal Supreme Court
in the Booth case — Dissatisfaction of the radical Re-
publicans— Nomination of A. Scott Sloan by Repub-
licans— Independent candidacy of Dixon — Bitterness
of the campaign— The Farm Mortgage question-
Triumph of Judge Dixon.

CHAPTER XIII

Anecdotes of Chief Justice Dixon — Biographical sketch of
Judge Paine and Judge Cole's eulogy.

CHAPTER XIV

The Farm Mortgage question — Formation of the Home
League — Legislation intended to defeat the farm mort-
gages — Independent candidacy of Cole — James H.
Knowlton placed in the field by the farm mortgagors —
Election of Cole — Legislative efforts to invalidate the
farm mortgages in the hands of innocent purchasers
set aside by the Court.

x Table of Contents

CHAPTER XV

The clash with President Lincoln — Denial by the Court that
the President could lawfully suspend the writ of habeas
corpus — The effect of this decision on Federal legisla-
tion— The validity of the draft — Extra judicial opinion
of Justices Dixon and Cole as to the validity of the war
bonds — Another war measure held unconstitutional.

CHAPTER XVI

The political situation in the fall of 1862 — Discouragement
in the North over the slow progress of the war — Demo-
cratic Convention in September — Issuance of the "Ryan
address" — Disgust of the War Democrats — Congres-
sional elections resulting in Democratic victories — Call-
ing of Democratic Convention in February, 1863 — De-
cision in the Kemp habeas corpus case — Nomination by
Democrats of M. M. Cothren for Chief Justice — Reso-
lutions adopted by the Convention — Independent candi-
dacy of Dixon — Opposition of the farm mortgagors to
Dixon — The question of the legality of the soldier
vote — Election of Dixon.

CHAPTER XVII

The early railroad tax case, in which no opinion was written
at the time — Reversal of the decision in that case and
subsequent return to it — Discussion as to the grounds
on which the early decision rested — Subsequent growth
of the system of license taxation.

CHAPTER XVIII
Resignation of Judge Paine in August, 1864, and his entry
into the military service. Probable reason for that ac-

Table of Contents xi

tion — Appointment of Jason Downer in his place and
biographical sketch of Downer.

CHAPTER XIX

Miscellaneous war questions — The enlistment of minors —
The legal tender decision — The stamp act — The bounty
tax — An echo of the draft riots — The decision declar-
ing that negroes were granted the right of suffrage by
the election of 1849.

CHAPTER XX

The resignation of Chief Justice Dixon in March, 1867, on
account of his meagre salary — His reappointment by
Governor Fairchild — Judge Downer's resignation in
September, 1867, and Judge Paine's appointment —
Nomination by Democratic Convention in February,
1868, of Charles Dunn for Chief Justice and E. Holmes
Ellis for Associate — Nomination of Dixon and Paine
by Republican Convention one week latter — Bitterness
of the campaign — Attacks on Dunn by Republicans and
on Dixon by Democrats — Activities of the farm mort-
gagors against Dixon — The negro suffrage decision
used against him — Election of Dixon and Paine.

CHAPTER XXI

The last appearance of the States rights hersey in the Su-
preme Court — The decisions in the Knorr and Tarble
cases — Dissent of Judge Paine in the Knorr case — His
opinions in both cases — Decision of the Federal Su-
preme Court in the Tarble case.

xii Table of Contents

CHAPTER XXII

Sudden death of Judge Paine January 13, 1871 — The out-
burst of public grief — Appointment of William Penn
Lyon in his place — Biographical sketch of Judge Lyon
— His legislative, legal and military career — His elec-
tion as Circuit Judge while still in the service — The in-
crease in the business of the Court.

CHAPTER XXIII

The judicial election of 1871 — Recommendation of Judge
Lyon by Republican legislative caucus — Nomination of
David J. Pulling by calls and Democratic legislative
caucus — The campaign — Election of Judge Lyon.

CHAPTER XXIV

Some of Chief Justice Dixon's notable opinions — The Home-
stead Exemption case — The question of how far the
legislature may change contract remedies — The ques-
tion of obedience to the mandate of the Federal Su-
preme Court in the Booth case — The question of legis-
lative power to expend the funds of cities — The ques-
tion of proximate cause in negligence actions — The
effect of the Sunday law — The power of the Court to
choose its own bailiff — Judge Dixon's resignation in
June, 1874.

CHAPTER XXV

The appointment of Edward George Ryan in Dixon's place
— Biographical sketch of Ryan — His infirmity of tem-
per, reverence for justice and high code of professional

Table of Contents xiii

morals — Personal anecdotes — Early poetical efforts —
His essays — Address to the law class of 1873 — The
Hubbell impeachment.

CHAPTER XXVI

Notable opinions of Judge Ryan — The great railroad cases
brought under the Potter law — The question of the
original jurisdiction of the Supreme Court — State ex
rel Drake v. Doyle — The Craker case — Wight v. Rinds-
kopf — Tribute to marriage — Senator Vilas' estimate of
his opinions as literature.

CHAPTER XXVII

Enlargement of the Bench by constitutional amendment —
Nomination of Harlow S. Orton and David Taylor for
the new places by legislative caucuses — Their election
unopposed in April, 1878 — Biographical sketches of
both nominees.

CHAPTER XXVIII

Judge Cole's last contest in the spring of 1879 — Nomination
of Judge Cothren by a Democratic legislative caucus in
February, 1879 — Judge Cole's nomination by non-
partisan calls — Bitter fight made on Judge Cole — His
triumphant re-election — End of the legislative caucus
as a nominating body.

CHAPTER XXIX

Judge Ryan's ill health in his later days — His vacation
granted by legislative resolution — His final illness and
death in October, 1!

xiv Table of Contents

CHAPTER XXX

The changes in the Bench since 1880 and the growth of the
non-partisan idea in judicial elections.

CHAPTER XXXI

Recent honors to Dixon and Ryan — Erection of monuments
in their memory by public subscriptions — The proceed-
ings and addresses at the dedication of the monuments.

The Story of a Great Court

CHAPTER I.

THE TERRITORIAL COURTS AND THE CONSTITUTIONAL CON-
VENTIONS.

The commonwealth of Wisconsin, as a separate political
entity, came into being by virtue of an act of Congress ap-
proved April 20th, 1836, by which it was provided that all
the territory now embraced within the states of Wisconsin,
Iowa and Minnesota, as well as a part of the territory now
embraced within the states of North Dakota and South Da-
kota should, after the third day of July, 1836, constitute a
separate territory under the name of Wisconsin. Prior
to that act the territory comprising the present state had
been successively a part of the Northwest territory under
the ordinance of 1787 up to May 7, 1800, a part of In-
diana territory from that time up to February 3, 1809,
a part of Illinois territory from the last named date up
to April 18, 18 18, and a part of Michigan territory after
the last named date. Before the year 1823 there were no
separate courts in that part of the territory now comprised
within the state, except county courts of very limited civil
and criminal jurisdiction and justices courts; all important
cases, whether civil or criminal were tried by the territorial
supreme court at Detroit. In January of that year, however,
a law was passed providing for the appointment of an addi-
tional federal judge for the counties of Brown and Crawford

2 The Story of a Great Court

(covering the whole of the present state) and the county of
Michilimackinac, which law also provided for the holding
of one term a year in each county. James D. Doty was the
first judge appointed under this act and he held his first term
at Green Bay in 1824, at which time the judicial history of
Wisconsin may be said to have begun. Judge Doty served
until May, 1832, when he was succeeded by David Irvin, who
held the office until the organization of the territory and the
creation of a separate territorial Supreme Court by the act
of T836.

Under this act the President appointed Charles Dunn as
chief justice and David Irvin and William C. Frazer as as-
sociate justices, and the first term of the new court was held
at Belmont, Iowa county, in December, 1836. On the eighth
day of November, 1838, Andrew G. Miller was appointed
associate justice in place of Judge Frazer, then recently
deceased, and the constitution of the court remained un-
changed from this time until the organization of the state in
1848.

There is much of interest which might well be written con-
cerning these eaily territorial judges and the courts over
which they presided, but as this period is not included within
the scope of the present volume no attempt will be made to
treat these subjects here. They will be found very interest-
ingly treated b\ the late Mr. Justice Pinney in the preface
to volume one of Pinney's Wisconsin Reports.

The act of Congress which enabled the people of the terri-
tory to form a state constitution and apply for admission to
the Union was approved August 6, 1846, and the first con-
stitutional convention met October, 5th and adjourned De-
cember 1 6th of that year. The constitution framed by this
convention was rejected by vote of the people in the fol-
lowing spring and the second convention met December

Territorial Courts and Constitutional Conventions 3

15, 1847, and concluded its labors on February 1,
1S48. This second constitution was ratified by the people
March 13, 1848, and the state was finally admitted by act of
Congress approved May 29, 1848. Both constitutions pro-
vided for the election of all judges by vote of the people.
This provision does not seem in any respect singular to those
who have been born and brought up under the elective sys-
tem, yet the election of judges by the people was by no means
a matter of course at that time ; in fact it was a radical inno-
vation on long established methods, a pioneer step in a field
of experiment which was viewed with apprehension by many
whose experience and wisdom entitled their opinions to seri-
ous consideration.

From the earliest times in American history all judges had
been appointed. Such was and still is the English method
and when our federal constitution and the early state consti-
tutions were adopted that method was generally followed
with occasional variations giving the legislative arm of the
government either the sole power of appointment or some
share in that power. In a pamphlet by D. B. Eaton of New
York, published in October, 1873,1 entitled "Should Judges
be Elected"' it is said of the appointive method that "up to
1846 no other method had existed for the selection of judges
in the state of New York, in any other state of the Union
or in any enlightened country of modern times." This sweep-
ing declaration was not strictly accurate as we shall pres-
ently see ; however, the exceptions had been so few prior to
1846 that no serious fault can be found with the substance of
the statement.

With the rapid development of the democratic spirit the
sentiment in favor of electing the judiciary had been grow-

1 Law Pamphlets, Vol. 9, Wis. State Library.

4 The Story of a Great Court

ing since early in the nineteenth century. This sentiment
was based on the idea that all power was from the people
and that as both executive and legislative officers were
elected by the people consistency demanded that the judici-
ary, which under our system constitutes an independent and
co-ordinate branch of the government, should also be elected.
The controversy between the advocates of the appointive
system on the one side and the elective system on the other
has been vigorously waged and is yet on, but no discussion
of the merits of this question will be attempted in this vol-
ume. Rightly or wrongly the sentiment in favor of the
elective system developed with startling rapidity in our
American commonwealths during the nineteenth century,
and in 1893 it was stated by David Dudley Field 2 that in
twenty seven of the forty two states then existing the judges
of the highest courts were elected by the people, in eight they
were appointed by the governor subject to confirmation by
the senate or the legislature, and in seven elected by the leg-
islature. I have made no examination to ascertain the exact
situation at the present time, but it is entirely safe to say
that the present percentage in favor of the elective system
is greater than it was in 1893.

The first partial trial of the elective system seems to have
been made in Georgia in 1812, when by an amendment to the
constitution the judges of the inferior or county courts were
made elective ; this was followed by a similar provision in
the first constitution of Indiana adopted in 18 16, but in both
states the justices of the Supreme Court remained appointive.
The first complete victory of the elective idea, however, took
place when Mississippi adopted a new constitution providing
for the election of all judges by the people. This was in
1832 but it was soon to be followed by other triumphs. In

2 Albany Law Journal, Sept. 9. 1893.

Territorial Courts and Constitutional Conventions 5

1835 the first constitution of Michigan made inferior judges
elective. In 1846 constitutional conventions assembled in
New York, Iowa and Wisconsin and all of them adopted con-
stitutions requiring the election of all judges, except that in
Iowa the judges of the Supreme Court were to be appointed
by the legislature. Under the appointive system New York
had enjoyed a long and brilliant judicial history; great
judges and able courts had adorned its jurisprudence, there
was really no serious dissatisfaction or if there was dis-
satisfaction it was substantially groundless, but the feel-
ing that the judges should be accountable to the people
alone was so strong that the old and tried system of
appointment was summarily abandoned and has never
been reinstated, although the question of a return to the
old system was submitted to the people in 1873 only
to be overwhelmingly defeated.3 Iowa and Wisconsin were,
however, frontier commonwealths, just aspiring to state-
hood and it was not surprising that in them new and rad-
ical ideas should be in the ascendant. In Wisconsin there
was indeed in the convention of 1846 a respectable and able
minority, of which Edward G. Ryan was one of the leaders,
which favored the appointive system, but the final vote stood
seventy-eight to twenty in favor of the elective system.4
This constitution, as before stated, was rejected by the people
largely on account of its radical anti-banking provisions,
but the second constitutional convention readopted the elect-
ive feature of the first constitution without substantial
change and there has been no serious attempt to revert to
the appointive system in this state from that day to this. In
Iowa a new constitution was adopted in 1857 providing for
the election of all judges by the people.

8 Lincoln's Constitutional History of N. Y. Vol. 2, p. 288.
* Strong's History of Wisconsin Territory, pp. 514 and 524.

6 The Story of a Great Court

The example set by the constitutional conventions of 1846
was rapidly followed, and prior to i860 seventeen other
states had adopted either in whole or in part the elective sys-
tem, some by first constitutions and some by revision or
amendment of existing constitutions. . Thus in i860 twenty
out of the thirty-four states had adopted either wholly or
partially the elective system ; the states in which the adoption
was partial and affected only inferior courts being Alabama,
Arkansas, Connecticut, Georgia and Maine.5 Since i860 the
new states have generally adopted the elective system and
the drift in favor of that system seems still to be predominant
although not universal, for Virginia, Louisiana, Mississippi,
Florida and Maine have by revised constitutions returned
either wholly or partially to the system of appointment.

Perhaps the most effective argument ever used against
the elective system has been the argument that by reason of
short terms of office and the practical certainty of frequent
changes in the personnel of the bench as political majorities
change or popular moods vary, elected judges will necessarily
lose their independence of action and will merely register
the prevailing popular sentiment or whim instead, of pro-
claiming without fear or favor the law as it exists ; in other
words, that judges who are dependent for their official life
upon the votes of the people will almost infallibly cater to
that vote and become politicians instead of judges. The
strength of this argument is not now to be considered, but
that such results are to be seriously apprehended, nay, that
they have been to a greater or less extent realized in some of
the states must be admitted. Courts of last resort have often
been made the playthings of political parties, and too fre-
quently able and fearless judges at the very height of their
usefulness have been swept from office by temporary waves

s Hitchcock's Am. State Constitutions, pp. 51-52.

Territorial Courts and Constitutional Conventions 7

of popular sentiment only to make way for new and untried
men, who in their turn have been unseated at the next elec-
tion as the mood of the populace changed.

Such a wave of temporary passion resulting from an un-
popular decision removed Judge Lawrence from the Su-
preme bench of Illinois in 1874, and a similar wave removed
Judge Cooley from the Supreme bench of Michigan in 1885,
the result in each case being a marked weakening in the
strength of the court. Such conditions are certainly not
favorable to judicial independence nor to stability of deci-
sion.

It is a remarkable fact which may properly be noticed here
that while Wisconsin was one of the pioneer states in the
full and complete adoption of the elective system, its Su-
preme Court has been exceptionally free from violent and
frequent changes. During the entire history of the separ-
ate Supreme Court from its organization in 1853 up to the
present time it has had but twenty-five judges; during the
same period the Supreme Court of Indiana has had forty-
seven judges and comparisons with other states might be
easily made with similar results. Since a very early period
in the history of Wisconsin, with a single recent exception,
no sitting judge who has been a candidate for re-election has
been defeated, notwithstanding a number of attempts in that
direction, and judges who have reached that bench have
been given practically a life tenure. This result is principally
due to a sentiment which has slowly crystallized among the
people of the state to the effect that judges of that Court
should not be nominated by political parties and that a sitting
judge who has performed his duties faithfully should be re-
tained during his years of usefulness, regardless of his po-
litical opinions.

There is little or nothing to indicate that this idea existed
at the time of the holding of either of the constitutional con-

8 The Story of a Great Court

vcntions, or that the members of either convention contem-
plated its subsequent development. Indeed the committee
which reported the judiciary article in the first convention
assumed in their report that judges would necessarily be
nominated by political conventions and spent some time in
showing that judges nominated by such conventions would
not be as likely to be partisan in their acts as judges ap-
pointed by the executive ; ° while in the convention of 1848
the article on the judiciary as first proposed, which provided
a ten year term for circuit judges (who were also to con-
stitute the Supreme Court until a separate Supreme Court
should be organized), was amended after considerable de-
bate so as to make the terms of both circuit and Supreme
Court judges six years upon the express ground that a ten
year term was too long and that a judge should frequently
render an account of his stewardship to the people.7 Both
constitutions, however, contained a clause giving the gov-
ernor power in case of a vacancy to appoint a judge to hold
until the election of a successor, and a further clause pro-
viding that no election of a judge or judges should be held
within thirty days of a general election. The first of these
clauses is common to many of the states which elect their
judges, the second is rare if not peculiar to Wisconsin, al-
though by some constitutions judicial elections are directed
to be held at a fixed date not coincident with the general
election.

Both of these provisions have had a marked influence upon
the elective system. Eleven of the twenty-five judges of the
Supreme Court have been placed there originally by ap-
pointment and such appointments have, with but one excep-

0 Journal of the Constitutional Convention of 1846, p. 106 et seq.

1 Journal and Debates of the Constitutional Convention of
1847-48, pp. 67, 392, 438, and 468.

Territorial Courts and Constitutional Conventions 9

tion, been approved by the people by subsequent election.
Among the appointed judges were Dixon and Ryan, two of
the very greatest of the jurists who have occupied that
bench. The effect, therefore, of the first named clause has
been unquestionably to greatly modify the elective system by
incorporating in it the feature of temporary appointment
which in practical operation has placed upon the bench per-
manently nearly fifty per cent of the judges by appointment
instead of by election.

The clause prohibiting the holding of a judicial election at
the time of a general election or at any time within thirty
days of such an election has doubtless had greater effect,
however, in eliminating party politics from judicial elections
than any other one cause. The original intent of this clause
doubtless was to divorce such elections from the excitement
and turmoil of a general election, so that the attention of
the voter should be given wholly to the relative merits of
the opposing judicial candidates. If there was any serious
idea that it would have any influence in doing away with
party nominations and making judicial campaign non-par-
tisan there is little or nothing in the records of the conven-
tions to show that fact. Nevertheless such has been its in-
fluence beyond any question ; in fact without this provision
it is difficult to see how it would have been possible to make
judicial contests in any degree non-partisan. If judges
were to be elected at presidential and gubernatorial elec-
tions it is reasonably certain that they would be nominated
and elected as party candidates upon party tickets ; a non-
partisan candidate for a judgeship would have great dif-
ficulty in making any headway when men's minds were
wrought up by the excitement of a great political con-
test. It must be said, however, that this clause had little

1 0 The Story of a Great Court

immediate effect in the elimination of partisanship from
judicial elections. For more than a decade there was no
lack of fierce partisan conflicts in judicial elections. As
time went on it had its effect, however, as will abundantly
appear to anyone who gives careful attention to the sub-
sequent history of the Court.

The First Supreme Court and its Judges 1 I

CHAPTER II

THE FIRST SUPREME COURT AND ITS JUDGES

The constitution of 1848 divided the state into five judicial
circuits, provided for the election of a judge in each circuit
and made the circuit judges also justices of the Supreme
Court for the term of five years and thereafter until the leg-
islature should provide for a separate Supreme Court which
was to be composed of one chief justice and two associate
justices. The circuit judges so to be elected were to be
classified so that the term of one should be two years and of
the others three, four, five and six years respectively and
thereafter the term was to be six years.

The circuits were composed as follows: the first circuit,
the counties of Racine, Walworth, Rock and Green ; the
second, the counties of Milwaukee, Waukesha, Jefferson and
Dane ; the third, the counties of Washington, Dodge, Colum-
bia, Marquette, Sauk and Portage ; the fourth, the counties
of Brown, Manitowoc, Sheboygan, Fond du Lac, Winnebago
and Calumet ; the fifth, the counties of Iowa, La Fayette,
Grant, Crawford and St. Croix, the county of Richland be-
ing attached to Iowa, the county of Chippewa to Crawford,
and the county of La Pointe to St. Croix for judicial pur-
poses.

The legislature provided for the first election to take place
on the first Monday in August, 1848, and it was so held.1

It is stated in the Milwaukee Sentinel and Gazette of July
it, 1848, that the Democrats called party conventions in all

1 Laws of 1848, p. 19.

1 2 The Story of a Great Court

of the five circuits. David Noggle was nominated in the first
circuit, Abram D. Smith in the second, Charles H. Larrabce
in the third, E. W. Drury in the fourth, but for some reason
no nomination seems to have been made in the fifth Circuit
so far as I have ascertained.

The Whigs nominated Edward V. Whiton in the first cir-
cuit and Francis Randall in the second circuit, but seem to
have made no further party nominations, probably because
the party was in the minority. Levi Hubbell ran as an in-
dependent candidate in the second circuit, which then in-
cluded both Milwaukee and Dane counties. James M. Clark
and Charles Acker ran in the same way in the third circuit
and Alexander W. Stow in the fourth, while in the fifth
there were five candidates all calling themselves independ-
ents, viz. Mortimer M. Jackson, Moses M. Strong, B. C
Eastman, Alfred Brunson and Parley Eaton.

The election resulted in the choice of Edward V. Whiton,
Whig, in the first district ; Levi Hubbell, independent Demo-
crat, in the second ; Charles H. Larrabee, Democrat, in the
third ; A. W. Stow, independent, in the fourth and M. M.
Jackson, independent Whig, in the fifth. These men com-
posed the first Supreme Court. As circuit judges they held
regular terms of the circuit court in their respective circuits
for the trial of causes and assembled at Madison twice a
year and sat in bank as the Supreme Court to dispose of
appeals from the circuit courts. Lots were drawn, as pro-
vided by the law governing their election to determine the
length of their terms and Judge Stow drew the short term
of two years and was also chosen by his associates as Chief
Justice. Judge Stow was opposed to the principle of an
elective judiciary and had announced before his election that
he would not stand for re-election and upon the expiration
of his term Timothy O. Howe of Green Bay was elected as
his successor and took his seat January 2, 1851 ; otherwise

The First Supreme Court and its Judges 1 3

the personnel of the Court remained unchanged until 1853,
except that an additional or sixth circuit was created by-
Chapter 268 of the laws of 1850, consisting of Crawford,
Chippewa, Bad Axe, Black River, St. Croix and La Pointe
Counties, and Wiram Knowlton was elected judge of the
new circuit in July of that year, taking his seat on the Su-
preme bench at the December term, 1850. Judge Hubbell
succeeded Judge Stow as Chief Justice and held one year,
when Judge Jackson was elected to the office but resigned
on the same day and Judge Whiton was chosen and re-
mained in that position until the court ceased to exist by rea-
son of the organization of the separate Supreme Court.

Short as the life of this temporary Supreme Court was its
judges were able and learned men who deserve more than
mere passing mention. Brief biographical sketches of them
appear in volume three of Pinney's Wisconsin Reports as
well as in Berryman's History of the Bench and Bar of Wis-
consin and from these sources the following sketches which
the author recognizes as inadequate have been principally
drawn.

At the head of the list without doubt stands the name of
Edward Vernon Whiton ; distinguished alike as a legislator,
a constitution maker and a judge, his services to the state
richly entitled him to a comprehensive biography rather than
a mere brief sketch. It is greatly to be regretted that Chief
Justice Cole, who served four years with him upon the bench
and who entertained for him a love and respect which
amounted to veneration, did not undertake the task ; had he
done so unquestionably much light would have been thrown
upon territorial and early state history of which we must
now remain deprived.

Judge Whiton was born June 2, 1805, at South Lee, Berk-
shire County, Massachusetts, of an ancestry which had ren-
dered distinguished services in colonial affairs and in the rev-

1 4 The Story of a Great Court

olutionary war. He learned the trade of a carpenter and
millwright in his native town where he lived until 1835.
But the bent of his mind was undoubtedly towards intel-
lectual pursuits and he read law in a lawyer's office and also
acted as librarian of the village library of about three hun-
dred volumes. Here he acquired a great fund of historical
knowledge which stood him in good stead in his later life.
Coming west in 1835 he stopped for a time in Lorraine
County, Ohio, and came to Wisconsin in 1837, settling on a
tract of land near the present city of Janesville. Here he
built with his own hands his log cabin and afterwards a
more pretentious house. In 1838 he was elected a member
of the territorial house of representatives and served during
the sessions of 1838, 1839 and 1839-40, and being re-elected
he also served during the sessions of 1840-41 and 1841-42.
The laws of the territory were in a confused state and in
December, 1838, a committee was appointed to revise the
existing laws and report the revision for passage at an ad-
journed session, which was held in January following. The
committee was composed of Messrs. Morgan L. Martin,
Marshall M. Strong and James Collins on the part of the
council, and Messrs. Edward V. Whiton, B. Shackelford and
Augustus Story on the part of the house. The result is to be
found in the revised statutes of 1839, which was the first
complete code of law possessed by the territory. Consider-
ing the brief time which was allowed the committee for its
work it must certainly be considered a remarkable achieve-
ment. The legislature after amending the proposed laws in
various particulars passed them and placed the printing in
charge of Mr. Whiton, whose solid learning, clearness of
intellect and ability to dispatch intellectual labor had now
become fully recognized. The book appeared in the month
of June, 1839, and for ten years remained the basic law of

ALEXANDER WOLCOTT STOW.

The First Supreme Court and its Judges 1 5

the territory and also became the basis of the revisions of
1849 and 1858. During the years 1842 to 1846 inclusive he
was a member of the territorial council and in 1848 upon
the rejection of the first constitution he was elected a mem-
ber of the second constitutional convention. Here he was
an active and influential figure; the field was well suited to
his abilities ; he was in his prime both physically and men-
tally ; his intellect had been fully ripened by his legislative
experiences and in every important debate he was at the
front. Unfortunately his remarks have not been preserved.
He was one of three members of the convention who gave
notice to the reporters that they did not wish their remarks
to be reported for publication in the journal.2 Thus while
it appears upon a very large proportion of the pages of the
journal that he made remarks upon the various questions
under discussion, in most instances we simply find that "Mr.
Whiton spoke" or "Mr. Whiton made some remarks" or
some equally disappointing and meagre statement. In a few
instances a brief resume of his remarks is given, but this
seems only to have been done where it was necessary in or-
der to enable the allusions of other speakers on the subject
to be understood. This fact has been regretted by the Su-
preme Court in cases involving the construction of constitu-
tional provisions, especially the section as to the rule of taxa-
tion (Sec. I, Art. VIII), for it has been felt that his remarks
would doubtless have thrown much light on difficult ques-
tions of constitutional construction.3

His election to the circuit bench followed, as has been al-
ready stated, and five years later his election to the bench of
the separate Supreme Court as its first Chief Justice. From

2 Journal and Debates Const. Conv. 1847-1848. Reporter's
Preface.

3 Nunnemaeher v. State, 129 Wis. 190; see page 206.

1 6 The Story of a Great Court

this time on, therefore, his history becomes the history of
the bench itself and appears in its proper place in this work.

As to Judge Whiton's personal characteristics a few words
ought at least to be said. He was a very self contained man,
always taciturn and always having a serious and preoccu-
pied air. He had few social pleasures and never made his
residence at Madison but continued to reside in Janesville,
only coming to the Capital as official duty called him, and
when he did come he generally made his home with his
friend Judge Hood, instead of at a hotel or boarding house.
It must needs be said that during some part of his earlier
life he had an unfortunate weakness for intoxicating liquor
but this weakness had been overcome before he went on
the bench. He was an excellent presiding officer always
listening to argument (even though dull) with respectful
attention. His mind at times under such circumstances
may have been far away, but his face did not indicate it.

Levi Hubbell, who was elected as an independent Demo-
crat in the second district, was an able and ambitious man of
fine presence and courtly manners who cut a large figure in
the early history of the state. Born at Ballston, N. Y. in-
1808, he graduated at Union College in 1827 and early be-
gan the practice of law with his brother at Canandaigua,
New York. When twenty-five years of age he became ad-
jutant general of New York and held the office for three
years and in 1841 became a member of the legislature of
that state. In 1844 he came to Milwaukee and became a
member of the firm of Finch & Lynde and in 1848 he was a
delegate to the national Democratic convention of that year.
His career upon the circuit bench was a stormy one and the
storms culminated in his impeachment in the spring of 1853.
While he was acquitted by a large vote on all of the charges
he never fully recovered from the effect of the impeachment.

The First Supreme Court and its Judges 1 7

General Bryant, who knew him personally, has this to say

of the acquittal : 4

"Judge Hubbell had the sympathies of a large portion of the
people of the state, especially the people of Milwaukee, during the
trial and his acquittal gave his friends opportunity to manifest
their joy at the result. A special train loaded with a committee
went out part way to meet him, and on his return to Milwaukee
a large throng met him and marched in a triumphant procession
through the streets, the like of which that city had never seen.
A public reception, then a monster procession to accompany him
to his home made the day one of congratulation and holiday
parade."

Notwithstanding this enthusiastic reception at his home
Judge Hubbell doubtless realized that his reputation had
suffered serious injury. He resigned his judgeship in 1856
and resumed the practice in Milwaukee. In 1863 he was
elected to the legislature and took a strong stand in favor of
the Union. In 1869 when a vacancy occurred in the office
of circuit judge, a large and numerously signed petition was
presented to Governor Fairchild, asking for Judge Hubbeli's
appointment. General Bryant says of this incident :

"Governor Fairchild's refusal to appoint him was one of the
keenest disappointments of his life. His high but dignified
anger, when the suave but stout hearted, one armed Governor
told the judge that he did not feel justified in reinstating him
upon the bench, was one of the most dramatic episodes which
the writer — then executive secretary to Governor Fairchild —
ever witnessed."

General Bryant further says :

"Of fine presence, most agreeable manners and a bearing which
betokened leadership, a man potent to influence others, it is not
unlikely that the unfortunate episode of his impeachment ar-
rested a career which otherwise might have been most success-
ful."

He was appointed United States district attorney for the
Eastern district of Wisconsin by President Grant in 1876

4 Green Bag, Vol. 9, pp. 67-68.

1 8 The Story of a Great Court

and held the office for five years. He died at the age of
sixty-eight years as the result of a fall upon an icy sidewalk.

Charles Hathaway Larrabee, who was elected as a
Democrat in the third judicial circuit, was a remarkable
man with a varied and romantic history. Born at Rome,
Oneida County, New York, November 9, 1820, of Huguenot
ancestry, he numbered among his forbears colonial and revo-
lutionary heroes upon both sides. He acquired his educa-
tion at Springfield academy and at Granville (now Den-
nison) College in the state of Ohio and read law at Spring-
field. He spent some time in Mississippi, where he was ad-
mitted to the bar in 1841, and came to Chicago in 1844,
where he edited the Chicago Advocate for a time and served
one term as city attorney ; in 1846 he came to Wisconsin and
settled at Horicon, Dodge County, and in the following year
he was elected a member of the second constitutional con-
vention. In this convention he was active and influential,
strongly advocating the exemption of homesteads, the re-
striction of state indebtedness, the prohibition of state in-
ternal improvements and also the clauses preventing the
division of counties without local consent.

He served upon the circuit bench until 1858, when he re-
signed and ran for Congress as a Douglas Democrat and was
elected in a district which had a normal Republican majority
of 2,500. He was active in his Congressional duties, but was
defeated for re-election in i860. When Fort Sumpter was
fired on he at once offered his services to Governor Randall
and was appointed Major of the 5th regiment of Wisconsin
infantry. He served with distinction in the peninsula cam-
paign and was promoted to the colonelcy of the 24th regi-
ment, which he recruited largely himself, but a year later he
was compelled to resign his commission by reason of shat-
tered health. In 1864 he removed to the Pacific coast and

LEVI HUBBELL.

The First Supreme Court and its Judges 1 9

resided for a time in Oregon and subsequently in Washing-
ton, but was compelled by ill health to seek the softer cli-
mate of Southern California, where he met a violent death
in a railway accident January 20, 1883.

Judge Larrabee was a man of great natural ability, prompt
and impartial as a judge, a zealous partisan, a devoted friend,
an attractive and forceful speaker and his opinions rendered
while he was on the bench of the Supreme Court stamp him
as a lawyer of ability.

Of the life of Alexander Wolcott Stow prior to his resi-
dence in Wisconsin little is certainly known. His life long
friend, Hon. Morgan L. Martin of Green Bay, wrote a brief
sketch of him which appears in Judge Pinney's biographical
sketches,5 from which the following is taken :

"Alexander W. Stow was born at Lowville, N. Y.« on the fifth
day 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
his 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. The bench and bar
of New York, during the first quarter of the present century,
comprised a host of distinguished lawyers. During the ascend-
ancy of such men as Kent, Spencer, Piatt, Elisha Williams,
Van Buren, Talcott and many others equally prominent it was
impossible to attain a respectable position in the profession with-
out the patient study of years, or a brilliant intellect which could
win its way even against the subtleties of the accomplished
pleader. Judge Stow was never a close student, but under the
tutelage of his father and the eminent men with whom he was
brought into association in early life, he became almost by
intuition an accomplished scholar.

5 3 Pinney's Wis. Reports, 605.

« General Bryant says he was born in Middleton, Conn., in 1804.
See Vol. 9, Green Bag, p. 70.

20 The Story of a Great Court

"At the age of sixteen he was placed at the military academy
where he remained only a single year and returned to enter a
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 (Butterfield) may be inferred from a
remark of his in 1826 that 'he had never known a man of
superior constitutional powers.' A few years of routine practice,
during 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."

Chief Justice Ryan was a great admirer of Judge Stow
and he penned an addendum to Judge Martin's sketch 7
from which the following glowing extracts are taken :

"The writer did not know Judge Stow before they met in
Wisconsin. From thence until the judge's death they were in-
timate and fast friends. Knowing 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 fragmentary confusion of disjointed rules. He had
mastered not only its details but the history out of which it
grew, and his broad and vigorous 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, 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 sys-
tems or constitutions for the freedom of the nations who are
blessed in its possession. Judge Stow was certainly an accom-
plished common lawyer. * * * There were indeed occasional
eccentricities in his thinking as well as in his acting. Making

i 3 Pinney's Reports, p. 607.

CHARLES HATHAWAY LARRABEE

The First Supreme Court and its Judges 2 1

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 rever-
enced the judicial office and while he held it he made all men
respect it. He had a high sense of judicial dignity and author-
ity; and there was no trifling with the Court in which he pre-
sided. On the bench he looked what he was, a great judge."

After his retirement from the bench in January, 1851, he
lived not quite four years and while he retained his residence
on his farm at Fond du Lac his time was principally spent
at Milwaukee. General Bryant says that he resumed the
practice,8 but Judge Ryan says he lived in private, "never
again resuming the profession." 9

This apparent contradiction recalls to my mind a story
frequently related by the late Charles W. Felker of Oshkosh
which may be of interest; the story was to the effect that
after Judge Stow left the bench a partnership was arranged
between Stow and Ryan, and that in the course of time
Stow came to Milwaukee to commence business, bringing
with him a cooking kit in a bag, and a coffee pot, as he was
in the habit of cooking his own meals ; he arrived at the of-
fice in Ryan's absence and laid down the bag and coffee pot
on the floor and waited for Ryan's appearance ; when Ryan
came in his attention was at once attracted by the tramplike
appearance of the cooking kit, and, with eyes blazing, he
said, "What's that?" Stow said somewhat apologetically,
"That's my cooking kit." Ryan turned and said, "Judge
Stow ! this partnership is dissolved."

s Green Bag, Vol. 9, p. 71.

0 3 Pinney's Wis. Reports, p. 609.

22 The Story of a Great Court

My curiosity was somewhat aroused by these contradictory
statements about Judge Stow's life after he left the bench and
T went to the files of the Milwaukee Sentinel to see if I could
obtain any light on the subject from the professional cards
which at that time were almost universally inserted in the
newspapers. Here I found something that puzzled me still
more :

From March 24th up to Nov. 30, 1852 the following
double card appeared in the Sentinel :

RYAN & BRIGHAM

Attorneys, Solicitors and Counsellors

Will practice in the Courts of this State

E. G. Ryan Jerome R. Briqham

STOW & BRIGHAM

Attorneys, Solicitors and Counsellors

Will practice in the Courts of the United States

Alex W. Stow Jerome R. Brigham

Offices

Arcade Building, No. 171 East Water St.

Milwaukee

I have not been able to find anyone who can explain the
reason for the existence of this strange business card. It
would seem that Judge Stow nominally at least practiced in
Milwaukee and in the same offices with Ryan, and it would
also seem that for some reason, Ryan, though practicing in
the same office with Stow, was not in partnership with him
and confined his own practice to the State Courts. I asked
Judge James G. Jenkins, who was later in partnership with
Ryan, if he could throw any light on the subject and he said
he could not. Judge Jenkins came to Wisconsin in 1857 ; he

The First Supreme Court and its Judges 23

told me that he had been informed that Stow was for a time
in partnership with Ryan & Brigham after he left the bench
under the name of Ryan, Stow & Brigham and he had always
supposed such to be the case. He could suggest no explana-
tion of the strange card except that possibly Ryan (who
never liked the United States Courts) for a time declined to
practice in them.

Another story concerning Judge Stow which is related on
what appears to be good authority illustrates the nature of
the man and his peculiarities. He was devoted to hunting
and fishing and very fond of game dinners. Like many
gourmands he made a practice of hanging his game a long
time before eating it. He at one time invited a friend to dine
with him and set out as a great delicacy some game which
had hung so long that the odor was very penetrating; the
friend could not eat it and, when Judge Stow asked him what
was the matter with his appetite, bluntly replied that he
could not stand the smell of the game. "Eat away," said
Judge Stow, "J didn't invite you to smell it, I invited you to
eat it."

Judge Stow died at Milwaukee Sept. 14, 1854, having
never married.

The career of Timothy Otis Howe was so distinguished in
the great field of national politics that it is rarely remem-
bered that his public life in this state commenced upon the
bench, yet so it was. He resided at Green Bay, whither he
had come in 1845 from Maine, being then twenty-nine years
of age. He was at that time a lawyer of ability and at once
took a prominent position both in professional and political
life. He was an ardent Whig and in 1848 was a candidate
for Congress on that ticket but was defeated. In 1850 he
was elected Judge of the fourth circuit to succeed Judge

24 The Story of a Great Court

Stow and thus became for two years one of the justices of
the Supreme Court, the duties of which office he discharged
with marked ability.

After the organization of the separate Supreme Court he
continued to hold the office of circuit judge until 1855, when
he resigned and resumed the practice. He was an effective
and witty speaker and a logical and strong debator. Prob-
ably a political career appealed to him more strongly than a
judicial one and the meagre salary ($1,500) of a circuit
judge doubtless was a strong inducement to quit the bench.
He at once became an active Republican leader, but soon
fell at outs with the great mass of his party on the question
of state rights, as will appear later in this work ; he strongly
opposed the doctrine that a state court could declare acts of
Congress unconstitutional and that there was no remedy by
appeal to the federal courts. This courageous stand un-
doubtedly defeated him for the United States Senate in
1857, but in 1861 his time came and he was triumphantly
elected to that body. After that date his career became a
part of the nation's history and no review of it will be at-
tempted here. He died at Racine, March 25, 1883.

Mortimer Melville Jackson was born in Rensallaersville,
Albany County, New York, of Puritan ancestry, and after
some years spent in mercantile pursuits turned his attention
to the law and was admitted to the bar in 1838. He came to
Wisconsin and settled at Mineral Point in 1839 and soon be-
came prominent at the bar and in politics. He was a Whig
and in 1841 became attorney general of the territory, which
office he held for five years. He was deeply interested in
popular education and in an educational convention in 1846
proposed a scheme for a common school system which was
afterwards substantially adopted by the makers of the state
constitution. When he was elected circuit judge in 1848 his

«s

TIMOTHY OTTS HOWE.

The First Supreme Court and its Judges .25

circuit comprised about one third of the territory of the
state, including a vast area of unbroken prairie and forest
and he was obliged to travel great distances. He served as
circuit judge and as member of the Supreme Court until
1853. He was a candidate for United States Senator in
1857, when Judge Howe and Judge Doolittle were also can-
didates, and Judge Doolittle was elected.

Judge Doolittle had joined the Republican party but a
very few months previously, he having always been a promi-
nent Democrat. Judge Jackson was greatly disappointed
and felt that his long services as a Whig and a Republican
deserved recognition ; it is said that when asked his opinion
of the result he said emphatically, "Prompt pay, gentlemen,
d d prompt pay."

In 1861 he was appointed United States Consul at Halifax
by President Lincoln and discharged the duties of the office
with great ability and to the entire satisfaction of both gov-
ernments until 1882, when he resigned and spent his declin-
ing years at Madison, where he died of old age October 13,
1889. He was a cultivated and dignified gentlemen of the
old school, a man of ability who discharged his duties in
every position with great fidelity and in the most honorable
and satisfactory manner. Leaving no immediate relatives,
he bequeathed the greater part of his competency to the law
department of the University of Wisconsin, to support a pro-
fessorship called after his name.

Wiram Knowlton was born in Chenango County, New
York, in 1816, came to Wisconsin in 1837 and read law with
Parley Eaton, Esq., at Mineral Point. He first practiced
law at Platteville, Grant County, and afterwards at Prairie
du Chien, where he resided when elected the first judge of
the sixth circuit in 1850. He served as circuit judge six.
years and was a member of the Supreme Court until the or-

26 The Story of a Great Court

ganization of the separate tribunal. He died June 27, 1863,
at Menekaunee, Oconto County, Wisconsin, at the early age
of forty seven.

Judge Pinney says of him :10

"He was a man of good natural talents, and discharged the
duties of his office with commendable ability, and his judicial
integrity was unquestioned."

103 Pinney's Wis. Reports, p. 619.

MORTIMER MELVILLE JACKSON.

The Work of the first Supreme Court 27

CHAPTER III

THE WORK OF THE FIRST SUPREME COURT

The business transacted by this early Court during its
brief existence of five years was not great in volume as meas-
ured by present day standards. Its decisions fill less than
two volumes of Pinney's reports. While the population of
the state had increased ten fold during the decade from 1840
to 1850, it was still but a trifle more than 300,000 in 1850.
Moreover it was very largely a rural and scattered popula-
tion. Milwaukee had but 20,000 inhabitants and Racine but
5,000 and these were the leading cities. Manufactures had
hardly begun to develop ; business enterprises were small in
extent and limited in capital. Only ten miles of railroad had
been laid in the state : it was still a pioneer commonwealth,
whose scanty population was busily engaged in subjugating
the prairies and the forests of a vast empire and had neither
time nor inclination for extensive litigation. Such litigation
as arose generally involved small sums and litigants were
apt to rest content with the result in the circuit court, for
the trip to Madison was no trifling matter in those days of
no railroads. A large proportion of the cases which reached
the Supreme Court involved simply questions of pleading or
procedure and this was natural, for the state was new, the
lawyers young and frequently inexperienced and the statutes
recently revised. Although the code had not yet come with
its multitude of new questions and the practice was still
governed by common law rules, there was no lack of ques-
tions to be settled, arising either from lack of textbooks,

28 The Story of a Great Court

from new conditions or from changes in the practice made
by the revised statutes of 1849. Tne decisions upon such
questions are of little moment now ; the adoption of the Code
of Procedure in 1856 effectually deprived most of them of'
any permanent value and there seems no occasion to spend
time upon them.

There were, however, some cases involving important
questions of substantive law, the decisions in which have had
permanent influence on the jurisprudence of the state. Per-
haps the most important of these cases was Newcomb v.
Smith, 2 Pinney, 131, which involved the question of the con-
stitutionality of the milldam law passed by the territorial leg-
islature January 13, 1840. This act provided in substance
that water mills and dams might be erected and maintained
by a riparian proprietor upon and across any stream not
navigable, provided no injury should be done to other law-
fully existing mills on the same stream and provided, further,
that the height at which the water might be maintained and
the length of time it might be so maintained each year
should be subject to regulation by the verdict of a jury.
There were further provisions prohibiting any action at com-
mon law by any person whose land should be overflowed, but
providing that he might obtain compensation by action in the
district court of the proper county.

The law was attacked on two grounds, first, because it
took away the common law right of action against the mill-
owner, and thus violated that provision of the ordinance of
1787 for the government of the Northwest Territory which
guaranteed to the inhabitants the right to maintain "judicial
proceedings according to the course of the common law,"
and, second, because it authorized the taking of property for
a private use. Both contentions were overruled by a bare
majority of the Court, Judge Hubbell writing the opinion,

The Work of the first Supreme Court 29

while Judge Larrabee filed a long and able dissenting opin-
ion, in which Chief Justice Stow concurred. The question
was a new and serious one in Wisconsin. The state abounded
in waterpowers; the railroad had not yet come, coal was
practically unknown, and the use of the stationary steam en-
gine confined to the large towns, transportation was diffi-
cult, lumber for housebuilding had to be sawed out of timber
cut in the immediate vicinity and grain had to be milled at
the neighboring grist mill. Under these conditions multi-
tudes of small sawmills and gristmills operated by water
power and serving a small area for toll had sprung up and
their continued and unfettered existence seemed an absolute
necessity if the growth of the state was to continue. These
considerations were doubtless weighty with the Court and
it was decided that the use was a public and not a private
use. Had the test come a few years later the decision would
in all probability have been the other way, but the decision
was made ; valuable interests grew up under it and when the
question came before the separate Supreme Court in i860 the
early decision was sustained and followed on the ground of
stare decisis, although it seems quite obvious from the opin-
ion that the Court would have held the act was invalid had
the question been a new one.1

The act itself was copied almost verbatim from an early
Massachusetts law which had been sustained by the courts
of that state, not on the ground, however, that there was a
taking of land for public use, but on the ground that there
was no taking of property at all and consequently no exer-
cise of the right of eminent domain. Right or wrong, how-
ever, the decision has been followed and settled the law of
the state upon the subject.

1 Fisher v. Horicon, I. & M. Co., 10 Wis. *351; Newell v. Smith,
15 Wis. *101.

30 The Story of a Great Court

Another case where a very important question was pres-
ented was the case of State ex rcl. Resley v. Farwcll, Gov-
ernor, etc., 3 Pinney, 393, where application was made to
the court for the issuance of a writ of mandamus against
the Governor in his official capacity. In this case it was
held that the clause of section 3, Article VII of the state
constitution providing that the Supreme Court should "have
power to issue writs of habeas corpus, mandamus, injunc-
tion, quo warranto, certiorari and other original and rem-
edial writs" did not confer any original jurisdiction upon
the court, but was only intended to enable it to exercise the
powers otherwise conferred. The opinion of the court was
written by Judge Howe, but Judge Larrabee dissented.

Happily for the state this narrow construction of the
clause was promptly repudiated by the separate supreme
court at its very first term in the leading case of Attorney
General v. Blossom, 1 Wis. 318, where it was held that this
clause conferred original jurisdiction upon the court for the
purpose of preserving the liberties of the people and the
rights of its citizens. The importance of this great prin-
ciple first clearly appeared and its limits were accurately
defined in the great case of Attorney General v. The Rail-
way Companies, 35 Wis. 425, where the court speaking by
Chief Justice Ryan laid down the principle that the clause
was designed to give the court original jurisdiction of all
judicial questions affecting the sovereignty of the state, its
franchises and prerogatives or the liberties of its people.
This latter decision has been followed ever since its rendi-
tion and constitutes a landmark in our jurisprudence.

Other cases of lesser public importance may be briefly
noticed. In Getty v. Ronntree, 3 Pinney, 379, the doctrine
of implied warranty of fitness on the furnishing of an

The Work of the first Supreme Court 31

article for a specific purpose without opportunity of testing
it, is laid down; in Hasleton v. Putnam, 3 Id. 107, the
effect of a parol license to enter upon and improve land is
considered and decided; in Kellogg v. Larkin, 3 Id. 123,
the validity of contracts in partial restraint of trade is
affirmed and the limits of such contracts laid down; in
Clark v. Drake, 3 Id. 228, the principle that equity will not
take jurisdiction of a case for the purpose of enforcing a
forfeiture but will leave the party to his remedy at law is
definitely approved; in M. & M. R. R. Co. v. Eble, 3 Id.
334, it is held that before lands can be permanently occupied
by a railroad company under its power of eminent domain
the compensation must be actually paid or tendered; and
in Martineau v. McCollum, 3 Id. 455, it is held that the
transfer of a negotiable note secured by mortgage to a bona
Me holder before due carries with it the mortgage security
and precludes defenses which would render the contract
void as between the original parties. The doctrines laid
down in all of these cases have been substantially followed
in later decisions and thus they have passed into the great
body of our jurisprudence.

Attention must now be given, however, to the separate
supreme court which was soon to supersede this temporary
tribunal and become the permanent head of the judicial sys-
tem of the state.

32 The Story of a Great Court

CHAPTER IV

THE JUDICIAL ELECTION OF 1852 AND THE NEW COURT

The five years during which, under the constitution, the
circuit judges were to act as judges of the supreme court
expired in 1853 and the legislature by chapter 395 of the
laws of 1852 created a separate supreme court, to be com-
posed of a chief justice and two associate justices to be
elected on the last Monday of September, 1852, and as-
sume their duties June I, 1853. The salary was fixed at
two thousand dollars per annum.

The control of this new supreme tribunal was a prize
worth struggling for. The Democratic party was still in
the majority, as is proven by the fact that Pierce carried
the state by a decisive majority in the presidential election
of November, 1852, but the party was torn by factions, both
state and national. The free soil movement had made in-
roads in the ranks of both parties and the domination of
the Democratic party by the Southern pro-slavery wing was
bitterly resented by many Democrats. Some of the party's
strongest and ablest men had openly espoused the anti-
slavery cause and called themselves free soilers. On the
other hand the Whig party was in a still worse condition;
eminently respectable and intellectual though it was, it was
not a party of action or achievement and it was fast ap-
proaching dissolution and preparing the way for an en-
thusiastic and virile new party of action and progress,
whose leaders were to be drawn from both of the old parties
and whose platform was to be based upon a great moral

The Judicial Election of 1 852 33

issue appealing to the hearts of the masses, namely, the
issue of freedom and equal rights.

None saw the future, however, and the Democrats, con-
fident of their power, determined to sweep the entire bench
and called a convention to meet at Madison, August 4, 1852,
which was attended by more than eighty delegates.

The chairman was Hon. Charles Dunn, who had been
Chief Justice of the Supreme Court of the territory of Wis-
consin from the time of the organization of that Court
until the state judiciary was organized in January, 1849.
Judge Dunn was a very prominent and interesting figure in
early Wisconsin history. He was born of a good family in
Bullit County, Kentucky, from which state he removed to
Illinois, where he was admitted to the bar in 1820 at the
age of twenty-one. Here he practiced law for some years,
holding some minor offices, took an active part in the
Blackhawk war as captain of a company, was severely
wounded at an engagement in the town of Dunn, Dane
county during that war, and was appointed Chief Justice
of the territorial Court of Wisconsin by President Jackson
in the spring of 1836. He was a member of the second
constitutional convention in 1848 and was chairman of the
judiciary committee of that body.

In this convention he took an active and important part.
He proposed and strongly urged an amendment to the suf-
frage clause of the constitution limiting the right to white,
male citizens of the United States who had resided in the
state one year next preceding an election or who resided in
the state at the time of the adoption of the constitution.
In supporting this limitation he opposed the overwhelming
sentiment of his party and it was rejected. His support of
this measure was afterwards used against him as we shall
3

34 The Story of a Great Court

see. He is said to have been the author of that important
clause of the constitution which reserves to the legislature
the power to alter or repeal the charter of any corporation.
He was a resident of La Fayette County and lived at the
historic village of Belmont, the first territorial capitol, to
which place he retired and practiced his profession after
the formation of the state. He was a lawyer of ability and
unquestioned integrity, a gentleman of the old school, with
a distinct southern tinge and commanded the confidence and
esteem of the people. He was elected to the state senate
from La Fayette County and served as chairman of the
judiciary committee of that body during the years 1852 and
1853. He was a candidate for the nomination for United
States senator before the Democratic caucus of the first
state legislature, but was defeated by General Dodge. In
1858 he was an unsuccessful candidate for Congress against
C. C. Washburn and in 1868 reluctantly accepted the nom-
ination for Chief Justice by the Democratic convention
against Judge Dixon, but was defeated in both instances.
He died April 7, 1872, universally respected and mourned.

His services to the territory and the state deserve larger
and more appreciative recognition than can here be given,
but I cannot forbear quoting a part of the eloquent tribute
paid to him by Edward G. Ryan on the presentation to the
Supreme Court of the resolutions adopted by the bar of the
state soon after Judge Dunn's death.1

Mr. Ryan said, among other things:

"It was Judge Dunn's lot in life to fill many stations, pro-
fessional and lay, executive, legislative and judicial. So far as
I know or have been able to learn, these rather sought him
than he them. He certainly intruded himself into none of them.
There was a modesty in the man which was rare in his gen-

i30 Wis. 33.

CHARLES DUNN.

The Judicial Election of 1852 35

eration. I think that his own estimate of his own powers was
below, not above the estimate of all who knew him well. And
he was a thoroughly earnest man. He filled all his offices with
singular fidelity and zeal; as if each in turn were the chief end
of his life. To say that he filled them with ability would be
faint praise. He did not achieve success in them by just escap-
ing failure. He was a faithful officer; his offices were never be-
low him, but he was always above them. None of them gave
opportunity of showing all that he was, of calling out all of the
strength that was in him. They were all respectable, some of
them were high. But his intellect, his culture, his general capa-
city towered far above every 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 own unfitness.
With like pliancy or like artifice he too might have risen where
his inferiors rose. But he was above all 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 contemporaries.
He might have ennobled many positions filled by them; none of
them could have ennobled him.

"For truly, he was a great man in private station. While his
intellect was calm, it was solid; while it was not brilliant it
was comprehensive and far reaching. It was deliberate, dis-
criminating, clear, wise and just. I doubt if he left among us
his intellectual equal. His character was solid, strong and reso-
lute, but not stern or harsh. His stronger qualities were softened
by great sense of humor and great kindness of heart. His tem-
per was singularly genial. He was generous and trustful to a
fault. His foibles — for like all born of woman — he had them,
all arose from his genial character, the warmth of his heart and
the kindness of his temper. Strong in character among the
strongest; he was in carriage and manner among the gentlest,
eminently modest and unobtrusive in demeanor. His culture
was of a high order, in and out of his profession; like himself
useful and thorough, not superficial or showy. 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

36 The Story of a Great Court

world, and the personal simplicity of a child. He had a deep
sense of the duties of life. In all its relations, in all its chances
and vicissitudes he was always true to his own views of duty.
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 part of himself. He could
not desert faith, or friend, or duty, without betraying his own
life. Dishonor in him would have been moral suicide.

"And this perhaps is the key to much of his life. He could
not rise by lessening himself. He could not throw overboard a
principle, or a duty, or a friendship. He could not equivocate
with others. In matters of duty he could break but he could
not bend. In matters of principle he could never tamper with
the coward lie of expediency. It were nothing to call him a
brave man. Some are brave physically, some are brave morally,
some are brave occasionally. These were matters of accident
sometimes, of habit often. But Judge Dunn did not comprehend
what fear is, physical or moral. His heart was too great for any
cowardice. Courage in him was not an instinct; it was a prin-
ciple, a part of the character of the man. He might fail, but he
could not be unfaithful. There was in his soul a pride which
could not stoop to falsehood. Fidelity to his own sense of right
was the breath of his life. He belonged to a school of men which
has nearly passed away. He belonged to a school of politics,
which seems to be in the way of following the men who made
it illustrious. More is the pity. Hen pietas, heu prisca fides.
It is not the fashion, but I mourn for both as an inestimable
loss to the country.

"When the popular current turned against his school of politics
many vacillated, many grew lukewarm, many abandoned it in
the day of trial, and rose by the act. Not so he. His political
faith was religious truth to him. He would as soon have denied
his God. He never wavered. He never temporized. What was
it to him that all men seemed turned against the ancient faith
of his life? What, that his old and honored party was pro-
scribed and overwhelmed? Faithful among the faithless found,
no shadow of turning fell upon his life."

Such was the man who was called to preside over the
deliberations of the Democratic convention.

The Judicial Election oM 852 37

The speeches by the leaders in this convention, which are
quite fully reported in the Milwaukee Weekly Wisconsin of
August ii, 1852, are interesting as showing the prevailing
sentiment in the dominant party on the question of party
nominations to the bench.

Upon taking the chair Judge Dunn made a short speech
in which he said with characteristic candor and courage
that party nomination of judges was an experiment the
success of which depended entirely on the fitness of the men
nominated, and that he should feel himself at perfect liberty
to disregard the choice of the convention if it did not nom-
inate as good men as might be nominated thereafter or as
might be called out by the people. Following this there
came a discussion participated in by several prominent del-
egates upon the general subject of the propriety of party
nominations. Mr. D. A. J. Upham of Milwaukee said that
he favored such nominations but admitted that many Dem-
ocrats would repudiate them if anything but an unexcep-
tionable ticket was nominated; Mr. Hobart of Sheboygan
pledged his county for the ticket "whoever were the nom-
inees" ; Mr. Delany of Columbia County thought that every
judicial election in the state should be conducted on party
principles ; Mr. S. P. Coon (who had recently been attorney
general of the state) thought that strict party men should
be nominated; he did not think that a Whig could arrive
at just conclusions on political subjects, and being wrong
on these subjects he should be led to distrust the judgment
of a Whig upon the bench ; Mr. George B. Smith of Madi-
son thought that the convention should nominate upright
men and sound Democrats who had never swerved from
the straight line of party duty or allegiance to Democratic
principles ; if they nominated any other kind of a man he
should be defeated; Mr. M. M. Cothren of Mineral Point

38 The Story of a Great Court

gladly embraced the opportunity to declare that this system
of nominating candidates for the bench was entirely in ac-
cordance with his feelings and with the wishes of his con-
stituents.

The sentiment being overwhelmingly in favor of party
nominations the convention proceeded to its work. Two
of the circuit judges of the state were candidates, either
actively or passively, for the nomination for chief justice,
Judge Hubbell of the second circuit and Judge Larrabee of
the third circuit, and the convention adopted a preliminary
resolution declaring that in case any circuit judge should be
nominated he should resign his office within five days after
notice of his nomination or be deemed to have declined.
Milwaukee had two candidates for places on the ticket,
Judge Hubbell for chief justice and Abram D. Smith for
associate justice. Mr. Smith had been the regular Demo-
cratic nominee for circuit judge at the judicial election in
1848 and had been defeated by Judge Hubbell, who had
run as an independent. The rivalry between the two men
and their supporters was keen and somewhat bitter ; both
could not be nominated, but one was quite certain to be,
not only because of Milwaukee's importance as the com-
mercial metropolis of the state, but also because of its re-
liable Democratic majority.

Mr. Smith's friends seem to have been the better politi-
cians, for they succeeded in having nominations for as-
sociate justices made before the nomination for chief justice.
This change in the natural order of business resulted in the
nominations of Mr. Smith of Milwaukee and Samuel Craw-
ford of Mineral Point as associate justices and undoubtedly
prevented Judge Hubbell's nomination. Judge Larrabee
of the third circuit was then nominated for chief justice and

The Judicial Election of 1 852 39

the convention adjourned. The convention struggles left
much hard feeling among the Democrats, especially among
Judge Hubbell's friends. The nomination of Judge Lar-
rabee was especially disliked and that element of the party
which upon principle favored independent candidacies re-
ceived large additions from those who were dissatisfied with
the result of the convention. A call for an independent
convention was soon circulated at Milwaukee and received
many hundred signatures. The convention so called met at
Madison, September ist, and was largely attended. In a
lurid editorial contained in the Madison Argus and Dem-
ocrat of September ist (then conducted by Beriah Brown
and S. D. Carpenter) it was thus characterized :

"Whiggery in all its phases, disappointed Democrats, defeated
candidates, sore heads and sore eyes, whiskey and piety mingling
like the conglomerate pillars of which we read, making common
cause (but not with common object) some for revenge, some for
plunder, some to elevate their friends but more to destroy the
organization of the Democratic party, have met here from all
sections of the state, assuming to themselves the high prerogative
of revising the action of the direct representatives of the people
who assembled on the fourth of August."

Better proof than this that the danger of the situation was
appreciated by the Democratic leaders could hardly be
wished for. The nomination of Judge Whiton for chief
justice by this convention was a foregone conclusion ; he had
fully demonstrated his fitness for the position by his work
on the former bench and he was universally respected and
admired. As associate justices the convention nominated
Marshall M. Strong of Racine, a very able lawyer who had
been a Democrat but had become a Freesoiler and Abolition-
ist, and James H. Knowlton of La Fayette County, a Dem-
ocrat who had received many votes in the Democratic con-
vention for associate justice.

40 The Story of a Great Court

On August ii, 1852, Judge Larrabee had sent to Gov-
ernor Farwell his resignation as circuit judge, pursuant to
the resolution of the Democratic convention, which, how-
ever, was not to take effect until February 1, 1853. The
good faith or effectiveness of this resignation was ques-
tioned by the Whigs, but the campaign proceeded. The
fight was bitter and largely personal ; the Democratic papers
were full of appeals to Democrats to vote the straight party
ticket, the Whigs centered their strongest efforts on the
election of Whiton and the result was that Whiton, Smith
and Crawford were elected and all by small majorities,
though the state was heavily Democratic. Thus the first
attempt to control the new Supreme bench by party nom-
inations resulted in practical failure and the principle of
independent candidacies received a substantial endorsement.

Under the terms of the law creating the new Court the
term of the chief justice was fixed at four years, and the
terms of the associates at two and six years respectively, to
be determined by lot. The lots were drawn, the short term
fell to Judge Crawford and the new court entered upon its
duties in June, 1853.

A sketch of Judge Whiton's career prior to his elevation
to the circuit bench has already been given and his asso-
ciates upon the new bench are now to be noticed.

Abram Daniel Smith was a man of strong and original
mind, of imperious will and tireless industry and withal an
able lawyer and a voluminous and forceful writer. Of his
early life little has been preserved and the exact date of his
birth seems to be unknown. In General Edwin E. Bryant's
sketch of his life published in the "Green Bag" of March,
1897, it is said that he was born in Lowville, Lewis County,
New York ; he seems to have studied law at Sacketts Har-

The Judicial Election of 1852 41

bor in that state, but nothing is known as to his early edu-
cation. It seems probable that he practiced law in New
York before coming to Wisconsin, as the Hon. Harlow S.
Orton said July 25, 1865, in his remarks before the Supreme
Court upon the death of Judge Smith that he first met him
in the state of New York over thirty years before when
they were both young. Just when he left New York is not
known but he came to Wisconsin in the year 1842, having
previously spent some years at Cleveland, Ohio, and began
to practice at Milwaukee, where his ability, his earnestness
and his eloquence at once brought him success. In 1847 he
was a candidate for a seat in the second constitutional con-
vention but was defeated by Rufus King. In 1848, upon
the organization of the state, he was the regular Democratic
candidate for circuit judge of the second circuit, then com-
prising Milwaukee, Waukesha, Jefferson and Dane Counties,
but was defeated by a few votes by Levi Hubbell, who ran as
an independent Democratic candidate. His defeat is thus
explained by General Bryant:

"Before coming to Milwaukee he was a justice of the peace in
Cleveland, Ohio. During a scare in regard to the smallpox a
person afflicted with that disease had been placed in an isolated
building and then left alone, no one being allowed to visit him.
A humane and high spirited physician in violation of municipal
regulations broke into the building and ministered to the sick
man. For this humane but lawless act he was brought before
Justice Smith who imposed a heavy fine. In the office of this
young doctor was a young Irish student, William H. Fox, who
afterwards became an excellent and influential physician in
Dane County. When Mr. Smith became a candidate for circuit
judge, Dr. Fox took the field against him, having stored away a
grudge for his severity to the good Samaritan, his medical
teacher. By his activity in Dane County the scales were turned
and Smith was defeated by a few votes, and Dr. Fox declared
the account settled." 2

2 Green Bag, Vol. 9, p. 111.

42 The Story of a Great Court

In 1852 however, when the separate Supreme Court came
to be elected, Judge Smith turned the tables and triumphed
over Judge Hubbell, as we have already seen. His com-
manding influence upon that bench, especially in the litiga-
tion over the fugitive slave law, will clearly appear as this
history proceeds and need not be enlarged upon now. He
became the reporter of the Court in addition to his other
duties and reported the first eleven volumes of the Wiscon-
sin reports.

Chief Justice Cole paid him the following generous tribute
upon the presentation of resolutions by the bar after his
death in July, 1865 : 3

"Judge Smith was endowed by nature with a singularly original
and vigorous mind, which had been invigorated and enriched by
much reading and learning. He had an abiding love for and
devotion to the great principles of civil liberty and natural jus-
tice, and I believe it was the strongest desire of his soul that
every human being, however degraded, should enjoy his natural
rights. And if, for the purpose of securing these rights to the
downtrodden and oppressed, Judge Smith ever advanced from
the bench constitutional views which some deem unsound, it
is sufficient to say that the great mass of the loyal people of the
country have adopted his views in regard to the particular law
which called them forth, overlooking his errors, if he fell into
any and freely pardoning something to the spirit of liberty by
which he was actuated. Furthermore, he was fearless and in-
dependent in all his judgments, following no authority which
did not seem to be founded on principle and reason. All his
opinions were well written, and will compare favorably with
those of any contemporary judge of our sister states, while some
of them are marked by remarkable ability and force of reason-
ing."

Judge Smith was not re-elected upon the expiration of his
term in 1859 for reasons which will appear later. He re-
turned to the practise in Milwaukee and for a time became

3 18 Wis. 18.

ABRAM DANIEL SMITH.

The Judicial Election of 1852 43

an editorial writer upon the Free Democrat. He was ap-
pointed to a position in the government revenue service in
South Carolina during the war and spent most of his time
there. His health became impaired by his labors in this
position and he sailed by steamer for New York late in May
or early in June, 1865. He sank during the trip and died
at or about the time of the arrival of the steamer at New
York on the third of June ; his remains were forwarded to
Milwaukee and were followed to the grave by a multitude
of sorrowing friends, June 11, 1865.

The work of Judge Samuel Crawford upon the Supreme
bench gave ample evidence of his judicial abilities, but his
term was too short to admit of any complete demonstration
of them. His was fully as picturesque a figure as that of his
colleague, Judge Smith, but in a different way.

General Bryant in his "Green Bag" sketches 4 gives the
following outlines of his life :

"Samuel Crawford was born in Ballibay, County Monaghan,
Ireland, April 11, 1820. He was the fourth son of John Craw-
ford, a wholesale linen merchant, and was given an excellent
academic education. He came to the United States in 1840 and
studied law at Warwick, Orange County, New York. He came
to Galena in 1841 and there continued the study of the law
with J. M. Douglass, then a prominent lawyer. He was admitted
to the bar in 1844 and began to practice in a smart town of
mushroom growth which bore the literal name of New Diggings
(La Fayette County). Here were then a number of able law-
yers, many of whom afterwards became famous in the state.
* * * Young Crawford, a man of most exemplary habits for
that region of wild life, where was plenty of money and little
of civilization, soon became prominent. He distinguished him-
self in several important trials, and his fame spread throughout
the mining region. He had the bearing of a high spirited,
cultured gentleman, and a manner which, while somewhat im-
perious and masterful, was fascinating, and he soon became

* Vol. 9, Green Bag. p. 112.

44 The Story of a Great Court

popular. He was an able politician and a graceful and eloquent
speaker. He had no little dramatic power, and in his earlier
days, would bear a part in a play with great adaptation. The
theatrical troupes in those days thronged to New Diggings, sure
of good houses and appreciative audiences. Crawford sometimes
took a part and when Joe Jefferson was there in his youth, the
young lawyer gave him advice as to his acting and how to
reform it.

"After a few months, he was invited by Francis J. Dunn
(brother of Judge Charles Dunn), then the lawyer of largest
practice in that section of the state, to join him in partnership at
Mineral Point. This firm built up. a large business, and Craw-
ford's fame extended no less as a lawyer than as a prominent
advocate of the principles of Democracy."

His defeat in his campaign for re-election in 1855 and its
causes will form the subject of a separate chapter. Upon
retiring from the bench he practiced law for a time at
Madison as a member of the firm of Crawford, Wakeley &
Tenney and then removed to Mineral Point and there prac-
ticed until his death. In 1856 he ran for Congress against
C. C. Washburn and in 1859 he was the Democratic candi-
date for Attorney General, but was defeated in both in-
stances. In February, 1861, while engaged in the trial of
a case he was taken suddenly ill and died on the 28th of
that month in the forty-first year of his age.

SAMUEL CRAWFORD.

Some Contemporaneous Comments 45

CHAPTER V

SOME CONTEMPORANEOUS COMMENTS ON MADISON, THE
CAPITOL BUILDING, AND THE EARLY SUPREME COURTS

Accounts of, or comments upon, persons or events written
by a contemporary, with no thought of publication, are gen-
erally interesting, and frequently illuminating. Accident
has thrown in my way a number of letters written from
Madison by a Racine lawyer to his wife, while he was in
attendance upon the Supreme Court during the years 1850,
1852, and 1853, and as these letters contain a number of
interesting references to the Court and to current events at
the capitol, I shall insert extracts from them here.

The man who wrote the letters was Moses Bradford But-
terfield, a lawyer in active practice at Racine at that time,
and senior member of the law firm of Butterfield and Chase.
Mr. Butterfield was a direct descendant of Governor Brad-
ford of Massachusetts, and was born in the village of Can-
terbury, Conn., in 1797, and hence was fifty-three years of
age in 1850. At an early age he moved with his parents to
the village of Homer, Cortland County, New York, and
practiced law there prior to 1847, when he moved with his
family to Milwaukee, and practiced a short time, but lo-
cated in Racine prior to 1850. In 1855 he removed to
Preston County, West Virginia, where he remained until
1866, holding the office of District Judge for a time; in 1866
he removed to Ionia, Michigan, where he practiced law
until his death in May, 1872. Mr. Butterfield was a fine
looking man, six feet three inches in height, and retained

46 The Story of a Great Court

his erect carriage until his death. He was a voluminous
correspondent, and when he was away from home he spent
much time in writing letters to his wife and daughters at
home, describing his experiences and philosophizing ex-
tensively upon life and manners. During those early days
the whole calendar of cases in the Supreme Court was put
on call at once, and the Court called the cases in their order
until all were argued. Thus it was necessary for the law-
yers to attend Court on the first day and remain in attend-
ance until their last case was argued, and a lawyer with
cases near the end of the calendar would be obliged to spend
several weeks at the capital, awaiting the call of his case or
cases. There were no railroads in the early '50's, and the
stage trip was long and tiresome; to attend a term of the
Supreme Court in those days was almost as much of an
undertaking for the Racine lawyer as a trip to Europe at
the present time.

The first letter written by Mr. Butterfield is dated June
11, 1850, and written from the Supreme Court room. Ap-
parently it was the writer's first visit to Madison, and he
thus describes the capitol and the Supreme Court room :

"I have just arrived, and had a good dinner, etc., at Welch's
Hotel, and am here waiting for the dignitaries to come in. This
is a fine site for a capitol, but the capitol, a poor squat, ill-pro-
portioned sort of a thing, all out of gear and enough to make
an architect run mad and flee his country. And when you look
to see the cost of the thing, you would eulogize the loco focos
for their liberality. Enough money was expended in making
this burlesque upon architecture to have created a perfect
Pantheon. This room is well enough when you get in, — a good
carpet on the floor, nice desks, pen^ ink and paper, sand-box, etc.,
a nice pen for the judges to sit in, damask hangings at the
windows as red as old Stow's nose, and 7 by 9 maps on the wall
back of the judgment seat, two astor lamps suspended by close
lines, a clock swinging its pendulum away one side, ink bottles,
etc., on the clerk's desk."

Some Contemporaneous Comments 47

Later in a part of the same letter, written on the follow-
ing day, he makes the following comments, suggestive per-
haps of homesickness :

"I don't much like this place. I walked all round and saw
some pretty places — some pretty faces, but little of the, graces.
Not a piano, harp, lute or guitar or even the voice of woman,
except she scolded the cow while milking, or the children. It
was not until I arrived at my lodgings that I heard close by
the sound of a very sweet harmonica, played by the rude hand
of man. I met several of the dignitaries last night on the walks.
But these great men in Wisconsin are bearish, and they want
the influence of high intellectual society. I have often wondered
how it was possible for high-minded, refined and delicate women
to endure the society of men who are so rough, and have nothing
to commend them but their bows and flattering words without
cincerity."

The next letter is dated July 16, 1852, and is remarkable
because it contains detailed descriptions of two arguments
made by Mr. Mills (who can be no other than Joseph T.
Mills of Lancaster), which are fully as interesting and
amusing as the speeches themselves must have been when
delivered.

Mr. Mills was one of the most remarkable and interesting
characters in the early history of Wisconsin. A Kentuckian
by birth, he came to Lancaster early in the '40's and com-
menced the practice of law. He was eccentric to a degree,
an able lawyer, served two terms as circuit judge and often
in the legislature, commanded the respect and admiration of
all his cotemporaries, and was a large figure for many
years in the history of the state ; a full and interesting sketch
of his life will be found in Volume 98 of the Wisconsin
reports at page xlv. His speeches, whether at the bar or
on the rostrum, were always full of illustrations and al-
lusions drawn from all the sciences, as well as from biblical
and classical literature, and they also sparkled with humor-

48 The Story of a Great Court

ous conceits and witty repartee. It goes without saying
that his speeches must have been as rambling and discursive
as they were brilliant. It seems peculiarly fortunate, there-
fore, that we have the following quite full accounts of two
of his arguments upon quite simple questions in the Supreme
Court. It would seem that the arguments must have con-
sumed at least half a day each ; at the present time he would
be fortunate if he was allowed half an hour for either of
them.

The following is the description of the first speech :
"I have now, 11 A. M., been hearing Mr. Mills on pleading —
a dry subject to all lawyers, but he has given a desertation en-
livened with tropes and similies which brought all down in mer-
riment and laughter. The question was whether a certain plea
of Bar was good in a case where administrators were sued in
common law court when the estate had been settled or partly
settled by the Surrogate's court as an insolvent's estate, and
the objection taken to the plea was that it did not set out that
the estate was insolvent. Mills said that it was unnecessary to
plead the estate was insolvent, for it had become common law
in this state that all estates of deceased persens were insolvent,
that there never had been an estate of a deceased person known
in the state not insolvent, and that it was so universal &
common a thing that it was the duty of the other party to plead
that the estate was not insolvent; that this was also adopted
by the statute in this state so that the departed might die &
rest in peace, and the estate be settled without his name being
brought into court, and he rapping away at the desk of the
court to direct his heirs & administrators how to cary on
the affairs of suits to settle the estate for years and deprive his
mains from entering into that rest of the righteous prepared
for just men made perfect. For how could a man enter the
mansion of the just while entangled by a common law proceed-
ing to settle his estate and the state had fixed a rule that if
the estate was declared insolvent that his estate should not be
pestered with common law suits for a year & in some cases
18 months by any suits, and if the creditor did not come into
the Probate Court within the time fixed, he should be forever

Some Contemporaneous Comments 49

barred of his remedy. And he claimed that this is so that the
creditor should not call the spirits of departed from the pleasures
of Paradise to look after terestial things. And besides it was
to teach men that they must not stand all the day idle and at
night claim their wages; that they must work while the day
lasts, 'for the night cometh when no man can work.' He said
the glas of time had been handed over to the Probate from the
common law court, and when the Probate turned the glas time
was cut of, that he held the cord of legal existance in his had
(hand) & when he should cut it all was gone. This, he said, was
done in a simple way. The Administrator must declare the estate
insolvent, and he could always do so here, for no one ever
thought of anything living saved from an estate here, and the
Administrator must lie, and the safe way was to do as all had
done. 'Why,' says he, 'the old law gave to the most vigilant
a preference so that if the creditor got a judgt. he had a prior
right, but under our law there was no prefference to the judg-
ment creditor, for he may now lie on the sofa and sleep away
and submit his claim to the Probate & all will go well. The
old law was mad (made) before sofas were invented, when
creditors had to set on rocks or trees, but could not rest on
lounges as suits do in this court, but had to be up and awake.'
So that if a creditor will only place his debt into the Probate
mill, it will be ground out & he will have his share of the
meal. But if he will get onto the lounge and sleep Rip Van
Rimple like till the lock and stock of his rotten and his dog has
left him, and his rifle so rusted that he can't draw the charge
nor shoot it off, and his own children have forgotten him, he
cannot complain that he gets no game. He should be up and
work, arouse, be awake, lay up for himself in the Probate court
his treasure and then he may rest. He must come ready &
by the time with his lamp trimmed or he shall not enter. He
must come dressed in the right garments, according to the
fashion of the times, not in the old tattered garments of the
common law, or he shall be cast out; he must come to the
Prohate feast or he shall not sit at the table or receive his tallents
with their increase, but like the unworth servant he shall loose
that which he seemeth to have, and it shall be divided among
the other creditors. It is contended say he this may be a privi-
leged debt, that is, it was for Doctor's bill or funeral expenses &
charges, but this man died in 1848 and the note is dated in 1843.
4

50 The Story of a Great Court

He never knew a dead man doctor in his last sicness so long be-
fore his death, and in this country the undertaker did not fit out
& bury his subject so long before life was extinct. The doctor mad
pretty speedy work of it, for if a man had anything to pay with
the doctors flocked around him like herron and there would be one
at his head, one in the middle, and at his feet, and he was used
up in quick time. It was not the process of years for doctors
to kill in this country, and the undertaker has so much work
in his way to do, that he never could furnish in advance or
keep ready work on hand. Besides the lawyers were always
ready to grab all as soon as possible, and if the doctor did not
do his work in quick time he would be ."

The second speech was evidently made on the following
day, and is described as follows in the same letter:

"This forenoon I have been listening to Mr. Mills of Ioa I think
all the forenoon. He is one of the most excentric men I ever
heard. He has a fine memory, wonderful imagination, and the
most fanciful combination and comparison I ever knew. And
chops in every kind of thing, scripture, philosophy, geology,
mesmerism, ichthiology, ornithology, zoology, poetry, law, rhet-
oric, farming and everything all heads and points and binds
them up in such a manner one would think he meant to prevent
their use for any purpose, loosing sight apparently of his sub-
ject and presently they will begin to start out like rockets in
all directions and all colors & heights and figures, and darting
and dazeling in all directions and finally after flashing and sur-
prising a while he gathers one and another in any way he can
and lays them as auquardly as possible and as no one else would
upon his premises to prove his proposition by contrast, by de-
duction, by light & shades & lines & circles, angles and signs
& cosigns, tangents & recants, points & postures so quear that
all laugh all the while and still admire his wit, good sense
& nonsense.

"For instance to show that the court had not jurisdiction he
claimed that some crimes were above the power of the court
and only cognizable at the bar of judgment where omniscence
could detect virtue, although it had purcolated through every
stroke of human depravity from Cain down to the Mormon, and
had been condensed under the polar frosts & rarified on the
maridian. Then again other crimes were so common the court

Some Contemporaneous Comments 51

could not take cognizance of them. What could it do with the
deceits of Mahomet, who had spred them throughout the oriental
regions, or with the lies of the latter day saints who were draw-
ing tribute from the whole world and peopling with fanatics
& villins the Utahs? And what could the court do with the
murders by wholesale of Alexander and Bonaparte, but one single
murder they might punish. And what of all this figure? Why
the court could entertain a cause for a fraud, but could not
punish for lying. Again he said the plff. had put in his case
more words than were in Webstor's dictionary all counted, and
still he had not enough to state in a logical manner a cause of
action; he had stated more depravity of human action than was
contained in the bible, yet he had not specified anything that
would make the defendant ameni ,ble. And so he went on for
3% hours. All listened till all were anhungered, and the court
adjourned. His manner was as singular as his logic. He some-
times pulled downward with his hands as though scraching hay
from a mow; then he would pitch it up again, then mow it &
rake it & cock it; then he would shovel it and whirl it about
& up & down and all the time he raised on his toes up &
down with the greatest & most- vehement action. His face
& countenance sometimes turned on the one hand & then on
the other, now and then observing the court and then some
inanimate thing, as though he was playing hocus pocus with it.
If he had been rightly educated he could have written better than
Peter Pindar or Pope. But as he is he is only good to amuse,
mislead, mimic & mock, smoke & smother his antagonist."

Mr. Butterfield next writes December 16, 1852, after a
very strenuous stage trip which he thus describes :

"I am here half dead with bruises and knocks by staging over
these rough roads in the night time. Nothing happened to us
out of the common course of events. By the power of gravita-
tion we kept pretty near the surface with now and then a jolt
that would make a fellow feel after the joints in his neck. One,
I remember, gave me the worst shock I ever experienced in that
way, and my head aches yet and will I presume till i have time
to rest. After we got within about 20 miles of here I found my
truck missing and dispatched a hand to get it, and send on
today stage. What will be the report of this committee I know
not. But this I am well assured, that I am here with tarnished

52 The Story of a Great Court

linnen, long beard & no change of hose. I feel to ill to appear
in court. Saw Whiton, told him I was sick, etc. The court had
no quorum till this morning, so that little will be done. I do
hate (I use the word in the worst sence) staging especially in
the night. I have got so much of the up & down about me
that it makes me quite sensitive when I am canted out of a
purpendicular position, and more especially when I am beside
a large man who would come upon me with a two hundred pound
leveler (?) if we came into a horizontal, so I am under such
circumstances inclined to dodge responsibility and rid myself
of all such superincumbrance. We had a full load of gents, Hub-
bel, Finch, Brown, Upham and Watkins."

This trip was evidently made at the opening of the term,
and it is interesting to note that in the same stage were
Judge Hubbell, Asahel Finch, of the firm of Finch & Lynde,
Jas. S. Brown, D. A. J. Upham, and Chas. K. Watkins of
the Milwaukee bar.

Upon the following day he writes :

"Thus far I wrote yesterday and my head & bones ached
so that I was forced to go to bed, and after sleeping some two
hours awoke refreshed. Today I have been listening to the
affairs in court. Some arguments came off, but nothing verry
interesting. The court took up the calendar and are going
through as far as they can. It is rather a heavy one, and will
take a long time to go through. Our case stands low on it, and
will not be reached till 40 cases more are heard. The bar of
Wisconsin are fine looking men, as fine as I ever saw anywhere,
— but one or two ordinary looking men. But as a general thing
I should say they are not any too much given to hard study.
Some appear to have spent much time in study, but most appear
to enjoy sport and pleasure, and are apt to try to live by their
wits."

Mr. Butterfield next came to Madison apparently in June,
1853, coming part of the way by rail. From Janesville to
Madison he came by stage, and one of his fellow passengers
was Judge Abram D. Smith of Milwaukee. The separate
Supreme Court had just been organized, and the June term,
1853, was its first term. At this time there was much ex-

Some Contemporaneous Comments 53

citement concerning spiritualism and spirit rappings, as
they were called, and Mr. Butterfield gives the following
account of the discussion in the stage upon these subjects,
in which it appears that Judge Smith took an active part:
"When we got into the stage again there were no ladies and
we began to talk of the Rappers & Rapping spirits, and drew
out theories and suggestions, but could demonstrate but little,
but we all concluded it was well to examine these things and
see what they might amount to, as at the present day new
discoveries were making both in the phisical as well as the
spiritual world. And Smith quoted St. Paul, 'Why should ye,
etc., that God should raise the dead,' and said this remark of
his might be applied to everything passing, as we now saw as
through a glass, etc. Human nature was about to be elevated
by new lights, and discoveries to be made and perhaps spiritual
nature had spiritual atmosphere by which it could come in con-
tact with spirit in a way more subtle than sound is conveyed by
air, or sight by light, but yet quite as tangeable as either, and
that spirits' existice (existence) within this medium both in
& out of the body. This may be electricity, it may be another
more extensive & rarified fluid not confined to the surface of our
planet, but pervading all space, and when the soul is disembodied
it mounts up upon this medium of everlasting existance into a
spiritual existance of either happiness or drops into a dark &
desolate region of unextinguishable darkness and misery. So
we talked & reasoned, remaking (remarking) the objects by
the way, and the improvements going on, etc., till we arived
about sunset at this place, tired, dusty, durty and glad, and
rather pleased with ourselves & each other, and not as I felt
last winter that I had not got one new thought, but all I had
heard was repugnant."

At this time the impeachment of Judge Hubbell was go-
ing on before the state senate and Mr. Butterfield (who was
evidently much opposed to Judge Hubbell) speaks thus of
Hubbell and of Jonathan E. Arnold, one of Hubbell's coun-
sel in the impeachment proceedings :

"The Impeachment case is going on and no man that I have
heard speak of it says anything in favor of the impeached; one

54 The Story of a Great Court

said, 'The senate will impeach him or themselves.' Arnold was
in the stage behind us; he looks poorly, as though he was reap-
ing an early harvest of wild oats and youthful follies."

On the 23rd of June he writes again, and devotes some
space to a description of the geography of Madison, which
he illustrates with a diagram, and winds up with a blow at
Judge Hubbell :

"I have been in court all day listening to counsel as I (had)
nothing else to do and to do that was pleasant for we heard
some fine argumints. We had a powerful rain yesterday; it
poured down masterly, and today we have had it as cool as we

:m

could wish. The weather has taken a fine turn, much in favor
of good wheat. I am certain I have never seen the crops better.
This town has improved; the capitol is a miserable object to
talk about, or look at, but it stands on the prettiest spot in the
whole earth for such a building. It is right on the sumit of a
rising ground which slopes off one way, west, to a kind of wet
marsh or ravine, north to the lake, south to the lake, and east
to the lake & marsh. The publick square is an area of about
8 or 10 acres in square form; the capitol in the center, square
with the world. The publick square is cornerwise with the
world, a corner to each cardinal point. The broad walks run
one east, south, west & North, and one to each quarter, making
eight walks. Supose this diagram was square you would have
8 avenues leading from the capitol to the center line, and these
main avenues extend out into the country as far as the city
extends, cutting the town up into diamonds, so it may (be called)

Some Contemporaneous Comments 55

the city of diamonds. It looks best on paper, if well plated.
There are many good houses here, but no good publick houses.
They have a fine sand stone for building, which is easily cut
and works finely, and several good buildings of it are going up.
There are fewer poor buildings in proportion here than any
place I know of. I have seen some tolorable gardens, but they
are not equal to the houses generally. The soil is fine for gar-
dening, but not as good as in Racine, I think. I have just come
from court, where I have again listened to the conclusion of
the case yesterday begun. After counsel concluded, Hubbell, the
judge before whom the cause had been tried in the court below,
came in and made some remark to the court in paliation of
some strictures on his character, and showed that he was bler>cl-
ing at every pore. He is to be pitied, but he cannot be respected.
Smith who is now on the bench, who has been galled by Hubbell
over & over again, must feel as though the day of retribution
had come."

On the 28th of June he is still waiting for his case to be
reached ; the impeachment trial is still on, and he writes as
follows :

"Another day has been passed away in court hearing a short
case which has taken a good part of 3 days or more. I think
we all got intolorable tired of the concern, and were glad when
it was ended, so that we might hope of getting on towards our
case a little. But that case is over, and the business of the
court will progress again. Hubbell has been on the defence for
two days, and it is said his witnesses injure him rather than
benefit him. One he had on the stand this A. M. hurt his cause
very much. A woman, she swore the judge put his arm about
her; she remonstrated. She thought no particular harm was
done, but being asked why she remonstrated she said she thought
it was a little exciting to human nature. He ought to have
known what she would say, and should have avoided calling her.
But I think his chain is run out, as it is with all villins, and he
must fall. Let us be content with our humble lot, rather than
be tormented in the manner those are who seek high places."

On the following day he argued one case, and writes as
follows :

"I have just come down from the capitol, having been detained
arguing a case before the court; case of Barnes & Killip v. Elm-

56 The Story of a Great Court

linger & Keidle, which was called up rather unexpectedly, stand-
ing No. 58 on calendar. A great number of cases were passed
on, account of Attys being in court of impeachment. I do not
know how that case progresses."

At 7 P. M. of the following day he writes again:
"7 P. M. The court have adjourned, having gone through the
calendar, and passed 4 causes I am engaged in on account of
the impeachment court, so that I must come up when that court
gets through. I have argued one cause only, and that the op-
posing attorney was not present, and perhaps will not attend
during term. If he should I shall be obliged to answer his
argument in writing, so I must stay at least till the cases are
decided. If there was a railroad from here we would be at home
over Sunday."

There are no more letters till July 3rd, when he writes
again of the town, as follows :

"I have wandered around this town in all directions, and yet
I do not understand it; nothing is square here, all is diamond-
ing, so when you go in any one street you are crossing almost
all other streets; such streets cut a city into a vast number of
blocks and pointed lots; looks well on paper, but is not so useful
as the Philadelphia plan of right angles. I was going up early
this morning to the P. O. to get letters, and passed along the
side walk newly graviled by the sands of the beach of one of
the beautiful lakes surrounding the town, and as the sun was
striking it in almost horizontal lines it sparkled as though it
was full of small mirrors, and I had the curiosity to examine
it, and found mixed with the sand & gravel innumerable small
broken shells, white and many nearly transparint, and some I
found nearly whole. They appeared to be of two kinds mostly,
the univalve & the bivalve, and I was led to consider what a
vast amount of animal life had sported in those bright waters
& perished on the shores. Many of them doubtlessly were
devoured by the sharks of the fresh water, called pike, a large
Saurus fish."

On July 10th the impeachment trial was drawing to a
close, and he writes as follows :

"Well, the closing speech by Ryan is almost finished, — will
be tomorrow. I have not heard him. I have spent my time in

Some Contemporaneous Comments 57

the S. P. Court, where I could learn as much and keep cool. I
am told Ryan was brilliant and exerted himself very much."

On July nth he writes:

"6 P. M. I have spent the day in court; heard several opinions,
very good, — one quite stringent and rather in advance of other
courts, but I cannot say but in the main correct.

"The court of impeachment have been voting on the specifi-
cations and the heaviest vote yet given is one-half against Hub-
bell; it requires 2/3ds to convict. I am told the most important
specifications are passed upon, and the prospect is he will escape,
but ."

At 2 P. M. of the 12th of July, he writes as follows:
"The great farce is over now. Hubbell is acquited, but not
cleared. And the irish had a great row, — burned Ryan in effigy,
drumed the whole town, and fired cannon, and Hubbell on a call
addressed the mob and made himself a fool, as he always was.
No one thinks as well for his success of him. I think it will
react on him and make him appear mean if those who are op-
posed will be still. Going to the court."

On July 15th he says:

"I was not quite well last night, and we had a little way from
my lodging Dutch fiddle all night, and it kept me awake. But
I feel better today. Besides the dogs & cats had concerts
last night. I hope they have adjourned and will leave with the
legislature. The House were quite incensed by the decision of
the Senate in the impeachment case, and would not concur with
them as to paying counsel. The party will take a shock by this
matter, and must be a good deal divided in consequence. I am
not able to say when I shall be able to come home, but probably
shall in some two weeks."

On Jvly 19th he achieved some results, as appears by the
following extract from his letter of that date :

"You know I suppose that I had a motion served on me a few
days since in the Whiting 1 suit which Randall & Ryan thought
was to be the means of blowing up the case to all intents and
purposes. Randall said to me he should beat me on it, and that

1 Whiting v. Gould, 1 Wis. *195.

58 The Story of a Great Court

it was what would beat in the suit, and he said in court the
motion probably would dispose of the suit for the term, if not
for good. But this morning the court decided against him and
gave us costs, and I hope to get at least $20 out of them soon
so as to defray expenses. We shall soon reach the case, and I
hope now to be able to come home in the course of ten days.
I believe I have been from home one long month, and I want
to see all of you."

The letters here cease. It is not to be understood that
in quoting the remarks about Judge Hubbell and the im-
peachment trial the author of this volume is adopting the
views of Mr. Butterfield or approving them. I have not
deemed the merits of that prosecution as at all involved in
the scope of this work and do not wish to express any
opinion concerning it. Judge Hubbell had warm friends
and determined enemies, and his impeachment aroused the
bitterest feelings on both sides. It must be remembered
that Mr. Butterfield wrote from the standpoint of an avowed
enemy and the extracts have been inserted here simply to
illustrate the feelings of Judge Hubbell's opponents.

Personal Recollections of Whiton 59

CHAPTER VI

PERSONAL RECOLLECTIONS OF WHITON BY HENRY M. LEWIS

One of the oldest members of the Madison bar is Mr.
Henry M. Lewis who came to Madison, a young man, in
1852 and has been an active and honored member of the
profession ever since that time, being now Referee in
Bankruptcy for the Western District of Wisconsin.

Mr. Lewis had an intimate personal acquaintance with
Chief Justice Whiton. At the earnest request of the writer
Mr. Lewis consented to embody his personal recollections
of Judge Whiton in a short sketch which is intensely inter-
esting as it seems to me and it is here inserted in its en-
tirety and form the present chapter.

Judge Whiton, when he first came to the territory of Wis-
consin, settled upon a small farm on the prairie near what
is now the city of Janesville. In his youth he had learned
the trade of a millwright and carpenter, and he built with
his own hands a small cabin upon his farm where he lived
for some years the life of a bachelor and somewhat that of
a hermit. He afterwards erected the dwelling in which
he was living at the time of his death, — doing the carpenter
work himself. At the time he first settled on his farm, he
seemed not to seek acquaintances or social intercourse ; yet
he was always democratic, simple and unassuming in his
intercourse with his fellowmen, and it was the farmer folk
who were his neighbors who first discovered his rare abilities
and sterling character. It was through their appreciation

60 The Story of a Great Court

of him and their urging him for positions of trust that he
was first started upon his political career which was destined
to reflect such honor upon him and upon the state of his
adoption. As I recollect his appearance when I first knew
him, about 1852, he was a man somewhat above the average
height and size indicating that in his youth he had been a
man of more than ordinary physical strength and vigor, but
from the time that my recollection of him began, there was
in his walk and movements a suggestion of loss of physical
strength which increased until the time of his death. But
his face was the most striking feature of the man. There
was little color in the face, but it was one that at once in-
spired confidence in his integrity and purity of character.

The portrait of him which has hung for some years in
the Supreme Court room of the state gives a correct and
true idea of him as he appeared in life. When I first knew
him he was 47 years of age, but had the appearance of being
older. His blonde hair was well sprinkled with gray and
he seemed more venerable than the four or five circuit
judges associated with him upon the bench when the circuit
judges of the state constituted the Supreme Court, although
two other judges, Stow and Jackson were his elders.

He had at some time in his life been addicted to the use
of intoxicating liquors to excess, but he had before I knew
him reformed in that respect and become a model of
sobriety, in all respects exemplary in conduct and character.
But this may have caused the physical decay spoken of and
the premature aging of the man, and have sown the seeds
of the disease which finally caused his death at the age of
fifty-four years.

He was always kindly and courteous in his manner pos-
sessing a natural dignity which no circumstances seemed to

Personal Recollections of Whiton 61

disturb. He was easily approachable, but reticent in con-
versation seemingly never seeking acquaintances, but capa-
ble of forming strong friendships with those with whom he
had become thoroughly acquainted.

Upon the organization of the separate Supreme Court, in
1853, he had been elected chief justice by the people of the
state and his associates were Justices A. D. Smith and Sam-
uel Crawford, the latter being succeeded June 1st, 1855, by
Hon. Orsamus Cole, who continued on the bench until the
death of Judge Whiton.

It was the practice of that court for the chief justice to
announce the decisions of the court orally from the bench
before the opinions had been written by the members of the
court. Usually these decisions were not written up and re-
ported for a long time subsequent to their announcement
as above stated. These occasions were therefore important
to the bar of the state who desired to keep in touch with the
latest decisions of the court, and especially those who had
participated in the argument of the cases upon which de-
cisions were anticipated, and usually the small court room
was well filled with attorneys. It was the custom of the
chief justice first to give a statement of the facts of the
case. Often these facts were long, complicated and in-
volved. They were given without reference to any notes
or memoranda. He would state them in their logical se-
quence omitting everything immaterial or irrelevant, or if
alluding to them where they had been urged by counsel, he
would merely state that the court considered them imma-
terial or irrelevant and when the statement of facts was
concluded, it was clearly seen what the opinion of the court
must be. This marvelous exhibition of memory on the part
of the chief justice was always a matter of wonder and of
deep interest to the bar, and none of those who listened paid

62 The Story of a Great Court

more rapt attention than his associates upon the bench. If
they discovered any omissions or inaccuracies in his state-
ment, they made no sign by word or look.

It was on one of these occasions that the late Myron H.
Orton, then a prominent attorney of the city of Madison,
was standing leaning upon the end of the bench listening
intently to the chief justice as he announced the decision
in a case in which Mr. Orton had appeared as counsel and
in which the decision was adverse to his client. Mr. Orton,
always dramatic, as the chief justice concluded, said in a
stage whisper which would be heard through the courtroom,
"That sounds plausible." This caused a ripple of laughter
among the attorneys present in which the members of the
court including the chief justice joined.

When alone or walking upon the streets there appeared
about Judge Whiton an absentmindedness, a sort of faraway
look in his eyes which indicated that his mind was pre-
occupied. As illustrating this absentmindedness and pre-
occupation of mind, this anecdote was told me by the late
Judge Thomas Hood with whom Judge Whiton always
made his home while attending to his official duties in the
city of Madison.

There was a resident of the city, Colonel Wm. B. Slaugh-
ter, a man of culture, a good conversationalist, but some-
what of the character of Col. Sellers as depicted by Mark
Twain. He had upon a farm he owned a bed of peat and
he thought there was millions in it, and he sought to talk
peat to every man whom he met whether he expected to
induce him to become financially interested with him in
the development of his peat beds or not. He told his friend
Judge Hood that he would like to meet the chief justice
and so Judge Hood kindly invited him to his house to

Personal Recollections of Whiton 63

dinner to meet the judge. During the whole time that he
was in the presence of the judge, he discoursed upon the
value of his peat beds, what could be done with them, and
the money that could be made out of them, etc. But the
chief justice made no response, and wishing to know what
impression he had made upon him, he finally said, "Well,
Chief Justice, what do you think of peat?" Justice Whiton
roused himself and said. "Pete who?" showing he had been
wholly oblivious of the hour's talk in which Col. Slaughter
had indulged.

When presiding in court, Judge Whiton was an attentive
listener, seldom interrupting the argument of counsel by
question or comment, and attorneys appearing before the
court were encouraged with the feeling that they were re-
ceiving from the Chief Justice an attentive, impartial and
unprejudiced hearing.

Judge W'hiton was not an easy or fluent writer. His
opinions as found in the Wisconsin Reports from 3d Pinney
to the 8th Wisconsin were generally brief and directly to
the point. His statements were clear and without any at-
tempt at elaboration of the point decided. His associate,
Judge Smith, on the contrary, was an easy and fluent writer
and his opinions were often lengthy. This anecdote is told
of these two judges.

A case had been assigned to Judge Smith to write up
and after working at the matter for some time he came to
the chief justice with the manuscript of the opinion which
he had attempted to write covering page after page of
paper, and showing it to Judge Whiton said, "Chief Justice,
I cannot decide this case. I will show you what I have
written upon it." Thereupon Judge Whiton took from his
desk a small piece of note paper and writing upon both

64 Tne Story of a Great Court

sides of it, handed it to Judge Smith and said, "Judge, what
do you think of that?" Judge Smith, after reading it, re-
plied, "It seems to decide the case." Whiton replied, "I
thought it did."

Berryman in his "Bench and Bar of Wisconsin" states
that Judge Cole, who with the exception of Judge Smith
was longer associated with Judge Whiton upon the bench
than any other judge, said that the written opinions of
Judge Whiton did not fairly represent his powers ; that he
was much stronger in the consultation room than with the
pen ; and that some of his discussions with his judicial
associates in the privacy of that room were very remarkable
for their learning and disclosed him as a man of extensive
powers. And we join with Mr. Berryman in regretting
that failing health prevented Judge Cole from writing a
sketch of the life and services of Judge Whiton, which he
had at one time intended to write.

Judge Smith in his tribute to Judge Whiton at the meet-
ing of the Milwaukee bar called to express their sorrow at

his death, said :

"All along his official career he preserved on the bench and
in the consultation room, a strictness of propriety which can
scarcely be equaled, a conscientiousness which never wavered,
a depth of thought and comprehensiveness of the subject-matter
ever present, commanding without force, controlling without in-
trusion, clear and unassuming in his high office, great where
he thought least of greatness, but great only wherein man can
be truly great, — because he was wise and good."

A friend of mine who was present at the time when the
late E. G. Ryan spoke of the then-attorney general, Hon.
Experience Estabrook, as the "vagabond attorney general"
said that Judge Smith's face colored, Judge Cole looked
frightened, but there was not the least appearance of ex-
citement or loss of the usual serenity in the face of Judge

Personal Recollections of Whiton 65

Whiton and that while dealing with the offending attorney
his face showed no emotion and his calmness and serenity
was the same as upon any ordinary occasion or transaction
of business before the court.

Those who remember the case of Ex rel. Bashford v.
Barstow, will recall the intense excitement in this state
while that case was pending. Mr. Berryman in his sketch
of Judge Whiton in "Bench and Bar of Wisconsin" before
alluded to states that Judge Cole said that the people came
armed into the supreme court room and that arms were
stored in the basement of the capitol and there was a gen-
eral apprehension that there would be a bloody conflict be-
tween the partisans of Bashford and Barstow, and that in
his, Cole's, opinion there would have been such a conflict
had it not been for the confidence of the people of the
state in the integrity of Chief Justice Whiton and their
feeling that he could not be brought to lend himself to
a partisan decision.

While he held the office of chief justice of the supreme
court, he continued his residence upon his farm near Janes-
ville and was never in Madison except while attending to
his official duties and then he kept closely to himself and to
his work. He was seldom seen in public and I do not re-
member during the several years that I knew him to have
seen him at any public or social gathering. And I have
understood that at his home in Janesville he never sought
social intercourse with his fellows.

The late Jonathan E. Arnold at the bar meeting in Mil-
waukee before alluded to said: "During the long session
of 1840-41, I was a member of the council and was a room-
mate of the deceased. Then I had an opportunity to know
the man, and the high impression that I had formed of him ■
5

66 The Story of a Great Court

was fully confirmed. I then saw the clearness of his in-
tellect, the kindness of his heart, and the simplicity of his
character. I saw something, too, of that peculiar element
of his life which was not misanthropy, but a tinge of
melancholy and disappointment, and learned something of
its causes. All that I saw and knew of him, but served to
lead me more highly to appreciate his abilities and his un-
blemished character."

His appearance was always modest and unaggressive.
Whatever political situations he occupied were never sought
but accepted by him upon the solicitation of his fellow
citizens and the people of the state. At the time of his
election as Chief Justice, the state was Democratic in politics
and he was the only Whig elected to the bench, Justices
Smith and Crawford having been the Democratic candidates
for associate justices.

He was to me and has always remained in my memory,
the ideal judge.

The Booth Case 67

CHAPTER VII

THE BOOTH CASE AND THE CONFLICT WITH THE FEDERAL

COURTS

For the first year the business of the new Court was
principally of a routine character, involving the usual con-
troversies, public and private, which would naturally be
expected to arise in a new state. Important questions were
impending, however, and the infant Court was soon to be-
come the theater of a great political drama, which was to
claim the attention of the nation. The great wave of
anti-slavery sentiment was sweeping over the north, gather-
ing strength and volume with every passing week and the
irrepressible conflict between freedom and bondage was on.
In order to fully understand how the Court became involved
in one of the preliminary struggles in this historic conflict
it will be necessary to take a backward glance at federal
legislation.

When our forefathers constructed the Federal Constitu-
tion, they placed therein without debate or serious oppo-
sition the following simple provision: "No person held to
service or labor in one State under the laws thereof, escaping
into another, shall in consequence of any law or regulation
therein, be discharged from such service or labor, but shall
be delivered up on claim of the party to whom such service
or labor may be due." x

The purpose of the provision is very apparent, and its
necessity, so long as slavery existed under the protection of

HJ. S. Const. Art. IV. Sec. 2.

68 The Story of a Great Court

the law in any part of the Union, is equally apparent. In
pursuance of this section, Congress passed a law during the
administration of President Washington, providing that the
owner of any runaway slave might arrest him, take him be-
fore a judge of either the Federal or State Courts, and
prove by oral testimony or by affidavit that the person
arrested owed service to the claimant under the laws of
the State from which he had escaped, and thereupon it was
made the duty of the judge to give a certificate that such
proof had been made, and the claimant could remove the
fugitive to the State from which he had escaped. The law
also provided a penalty of $500.00 for obstructing its ex-
ecution or concealing the fugitive with knowledge that he
was such.

Thus the law remained until the year 1850. Meanwhile
the moral sentiment of the North became aroused ; the lib-
erty party was organized, the underground railroad flour-
ished, and northern men and women refused to act as slave-
catchers, or assist in perpetuating the crime of slavery. In
proportion as the anti-slavery feeling grew at the North, the
devotion of the South to the "divine institution" seemed to
become more determined ; the constant stream of fugitives
that passed through the Northern States to Canada, and
the evergrowing difficulty which the slave-holder experi-
enced in attempting to assert his rights in his human chattels
in the North, alarmed the people of the South, and they
demanded greater guarantees and more certain remedies
for the retaking of their runaway property. Finally an act
was passed in 1850 which was intended to meet the demands
of the South. It placed the whole machinery for the re-
caption of runaway slaves exclusively in the hands of the
Federal officers. It provided for a hearing before a United

The Booth Case 69

States judge or court commissioner, and made the certificate
of such officer conclusive ; it allowed proof to be made by
affidavit on the part of the claimant, but shut out the tes-
timony of the fugitive entirely ; it increased the penalties
for resistance to the enforcement of the law and for con-
cealment of the fugitive, and contained other obnoxious pro-
visions.

This law was a part of the compromise legislation of that
year, but, like most compromises, it failed to satisfy either
party. Instead of settling the matter, it simply added fuel
to the flame of excitement in the North, and nowhere in
the West perhaps did the excitement run higher than in
Wisconsin. The immigration into this State from the New
England States and New York was very heavy during the
early fifties, and the immigrants brought with them their
love of freedom and hatred of slave-catchers. On the 19th
of May, 1848, Sherman M. Booth arrived at Milwaukee.
He was young in years, but he had stumped Connecticut
for the Liberty party for six successive years. He was an
enthusiastic, perhaps a fanatical, abolitionist, and he came
West to further the cause that he loved by editing a news-
paper. The "American Freeman" was then being published
in Milwaukee, and Booth purchased a half interest in it and
became its editor. He changed its name to the "Wisconsin
Freeman," and after the Freesoil party was organized the
name was again changed to the "Free Democrat," and he
became the sole proprietor. For several years it was the
only out and out abolition paper in the State. Probably it
made up in quality for what it lacked in quantity. The
times were exciting, and Booth contributed his share to the
excitement without difficulty. After the compromise acts
of 1850, his denunciations of the slave power were more

70 The Story of a Great Court

vitriolic than before. The inevitable conflict was approach-
ing faster than any one knew and Booth was one of those
who were hurrying it on.

In the spring of the year 1852 a negro slave named Glover
ran away from his master, one Garland, who resided near
St. Louis, and came to Wisconsin. He stopped at Racine
and found employment in a mill about four miles from the
city. Here he lived until March, 1854. In some manner
Garland ascertained his whereabouts and came to Wisconsin
early in March to reclaim his property. He made the
requisite complaint before the late Winfield Smith, United
States Court Commissioner at Milwaukee, and a warrant
was issued for the arrest of the negro. A deputy marshal
of the United States proceeded to Racine with Garland and
several assistants and during the evening of March 10th
forced an entrance to Glover's cabin, knocked him down,
bound and handcuffed him and put him in a wagon, drove
rapidly to Milwaukee and lodged him in the county jail.
The news of the brutal arrest was not long in reaching
Racine, and the excitement in that thriving city ran high.
In those days the court house meeting was the universal
remedy for every public ill. The use of the court house was
free to all. Every man was an orator, and resolutions of
mighty sound and startling import were easily drawn and
enthusiastically passed. So in the early morning of Satur-
day, March nth, the court house bell at Racine rang
vociferously and the people hurried to the temple of justice.
Fiery speeches were made and resolutions were passed. By
these resolutions the arrest of Glover was denounced as a
brutal outrage, and a fair and impartial jury trial of Glover
in this State was demanded ; the citizens also resolved that
they would attend in person to secure Glover's release,

The Booth Case 71

adopting as their motto the golden rule; and further that
"inasmuch as the Senate of the United States has repealed
all compromises heretofore adopted by Congress, we, as
citizens of Wisconsin, are justified in declaring, and hereby
declare, the slave catching law of 1850 disgraceful and also
repealed."

The pioneers of Wisconsin were men of high courage and
prompt action. These resolutions prove the fact. None
other would attempt to repeal an act of the Congress of the
United States after a debate of half an hour at a court
house meeting. A committee of one hundred citizens was
appointed at the meeting to see that the resolutions were
carried out, and the committee departed for Milwaukee by
steamboat early in the afternoon. Meanwhile history was
being rapidly made in Milwaukee. The news of the arrest
came to Booth by telegraph early in the morning of Satur-
day, and he at once consulted with Gen. James H. Paine
and his son, Byron Paine, who were then practicing lawyers
in Milwaukee, as to the legal measures to be taken to free
Glover; a writ of habeas corpus was agreed upon as the
proper remedy, and it was procured from Judge Charles E.
Jenkins, of the County Court. But here arose a serious
difficulty. Neither the sheriff nor the United States marshal
would obey the writ and produce the prisoner, because they
claimed that the prisoner was within the exclusive juris-
diction of the United States Court. This refusal created
great excitement and indignation ; a meeting was called in
the court house square at two o'clock in the afternoon;
men rode through the streets on horses summoning "free-
men" to the meeting. It was largely attended and was
addressed by fiery and eloquent speakers, and as a result
a rush was made for the jail at about six o'clock in the

72 The Story of a Great Court

evening-, the door battered down, and Glover taken out and
hurried away.

The following description of the affair contained in the
weekly Racine Advocate of March 20, 1854, may prove in-
teresting :

"A committee of twenty-five of the citizens of Milwaukee was
appointed a committee of vigilance and protection. A committee
of two was also appointed to wait upon the sheriff to see if he
still persisted in refusing to serve the writ. This refusal being
persisted in, measures were immediately taken to see what steps
were necessary to see that the 'Republic received no detriment*
and that the laws of the land were enforced. The citizens of
Milwaukee, on this notice being given, assembled to the number
of five thousand in the court house square, where they were
addressed by the most eloquent and influential members of the
Milwaukee bar. The excitement continued and spread to all
parts of the city. At five o'clock the delegation from this city
arrived at Milwaukee and were escorted to the court house
square, where the citizens of Milwaukee were listening to ad-
dresses upon the subject matter. The military had been ordered
out, but did not appear on the streets. At six o'clock the friends
of law and order came to the conclusion that it would be unsafe,
as well as eminently wicked, for a human being to be locked
up in a jail over the Sabbath against whom no crime had been
alleged; accordingly a courier was despatched for a team, and as
the court house bell rang the tocsin of liberty the writ of 'open
sesame' was enforced, while the glorious sun sank smilingly in
the west as he shed his rays upon the spires of Milwaukee for
the 11th day of March, 1854; a glorious prelude to the coming
day of rest. The doors of the prison shook as though another
Peter were within, and the willing cell yielded up its victim
to the fresh light and air of God's glorious earth. The negro
waved his hat as he mounted the wagon in return to the waving
of hats and joyous shouts which arose from that vast crowd of
freeman who said that the Milwaukee jail could not be used for
the confinement of men who had committed no crime."

The mixture of biblical allusion, "fine writing" and satire
in this account is certainly amusing, if not effective.

The Booth Case 73

Booth describes his own share in the rescue in the course
of an address delivered by him in Madison, March 12, 1897,
as follows :

"In riding through the streets of Milwaukee to call a public
meeting, I did not cry as was reported and sworn to, 'Freemen
to the rescue.' A forcible rescue was never my purpose; I aimed
simply to secure for Glover a fair trial and competent counsel,
and in calling the meeting I used but two forms of speech, viz.:
'All Freemen,' or 'AH citizens who are opposed to being made
slaves or slave catchers turn out to a meeting in the court house
square at two o'clock,' the only variation being that I sometimes
used the word 'men' and sometimes the word 'citizens'. * * *
The immediate cause of the rescue was the speech and report of
C. K. Watkins, chairman of the committee to wait on Judge
Miller and inquire if the writ of liberty would be obeyed. He
reported that Judge Miller said, 'No power on earth could take
him from his jurisdiction.' He (Watkins) expatiated on the
tyranny of the judge and the hardship of imprisoning Glover
over the Sabbath; I had invited the Racine delegation to meet
our committee at the American House for consultation and was
about to start when I heard a shout and saw a rush for the
jail and anticipated the result. I went up to Dr. Wolcott and
Byron Paine, standing on the court house steps, and said to
them as the crowd was bringing Glover out, that I regretted the
act, that it was a bad precedent and the people would not dis-
criminate between this case and one in which a prisoner was
rightfully held. To personal appeals of Democrats before the
first meeting was opened, 'Mr. Booth, let us take him out,' I
answered, 'No, we must use legal and peaceful methods,' and
during the whole of this scene I counselled against violence, pub-
licly and privately. Yet in all the histories of this case, in
newspapers, pamphlets and books, I am represented as riding
through the streets of Milwaukee shouting 'Freeman to the
rescue.' * * * I respectfully decline the honor of a deed
I never performed. The only responsibility attaching to me for
the rescue of Glover is that I helped create a strong public sen-
timent against the fugitive slave act and called the meeting to
protect the legal rights of Glover and give him a fair trial. If,
when assembled for peaceable and lawful purposes, the course
of the judge and his bailiffs excited the prople to take Glover out
of jail against my advice, I was guiltless of the rescue."

74 The Story of a Great Court

Glover made good his escape and was never recaptured.
The great "writ of freedom" had failed indeed, but a power
more effective than any writ, the righteous wrath of an
outraged people, had accomplished the purpose. Now com-
menced the legal battle which was destined to array court
against court, and last until the booming guns of Sumter
announced the coming downfall of slavery.

While the negro had thus been permanently released,
Booth still remained at his post, and the temptation to bring
down upon his head the penalties of the law which he had
set at defiance was too great to be resisted. He was ar-
rested for aiding in the escape of a fugitive slave, was
examined before a United States Commissioner, and bound
over for trial before the United States Court. Bail was Fur-
nished, but his bondsmen soon surrendered him at his own
request, and the Court Commissioner by warrant committed
him to the custody of the United States Marshal. Probably
this surrender was for the purpose of instituting the legal
proceedings which now began in the State Court. Byron
Paine was then a young lawyer in Milwaukee, not yet
twenty-seven years of age. He had come to Milwaukee
with his father, James H. Paine, some seven years before.
The father was a man of ability, a lawyer of some prom-
inence, and so strong and pronounced an abolitionist that
he found it necessary, or at least desirable, to remove from
Painesville, Ohio, to Milwaukee. So Byron drank in
abolitionism with his mother's milk. Possessed of a rare
power of language and literary composition, he wrote much
for Booth's paper, the Free Democrat, while preparing for
the bar. He had not attained great eminence in the pro-
fession, though his capabilities were known by some and his
sterling honesty and courage by many. The time had now

The Booth Case 75

come when he was to demonstrate his abilities and he recog-
nized the opportunity and grasped it. His whole soul was in
the cause ; he entered the combat as did the knights of old
who fought for the holy sepulchre. It was to him the cause
of God as well as the cause of freedom. Upon the day fol-
lowing the commitment of Booth to the custody of the
marshal, application was made to Judge Smith at chambers
for a writ of habeas corpus directed to the marshal. The
writ was allowed, the marshal claimed justification under
his warrant, but after argument by Mr. Paine and Mr. J.
R. Sharpstein on the other side, Mr. Justice Smith in a long
and able opinion discharged the prisoner on the ground that
Congress was given no power by the United States Consti-
tution to legislate on the subject, but that the clause in the
Constitution providing that fugitive slaves should be given
up to the owner was simply a command to the State and
to be enforced by the states alone.2

This decision was received by the partisans of Booth in
all parts of the State with great enthusiasm. The court
house meeting was immediately reconvened at Racine, and
again passed resolutions. It will be interesting to note their
tone — they are as follows :

"Resolved, That we hail with unmingled satisfaction the de-
cision of Judge Smith by which the constitution is vindicated
and restored to its original purity;

"Resolved, That Judge Smith's construction is the true and
undoubted meaning of the Constitution as left by the hands of
the fathers who framed it, that the reasoning by which he ar-
rived at that conclusion is unanswerable and places the Judge in
the front rank of constitutional jurists;

"Resolved, That it is 'holy light' when compared with the
muddy and discrepant opinions of the United States Court in the
famous Prigg case, reported in 16th Peters;

23 Wis. Rep. *1.

76 The Story of a Great Court

"Resolved, That with him we sincerely and solemnly helieve
that the last hope of a free representative government rests upon
the state sovereignties and fidelity of state officers to their double
allegiance to the state and federal government;

'•Resolved, That Judge Smith has manfully and ably fulfilled
the trust of double allegiance which the people of Wisconsin
committed to him.

The case was immediately taken before the full bench of
the Supreme Court by writ of certiorari, and heard at the
June term, 1854. Upon this hearing, Mr. Paine again ap-
peared for Booth, and he then met a foeman worthy of his
steel, one who like himself was destined in after years to
add lustre to that very bench, Edward G. Ryan. Paine's
speech has been preserved in pamphlet form, and it was
worthy of the occasion and the man. He argued that the
fugitive slave law was unconstitutional on three grounds :
(1) because Congress had no power to legislate upon the
subject at all, being the ground taken by Judge Smith in his
opinion; (2) because it provided that a man might be re-
duced to a state of slavery without a trial by jury, and
(3) because it vested judicial power in Court Commissioners
contrary to the terms of the Constitution, which provided
for the vesting of such power in certain Courts. The Court
affirmed the order of Justice Smith discharging Booth from
imprisonment, July 19, 1854.3 The affirmance was unan-
imous, but the judges differed on the ground upon which
the decision should be based. Chief Justice Whiton ad-
mitted that it was finally established by the case of Prigg
v. Pennsylvania, 16 Peters, 640, that the United States had
power to legislate on the subject of fugitive slaves, but he
held that the act was unconstitutional for the reason that it
vested judicial powers in Court Commissioners, and because

33 Wis. *49.

The Booth Case 77

it denied to the fugitive a jury trial. Judge Smith retained
his views as to the lack of power in Congress to pass any
law on the subject, and concurred with the Chief Justice in
his objections to the law ; while Justice Crawford dissented
from the conclusion of the majority, holding the law to be
valid, but agreeing in the result because the commitment
did not on its face show that the case was within the law.

The legal victory thus won by Byron Paine seemed to be
complete. He had met in the highest tribunal of the State
one of the greatest men of the profession, and had utterly
routed him. The decision of the Court touched and thrilled
the popular heart, and the beardless champion of human
freedom was unquestionably the hero of the hour. Nor was
the enthusiasm over the victory confined to the narrow
limits of the State of Wisconsin. The contest had been
eagerly watched by leading abolitionists in all parts of the
country, and the victory was hailed by them with delight
and the youthful victor was overwhelmed with praise.

Charles Sumner wrote on the 5th of August, 1854 :

Washington, Aug. 5th, 1854.

"* * * I congratulate you upon your magnificent effort
which does honor not only to your State but to your country;
the argument will live in the history of this controversy. God
grant that Wisconsin may not fail to protect her own right and
the rights of her citizens in the emergency now before her. To
her belongs the lead which Massachusetts should have
taken. * * *"

Wendell Phillips thus congratulated him:

Milwaukee, Nov. 24th.
"Dear Sir:

I hoped to have met you last evening to tell you with what
unbounded delight I read your argument in the Booth case.
You know you have many companions in the pathway of that
effort; but I think none excels you in the completeness and
force with which the points are presented and some of the views

78 The Story of a Great Court

with which you sustain points made by others are strikingly
original. I cannot see that you leave anything further to be
argued. * * *"

But the litigation had not ended; it was in fact but just
begun. The discharge from confinement did not stop the
prosecution of Booth in the United States Court. In July,
1854, Mr. Booth and one John Rycraft were finally indicted
for violation of the fugitive slave law, and were arrested
on warrants to answer the indictments. Booth again ap-
plied for a writ of habeas corpus to the Supreme Court, but
it was unanimously denied, not because there had been any
change of view in the minds of the justices on the main
question, but because, the United States Court having ob-
tained jurisdiction of the case and the prisoner being held
by apparently lawful process issued by such Court, (and not
by a Court Commissioner), no other Court should inter-
fere and endeavor to take the decision of the question of
jurisdiction away from that Court. This is the familiar rule
of comity, by which, when the jurisdiction of a matter has
been acquired by one Court, another Court of concurrent
jurisdiction will not interfere.4

Booth and Rycraft were now tried in the United States
Court, found guilty, and sentenced to a short term of im-
prisonment in the county jail and to pay a fine of $1,000.00.
This conviction aroused intense feeling all over the State.
Indignation meetings were held in Milwaukee and in many
of the smaller places, most of which passed resolutions de-
nouncing the conviction, and some going so far as to de-
mand armed resistance. Again a writ of habeas corpus was
issued from the Supreme Court and the prisoners were
finally discharged in February, 1855, the Court deciding that

43 Wis. *145.

c+-*L^*^/t-

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o-&-

£-,

V

7^

J -fit. t^*~^£~tt f #£. u—<4~ */ Z-^U^ <z~jL^>

Reduced facsimile of a page from the manuscript opinion of
Judge Wliiton in the I'.ootli C;ise, 3 Wis. I

The Booth Case 79

it could review the question of the jurisdiction of the United
States Court upon habeas corpus and could discharge the
prisoners, even when the Federal Court had tried the case
and passed judgment upon them.5 The position was an
extreme one and the judges recognized the fact. It meant
a direct clash with the Federal Courts, but the judges did
not falter. Justice Smith said in a note :

"This Court has no disposition to interfere with the criminal
jurisdiction of the District Court of the United States. Unless
that Court proceeds within the limits which the constitution and
laws of Congress have prescribed, its acts are a nullity; its
jurisdiction is always open to question and must affirmatively
appear; if jurisdiction be wanting, its process, judgments and
decrees are void. Were it otherwise, that Court might proceed
to indict, convict and punish for common assault, libel, breaches
of the peace, and so forth, imprison our citizens at its own will
and pleasure, administer the whole common law code of offenses
and punishments, from whose judgment there could be no appeal
and whose prison doors no earthly power could unlock. Such
doctrine is monstrous. We have not yet reached the point of
submission." «

The note of defiance here rings out with unmistakeable
clearness ; it was magnificent, but it was not good law.

The issue was too important to rest without final decision
by the Court of last resort, and writs of error were sued out
of the Supreme Court of the United States by the marshal
to review both judgments of the Supreme Court of Wis-
consin discharging Mr. Booth. To the first writ issued in
October, 1854, return was made without objection, but when
the second writ was issued and served in June, 1855, the
justices of the Supreme Court directed the clerk to make
no return to the writ on the ground that no writ of error
could run from the United States Supreme Court to the

53 Wis. *157. «3 Wis. *157. See page *217.

80 The Story of a Great Court

Supreme Court of a State, and that the act of Congress
purporting' to authorize such a proceeding was unconstitu-
tional. This was going a step further than before. By the
previous action, the Court had only asserted its power to
inquire into and decide for itself the question of the juris-
diction of a Federal Court, and the validity of its judgment;
by this latter act it asserted in legal effect that its decision
was final and supreme and could not be reviewed by any
Court on earth. The refusal to return the record in obe-
dience to the writ could not prevent the consideration of the
case by the United States Supreme Court, but it did delay
such consideration.

The Attorney General of the United States (Jeremiah S.
Black) had procured a certified copy of the record, and
when it finally appeared that no return would be made to
the writ, the Court ordered that this copy be filed with the
same effect as if returned by the clerk, and the cases were
finally reached in January, 1859. Mr. Black appeared and
argued the case for the United States, but no counsel ap-
peared on the other side. Booth sent to the Court a copy
of the pamphlet argument of Mr. Paine with copies of the
opinions of the justices of the Supreme Court of Wisconsin,
and submitted his case on these without argument. The
cases were decided and the judgments reversed March 7,
1859, in an opinion by Chief Justice Taney.7 The issue was
of supreme importance, and the opinion was one worthy of
the issue and of the distinguished jurist who wrote it.

It has been the fashion to belittle and blacken the memory
of Chief Justice Taney by falsely attributing to him the
statement that a negro had no rights which white men were

7 21 How. (62 U. S.) 506.

The Booth Case 81

bound to respect. Happily, time has to a great extent cor-
rected this great injustice, and there are few now who do
not acknowledge the purity and probity of the character of
this great jurist, and admit that he stands among the very
greatest of the great men who have adorned the Supreme
Bench of the United States. While the opinion in this case
is of some length, the Chief Justice stated the issue and its
inevitable conclusion in a few sentences so clearly that I
cannot refrain from quoting them.

"If the judicial power exercised (by the Supreme Court of
Wisconsin) in this instance has been reserved to the States, no
offense against the laws of the United States can be punished by
their own courts without the permission and according to the
judgment of the Court of the State in which the party happens
to be imprisoned; for if the Supreme Court of Wisconsin pos-
sessed the power it has exercised in relation to offenses against
the action of Congress in question, it necessarily follows that they
must have the same judicial authority in relation to any other
law of the United States, and consequently their supremacy and
controlling power would embrace the whole criminal code of the
United States and extend to offenses against our revenue laws
or any other law intended to guard the different departments
of the general government from fraud or violence, and it would
embrace all crimes from the highest to the lowest, including
felonies, which are punished with death, as well as misdemeanors
which are punished by imprisonment. And if this power is
possessed by the Supreme Court of the State of Wisconsin, it
must belong equally to every other State in the Union when the
prisoner is within its territorial limits; and it is very certain
that the State courts would not always agree in opinion, and it
would often happen that an act which was admitted to be an
offense and justly punished in one State, would be regarded as
innocent and indeed as praiseworthy in another. It seems to be
hardly necesesary to do more than state the result to which
these decisions of the State Courts must necessarily lead. It is,
of itself, a sufficient and conclusive answer; for no one will sup-
pose that a government which was now lasted nearly seventy
years, enforcing its laws by its own tribunals and preserving the
6

82 The Story of a Great Court

Union of the States, could have lasted a single year or fulfilled
the high trusts committed to it if offenses against its laws could
not have been punished without the consent of the State in
which the culprit was found."

These propositions seem now to be very plain and simple
truths, but not so in 1859. The judgment of reversal was
followed by a storm of popular indignation in Wisconsin,
which will be fully described in its proper place. It is suf-
ficient now to say that in the judicial elections of 1855, 1857,
1859 and i860 the question whether the Booth case was
rightly decided and should be adhered to formed practically
the sole issue, and that notwithstanding their radically dif-
ferent positions in that case both Justices Crawford and
Smith lost their seats by reason of such positions.

The ordinary litigation which came before the Court dur-
ing Judge Crawford's brief term of two years was not great
in volume, yet some important fundamental propositions
took their places in the jurisprudence of the young state.

One of the most important cases was the Blossom case,
already referred to, where it was held that the Supreme
Court had been endowed by the constitution with original
jurisdiction in cases public! juris, involving the prerogatives
and franchises of the state and the liberties of the people.8
The great importance of this principle and its value to the
people of the state was later clearly demonstrated in the
railroad cases 9 and the other cases of absorbing public in-
terest and importance which have followed that case. Had
the Court been shorn of this great power by a narrow con-
struction of the grant of power contained in Section 3 of
Article VII of the constitution the result would have been

s Atty. Genl. v. Blossom, 1 Wis. *317.
0 Atty. Genl. v. R. R. Co.'s, 35 Wis. 425.

The Booth Case 83

to practically deprive the public of redress or relief in many
great emergencies, when only prompt action by the court
of last resort could be effective.

Among the more important legal principles laid down
during this period are the following : that a ministerial officer
is protected in the execution of a writ regular on its face
and issued by a competent tribunal, so long as he has no
knowledge of any lack of jurisdiction on the part of the
tribunal which issued it ; 10 that repeal by implication is not
favored in the law and that on the contrary courts are bound
to uphold the prior law if by reasonable rules of construction
the two acts may well subsist together ; " that a deed, ab-
solute on its face, will be held a mortgage whenever the real
transaction is a loan of money and the deed is given as
security for its repayment;12 that the right of trial by jury
secured by the constitution contemplates a jury of twelve
men as understood at common law and not of any less num-
ber ; 13 that in ejectment the plaintiff must recover, if at all,
on the strength of his own title, and that there may be dedi-
cation of lands to public use by parol ; 14 that a deed obtained
by duress is void, not only as between the original parties,
but as to a subsequent purchaser with notice ; 15 that a
riparian owner upon a meandered stream owns to the
thread of the stream, subject to the public easement; 16 that
a public nuisance may be enjoined at the suit of a private
person if he suffer a private or special injury therefrom;17

10 Sprague v. Birchard, 1 Wis. *457.
« Atty. Genl. v. Brown, 1 Wis. *513.
12 Rogan v. Walker, 1 Wis. *527.
"Norval v. Rice, 2 Wis. *22.
14 Gardner v. Tisdale, 2 Wis. *153.
is Brown v. Peck, 2 Wis. *261.
is Jones v. Pettibone, 2 Wis. *308.
it Walker v. Shepardson, 2 Wis. *384.

84 The Story of a Great Court

that in actions ex delicto exemplary damages may be
awarded when the injury is inflicted with malice or under
circumstances of aggravation insult or cruelty ; 18 that the
consideration for a promise to answer for the debt of an-
other must be expressed in writing as well as the promise
itself in order to take a case out of the statute of frauds ; 19
that organized towns are not municipal corporations within
the meaning of Sec. 2 of Article XI of the constitution, but
only gwem'-corporations ; 20 and that when constitutional pro-
visions or statutes which have been the subject of previous
judicial construction in another state, are adopted by this
state it is presumed that such construction is also adopted.21

is Mc Williams v. Bragg, 3 Wis. *424.
19 Taylor v. Pratt, 3 Wis. *674.
ao Norton v. Peck, 3 Wis. *714.
2iAtty. Genl. v. Brunst, 3 Wis. *787.

Defeat of Crawford by Cole 85

CHAPTER VIII

THE DEFEAT OF CRAWFORD BY COLE

Whether it would or not, the Court now occupied a posi-
tion upon the very center of the political stage and here it
was to remain for years. It had been compelled to take a
conspicuous part in a great popular movement which was
fast hurrying the nation to civil war. Judge Crawford in
the face of great public clamor and excitement had unequiv-
ocally taken the unpopular position that the laws of the
United States and the judgments of the federal courts with-
in their proper jurisdiction were supreme and could not be
held for naught by the state courts. His successor was to
be elected in April, 1855 ; the last judgment of discharge in
the Booth case was made in the preceding February and
public excitement was still at fever heat. The question was,
should Judge Crawford be re-elected in spite of his un-
popular views on the burning question of the hour?

The general political situation had now radically changed.
The Whig party was dead and its funeral obsequies had been
performed. It had indeed nominated a complete ticket for
state officers in the fall of 1853, but a part of its candidates
withdrew and a coalition was finally formed with the Free
Soilers and Abolitionists, which resulted in the elimination
of the Whig ticket under that name and the placing in the
field of an independent ticket called the People's ticket, com-
posed in part of Whigs and in part of Free Soilers. This
ticket had been decisively defeated in November, 1853, but
its supporters were not daunted. They were inspired by a

86 The Story of a Great Court

great moral issue and under the new and attractive name of
Republicans were disputing every inch of ground with the
Democrats. The radical, or abolition element, in the new
party had no patience with a man who could assert the con-
stitutionality of a fugitive slave law, or deny the power of
the state courts to interfere with its operation and marked
Judge Crawford for defeat.

No party convention was called on either side. Judge
Crawford's friends, assuming that he was entitled to re-
election after his very short first term, put him in the field
in February by a call which was generally signed by the bar
of the state regardless of party lines. Early in March Or-
samus Cole of Grant County was placed in nomination, nom-
inally as an independent candidate, by a call which was
signed by about fifty Republican members of the legislature
and which was the result of a Republican legislative caucus.

Judge Timothy O. Howe of Green Bay was strongly
urged as a candidate before the legislative caucus, but was
defeated because he was opposed to the ultra state rights
views adopted in the Booth case, whereas it was understood
that Mr. Cole was in thorough accord with the position of
the Court.

Orsamus Cole was a young lawyer barely thirty-five years
of age then practicing at Potosi in Grant County, which was
at that time a thriving and ambitious town. He had not
thought of or sought the nomination, nor was he even pres-
ent at the capitol when it was made. At first he was
strongly disposed to decline to make the run against a man
of the popularity of Judge Crawford, but finally consented
at the urgent solicitation of his friends, with little expecta-
tion, however, of election.

Defeat of Crawford by Cole 87

Though both candidacies were called independent, the
campaign was in fact conducted upon party lines. Repub-
lican newspapers supported Mr. Cole with substantial unan-
imity, although with some exceptions, among which were the
Mineral Point Tribune and the Fox Lake Times.

Judge Crawford's qualifications were not seriously at-
tacked by any one, nor was there much personal abuse, but
his defeat was demanded by the radical element in the newly
formed Republican party because of his position on the con-
stitutionality of the fugitive slave law.

A few extracts from the Milwaukee Free Democrat (then
conducted by Sherman M. Booth) will serve to show the
feeling of the radicals. On March 21st, 1855, replying to
the Fox Lake Times, it said, "to vote for Judge Crawford is
to vote for the constitutionality of the Fugitive Slave act.
Judge Crawford discharged us because the indictment
against us was not framed under the Fugitive Slave act or
under any law of the United States, and those who sustain
him for such a deed must exercise very little discrimination.
* * * We can only say that the whole slavecatching
tribe in this state are supporting Judge Crawford." On
March 26th it said, "If the friends of Cole and freedom will
work as zealously as we know the friends of Crawford and
slavery will, the right will easily prevail," and on April 5th
it called Crawford the "candidate of the rum and slavery
party."

In a total vote of something more than 50,000, Mr. Cole
received a majority of over 4,000 votes. The result was
a surprise to the people of the state and a bitter disappoint-
ment to Judge Crawford. No one had fully appreciated the
depth and force of the great anti-slavery sentiment among
the people. Judge Crawford himself attributed his defeat

88 The Story of a Great Court

to the Know Nothing wave which was then at high tide, and
probably this had its effect, but there can be no serious doubt
that it was in fact the anti-slavery sentiment which defeated
him. He had honestly and rightly (as subsequent events
have proven) opposed the popular wish and was for that
reason defeated ; thus it was that an admittedly honest and
capable sitting judge, while still in his physical and intel-
lectual prime was denied re-election. This was not to hap-
pen again for more than half a century. Under such cir-
cumstances there came to the Supreme bench a man destined
to remain there for more than thirty-six years and to render
during all that time conspicuously able service to the state.
He came there by virtue of what was practically a party
nomination and a partisan campaign, but by the irony of fate
he was himself to become an apostle of nonpartisanship in
judicial elections and to do great service in furthering the
principle that justices of the Supreme Court who had dem-
onstrated their ability and integrity should not be set aside
by political considerations.

General Edwin E. Bryant gives the following brief and
appreciative sketch of Judge Cole's ancestry and early life
in his biographical sketches of the judges of the Supreme
Court, which has been already referred to : 1

"Orsamus Cole was born in Cazenovia, Madison Co., New York,
August 13, 1819. His ancestors were English of early immigra-
tion before the French war, and settled in Rhode Island. The
great grandfather was a Tory and disinherited his son, the
grandfather of Judge Cole, because he took sides with the colonies
and served in the colonial army. The grandfather on the ma-
ternal side, Samuel Salisbury, held a commission in the con-
tinental army. He fought at Bennington and was with Wash-
ington in the terrible experiences in New Jersey during the
winter of 1777. He was at the surrender of Burgoyne and of

i Green Bag, Vol. 9, p. 114.

ORSAMUS COLE.

Defeat of Crawford by Cole 89

Cornwallis and was honorably discharged at the close of the
war.

"The subject of this sketch was brought up on a farm. He
attended the common schools at Washingtonville, Oswego County,
New York, fitted for college at the Clinton County Liberal In-
stitute and at the Black River Academy in Jefferson County.
He graduated from Union College in 1843. He then studied law
with Curtis & Boomer at Belleville, Jefferson County, and was
admitted to the bar in 1845, coming the same year to Chicago.
Not finding that a promising place he came in the autumn of
1845 to Potosi, a rough mining town in southwest Wisconsin
on the Mississippi, a few miles above Dubuque and in the heart
of the lead region. The town was better known to the miners
as 'Snake Hollow,' as lead was first found in a ravine of that
name.

"Here he entered upon the practice and was successful. A
modest, unassuming manner, little in keeping with the rudeness
and boisterousness of those times in that section, did not obscure
his talents, and he became a popular and prominent lawyer. The
miners and settlers soon found that he was careful, painstaking,
conscientious, and always sober, and that implicit confidence
could be placed in him, and they took his advancement in their
own hands, and conferred honors upon him of their own motion,
without even stopping to consult him as to whether he would
be a candidate or not.

"In 1847 he was elected a delegate from Grant County to
the second constitutional convention. He was one of the young-
est members of the body and one of the most modest of men.
But he soon took rank among the ablest, clearest debaters.
Cautious and conservative, careful to details it was admitted on
all hands that he made a most valuable member. It is said by
those who attended the debates and reported the proceedings
that he had taken a prominent part in the shaping of all the
more important articles of the constitution."

In 1848 Mr. Cole was nominated for Congress as a Whig
and was elected against A. Hyatt Smith, Democrat, and
George W. Crabb, Free Soiler. He was a strong anti-
slavery man and consistently opposed the Fugitive Slave act
of 1850, as well as the compromise legislation of that year.

Upon the occasion of the presentation to the Supreme

90 The Story of a Great Court

Court of the memorial of the bar, after the death of Judge
Cole which occurred May 5, 1903, Chief Justice Cassoday
in his response on behalf of the Court said, among other

things : 2

"While in Congress he enjoyed the friendship and confidence
of President Taylor who, although a slaveholder, on one occa-
sion said to him, 'Cole, if I were a member of Congress and
lived where you do, I would vote for the Wilmot proviso.' His
party renominated him for Congress in 1850, but he was beaten
by a Democrat — Benjamin C. Eastman. In 1853 his party nom-
inated him for attorney general of the state, but he was beaten
by the late George B. Smith. Singular as it may seem he was
nominated by his party as a candidate for the State Senate at
the same election, but was beaten by ex-Governor Nelson Dewey,
who received only three majority. In the winter of 1855 he was,
without his consent, nominated as the candidate of his party
for associate justice of this Court against the sitting member
Samuel Crawford, and reluctantly consented to run and was
elected in the following April and became a member of this
Court June 1, 1855, when he was less than thirty-six years of
age.

"Thus it appears that in less than ten years after he became
a resident of Grant County he was six times a candidate of his
party for important positions, three times defeated and three
times elected. From this it might be inferred that he was not
only a partisan but an officeseeker; but no one who knew the
equipoise and proverbial modesty of the man will think for a
moment that he was either. Obviously, as a candidate of his
party for the several offices mentioned, he was acceptable to all
and objectionable to none.

"His experience in the constitutional convention greatly aided
in establishing a commendable state jurisprudence. His term
in Congress naturally tended to broaden his views of legislation,
government and law; but his ten years residence in a small
country village remote from the county seat, from the capitol
of the state and from the centers of business, with the political
interruptions mentioned, necessarily limited his professional
opportunities and business.

2 119 Wis. p. xxxvi et seq.

Defeat of Crawford by Cole 91

"He came to a bench, however, already occupied by two
learned and experienced lawyers and judges. * * * It was
fortunate for him and for the state that he had the benefit of
working four years upon the bench just when he did with men
so learned, able and experienced as Chief Justice Whiton and
Justice A. D. Smith. During that time numerous questions of
grave importance were presented, ably argued and determined.
The junior member of the Court necessarily had an opportunity
for study, discrimination and reflection as never before, and
no one who knew him will for a moment doubt that he applied
himself to his new duties with all the energy he possessed.

"Judge Cole was not a genius with powers to thrill and
capture the multitude, but a patient, plodding and conscientious
judge, who determined to do what he conceived to be his duty,
regardless of public clamor or personal consequences. He was
not born for, nor did he covet, leadership, but was always at-
tentive and indefatigable in the performance of the work in
hand. He was never aggressive, but always thoughtful, labor-
ious and firm.

"But few prominent men in his time escaped the biting sarcasm
of Chief Justice Ryan, and yet the severest thing he ever said of
Judge Cole was that he never allowed the statutes of limitation to
run on his resentments. In extenuation it may be truthfully said
that Judge Cole had but very few resentments and that each was
b sed upon what he conceived to be good ground. During my long
service with him upon the bench, he never to my knowledge, by
word or look, showed any disrespect to any of his associates, and
I have no recollection of any of his associates ever showing any
disrespect to him."

As has been already said, Judge Cole served continuously
upon the Supreme Bench for a period exceeding thirty-six
years, a service longer by far than that of any judge who
has ever sat upon that bench and longer than any judge is
likely to serve in the future. During that long period of
service there were submitted to the Court a host of grave
and perplexing questions ; to the settlement of these ques-
tions he gave his life, his ability, and his energies with a
single hearted devotion rarely equalled. From the time of ■

92 The Story of a Great Court

his accession to the bench until his retirement in January,
1892, his history becomes the history of the Court itself and
his great record is imperishably preserved in seventy-eight
volumes of the Wisconsin reports.

Judge Crawford's last appearance upon the bench was on
the 31st day of May, 1855, being the last day of the January
term, and Judge Cole assumed his office on the following
day, but did not go upon the bench until June 19th, which
was the opening day of the June term. That Judge Craw-
ford's term ended and Judge Cole's term begun on the first
day of June seems to have been unquestioned at this time,
but several years afterward the claim was made by Judge
Crawford that his term did not legally end until the first
Monday of January, 1856.

This claim was made in the following manner. In May,
1859, Judge Crawford applied to the secretary of state to
audit a claim for salary from June 1, 1855 to January 1,
1856, and the secretary audited the same, but on presentation
of the warrant to the state treasurer payment was refused.
On the twenty-second day of July, 1859, an alternative writ
of mandamus was issued out of the Supreme Court against
the treasurer, which came on for hearing August 8, 1859.
The treasurer made answer denying that Crawford was a
justice of the Court during the time, and alleging that in
any event Judge Crawford had voluntarily surrendered the
office to Judge Cole, who had exercised the same and drawn
the salary, and further alleging that the claim had never
been presented for audit to the comptroller of the state, as
required by law.3

Judge Crawford's contention that his term of office did
not in fact expire until January, 1856, was based upon Chap-

3 State v. Hastings, 10 Wis. *525.

Defeat of Crawford by Cole 93

ter 41 of the laws of 1854, which provided that "the term of
county judges, circuit judges and justices of the Supreme
Court shall be for such time as at present prescribed by law,
and shall commence on the first Monday of each year next
after the election of such officer, unless otherwise specially
provided." Section three of Chapter 395 of the laws of
1852, creating the Supreme Court, provided that the terms
of the justices should commence on the first day of June
and expire on the last day of May, but the claim was that
the law of 1854 had extended the term, so that it did not
expire until the following January. The case was decided
August 20, 1859, and a brief memorandum of the points
decided was then filed, leaving the more formal opinions to
be prepared and filed at a later time. As the decision could
in no way affect the personal or official rights of Judge Cole
he took part in the case, and indeed this course seemed al-
most essential on account of the attack upon the law creat-
ing the office of comptroller, as well as on account of the
difference of opinion between Judge Paine and Judge Dixon
as to the effect of the law of 1854.

It appears by the memorandum that Justices Dixon and
Paine held that the act of 1858 creating the office of State
Comptroller was unconstitutional and void and from this
conclusion Judge Cole dissented ; on the other hand Justices
Dixon and Cole held that chapter 41 of the laws of 1854 was
constitutional and applied to Justices of the Supreme Court
and hence that Judge Crawford's term did not expire until
January 1, 1856, and from this conclusion Justice Paine dis-
sented. All of the justices agreed, however, upon the prop-
osition that as Justice Crawford had voluntarily surrendered
his office to Justice Cole under claim of title and Justice Cole
had become a de facto officer and drawn the salary, Justice

94 The Story of a Great Court

Crawford had waived and forfeited his right to the salary.

It appears that Justice Paine prepared his opinion first
and his argument as to the intent of the lawmakers in the
passage of chapter 41 was so cogent that Chief Justice
Dixon receded from his former opinion and concurred with
Justice Paine in holding that the law did not apply to Jus-
tices of the Supreme Court at all and hence no decision as
to its constitutionality was necessary. This, as Chief Jus-
tice Dixon says in the course of his opinion, is "a singular
instance of the advantage of having a dissenting opinion
prepared in advance of that of the majority of the Court."
Justice Cole retained his former views and only concurred in
the result on the ground that Justice Crawford had volun-
tarily surrendered his office June 1, 1856, and hence had
waived any claim for salary after that time. In the course
of his opinion Justice Cole says :

"It is needless for me to add that I was ignorant of the exist-
ence of the law of 1854 when I qualified and entered upon the
d'scharge of the duties of a Justice of this Court. My attention
was first called to the law in the latter part of the winter of 1857
at the time of the re-election of the late Chief Justice Whiton.
Upon that occasion the proper construction of the law of 1854 was
a subject of considerable discussion among the members of this
Court in the consultation room and we unanimously took the view
of it which I have expressed in this opinion."

The formal opinions were filed during the January term,
i860.

Upon the presentation to the Supreme Court of a portrait
of Justice Crawford, November 17, 1904, Mr. Calvert Spens-
ley of Mineral Point paid a graceful and appreciative tribute
to Judge Crawford, in which after stating that Judge Cole
succeeded him on the bench June 1, 1855, he says:

"It was afterwards determined that Judge Crawford's term
under the constitution of the state did not expire until January 1,
1856, and he was awarded the salary of the office from June 1,

Defeat of Crawford by Cole 95

1855, to January 1, 1856, although Judge Cole as de facto judge
occupied a seat on the bench during that time and also drew the
salary."*

This statement is unquestionably erroneous, but the error
doubtless resulted from the fact that as the case was orig-
inally decided the majority of the Court held that the act of
1854 applied to justices of the Supreme Court and that
hence Justice Crawford's term was actually extended to
January, 1856, had he chosen to insist upon his right.

4 123 Wis. p. xxxii.

96 The Story of a Great Court

CHAPTER IX

THE DISPUTED GOVERNORSHIP

The bench was now composed of two Republicans, Whiton
and Cole, and one Democrat, Smith, but all were agreed that
the rulings in the Booth cases were correct and should be
maintained. As has been already noted, the writ of error
from the United States Supreme Court in the last Booth
case was served about June i, 1855, and to this writ the
Court directed the clerk to make no return.1 This was man-
ifestly a complete defiance of federal authority, the only ad-
ditional step necessary to be taken to reach the extreme state
rights position was the appeal to arms. At the same (June,
1855) term the Court held that state courts had power to
discharge a person in custody under a criminal warrant is
sued by a United States Court which showed want of juris-
diction on its face, and that a rearrest under the same war-
rant was unlawful, and thus the controversy became still
more acute.2

But as if the Court were not already sufficiently involved
in the heated political struggles of a period which was sur-
charged with political excitement and bitterness, it was now
obliged to take an active and controlling part in state politics
and pass upon a contested election involving the office of
Governor of the state, a contest which aroused party pas-
sions to the utmost.

lAbleman v. Booth, 11 Wis. *498-*500.
2Bagnall v. Ableman, 4 Wis. *163.

The Disputed Governorship 97

Since the admission of the state to the Union the Demo-
cratic party had retained control of the state offices except
that in the election of 185 1 the Whigs had elected Governor
Farwell hy a narrow majority. In 1852, however, the state
was carried by Pierce and in 1853 the Democrats were
again successful and elected a full state ticket, headed by
William A. Barstow against a People's ticket, composed of
Whigs and Free Soilers, headed by Edward D. Holton.

Barstow's administration had been a stormy one and gen-
erally unsatisfactory to the mass of the people. He was
denounced as hishonest and corrupt by a faction of his
own party, and the newly organized Republican party
placed its first full ticket in the field headed by Coles Bash-
ford of Oshkosh, then a member of the state senate. The
campaign was rancorous in the extreme ; both candidates
were accused of being Know Nothings, and both denied the
charge ; personal abuse of all kinds abounded, and charges
of dishonesty and fraud were made by both sides. The re-
sult was close and for days and weeks both parties claimed
the election of Governor by several hundred votes, although
it was in a few days conceded that all the Democratic can-
didates below the office of Governor had been elected by safe
majorities. The official canvass was delayed; the returns
from distant counties were slow in coming in; the Repub-
licans charged that some returns from Chippewa, Waupaca,
and other counties had been manufactured, and that the
state canvassing board was delaying the count with the
deliberate intention of counting in Governor Barstow.

Finally the board met on the last day allowed by law, and
on the 17th day of December canvassed the vote and de-
clared the result to be that Barstow had received 36,355
votes, and Bashford 36,198, giving Barstow a plurality of
7

98 The Story of a Great Court

157. The remainder of the Democratic candidates were
given majorities varying from 1,700 to 5,100.

The cry of fraud was at once raised by the Republican
press, and preparations made to contest the seat in the
Supreme Court. Bashford took the constitutional oath and
demanded possession of the office on the first Monday of
January, 1856 ; his demand being refused, he proceeded to
test his right in the Supreme Court.

Barstow had most of the strategical advantages in the
contest which was now to begin. He had the official cer-
tificate of election from the canvassing board, he was al-
ready in possession of the office, and the newly elected at-
torney general of the state, General Wm. R. Smith, who pre-
sumably would have legal control of a contest, was of his
own political faith. These advantages of position, however,
did not daunt the Republicans, who felt certain of the justice
of their cause and viewed with complacency the fact that
a majority of the Supreme bench were Republicans, while
the sole Democrat was at outs with his party on the state
rights question.

By chapter 23 of the session laws of 1855 the legislature
had provided that when any citizen should claim any public
office which was usurped by another the claimant should
have a right to file an information in the nature of a quo
warranto in the Supreme Court, with or without the consent
of the Attorney General and to prosecute the same to final
judgment provided he should have first applied to the at-
torney general to file the same and the attorney general
should have refused or neglected to do so, in which case,
however, the claimant was to be liable for the costs.

The purpose of the law was evidently to give the attorney
general the opportunity to decide whether the public wel-

The Disputed Governorship 99

fare demanded that an action be prosecuted by the state and
at the same time to allow the claimant to carry on the con-
test himself and at his own expenses in case the decision
of the attorney general should be adverse.

Bash ford employed as his attorneys four of the most dis-
tinguished lawyers of the state, Messrs. E. G. Ryan, James
H. Knowlton, Timothy O. Howe and Alexander W. Ran-
dall and a race of diligence began between these private
counsel and the newly elected Attorney General, Wm. R.
Smith, to see who should have control of the quo warranto
action. It was certain that under the statute just referred
to the action would be carried on by Bashford's attorneys,
if the Attorney General refused to bring it. Manifestly it
would be wise for the Attorney General to bring the action
himself and thus have it within the control (so far as an
attorney could control it) of one who at least had no feeling
in favor of Bashford.

The newly elected Attorney General was an interesting
and unique figure in the early history of the territory and
state. At this time he was sixty-eight years of age, a courtly
gentleman of the old school, still wearing knee breeches and
his hair done up in a queue. He was almost, if not quite,
the sole survivor of a generation which had practically
passed from the stage of public activity. His career had
been long and varied and it may not be out of place here
to insert a short sketch of his life, taken from Berryman's
History of the Bench and Bar of Wisconsin, as follows :

"William Rudolph Smith was born at La Trappe, Montgomery
County, Pa. August 31, 1787; in 1792 his father removed to Phila-
delphia, where the son was given institutional and private in-
struction until 1803, when as private secretary he accompanied his
father — William Moore Smith — one of the commissioners under
the sixth article of Jay's treaty to adjust and settle the demands
of the British claimants, to England. While there young Smith

100 The Story of a Great Court

began a course of legal study under the direction of a competent
teacher, which he continued on his return to America.

"In 1808 he became a member of the Philadelphia bar, and in
1809 entered upon the practice of his profession in Huntingdon,
Pa. He served as deputy attorney general for Cambria County
under appointment from three attorneys general, his first service
being rendered in 1811. In the war with Great Britain he was
colonel of the sixty second regiment of the Pennsylvania reserves
and was in command when it was ordered to Erie to support Gen-
eral Scott in the movement on Canada. He was in Baltimore dur-
ing the siege of that city and witnessed the disaster at Bladens-
burg and the burning of Washington. He served as a member of
both branches of the Pennsylvania legislature. In 1828 he re-
moved to Bedford County; his residence there continued until
1836 or 1837, when he was appointed commissioner, in conjunction
with Henry Dodge, to treat with the Chippewa Indians for the
purchase of their Wisconsin lands. This led to his removal to the
west and in 1838 he settled at Mineral Point, Wisconsin.

"In 1839 he was appointed by Governor Dodge adjutant general,
a position which he held about twelve years; he was also district
attorney of Iowa County for several years. In 1840 he presided
over the first Democratic convention held at the seat of govern-
ment and drafted the address of that body to the electors. In 1846
he was clerk of the legislative council and in the same year was a
delegate to the constitutional convention; in 1849 and 1850 he was
chief clerk of the Senate; in 1852 the legislature authorized Gen-
eral Smith to compile a documentary history of Wisconsin from
its earliest settlement to that time; this work was prosecuted with
such diligence that it was ready for publication in 1854 and was
published by the state. In 1856 and 1857 he served as attorney
general, having been elected in 1855.

"At the expiration of his term, having passed his seventieth
year he retired from active life; after his retirement he enjoyed
the quiet of his home and the society of his friends. He had
touched life at many points, had seen much more of the world
than the great majority of his associates among the early settlers.
Mr. Reed says in his Bench and Bar that his reminiscences of
Washington and the statesmen of his day and many incidents and
anecdotes of historical interest were related with dramatic effect.
The hands of Washington had rested on his head; he had listened
to the reading of the farewell address; he was present in the Ger-
man Lutheran Church in Philadelphia when Major General Lee
pronounced the funeral oration on Washington, and he was in the

The Disputed Governorship 101

theater on the night when the national anthem of "Hail Colum-
bia" was first sung and was witness to the enthusiasm with which
the song was greeted. He had seen every president from Wash-
ington to Lincoln. His death occurred at Quincy, Illinois, where
he had gone on a visit to a daughter, August 22, 1868."

The maneuvering for control of the proceedings between
the attorney general on the one side and Bash ford's counsel
upon the other, began almost immediately after the rival
candidates had taken the oaths of office. Bashford's coun-
sel had investigated the facts as to the supplemental returns
from six counties, of which the counties of Waupaca and
Chippewa were the most important, and charged that not
only had the returns from a number of precincts been falsi-
fied by increasing Barstow's vote and decreasing Bashford's
but that fictitious precincts had actually been created and
endowed with votes, all of which were heavily in favor of
Barstow. Among these nonexistent precincts were "Bridge
Creek" in Chippewa County, "Gilberts Mills" in Dunn
County and "Spring Creek" in Polk County. They, there-
fore, prepared a long information setting out in detail these
alleged falsifications of the actual vote and on the eleventh
day of January, 1856, presented the same to the Attorney
General and requested him to sign and file the same and
to bring the action thereon ; to this request the Attorney
General replied that he (Bashford) might make his request
in writing and that he would then take the same under con-
sideration. On the fifteenth clay of January, without notice
to Bashford or his attorneys, the Attorney General filed in
Court a very brief information charging simply that Bash-
ford was elected Governor, November 6, 1855, and that
Barstow had usurped and intruded into the office. Upon
this information a summons was issued out of the Supreme
Court January 17th, returnable February 5th following and

102 The Story of a Great Court

served upon Barstow.3 This proceeding was by no means
satisfactory to Bashford's counsel ; they desired to put the
Attorney General in the position of having refused to bring
the action and they immediately made a motion to strike out
the Attorney General's information and file in place of it
the one which they had prepared and that Bashford be at
libertv to prosecute and control the action. This motion
was resisted by the Attorney General and in the course of
the hearing a formal appearance for Governor Barstow was
entered by Jonathan E. Arnold, Harlow S. Orton and Matt.
H. Carpenter, and they took part in the argument in op-
position to the motion ; the motion was denied January 24th,
the Court holding that the Attorney General had not re-
fused to bring the action within the meaning of the act of
1855 and hence that the relator had not the right to control
the action or dictate as to the form of the information, and
that at least until it appeared that the Attorney General was
acting in bad faith in the matter the Court should not in-
terfere. Thereupon the Attorney General's information
was amended in some minor particulars and on the second
day of February the attorneys for Barstow filed a formal
motion to quash the summons and dismiss the action on
the ground that the Court had no jurisdiction in the prem-
ises. Upon this motion the respondent moved for thirty
days' time in which to prepare for the argument but the
Court fixed the hearing for the eleventh day of February
and upon that day the argument was begun by Mr. Car-
penter.

The respondent's position was that the Court had no
power to consider or decide the question as to who was
Governor of the state; that the Executive, Legislative and

3Atty. Genl. v. Barstow, 4 "Wis. *567.

The Disputed Governorship 1 03

Judicial departments of the government were co-ordinate
branches and that each was the final judge of the election
and qualification of its own member or members. The
argument of the motion consumed three days and was par-
ticipated in by Messrs. Carpenter, Orton and Arnold for
the respondent, and by Messrs. Randall, Knowlton and
Howe for the relator, Attorney General Smith declining to
take part.

That the argument was a brilliant one goes without say-
ing ; even the meagre report of it which has been preserved
demonstrates this fact. It took place at a time when oratory
was still heard in courtrooms, when the profession was not
yet overwhelmed with whole libraries of precedents, and
when argument based upon general principles was still pos-
sible. Trope and simile, metaphor and classic allusion, apt
quotation and biting satire abounded in the speeches made
by men who were at that time the intellectual giants of the
bar of the state. On the eighteenth of February the motion
was denied in an opinion by Chief Justice Whiton, holding
that the Court had the same power under the statute to
remove a person who had unlawfully intruded into the office
of Governor as it had in case of intrusion into any other
office. The Court gave the respondent time for answering
until the twenty-first of February, at which time counsel for
all parties filed a stipulation to the effect that the state board
of canvassers had canvassed the votes and determined that
Barstow was elected and had given him a certificate of such
election in proper form and further that Barstow had taken
and filed his oath of office and submitting to the Court the
question whether the Court had any jurisdiction to receive
proof and examine the question as to which candidate in
fact received the greatest number of votes. After consul-

1 04 The Story of a Great Court

tation the Court concluded that the question submitted by
the stipulation was merely a moot question, calling for no
action on the part of the Court and directed that the
respondent plead to the information by the twenty-fifth of
February. On the last named day the respondent filed a
plea to the effect that he should not be compelled to answer
because of the final determination of the question by the
state board of canvassers and also filed with the plea copies
of the canvass and certificate and the oath of office taken
by Barstow. To this plea the relator immediately demurred
and on the following day a joinder in demurrer was filed.
On the twenty-ninth of February the argument on the de-
murrer was opened by Mr. Ryan and continued by Mr.
Orton and Mr. Howe and on the fourth of March the de-
murrer was sustained because the plea was simply a plea
to the jurisdiction and not a plea in bar and the respondent
was allowed four days in which to plead over. On the
eighth of March the respondent's attorneys appeared and
through Mr. Carpenter announced that by direction of
Governor Barstow they withdrew from the case ; at the
same time they handed to the Court a communication from
the Governor, protesting that he had been elected by an
unquestionable majority, declining to submit his official
rights and powers to the determination of the Court and
concluding as follows :

"Deeply impressed with the responsibilities under which I act,
and of the solemnity of the oath which I have taken to support
the constitution of the state, to no infraction of which can I sub-
mit or consent, and believing that, the Supreme Court will best
subserve the interest of the people of the state and answer the,
constitutional purpose of its creation by discharging its legitimate
functions without arrogating to itself the high prerogative of
transferring the sovereign powers of the government to partisan
claimants, I hereby take my leave of the Court and of these un-
warrantable proceedings in which the Court seems but too willing

The Disputed Governorship 105

to receive my full and unreserved submission; and I shall deem it
my imperative duty to repel with all the force vested in this de-
partment any infringement upon the rights and powers which I
exercise under the constitution."

In the published volume entitled, "The Trial in the Su-
preme Court of the Information in the Nature of a Quo
Warranto Filed by the Attorney General on the relation of
Coles Bashford v. Wm. A. Barstow," to be found in the
state library, it is said in a note on page 226 that this paper
was sent up folded to the Court and was not read, as the
Court was just about to adjourn till the eleventh of March,
but that on examination of the paper after reassembling of
the Court they refused to receive it on account of the in-
decent language in which it was couched. It is published
in full, however, in the Supreme Court reports (4 Wis.
pp. *732-3-4~5) with no suggestion of a refusal to receive
it.

On the same day Governor Barstow sent a message to
the legislature, detailing the court proceedings, embodying
a copy of the above communication to the Court, and stating
that he deemed the proceedings on the part of the Court to
be a "bold and dangerous assumption and usurpation of
power" which it was the duty of every department of the
government and of every good citizen of the state to resist
to the last. This was plainly a threat of armed resistance
in case the Court proceeded to seat Bashford. Especially
significant was the threat in view of the fact that arms were
known to have been stored in the state house for use in case
of an emergency. The Court, however, proceeded calmly
on its way regardless of threats or public clamor.

On the eleventh of March the relator moved for judgment
by default, but, the Attorney General, desiring time to con-
sider what course he should pursue, time was given by the

1 06 The Story of a Great Court

Court until the eighteenth of the same month, when he came
into Court and filed a written statement, purporting to dis-
miss the case so far as the state was concerned ; upon the
following day the Court held that the case should proceed
at the suit of the relator alone and that, on account of the
importance of the office and the great public interests in-
volved, he should be required to make his proofs and show
a prima facie title to the office, instead of taking judgment
by default. On the thirtieth of March the taking of tes-
timony begun, the irregularities and fraudulent returns were
amply proven and on the twenty-fourth day of the same
month judgment was formally entered, adjudging that
Bashford was duly elected and that he should recover the
office.

This result had been anticipated by all, including Gov-
ernor Barstow himself. While in his communications to
the Court and the legislature of March 8th he had an-
nounced his intention to resist the pretensions of the Court
to the last, he had become convinced before the judgment
was pronounced of the futility of any attempt at armed
resistance. The sentiment of the people at large was
strongly against him ; the attempted frauds were too palpa-
ble, and moreover it was evident that the legislature would
not support him in the use of force. The majority of the
Senate was both politically and personally hostile and it be-
came certain that if he resisted he would stand practically
alone.

On the twenty-first of March he sent a formal resignation
to the legislature, accompanied with a message protesting
against the usurpation of power by the Court and placing
his resignation upon the high ground of a desire to save the
state from the calamities of civil strife. Upon the following

The Disputed Governorship 107

day Lt.-Governor Arthur McArthur assumed the duties of
Governor and announced that fact in a message to the legis-
lature. His administration is described as follows in Ber-
ryman's "Bench and Bar of Wisconsin" (Vol. i, p. 387) :

"He held the office four days. One of his first official acts was
to order that the arms and ammunition stored in the executive
office by Barstow be removed from the capitol. After the Su-
preme Court determined that Bashford was elected and that the
right to the office was a question for judicial determination, Bash-
ford and his counsel went to the executive office and demanded of
McArthur that he surrender possession of it. 'Am I to under-
stand/ said he, 'that if I do not surrender the office you will re-
sort to force?' Timothy O. Howe, Bashford's counsel, said, 'My
advice is that Mr. Bashford hang his coat upon a nail and pro-
ceed to the performance of his gubernatorial duties. I would not
of course advise him to lay violent hands upon so distinguished a
gentleman as Governor McArthur.' After further talk Mr. Bash-
ford said that unless Mr. McArthur retired he would 'probably
be compelled to expel him by force,' whereupon McArthur with-
drew and resumed his duties as president of the Senate."

Thus the contest closed and Governor Bashford held the
office unchallenged for the remainder of his term. There
can be no doubt that there was grave danger of an armed
conflict between the partisans of Barstow and Bashford at
this time. Many Democrats believed that the action of the
Court was bald usurpation of power. Chief Justice Cole
is authority for the statement that "but for the implicit con-
fidence which nearly all the people of the state felt in the
judicial integrity of Judge Whiton, bloodshed would almost
certainly have followed the Court's decision." 4

* Berryman's History of Bench and Bar of Wisconsin, p. 94.

1 08 The Story of a Great Court

CHAPTER X
CHIEF justice whiton's re-election

During the year following the Barstow and Bashford con-
troversy the Court was not called upon to pass upon any
other cases of a political or public character, but was busily
occupied in disposing of private litigation and laying down
fundamental principles governing private rights and their
preservation and enforcement. This was important work,
perhaps fully as important as the determination of the great
political and public controversies of which mention has been
made, but it could scarcely be of interest here to attempt
any extended notice of the cases themselves or the principles
involved in them ; it is sufficient to say that the work was
done with ability and care and that the propositions decided
have largely passed into the fabric of the jurisprudence of
the state without change.

In October, 1856, the legislature passed the New York
Code of procedure with some slight modifications, and pro-
vided that it should go into effect in the following March.
This was welcomed as a great reform by the younger men
of the bar and by the people at large, while it was regarded
as a dangerous innovation by the elder lawyers who had
passed their lives under the common law system. After an
experience of more than fifty years under the code it seems
fair to say that the results have been in the main satis-
factory. It is true that it has not resulted in the elimination
of all technicalities, nor has it made it possible for a layman
to draw his own pleadings and try his own case, as some of

Whiton s Re-election 1 09

its enthusiastic supporters predicted, but on the other hand
it must be regarded as a long step in the direction of
simplifying pleading and procedure and cutting off many of
the very technical and useless refinements which had grad-
ually developed in the old common law system. This is
largely due to the fact that Wisconsin has added very few
amendments to the original code, but has allowed the system
to develop naturally by judicial interpretation and thus has
escaped the infliction of a vast and complicated statutory
system of pleading and procedure, such as New York now
has and which seems almost as cumbrous and artificial as
the previous system.

The term of Chief Justice Whiton was now nearing its
close and the election of his successor was to be held in
April, 1857. Whiton was personally very popular and his
ability and integrity of character were fully conceded by the
Democrats, but it could hardly be expected that political
considerations could now be laid aside in view of the vio-
lence of party feeling and the active part which the Court
had been compelled to take in party struggles, both state and
national.

Early in the year 1857 Whiton's name was put up by
Republican newspapers in various parts of the state and in
February a call, largely signed by electors without regard
to party, was presented to him and he accepted. Fremont
had carried the state by more than 3,000 plurality in the
presidential election of 1856 and in January, 1857, the Re-
publicans had elected their first United States Senator in
the person of James R. Doolittle of Racine, but the Dem-
ocrats were still in possession of the national government,
and though doubtful of success, they called a convention
at Madison March 4, 1857, and nominated Montgomery

1 ] 0 The Story of a Great Court

M. Cothren, then circuit judge of the fifth circuit, by ac-
clamation, as Whiton's successor.

Judge Cothren was a very able man, a pronounced Dem-
ocrat and had taken a very prominent part in the political
and judicial life of the territory and state. He was an
unsuccessful candidate for the office of Chief Justice twice
and for associate justice once; he held the office of circuit
judge of his circuit for three terms, and it seems that he
deserves something more than mere casual mention in a
work of this kind. He had not the advantages of a college
education or even of academic training, but he made his
way upward through a laborious childhood and youth by
his own almost unaided efforts.

He was born in Yates County, New York, September 18,
1 8 19, of parents in very moderate circumstances and came
to Michigan with his father in 1829, where he remained
until 1838, assisting in the cultivation of his father's farm
and taking advantage of such limited elementary educa-
tional opportunities as the pioneer country afforded. At
the age of nineteen he started for Wisconsin, intending to
teach school and pursue the study of the law. For about a
year he lived near Rockford, Illinois, and at the age of
twenty came to New Diggings in Wisconsin, where he
secured a position as school teacher, at the same time pur-
suing the study of the law as he could find time. In 1843
he was chosen clerk of the board of county commissioners
of Iowa County and removed to Mineral Point, which re-
mained his home ever afterwards. During the same year
he was admitted to the bar and soon afterwards formed a
law partnership with Parley Eaton and the firm entered
upon a prosperous career, largely due to the ability and
force of character of Mr. Cothren.

Whiton's Re-election 1 I 1

In 1847 and 1848 he was a member of the house of rep-
resentatives of the territorial legislature and in 1848 he was
elected a member of the first state senate from the counties
of Iowa and Richland and served until January 1, 185 1.
He was chairman of the joint committee of the legislature
which was appointed to co-operate with the revisers of the
statutes and the result of the joint action of the revisers and
of this committee was the Revised Statutes of 1849.

In 1852 he was nominated by the Democrats for the office
of circuit judge of the fifth circuit, as the successor of Judge
M. M. Jackson, and elected by a large majority. In the
same year he was elected a presidential elector and assisted
in casting the electoral vote of Wisconsin for Pierce. He
was a delegate to the Democratic convention held at Mad-
ison in August, 1852, which nominated a full ticket for the
separate Supreme Court and took strong ground in favor
of the nomination of all judges by party conventions.

Tn 1858 he was re-elected as circuit judge without oppo-
sition. In 1863 he was nominated by his party for Chief
Justice against Chief Justice Dixon but was defeated, and
in 1879 he was put in the field by a Democratic legislative
caucus as a candidate for associate justice against Justice
Cole and again defeated. From January, 1865, until April,
T876, he practiced law, but in April of the last named year
he was elected to the circuit bench as a non-partisan candi-
date and in April, 1882, was defeated for re-election by
George Clementson.

After this defeat he again took up the practice of the law
and so continued until his death October 27, 1888.

I lis lifelong friend and neighbor, Moses M. Strong, in his
remarks before the Supreme Court January 8, 1889/ gave

1 73 Wis. p. xxix et seq.

1 ] 2 The Story of a Great Court

an estimate of his character as a man, a lawyer and a judge,
from which the following excerpts are taken:

'•The prominent defect in the character of Judge Cothren as a
lawyer was that his professional like his scholastic education had
been fragmentary and without system. He had none of the ad:
vantages 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 perception and his ready
faculty of making the appropriate application of the proper legal
principle to each case as it arose, enabled him to overcome the
latent defects of his professional education to such an extent that
to the layman and to the superficial lawyer genius had the ap-
pearance of education, and tact and intuitive perception effec-
tually concealed any lack of professional education. It was in
the trial of jury cases, the examination of witnesses and in argu-
ments to the jury that Judge Cothern won his principal distinc-
tion as a lawyer. To his intellectual and perceptive faculties, to
his genius and tact, were added a wonderful knowledge of human
nature and of the influences which affect 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 con-
tact was unlimited. His warm sympathy with all the better feel-
ings of our nature permeated his whole life. His generous 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 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 intelligent 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, superadded to which
he made the most powerful arguments sustained by analytical and
synthetical reasoning of which the case admitted.

"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 posi-
tion had not elicited criticism. He had from the beginning of
his term a modest diffidence of his ability, but it was overweighed

Whiton's Re-election 1 1 3

by a sensitive consciousness of the integrity of his intentions and
an inflexible determination 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 afforded of presenting the whole cause of action or
their whole line of defense. To attorneys and counsel the judge,
while careful to maintain the observance of the duty due from
them to the bench, was as scrupulously observant of every right
and courtesy due to the members 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 over-
speaking 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 their
noses.' His charges w'ere always fair and perspicuous, and, if
exceptionable, a fair bill of exceptions could always be obtained,
as it could upon all questions arising in the progress of the trial.
Witnesses were always protected by the judge from any improper
or impertinent examination.

"The predominant trait in the character of Judge Cothren —
the one uniformly recognized as such by all his large circle of
friends — was his charity in the most enlarged meaning of the
word. * * * So far from indulging in expressions of malice
or unkindness to any, it was his uniform habit to speak well of
all, and if that could not be done with conscientious regard for
truth, to give them the charity of his silence. But his charity, in
the more popular and limited sense of beneficience, was great and
characteristic. He visited the sick, clothed the naked, fed the
hungry, and never refused charitable aid to the deserving poor.
His uniform, unswerving integrity was a marked feature of his
character, not alone in the more restricted sense of fidelity to his
pecuniary obligations, but with reference to all his duties to so-
ciety and his fellow men. While he had that dignity of character
which always commanded the respect and appreciation of all who
met him, he was one of the most approachable and social of man-

1 1 4 The Story of a Great Court

kind and enjoyed the kindest regards of hosts of friends. To
young man and especially to young lawyers he extended the kind-
est consideration and the assistance of his friendly counsel and
advice."

Mr. Berryman, in his history of the Bench and Bar (Vol.

2, p. 160) says of him:

"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 that 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 direction. Later he stated that Beecher was
preaching the only consistent doctrine of the age, and still later
took up the study of Swedenborg's writings and was so deeply in-
terested in them that he became a firm disciple of his faith, which
he openly avowed and consistently practiced until his death. He
was a believer in the communication of those gone before with
those still in mortal garments dressed, affirming his own ex-
perience of the truth of the tenets of spiritualism. He loved and
honored his profession with an unchangeable devotion and never
violated its ethics or amenities. His faults were the result of
frontier civilization; they were superficial. The sterling worth
of the man shone through them as the sun through the mists.
His frailties will be soon forgotten, while his good heart and right
mind will live on."

The contest between these two eminent citizens was es-
sentially a party contest. No serious question was raised
as to the ability of either, but Judge Whiton's re-election
was urged by Republican newspapers principally because of
his record on the fugitive slave law and Judge Cothren was
denounced as a friend of human slavery.

The Milwaukee Sentinel of March 31, 1857, said in bold
capitals "The issue of Freedom or Slavery is upon us ; we
cannot shrink from it if we would."

Whiton' s Re-election 1 1 5

On the other hand, the Madison Patriot (Dem.) in March,
1857, said that Whiton was above reproach and "aside from
his views on the fugitive slave law question we honor him
as a judge, but on that subject the Democratic party is com-
pelled to wage a warfare against him, and with the revolu-
tion which is now going on in the public mind he may be
compelled to bow before the sober second thought of the
people, and yield the robe of office to one whose principles
are more in harmony with our union and the genius of our
institutions, both state and national."

However, the "sober second thought" of the people had
not yet come, the great personal popularity of Judge Whiton
made the campaign against him a hopeless one and he was
re-elected by a majority of more than 10,000 votes.

1 1 6 The Story of a Great Court

CHAPTER XI

THE LAST VICTORY OF THE STATE RIGHTS IDEA

Sweeping as Chief Justice Whiton's triumph was it was
not certain how much of it was due to the great respect felt
for him by the people at large and how much to his prestige
as the sitting judge. Another contest was rapidly approach-
ing, however, in which there would be no such advantages
on either side; a contest in which man was to be pitted
against man and principle against principle and in which
the people would be called on to pass upon the simple issue
whether any man who believed in the supremacy of the
federal courts on federal questions should have a seat on
the Supreme bench of Wisconsin.

Justice Smith's term was next to expire and the election
to choose his successor was to take place in April, 1859.
Justice Smith was a man of strong and original mind and
of tireless industry. He had taken the lead in the ultra
state rights position assumed by the Court. In so doing he
had followed his own honest convictions, but he had also
severed himself from the great body of the Democrats of
the north in general and of Wisconsin in particular. He
was a man without a party. There were indeed many in
the Republican party who were enthusiastically of the
opinion that he should be endorsed by that party for re-
election on account of his stand in the Booth case, but
there was another figure which that famous litigation had
brought to the front, a youthful, almost romantic, figure,
which overshadowed all others and that was the figure of
Byron Paine, the champion of the fugitive slave. In 1856,

The Last Victory of State Rights 1 1 7

when but twenty-nine years of age, he had been appointed
county judge of Milwaukee County in place of Charles E.
Jenkins, who had resigned, and he had been triumphantly
elected to that position in the following spring and to the
great majority of Republicans he seemed to be the natural
candidate.

On the evening of March 3, 1859. a caucus of Repub-
lican members of the legislature and other prominent leaders
of the party was held at Madison at which Judge Paine was
nominated and an address issued calling on the people to
elect him, declaring that the issue was between slavery and
liberty.

On the same day a Democratic convention, called by the
state central committee, had been held at Madison and Wil-
liam Pitt Lynde, an eminent lawyer of Milwaukee, had been
unanimously nominated. When this nomination was made
Mr. Ryan, who was a member of the convention, thanked
the convention on Mr. Lynde's behalf and said that he
hoped to see the Court brought back into sound, consti-
tutional hands again. Thus the battle between so-called
federal usurpation and state rights was again on. The con-
test was strictly a party contest and was fought with all the
bitterness of such contests.

There was some dissatisfaction at first on the part of
many Republicans because they thought Judge Smith fairly
deserved re-election because of his state rights views. Prior
to the legislative caucus calls and petitions numerously
signed had been sent to him requesting him to run; there
were about forty Republican papers in the state and a num-
ber of them had already put his name at the head of their
columns, among which were the Sparta Herald, the Racine
Journal, the Ripon Times and the Neenah and Menasha

1 1 8 The Story of a Great Court

Conservator.1 Some Republican indignation meetings seem
to have been held after Judge Paine's nomination.2

On the fifteenth of March, however, Judge Smith in a
long communication to the Free Democrat declined to run
on the ground that party nominations had been made and
clear issues raised which he did not wish to embarrass in
any way. The Republican papers fell into line and on
March 2 ist the Wisconsin State Journal announced that
every Republican paper in the state carried the name of
Judge Paine at its head.

Curiously enough the Supreme Court of the United States
decided the Booth case on March J, 1859, and reversed the
decision of the Supreme Court of Wisconsin discharging
Booth. As has been before stated, the opinion was written
bv Chief Justice Taney with characteristic clearness of
statement and cogency of reasoning and laid down the
broad proposition (now unquestioned) that the state courts
had no power to interfere with the execution of the process
or judgments of the United States courts.3 The Repub-
licans of Wisconsin were in no mood to chop logic with any
one and certainly not with the judge who had written the
Dred Scott case. When passions are deeply aroused reason-
ing cuts little figure, except perhaps to intensify the passion
in proportion to the convincing power of the opponent's
reasoning.

Public indignation was intense ; denunciation of the fed-
eral courts and of the federal government ran riot in the
Republican newspapers and at indignation meetings all over
the state. The legislature which' was then in session and
strongly Republican in both branches (William P. Lyon

1 Fond du Lac Commonwealth, March 9, 1859.

2 Madison Argus and Democrat, March 31, 1859.
s Ableman v. Booth, 21 Howard, 506.

BYRON PAINE.

The Last Victory of State Rights 1 1 9

of Racine being speaker of the Assembly) passed the fol-
lowing resolutions, which were approved by the Governor

March 19th:

"WHEREAS, The Supreme Court of the United States has as-
sumed appellate jurisdiction in the matter of the petition of
S. M. B'ooth for a writ of habeas corpus, * * * and

"WHEREAS, Such assumption of power and authority by the
Supreme Court of the United States to become the final arbiter of
the liberty of the citizens and to override and nullify the judg-
ments of the State Court's declaration thereof is in distinct con*
flict with that provision of the Constitution of the United States
which secures to the people the benefit of the writ of habeas cor-
pus; therefore,

"Resolved, the Senate concurring, That we regard the action of
the Supreme Court of the United States in assuming jurisdiction
in the case before mentioned as an arbitrary act of power unau-
thorized by the Constitution and virtually superseding the benefit
of the writ of habeas corpus and prostrating the rights and liber-
ties of the people at the foot of unlimited power.

"Resolved, That this assumption of jurisdiction by the federal
judiciary in the said case and without process is an act of undele-
gated power and therefore without authority and void and of no
force;

"Resolved, That the government formed by the Constitution of
the United States was not made the exclusive or final judge of the
extent of the powers delegated to itself; but that as in all other
cases of compact among parties having no common judge, each
party has an equal right to judge for itself as well of infractions
as of the mode and measure of redress.

"Resolved, That the principle and construction contended for
by the party which now rules in the councils of the nation that the
general government is the exclusive judge of the extent of the
powers delegated to it, stop nothing short of despotism; since the
discretion of those who administer the government, and not the
constitution would be the measure of their powers; that the sev-
eral states which formed that instrument, being sovereign and
independent, have the unquestionable right to judge of its infrac-
tion; and that a positive defiance of those sovereignties of all un-
authorized acts done or attempted to be done under color of that
Instrument is the rightful remedy."'*

* Session laws of 1859, p. 247.

1 20 The Story of a Great Court

These resolutions are practically a literal copy of the
famous Kentucky resolutions of 1798 with the words "posi-
tive defiance" inserted in place of the unpopular word
"nullification." The doctrine of state rights could go little
further; "positive defiance" means effective defiance and
effective defiance means war or it means nothing. That the
resolutions voiced the sentiment of the great mass of the
Republicans of the state there can be no doubt ; the Repub-
lican newspapers supported them with practical unanimity
and mass meetings were held in all parts of the state ap-
proving of the position taken by the legislature and calling
upon the people to ratify them at the polls by electing Paine.

Carl Schurz, then a young man and a power in the politics
of the state, threw himself into the fight upon Paine's side
with all the enthusiasm of his nature; in a speech at Mil-
waukee, March 23rd he made a long and brilliant argument
for state sovereignty and closed with the following pero-
ration :

"Our poor state has suffered much, its credit is ruined, its pros-
perity blighted, its political honor has been forfeited by whole-
sale corruption and maladministration. There is almost nothing
to be proud of but the gallant independence of our Supreme Court
and the spirit of liberty which caused the people to sustain them.
Will you sacrifice that also? Will you suffer the enemies of your
liberties to nestle in your own citadel? Will you see Judge Mil-
ler's opinions and pretensions infest the highest court of this
state? (Cries of no! never!) Will you see the dirty fingermarks
of Buchanan's administration on the Supreme Bench of Wiscon-
sin? If not, place a man there who dares to be himself. Let the
friends of liberty and self-government present an unbroken front.
Their banner bears the inscription, 'State rights and Byron
Paine.' "

The Milwaukee Sentinel of March 23rd said:
"Can there be any doubt what the decision of the people of Wis-
consin will be in the contest between federal usurpation and state
rights, between slavery and freedom?"

The Last Victory of State Rights 1 2 1

The Wisconsin State Journal, in an appeal to the voters,
of April i st, said:

"Will freeman of Wisconsin have an able, honest and responsible
elective judiciary of their own choice, or shall they have a servile,
irresponsible federal court with life lease judges? Shall one man
or the people rule? Shall the Supreme Court of Wisconsin be
obliterated and superseded by Judge Miller and the Southern
Democratic judges at Washington?"

Mr. Lynde stood squarely upon the doctrine that in
matters touching the constitution and laws of the United
States, the decision of the Federal Courts must be final and
conclusive. Election day came ; Byron Paine received a
majority of more than 8,ooo votes as actually cast but owing
to defects in the returns many counties were thrown out
and the official canvass gave him a majority of only 2,i45.5
The people had deliberately approved the doctrine that the
state could and should nullify and defy a law of the United
States which the Federal Courts had pronounced constitu-
tional and valid, provided such law was thought by the
courts of the state to be unconstitutional.

It is not to be understood, however, that all Republicans
approved of the extreme position of the past on the question
of state rights. There were some able men, and among
them Judge Timothy O. Howe of Green Bay, who had no
sympathy with state rights and nullification doctrines, but
who were unable to stem the current and stood aloof from
the campaign. After the election the Free Democrat of
Milwaukee stated that Judge Howe had voted for Mr.
Lynde. To this Judge Howe replied in an open letter in
effect stating that he voted for neither, and that he wishes
to save the party from the great fundamental political
heresy of state rights and nullification.

o Wisconsin State Journal, April 20th and May 9th, 1859.

1 22 The Story of a Great Court

CHAPTER XII

THE ADVENT OF LUTHER S. DIXON AND THE CAMPAIGN

OF i860

Only a few days after this complete victory of the state
rights doctrine the Court lost its chief by death. The much
loved and honored Whiton had been sick for some weeks
and had temporarily retired from the bench in the hope of
regaining his health, but it was not to be, and on the twelfth
of April, 1859, he died at Janesville, universally mourned.
One week later Governor Randall appointed Luther S.
Dixon to fill the vacancy and he took his seat the beginning
of the June term following. Dixon had just reached his
thirty-fourth year and had been but nine years at the bar.
The following extracts from the memorial of the state bar
association gives the events of his life in brief prior to his
elevation to Supreme bench : 1

"Luther S. Dixon was born in Milton, in the valley of the
Lamoille in the state of Vermont June 17, 1825, of the sturdy
stock of the New England farmers of the early part of the century.
After laying the foundation of a good English education in com-
mon schools and academies he entered the military school at Nor-
wich in that state, then under the conduct of instructors of marked
ability. There he ranked high as a cadet and was an excellent
scholar in Latin. There he received the thorough instruction, se-
vere mental and physical discipline so valuable in forming char-
acter. After teaching school to procure the means of prosecuting
his studies, he entered upon the reading of law in the office of
Hon. Luke P. Poland, then of high standing among the lawyers of
Vermont. He was admitted to the bar in 1850. The west was
then the inviting field to the young men of New England, and

1 SI Wis. p. xxxi.

Dixon and the Campaign of 1 860 1 23

Wisconsin was regarded as well out on on the frontier. The
young lawyer established himself at Portage in this state about
the year 1851 and entered upon the practice. His sterling quali-
ties drew him clients and he was twice elected district attorney
of Columbia County, serving with zeal and fidelity. In 1858 upon
the retirement of Hon. A. L. Collins, he was appointed judge of
the ninth judicial circuit, the duties of which office he discharged
with such marked ability as to give great satisfaction to the bar,
then composed of some of the most distinguished and able prac-
titioners of the state."

Of his life at Portage, Judge Chester A. Fowler of Fond
du Lac writes as follows in a very appreciative sketch of
Judge Dixon's life, read before the Wisconsin Bar Asso-
ciation in July, 1908, and printed in Vol. 8 of the Reports
of that Association, at page 173 :

"Portage was then a thriving and promising frontier town. It
was quite widely known through occupying the site of old Fort
Winnebago. Being at "the portage" between the Fox and Wiscon-
s'n rivers, a canal had just been constructed connecting the two
rivers, and establishing a water-way from the Mississippi Valley
through the great lakes to the Atlantic ocean. In those days of
steamboat transportation the little city bid fair to become a port
of entry. It was then the headquarters of the old "pinery" trade.
With the outfitting of lumbermen, the supplying of camps and the
trade of rivermen, the town was full of business and life. It had
attracted a bar of eminence. I have been told by many mem-
bers of the old bar of the state not resident of Portage that in the
old days the Portage bar was considered as one of the very best in
the state.

"These matters no doubt had their influence in attracting your
Dixon. He was not long in making friends and securing a foot-
hold in his profession. At the September term of the circuit court
after his admission I find him appearing to some extent. From
that time on his appearances become more and more numerous,
and in three or four years he was occupying a leading position at
the local bar. His splendid personal appearance and attractive
manners would have made it easy for a man of ordinary ability to
establish himself. While dignified and stately in his demeinor
and bearing and somewhat reservf d in his manner and in general
intercourse, he was approachable and companionable, and sociable,
thoroughly likeable and of winning personality in every way.

1 24 The Story of a Great Court

These qualities, added to his abilities, made his progress rapid.
The year after locating at Portage he was elected district attorney,
and two years later re-elect) d.

"Dixon did not in the days of his early practice prosecute the
study of the law with remarkable industry. The cases he had he
prepared thoroughly and well, but it was only in connection with
these cases and along lines of general public interest that he read
much law. He took no part in the discussion of the public ques-
tions of the time. He was no politician. While he at first affili-
ated with and was elected to office as a member of the Democratic
party, he quite as often sided during the early fifties, when he
expressed himself at all, against his party as with it upon the
burning questions of the day, and it was not long before his
dt mocracy came to be rated as questionable, and he gradually
came to be considered a Republican after the formation of that
party. In a year or so Dixon associated with him in practice
Guy C. Prentiss, whom he had known in Vermont and who fol-
lowed him from that state, and later Emmons Taylor, also from
Vermont, who succeeded to his practice on his going upon the
bench. His practice seems to have been entirely local. He was
more commonly than anyone else the associate and advisor of
attorneys younger in the practice, whom he always received with
cordiality and upon terms of perfect equality and treated with
unfailing courtesy and kindness. He came finally to be re-
tained locally on one side or the other of nearly or quite all
cases of importance. A few of these were of a nature to give
him some considerable local prominence, notably one or two
cases of contested election, and a murder case which he ably
prosecuted against two eminent attorneys from away. His su-
preme court practice was not extensive. I find him or his firm
named as counsel in eight cases from the 1st to the 5th Wis-
consin Reports. In all of these but two, however, he appears
on the winning side. Only one of these cases appears to have
involved any question of importance; this lays down the rule
as to estates in entirety. Dixon was not considered particularly
strong as a jury lawyer, although he could state his case to a
jury or court with clearness and precision, or present an orderly
and logical argument. He seems not to have been strongly
litigious. In no case in the supreme court does he appear for
the appealing party. It was as he said of his former partner,
Emmons Taylor, upon the latter's death, 'in his capicity of
counsel, in his office, where every lawyer is a judge, and where

LUTHER SWIFT DIXON.
At the age of 40 years.

Dixon and the Campaign of 1 860 1 25

in matters not litigated, vastly exceeding those which are, he
decides all questions,' that he was at his hest. Here, as he
again says of Mr. Taylor, whose conduct as a lawyer was largely
influenced by his early association with Judge Dixon and whose
eminent and worthy career as such was largely due to emulation
of his example, 'his learning, his ability, his truth and integrity
were invaluable. How many lawsuits has he not saved, how
much litigation, strife and bitterness, and useless expense, by
his prudent and sagacious advice. He was always a pacificator,
when pacification was proper and possible. He knew nothing
about that art vicious in itself and disgraceful in those who
practice it, which fosters and foments useless litigation.' It was
because Dixon held and put in practice these views, that he was
so highly and universally esteemed at his old home. His ex-
treme popularity here is perhaps attested by the fact that while
he was elected to the office of district attorney as a Democrat,
his successor, who was a Republican, was elected by a majority
greater than the entire vote of his opponent. It was of course
a time of great political changes, when the Whig party was
breaking up and re-alignment of Democrats was taking place, but
Dixon's local popularity in the days before he was judge, is
sufficiently attested by men still living who knew of it per-
sonally. This popularity was of the kind that springs from
respect and esteem. Dixon was not the sort of a man with
whom people generally are familiar. He did not cultivate
acquaintance, and had comparatively few intimates.

"Once after locating at Portage Dixon took a trip to Minne-
sota with a view of bettering his situation, but finding nothing
more attractive he returned to his friends at Portage and set-
tled down with the expectation of passing his days in the prac-
tice of his profession among them. He built the first brick
residence in the city, which still stands, although enlarged and
remodeled since he left it. He took his place in the social and
civic life of the place, doing his part in both. He was the
aldermnn from his ward the year before he went upon the
circuit bfinch, and some of the old residents still remember Mrs.
Dixon's first appearance at a ball, with her husband, soon after
he brought her from his old home in Vermont as his bride. The
friends he madp at Portage remained dear to him, as he did to
them, to the last days of his life. Tn a letter read at memorial
exercises in honor of Emmons Taylor, whom I have before re-

26 The Story of a Great Court

f< nod to, he speaks of some of these friends in terms of deepest
and most sincere affection.

"I doubt if Dixon ever entertained for any other man such
strong and tender affection as he felt for Mr. Taylor. Of him
Dixon said: 'His social qualities, I may safely say, were more
pleasing and attractive than those of any person I have ever
met.' He also refers to 'the many hours he had listened' to the
readings to him of this friend from poetry and fiction, and to
him as 'agreeable in all his intercourse, fond of anecdote and
appreciating humor' — words which apply with equal force to
Dixon himself. Dixon enjoyed the society of this friend as long
as he lived as he did that of no one else, and at his grave mingled
his tears with those of the immediate family. This is of course
of no importance except as it may show the inherent tenderness,
simplicity and faithfulness of Judge Dixon's nature, and the
warmth and depth and lasting tenure of his affections, and serve
to expl.iin the contentment with early conditions that might
otherwise seem strange.

"With his surroundings and associates in the frontier com-
munity where he lived, and such practice and professional em-
ployment as they brought him, Dixon was content. He had no
desire or thought of judicial position, so far as any of his friends
ever knew. His appointment to the circuit bench was entirely
unsought, and came as a surprise to himself and friends. He
did not at once accept, and it was thought he might decline.
A meeting of the local bar was held, and resolutions were passed
strongly urging his acceptance.

"Though while at practice Dixon became recognized where
known as a lawyer of more than ordinary ability, the excep-
tional mental powers and qualities that he afterwards displayed
upon the supreme bench were hardly suspected by his most in-
timate friends, and upon his appointment as circuit judge those
who best knew him hardly anticipated that he would measure
up to the high standard of excellence with which he immediately
began to administer that office. He was appointed by Gov. Ran-
dall in 1858 judge of the ninth judicial circuit, to succeed Judge
Collins, who had resigned to resume practice. The circuit then
embraced the counties of Jefferson, Dane, Sauk and Columbia,
and the bar was one of great ability and rather critical. Judge
Dixon discharged the difficult duties of a trial judge to the entire
satisfaction of that bar. Though he went upon the bench at

Dixon and the Campaign of 1 860 1 27

the age of 32 years, and after an experience of only seven years'
practice, and that not varied or extensive, to read what has been
said of Judge Dixon as a circuit judge, — of the commanding
presence and quiet dignity, the frankness and unaffected sim-
plicity, the unvarying courtesy and kindly ways, the serene and
even temper, the patient attentiveness, the calm deliberation, the
self-evident fairness and singleness and integrity of purpose, the
equal and just consideration, the open and unbiased mind, the
strong common sense, sound judgment and wise discretion, the
resolute, orderly and efficient method, with which he presided
over and transacted the business of his court, all which are
vouched for with singular unanimity by those who knew and
appeared before him as a trial judge — makes most of us in the
position today seem, to ourselves, at least, small and weak in-
deed, and our shortcomings all but appalling. Notwithstanding
the great satisfaction which his service gave, Judge Dixon had
declined to stand for re-election, and contemplated resuming his
practice at Portage, doubtless because of the small salary then
attaching to the office, but before the expiration of the term
for which he was appointed the death of Chief Justice Whiton
left vacant the chief justiceship of the supreme court, and Gov-
ernor Randall appointed Dixon to this position."

His youth and comparative inexperience made the ap-
pointment seem almost experimental, but he soon demon-
strated his eminent fitness for the great position. In the
before mentioned memorial of the bar, which was presented
to the Supreme Court December 19, 1891, after Judge
Dixon's death, it was most truly said of him :

"He was happily constituted for judicial labor. If there was
aught in him of the partisan it was completely subordinated in
the judge. Free from all bias or prejudice, his mind serenely
sought the right of the matter, never swayed, even unconsciously,
by thought of popularity or personal consequences."

He was a man of commanding stature, fine presence and
charming personality, a learned lawyer gifted with a mind
of comprehensive grasp, perfect intellectual honesty and
absolute fearlessness. Thus Dixon and Paine, two great-
men who were both destined to do illustrious labor in build-

1 28 The Story of a Great Court

ing up the fabric of Wisconsin jurisprudence, took their
seats upon the bench on the same day, one by appointment
of the Governor and one by the voice of the people, speaking
under the stress of great political emotions.

The state was fortunate in the choice of each. The times
called for strong and constructive minds. Constitutional
questions involving taxation and municipal indebtedness
were at hand, as well as the great question of the relations
of the state and the federal courts ; the important questions
arising out of the civil war, such as the power of the pres-
ident to suspend the writ of habeas corpus, the validity of
the draft laws, the legal tender act, the bounty laws and
the law authorizing soldiers to vote while in the field were
soon to come.

Both the ability and the courage of the new Chief Justice
were soon to be severely tested. The mandates of the Su-
preme Court of the United States reversing the judgments
of dismissal in the Booth cases were presented to the Court
on the twenty-second day of September, 1859, an<^ motions
made that they be filed. If the Supreme Court of the
United States had no power to reverse those judgments then
the mandates had no more business on the files of the Su-
preme Court of Wisconsin than the ukases of the Czar of
Russia, but if it had such power then the mandates were
entitled to be filed and must be obeyed. So the question
whether they should be filed or not, though not important
so far as tangible results were concerned, involved the whole
question of jurisdiction upon which the two courts were
at issue. Judge Paine, having been of counsel in the cases,
could not sit and hence the duty of deciding the motions
fell on Judge Dixon and Judge Cole. Judge Cole retained
his former view, that the Federal Court had no power to

Dixon and the Campaign of 1 860 1 29

review the judgments ; hence, even if Judge Dixon took the
opposite view, he could do nothing, because there would be
an equal division of the judges participating and in this
situation no affirmative action could be taken. He was
powerless to accomplish anything ; he might without serious
impropriety have said nothing and let the mandates be re-
jected in silence.

Such, however, was not his nature. A great question was
presented to him for examination ; the clamor of the par-
tisan moved him not ; neither the echoes of the battle which
had just closed, nor the premonitory murmurs of the contest
which was soon to rage about him disturbed the serenity of
his judgment. Duty called upon him to investigate the
question for himself and record his conclusion upon it.
This he proceeded to do and in a luminous and convincing
opinion demonstrated both upon reason and authority that
the United States Supreme Court had jurisdiction to re-
view and reverse judgments of the state courts in cases
where the validity of a law of the United States was at-
tacked and the law had been held void.2 This opinion was
filed December 14, 1859, and was immediately published in
full.

Upon the next day the following declaration of war ap-
peared in the Milwaukee Free Democrat :

"The opinion simply marks its author as belonging to the con-
solidation and anti-state rights school of politicians who, con-
sidering the emphatic expressions of the people of the state,
has no right on the bench and will probably remain there no
longer than the people have an opportunity to express them-
selves in April next. So far as the cases are concerned, the
opinion has no practical importance. It will have the effect,
however, to compromise for a time the position of the state,

2 11 Wis. *498.
9

1 30 The Story of a Great Court

so clearly and emphatically defined and declared by the people,
and gives us our work in a measure to do over again. In this
view it is to be regretted."

This doubtless expressed the view of the radical element
which comprised the great majority of the Republican party.
Their disappointment was keen ; just as they had succeeded
in reconstructing the bench so that it was constituted not
only of Republicans, but of state rights Republicans, the
fruits of their labor had been practically taken from them
by death and executive appointment. There were indeed
some Republicans, especially among the abler lawyers, who
saw the danger of the state rights idea and recognized that
it was a two edged sword which would certainly be used
against the party in case it obtained national power, a con-
tingency which the torn condition of the Democracy ren-
dered more probable every day. Their counsels, however,
fell on deaf ears, the radicals were in the saddle and they
demanded a straight party nomination on a state rights
platform and the defeat of Dixon.

Judge A. D. Smith was urged by many as the logical can-
didate, which indeed he was if the question of state rights
was to be the sole test, but the names of A. Scott Sloan,
David Taylor, William P. Lyon and others were brought
forward by newspaper communications. There was a
strong undercurrent of feeling against a party nomination
and in favor of supporting Judge Dixon as an independent
candidate, but it made little headway ; the presidential elec-
tion was approaching, party passions were running high, a
victory in April would add greatly to the prestige of the
party and improve its chances in November, the state central
committee on December 29, 1859, published a call for a state
convention to be held at Madison, February 29, i860, to
choose delegates to the national convention, also presidential

Dixon and the Campaign of 1 860 1 3 1

electors at large "and to adopt such action as may be advis-
able in view of the approaching election of Chief Justice of
the Supreme Court of the state." The challenge neither
surprised nor dismayed Judge Dixon, indeed it may be said
that he was the challenging party himself, for he was on
principle opposed to party nominations and let that fact be
known to the Republican leaders. Carl Schurz, who had
now become a national figure and was actively at work
spreading the doctrines of Republicanism among the Ger-
mans of the country, but still keeping track of the political
situation in Wisconsin, on February n, i860, wrote a letter
from Philadelphia to Senator Dooolittle, in the course of

which he said:

"I had several letters from Wisconsin lately; the approaching
judicial election gives our friends considerable trouble. Dixon
will not accept a party nomination and refuses to lend himself
to factional purposes in any way. But I understand he would
allow himself to be called out as an independent candidate in
case A. D. Smith should run." 3

The convention was held in pursuance of the call and
after the transaction of its purely political business I. C.
Sloan of Janesville moved to proceed to the nomination of
a candidate for Chief Justice. A warm debate followed,
which is quite fully reported in the Madison State Journal
of March 2nd. Judge Timothy O. Howe and his brother,
James H. Howe, then Attorney General of the state, op-
posed a party nomination on the ground that the nomination
of party candidates for the bench was inadvisable and that
the party had in the past taken that position; Mr. Schurz
was present and spoke warmly in favor of a nomination,
claiming with truth that Judge Paine's nomination in the
previous year, though not made by a convention, was to all

a Wis. Alumni Magazine, Vol. 9, No. 4, p. 137.

1 32 The Story of a Great Court

intents and purposes a party nomination. The motion was
carried by the decisive vote of 137 to 84. Upon the first
ballot A. Scott Sloan of Beaver Dam received 63 votes, the
balance being divided among many candidates, Judge Dixon
receiving but two votes. Upon the third ballot Sloan re-
ceived 158 votes and was nominated.

On the seventh of March Judge Dixon was put in the
field by a non-partisan call signed by several thousand elect-
ors of the state, including many of the ablest members of
the bar. Practically the entire bar of Madison joined in
the call, among the names being E. W. Keyes, D. K. Ten-
ney, F. J. Lamb, W. A. P. Morris, H. M. Lewis, Geo. B.
Smith, S. U. Pinney, B. J. Stevens and J. C. Gregory.

There was no move for a Democratic nomination. The
principle of non-partisanship always appeals strongly to a
minority party and such the Democratic party now was for,
in the fall of 1859, the Republican party had elected a full
state ticket.

The Madison Patriot (a Democratic paper) of March
6th said in course of a long editorial, "Away with party
judges, away with party decisions, away with politics on
the bench," and this doubtless expressed the feeling of Dem-
ocrats generally at this time, notwithstanding the fact that
with a regular Republican candidate and an independent
candidate, recently appointed as a Republican, in the field
the chances of a straight Democratic nominee who could
poll the vote of the party would seem to have been very
good.

So far as the ability and personality of the candidate was
concerned, the nomination of Judge Sloan was an eminently
fit one. Both he and his brother I. C. Sloan of Janesville
were recognized as among the ablest lawyers of the state.

Dixon and the Campaign of 1 860 1 33

He was nearly forty years of age at the time of his nom-
ination and had come to the state from New York in 1854,
and located at Beaver Dam, where he entered on the prac-
tice of the law with H. W. Lander. He was elected a mem-
ber of the Assembly as a Republican in 1857 and was also
elected mayor of Beaver Dam in 1857 and 1858. He was
appointed circuit judge of the third circuit in 1858 upon
the resignation of Judge Larrabee and served in that ca-
pacity for ten months, but was defeated for re-election in
1858 by John E. Mann by a very small majority. He was
elected to Congress in i860 and served one term. He was
appointed county judge of Dodge County in 1868 and held
the office for nearly six years. In 1872 he joined the in-
dependent Republican movement, which resulted in the
nomination of Horace Greeley for president and afterwards
acted with the Democratic party. He was elected Attorney
General of the state upon the Democratic or reform ticket
in 1873 and re-elected in 1875. During his administration
the great railroad cases, involving the question of the power
of the state to fix fares and rates, were brought and decided
favorably to the state.4 In 188 1 he was elected judge of
the thirteenth circuit and held that position by virtue of
successive re-elections until his death, April 8, 1895.

As circuit judge he commanded the respect and love of
both bar and people. In the course of an eloquent tribute
to his memory before the Supreme Court by Samuel S.
Barney, Esq., September 2, 1895, the speaker gave him the
following just praise:5

"I speak the plain truth as I believe it when I say that but
few men ever sat upon the bench better qualified in every way
to discharge its important and solemn duties than he. A great

4 35 Wis. 425.

5 90 Wis. p. xlvii.

34 The Story of a Great Court

lawyer, in the sense of a ready and technical knowledge of all
the rules of law and practice, he perhaps was not; but in the
sense of a thorough and almost intuitive knowledge of all the
great principles which are the foundation of our system of law
and equity, he was a great lawyer. He never spent the years
that some jurists have in close study of cases and the text-books
of the law, but he had spent a long life in the careful and
thoughtful conideration of good books of all kinds and of men,
and thereby acquired a wider and safer knowledge of the prin-
ciplt s of our jurisprudence. For the technicalities of the law
he had but little sympathy or consideration; but he never for
a moment forgot the truth of the great principles of God's
eternal justice, which should be the foundation of all law.

"Above all, he brought to the discharge of his duties a great,
good and honest heart, a moral perception which enabled him
in every case to see the right, and the gift of a lofty, moral
courage, which prompted him in all cases to do the- right as
he saw it, regardless of criticism or consequences. This was
the quality which was the crowning glory of Judge Sloan's life.
He may at times have been mistaken in the law, he may also
sometimes have failed, from the facts presented to him, in ar-
riving at a just conclusion, in the judgment rendered by him,
but every decision which he ever made, either upon a question
of law or fact, was the unprejudiced conclusion of a good head
and an honest heart."

Though the radicals in the Republican party had thus
succeeded in forcing a party nomination, they had not suc-
ceeded in securing the adoption of a platform nor did any
one know certainly what Judge Sloan's position was on the
question of state rights ; and as this was, to them, the su-
preme test of fitness for the bench there was considerable
dissatisfaction among them with the result of the conven-
tion. Loud demands were at once made that Judge Sloan
define his position as to the state rights doctrine ; the Free
Democrat of Milwaukee declined to put up his name at
the head of its columns and on March 8th called on him
to state his position and threatened to bolt the nomination

Dixon and the Campaign of 1860 135

and put up another candidate if he did not make a satis-
factory statement.

Thus the situation became acute, if not alarming. Judge
Sloan's sense of judicial propriety undoubtedly told him that
a candidate for the bench could not properly give pledges
in advance as to his action upon a question which might be
presented to him for decision after his election, but in re-
sponse to the entreaties of his friends he finally adopted a
doubtful expedient for making his views known by way of
a professedly private letter to his brother, I. C. Sloan. This
letter was addressed "Dear Brother" and was published in
the Janesville Gazette of March 14th. In it, after noticing
the demand of the Free Democrat for a statement of his

views, he said :

"You, of course, know that I agree with Judge Smith and not
with Judge Dixon; you also know that I would not have ac-
cepted the nomination otherwise; Judge Dixon was dropped
mainly because of his unsoundness on that question. It would
be bad faith in me to take the nomination unless I agreed fully
with the Supreme Court in the Booth and Rycraft cases, know-
ing as I do that a large majority of the Republicans of Wisconsin
regard the question as a vital one and intended to nominate a
candidate who would represent the views of that majority. But
I cannot feel that I ought to make any avowal of my opinions
on that or any other question and shall for the present decline
to do so. A little reflection will convince all reasonable men
of the justice and propriety of this course and I trust you will
agree with me."

This roundabout method of making his position known
upon the burning question of the hour, while protesting that
he could not properly do so was satisfactory to the radicals
and the Free Democrat immediately gave Judge Sloan its
active support. Naturally enough the letter excited laughter
among Dixon's supporters and became derisively known in
the campaign as the "dear brother" letter. Whether it was

1 36 The Story of a Great Court

useful or not in Judge Sloan's canvas may well be doubted :
it removed the possibility of a third candidate, but it doubt-
K ss alienated many of the soberminded Republicans who
were at first inclined to follow the party nomination, but
could not approve this palpable bid for votes by a candidate
for the highest judicial office in the state. The campaign
was spirited, especially in the newspapers. Most of the
Republican papers supported Judge Sloan, but there were
some which openly advocated Judge Dixon's election and
among these were the Milwaukee Sentinel and the Wiscon-
sin State Journal.

About March 20th Marshall M. Strong of Racine pub-
lished in the Racine Journal a very able plea for the re-
election of Judge Dixon and for independence of the ju-
diciary.

Ex- Justice Abram D. Smith took an active part in the
campaign and made an exhaustive speech in support of the
state rights position and the Booth decisions, which was
ably answered by Timothy O. Howe. It was apparent to
all that notwithstanding Paine's brilliant victory on this
issue in 1859 the question whether belief in the extreme state
rights theory was to be the test of Republicanism in Wis-
consin was still an open one. The Republican papers urged
all Republicans to stand by the party, especially in view of
the adverse effect of a party defeat upon the approaching
presidential contest in the fall ; the story was also circulated
that Governor Randall had been deceived when he had
made Dixon's appointment ; that he had inquired of Dixon's
friends before the appointment as to his position on the
state rights' question and had been answered by them that
Dixon was all right on the question; this, however, was
vigorously denied by Dixon's friends.

Dixon and the Campaign of 1 860 1 37

Another question on which strong feelings were begin-
ning to be held by the people was injected into the campaign,
although it could hardly be called an issue, because the
position of neither candidate upon it was certainly known.
This was the so-called "farm mortgage" question and it
arose as an aftermath of the railroad building epidemic of
the early fifties and the business depression following the
panic of 1857.

The influx of settlers during the years of prosperity and
inflation prior to the panic was enormous. They arrived at
the lake ports in whole ship loads; and by wagon and on
foot went westward and spread over the vast and fertile
prairies of southern Wisconsin and northern Illinois, which
were only waiting for the plough and the sickle to break
forth into abundant harvests. This region became almost
by magic the granary of the nation and in the fall the high-
ways became filled with farmers' wagons drawing the grain
for scores and even hundreds of miles to the ports of Lake
Michigan for shipment.

To meet these new conditions railroads seemed to be an
absolute essential and in Milwaukee and Racine and other
lake cities companies were organized to construct railroads
to the interior and a race of diligence began to reach and
tap the area of the great grain fields. Milwaukee sent out
two lines, Racine one, Kenosha one and still others were
projected.

High finance was known even then, and the companies
sent out agents with glowing prospectuses to obtain sub-
scriptions to the stock of the new companies by the towns,
villages and cities on the proposed line to be paid for by
municipal bonds. So anxious were communities to obtain
the benefit of the railroad lines that they frequently bid

1 38 The Story of a Great Court

against each other and saddled themselves with a load of
indebtedness which blighted their future for many years.
Nor did the agents confine their efforts to municipalities,
but many were sent to the prosperous farmers in the vicinity
of the proposed lines and these painted the same glowing
pictures of the wealth which the railroads would bring and
urged the farmers to take stock in the enterprises and give
mortgages upon their farms in payment.

It was a time of optimism and prosperity ; croakers were
the exception. Few doubted that the railroad stock would
pay dividends from the outset and become worth more than
dollar for dollar in a short time. It was regarded as certain
that the coming of the railroad would greatly enhance the
value of farm lands. Thus many farmers were induced to
subscribe for stock and give their negotiable notes secured
by mortgages on their lands to pay for it. As matter of
course the railroad companies disposed of the notes and
mortgages by sale or pledge as soon as they received them
in order to obtain the money with which to build their roads.
Whether the purchasers were all bona fide holders without
knowledge of the glittering promises held out to the farmers
may be doubtful, but it was impossible to prove them other-
wise and hence they became for all practical purposes inno-
cent holders of commercial paper transferred in due course
of business before due.

From these dreams of wealth there was soon a rude
awakening. Some of the projected roads were never built ;
those that were built paid no dividends on their stock; the
great panic of 1857 came and forced them all to the wall,
wiped out the stock and left in the hands of the farmers
only the lithographed certificates. The expected rise in
values of lands did not come, in fact in many localities land

Dixon and the Campaign of 1 860 1 39

decreased in value and the farmer was left with a heavy
incumbrance on his farm and nothing to show for it.

Cities and towns repudiated their bonds and refused to
levy taxes to pay the annual interest ; the farmers declined
to pay the interest on their notes and in many cases could
not do so, and the holders began to commence foreclosure
proceedings and thus ruin stared many a farmer in the face.
The question became a serious one in the southern part of
the state and the legislature was appealed to for aid.

The Supreme Court at the December term 1850 had de-
cided 6 that a negotiable note secured by a mortgage trans-
ferred to a bona Me holder before due, carried with it the
mortgage so as to preclude the defense of fraud or any
other defense which would have been good as against the
mortgagee and this decision had been reaffirmed at the
December term, 1852,7 and at the June term, 1859.8

If these decisions were to be followed (and they only
stated a principle universally established) the farmers had
practically no defense. Their notes had been duly made
and were in the hands of innocent purchasers ; they were
contracts and as such were protected by the constitutional
provision prohibiting the passage of any law impairing the
obligation of contracts.9

Notwithstanding the fact that the rights of the note
holders had thus become vested the legislature was not un-
willing to pass an act purporting to grant relief to the
farmers whether it was constitutional or not, thus throwing
upon the courts the burden and the odium of declaring it

e Fisher v. Otis, 3 Pinney, 78.

7 Martineau v. McCollum, 3 Pinney, 455.

8 Croft v. Bunster, 9 Wis. *503.
0 Const. Wis. Art. I. Sec. 12.

1 40 The Story of a Great Court

invalid. By chapter 49 of the laws of 1858 it was declared
in substance that in all actions brought to enforce such
notes or mortgages the defense of fraud should be available
as well against the assignee as against the original holder
and that no assignee of such a note or mortgage should be
permitted to claim that he was an innocent holder without
notice.

In 1859 several cases had been decided in the circuit
courts of Dodge, Rock and Racine Counties involving the
validity of such mortgages in the hands of innocent pur-
chasers, in some of which the defense of fraudulent repre-
sentations had been interposed, and in others the defense
that the railroad companies had no power to receive notes
and mortgages in payment for stock.10 In these cases the
decisions had been favorable to the mortgagors and, while
the law of 1858 was not specifically made the ground of
the decisions, still it was inferentially at least sustained in
at least one of the cases. These cases were now pending
upon appeal in the Supreme Court and thus the question of
the validity of the law, so far as it concerned past contracts,
was soon to be presented to the Court.

Public sympathy was unquestionably largely with the
farmers and in favor of the law and in order to conciliate
this interest the partisans of each candidate endeavored to
make it appear that their candidate was favorable to the
law and that the opposing candidate was against it. It was
charged that Democratic lawyers had sent out letters assert-
ing that Judge Dixon favored the mortgagors while, on the
other hand, Republican papers claimed that Judge Sloan
was unquestionably favorable to the validity of the law.

10 Clark v. Farrington, 11 Wis. *306; Blunt v. Walker, 11 Wis.
*334; Cornell v. Hichens, 11 Wis. *353.

Dixon and the Campaign of 1 860 1 4 1

Upon this question the campaign amounted to little more
than firing in the air for, as before stated, the position of
neither candidate was definitely known. The contest was
a heated one and the vote so close that the result was not
known for about two weeks. Both sides claimed the vic-
tory, there were charges of irregularities and the throwing
out of votes, but when the official canvas was finally made
on May 4th it was found that Judge Dixon had won by a
majority of less than 400 votes in a total vote of over 116,-
000. After election the Milwaukee Sentinel and the Wis-
consin State Journal, both of which papers had supported
Judge Dixon, were bitterly denounced as traitors to the
Republican cause by the Fox Lake Gazette and by other Re-
publican papers.

In a review of the various judicial campaigns of the state
printed in the Milwaukee Sentinel of April 15, 1895, Hon.
E. \V. Keyes of Madison, who participated actively in the
campaign in favor of Judge Dixon, says :

"A bitter feeling was stirred up in the ranks of the party in
the state and those who supported Judge Dixon * * * were
criticized, condemned and stigmatized as bolters and threatened
with political vengeance. * * * Republicans were berated
for standing firm for the principle of a non-partisan judiciary
and for supporting for election the incumbent of the office be
he Republican or Democrat. The result of this election was
a vindication and approval of Judge Dixon for his boldness and
courage in adhering to his convictions of duty against what ap-
peared to be at that time a popular clamor in this state — the
dogma of state rights — which incited the rebellion and which
soon thereafter was repudiated here, and by the nation; blotted
out by the arbitrament of war, it is hoped forever. * * *
I have voted for every judge of the Supreme Court since the
days of Whiton and including him. I was active in behalf of
Chief Justice Dixon in that most extraordinary judicial campaign
of 1860. At that time the hotheads of our party classed me and
others like me as bolters, to be punished galore. In looking

1 42 The Story of a Great Court

back I can recall no political act of my life that meets more
heartily the approval of my judgment and conscience."

Air. Keyes had ample reason to be proud of his position in
that election and so had the Republican lawyers of the state,
the great majority of whom supported Judge Dixon in that
memorable campaign. It is not too much to say that by
their action at this critical time, they not only gave the death
blow to the heresy of state rights which had for six years
dominated the party and dictated its candidates, but they
also did much to establish the principle of non-partisanship
in judicial elections in the first great contest where it was
squarely and fairly raised, a principle which was destined
to become paramount in the state and lift the Supreme
Bench above the plane of party politics.

Although Judge Sloan would unquestionably have made a
creditable Chief Justice, it must always be a cause for con-
gratulation that at this crucial period in the state's history,
when great questions were impending and our jurisprudence
was in its formative state, a superlatively great lawyer and
judge like Luther S. Dixon should have been placed at the
head of its highest court. There he was to remain for
fourteen years, growing in strength as the years went by and
doing invaluable service in placing the Supreme Bench of
Wisconsin in the very first rank of the state judiciaries.

Dixon and Paine 1 43

CHAPTER XIII

DIXON AND PAINE

The Bench was now made up of two men elected because
they were Republicans (though not nominated by party con-
ventions), viz. : Paine and Cole, and one man originally ap-
pointed as a Republican but elected as an independent,
Dixon. Thus it was to remain for a little more than ten
years, with the exception of the period from November 15,
1864, until September 10, 1867, when owing to Judge Paine's
resignation on the former date, Jason Downer of Milwaukee
occupied his seat.

All of these men were well fitted for the task and may
be said to have admirably supplemented each other. Dixon
and Paine were men of great intellectual grasp, of vigorous
and constructive intellect, and great lucidity of expression.
Cole possessed perhaps less of originality and genius, but
his mind was clear and logical, his industry tireless, his
judgment conservative and safe, and his power of expression
admirable. When Dixon and Paine locked horns, as they
frequently did, Judge Cole's opinion was necessarily con-
trolling and thus it was that upon him fell the burden of
giving the casting vote in many important cases.

Of the personal and mental qualities of Dixon and Paine
much has been written by their friends from the vantage
ground of intimate personal acquaintance. As the writer
had not this advantage, it seems better to insert here some
excerpts from the appreciative notices thus already made
than to attempt to write anything new.

1 44 The Story of a Great Court

In the course of the memorial of the bar before referred
to1 (presumably written by General Edwin E. Bryant) it
is said of Judge Dixon :

"He came to the bench at an important and critical time in the
history of the state and nation. Questions involved in the con-
tentions of political parties must be decided and the judgments
of courts could but provoke fierce criticism. Questions were
pending which directly affected the interests of large classes of
citizens, arising out of the early efforts in railway development
and the involvement in that behalf of public spirited men. For-
tunes and even homes were imperiled. Decisions were demanded
favorable to those in jeopardy and judges were threatened with
the displeasure of the masses if decisions gave disappointment.
The then recent adoption of the Code had displaced the ancient,
familiar practice, and thrown much labor on the Court in settling
the new procedure. New and important questions sprang up
in the period of rapid development during and following the
war, and the rapid growth of the state largely increased the
labors of the Court. Chief Justice Dixon and his illustrious as-
sociates in that formative period worked with noble diligence
for the welfare of the state. * * * The work of Chief Justice
Dixon and his eminent colaborers on the bench, it may truly, and
we hope not inappropriately, be said, placed our Supreme Court
well forward among the strong, able tribunals of the country.
His decisions, embraced in twenty-six volumes of our Court re-
ports, constitute a record imperishable, and his ennobling in-
fluence upon the body of our law will be felt and acknowledged,
as it now is, in the long future.

"In private life stainless, in the domestic relations and those
of the neighbor and citizen irreproachable, he lived among us.
In social intercourse, when professional toil could for a brief
space be laid aside, it was a pleasure to meet him. Of com-
manding presence, tall but well formed, with a natural grace of
deportment perfected by his early military education, he bore
nature's stamp of superiority. But he was unostentatious, sim-
ple and direct in manner as a child, cordial and generous; and
there was something in him that won and held friends and gave
him a wide but unsought popularity. He had the sparkling wit
without trace of bitterness, the buoyancy of spirit and keen

i 81 Wis. p. XXXI.

Dixon and Paine 145

sense of humor, so often observable in great lawyers. An agree-
able converser, attent and sypatbetic listener, be was the charm
of a social circle. His kindly grace put all at their ease and he
could be interested in all with whom he came in contact. His
career after he left the bench was in keeping with his noble
work upon it. He remained true to his profession though polit-
ical honors were within his reach. Avoiding all notoriety,
shunning all display, he modestly went about his work; at once
assumed high rank at the bar, and enjoyed the rewards of ex-
tensive and important practice. His health forced him some
years ago to seek the higher altitudes and rarer atmosphere of
the western mountains. Thereby, although he retained bis
residence in Milwaukee and considered this state his home, the
profession here lost for the most part his delightful companion-
ship and his powerful aid. It was almost as an exile that he
went to Colorado, banished by the rigor of our climate. He went
at a period in life when men are not wont to form new attach-
ments, and, if engrossed in care, are unlikely to attract new
friends. Depressed by suffering, for his asthmatic ailment de-
prived him of the blessedness of refreshing sleep, the cheerful-
ness which was one of the charms of his nature might well be
quenched. But he entered at once upon an extensive practice,
and amid the strife of constant legal controversy he came to
be loved by his professional brethren there no less than here.
In the resolutions passed at a large meeting of the bar in Den-
ver, called when the announcement of his death reached them,
they express in words of tenderness 'their reverent respect and
heartfelt affection.'

"He returned to his family in Milwaukee, a few weeks since,
after a professional visit to Washington, so worn out by the long
struggle with the malady which finally overbore his superb
physical constitution, that age and the hand of death seemed
visibly upon him. A short illness brought the last great change,
and after a life of unsullied honor, faithful service in the
highest field of usefulness, with a lasting fame firmly assured,
life's work well done, his body sleeps in the soil of the state
he served so well, near the scene of his judicial labors and by
the graves of his children. His immortal part, with God who
gave and imbued it with such love of justice, such high intel-
ligence, such sweetness and charity, now as we devoutly trust,
sees the right, not in the crepuscular dimness of human im-
perfections, but in the clearness of eternal day."

10

1 46 The Story of a Great Court

I'pon the same occasion the Hon. Gerry W. Hazleton said
of him :

"In December, 1856, I met him for the first time at his office
in the city of Portage. There was at that time no railroad com-
munication with the place and I had made the journey by pri-
vate conveyance from Columbus, a distance of thirty miles, for
the purpose of consulting him in relation to professional busi-
ness. It is difficult to realize the years which have elapsed
since then, and still more difficult to realize the magnitude of
events which crowd and illuminate the history of the inter-
vening period; but I recall, as if it were only yesterday, the
cordial greeting which was extended to me as a young attorney,
and the pleasant impressions which I carried away, impressions
which were only to be emphasized by the intercourse of after
years.

"He had then but recently returned from a six weeks' absence
in Minnesota and still further west, as I remember, in search of
a location which might please him better than Portage for the
practice of his profession. His observations and experiences on
the journey fortunately led him to the conclusion to remain in
"Wisconsin, and he had returned to resume his practice among
the friends and acquaintances who were only too greatly de-
lighted to welcome him back to his former home. Here he con-
tinued prosecuting his labors, holding the leading practice in
the county and, so far as his friends knew, having no ambition
for judicial honors. It was while thus employed that he re-
ceived and accepted the appointment of circuit judge for the
ninth judicial circuit, to take the place made vacant by the
resignation of Judge Collins — an event which opened up to him
a judicial career in which he won honorable and lasting dis-
tinction, and upon which he "shed unquestioned lustre, not so
much by his ample learning as by the force and greatness of
his character.

"It happened to me to be a resident of Columbia County when
he entered upon his office as circuit judge and to have been a
witness to his capacity for judicial service at the very outset,
and I am sure I shall be pardoned for referring briefly to this
portion of his public career. Unquestionably the popularity he
at once acquired as circuit judge directed attention to him and
led to his promotion to the Supreme Bench. The lawyers who
had occasion to appear before him at that time will not fail

Dixon and Paine 147

to recall his easy self-possessed and agreeable bearing. His
bench manners were simply perfect. He combined with a
natural and becoming dignity an unaffected simplicity, a frank-
ness, an even serenity of temper, an unfailing courtesy which
absolutely disarmed criticism. It is said of the eminent Chief
Justice Gibson, who was noted for his deference to the bar,
that he boasted in one of his merry moods that he had reached
at last the object of his highest ambition, which was to keep
his eye fixed on a dull speaker, while his thoughts were em-
ployed with more agreeable objects. Judge Dixon disclosed the
rare faculty at the circuit which he brought with him to this
Court — the faculty of listening to a dull speaker with the same
apparent consideration he would accord to the most entertain-
ing, and if with less interest no one ever knew or suspected it.
He was patient and helpful particularly with the younger mem-
bers of the bar, while at the same time prompt, orderly and
efficient in advancing business. He had no favorities, no prej-
udices, no idiosyncrasies. His charges— «at that time oral —
were clear, methodical and brief; delivered with an easy and
natural grace and with a distinct articulation which rendered
it a pleasure to follow him. In a word, he was the ideal circuit
judge.

"There was an affluence of manhood in his personality which
no one could mistake. This he carried with him to the bench.
It constituted the basis of his honorable career. It permeated
and reflected in all his judicial labors, and was indeed as marked
and unmistakable as the strong, sturdy common sense which
guided him to sound and just conclusions. He was pre-emin-
ently one of those of whom it can be said without overpraise,
'He stood four squares to all the winds that blew.'

"I shall not be misunderstood when I say that he was entitled
to little praise for being honest and upright. He could not be
otherwise. His integrity was so wrought into the fibre of his
nature and was so essentially a part of himself, that he could
no more divest himself of it than the violet can divest itself of its
perfume. It did not spring primarily from a sense of the duty
which judicial station laid upon him, nor from his high appre-
ciation of the sacred trust which he had assumed, but from in-
nate rectitude of character and purpose — in other words from
the essential quality of his organization. Not that he was in-
different to this sense of duty or unmindful of the meaning of

1 48 The Story of a Great Court

his trust, but that he was happily so constituted as not to need
such stimulant.

"Very few men are favored with greater aptitude for judicial
station. He had the judicial temperament, the trained habit of
investigation, the quick perception of right and wrong, the nat-
ural love of justice, the courage of his convictions, the broad
and comprehensive notion of equitable principles, which ensure
success on the bench; and when we reflect that he supplemented
these with painstaking study and research we can readily under-
stand the basis of his eminence as a jurist.

"In his old circuit he has always been regarded with pride
and affection. Particularly is this true of Columbia County, in
which he spent the early years of his professional life. He
surrounded himself during this interesting period with friends
who have never forgotten his genial and lovable qualities. In-
deed his circle of personal friends in Portage embraced the
entire community."

Judge Charles E. Dyer, in the course of an eloquent ad-
dress on the same occasion, said :

"His judgments are among the jewels of our jurisprudence.
Without exception they bear the stamp of his penetrating and
vigorous mind. None fails in that lucidity of statement,
strength of diction and cogency of argument which were his
happy gifts. If his intellect was not what may be called bril-
liant, it was comprehensive and powerful. If he was sometimes
wanting in that mental alertness and dexterity essential to
emergencies in forensic strife, his masterly powers of delibera-
tion and discrimination made him an ideal judge and a wise and
safe counsellor.

"He had high respect for sound authority, but he believed
also, as his opinions show, in original processes of reasoning.
Some men have the faculty in the highest degree of stating with
precision what the law is. Others have the faculty of stating
what the law ought to be. Dixon knew what the law is, and
could state it so accurately that it was dangerous to controvert
his proposition. If, as a judge, he was convinced that he had
committed error, no pride of opinion would stand in the way of
its correction, for like Lord Hardwicke he would think it 'a much
greater reproach to continue in error than to retract it'.

"At all times frank and courteous, every impulse of his nature
was generous and noble; his heart was large, his society con-

Dixon and Paine 149

genial, his salutation hearty. He was plain and unobtrusive,
he affected nothing. On the bench and at the bar his demeanor
toward his professional brethren was always that of kind and
cordial recognition. I recall as a pleasant memory my first case
in this court more than thirty years ago, when Mr. Justice
Lyon came with me as associate counsel and as my personal
friend, for I found that the young lawyer was received by Chief
Justice Dixon and his associates with the same consideration
and kindness as was any veteran of the bar.

"As a companion Judge Dixon was delightful. Judge Drum-
mond, who also sleeps the sleep of the just and whose name I
reverently speak, was wont to say that it was always a pleasure
to meet Dixon, he was such a likable man. Genial in tempera-
ment, cultured in literary acquirements, fond of anecdote, and
abounding in a great sense of humor, he possessed most hap-
pily those qualities which drive away dull care when the hours
of serious occupation are past."

There probably has never been any other judge upon the
Supreme Bench of the state who mixed so freely in a social
way with the members of the bar as Judge Dixon. Judge
Dyer truly says that he was a delightful companion and that
he possessed those qualities which drive dull care away when
serious duties were past. The state was still young and
manners quite unconventional ; Dixon loved to meet his
fellow lawyers in familiar conversation and such meetings
were not seldom held around the small table of the restaurant
or bar room, where jest and anecdote went around as well
as the convivial glass. To tell the plain truth his convivial-
ity sometimes went entirely too far as is evidenced by a
number of stories which formerly floated about legal circles
in his old circuit. As illustrative of their character the fol-
lowing which is told of him while still living at Portage will
suffice. One evening in winter when a snowstorm was
raging Dixon spent the evening down town with friends
over cards, and the bottle went merrily around ; when he
came to go home it was suggested that there were no street

1 50 The Story of a Great Court

lights and it was so dark and stormy that he needed a lantern
and so his host provided one for him. He made his way
slowly and laboriously to his home and left the lantern in
the front hall. In the morning Mrs. Dixon remarked it and
asked whose it was and how it came there and the Judge
dramatically told her of the terrible storm and the inky
darkness of the night and of the kindness of his friend who
loaned him the lantern without whose kindly light he could
hardly have got home. When he had completed this affect-
ing tribute to his friend's kindness Airs. Dixon observed,
"Well Luther, the next time you borrow a lantern to light
your way home you had better see to it that it has a wick
and some oil in it."

Among his friends he was familiarly known as "Dick",
but, notwithstanding this freedom of approach and uncon-
ventionally of manner, no man ever suspected or suggested
that he had friends to reward or that his treatment of ju-
dicial questions was ever in the slightest degree affected by
friendship.

He was a great man, strong in body and in intellect, pos-
sessed of little patience with small and inconsequential re-
finements, either of manners or of dress. The blood in his
veins was rich and red ; there was, as Mr. Hazleton well
says, "an affluence of manhood in his personality" which
none could fail to see. Easy going and careless of trifling
matters, Court would frequently convene a half hour or
more late while the Chief Justice was exchanging anecdotes
with members of the bar who had come to argue their cases.

Illustrating this irregularity in the opening of Court,
General Winkler of Milwaukee relates the following story : 2

"While Judge Dixon was chief justice the court was guilty of
a certain laxity of practice. It had no very definite hour of

2 Vol. 8 Repts. Wis. Bar Ass'n, p. 39.

Dixon and Paine 1 5 1

meeting. It had a theoretical hour, of course, but this was not
strictly adhered to, the judges frequently not coming in until
half an hour or even an hour after the appointed time. Under
Judge Ryan as chief justice this practice was changed and the
strict hour of opening at ten o'clock every morning was ob-
served. One morning when I happened to be there the first
case called was one in which Judge Dixon was interested. Judge
Dixon was not present. Word was sent for him to his hotel but
he was not found. There was some waiting but he did not ap
pear. Finally a suggestion was made to substitute some other
case and Mr. John W. Cary and myself, who had a subsequent
case on the same day's docket, took up the argument of that
in place of Judge Dixon's. In the afternoon at the opening of
court Judge Dixon appeared ready to argue his case. Judge
Ryan looked at him with great sternness and said, 'Judge Dixon,
the court lost a valuable half hour this morning waiting for the
late chief justice.' "

General Winkler also relates the following story of the
same two great men : 3

"After his resignation he was, as we all know, succeeded by
Chief Justice Ryan, and Judge Dixon and Judge Ryan mutually
seemed to take great pleasure in poking a little fun at each
other whenever they could, and in one of these cases relating
to the Northwestern road that Judge Jenkins has alluded to,
there arose the question of the effect of a certain plat of property
in the city of Milwaukee. I heard it argued in the supreme
court. The same question had been before the court in a pre-
vious case, — Emmons v. The City of Milwaukee — and argued
by Mr. Ryan in behalf of the city of Milwaukee, he being then
city attorney. The decision had been against his contention,
Chief Justice Dixon delivering the opinion. Judge Dixon was
now, as attorney for the railway company, compelled to take an
opposite position as to the proper construction of this plat. The
former decision stood in his way and he strenuously argued
against its correctness. Chief Justice Ryan interrupted him,
finally saying: 'That is all very well, Judge Dixon. It is the
very position I took in Emmons v. The City of Milwaukee. But
you overruled me. You say the ruling was wrong. In this
you may be right. But the great difficulty is that you may

8 Vol. 8 Repts. Wis. Bar Ass'n, p. 38.

I 52 The Story of a Great Court

possibly succeed me in my present position, as I have succeeded
you, and then, I am afraid, you will go back to your former
error.' "

Hon. G. W. Hazleton relates the following story, which
illustrates his ready wit:4

"Of course I knew him very well, after I came to Columbia
County, and while he was practicing at Portage, and I remember
very well when he was appointed judge of the circuit court, and
having quite a large list of cases to be tried, he requested Judge
Noggle to attend the term and try the cases in which he was
interested. At the close of the term we had a banquet at the
old Vedder Hotel, the old yellow building, some of you may re-
member, and in the course of the evening when the time came
for speech making, one after another had been called, and finally
a certain Mr. X, I will call him, who was quite noted in the
city for his voice, and the vigorous use of it, was called on for
some remarks, and he opened by saying: 'When I came to Portage
this country was a howling wilderness' — and Judge Dixon sprang
to his feet with this query: 'I would like to inquire of the gentle-
man, whether it was a howling wilderness when he came or
after he came.' "

Judge Dyer used to tell this story of Dixon. After leav-
ing the Supreme bench he was retained by one of the great
railway companies and was obliged to defend a series of
condemnation actions in which large verdicts were rendered
against his company. One day Dyer met him on the street
in Milwaukee looking exceedingly glum. Dyer greeted him
as usual and said : "Why so solemn today ?" Dixon told him
of his disastrous experiences with condemnation cases.
After his tale of woe was told Dyer said with a twinkle in
his eye (which only those who knew that delightful char-
acter can appreciate), "Judge do they ever quote Driver v.
Western Union R. R. Co. to you in these cases?" "Yes

4 Vol. 8, Repts. Wis. Bar Ass'n, p. 37.

Dixon and Paine 1 53

they do," said Dixon, "and there isn't a word of good law in
it." The case which Dyer referred to was a condemnation
proceeding in which he was defending a railroad company
(32 Wis. Rep. 569) and in which Judge Dixon concurred in
an opinion compelling the company to pay a large verdict
on what always seemed to Dyer as a very erroneous prin-
ciple.

The following story was told at Racine with circumstan-
tiality and every appearance of truth. At some term of
Court during the sixties a number of members of the Racine
bar were for some reason late in reaching Madison to argue
their cases and the consequence was that when they arrived
in the evening they found that their cases had all been called
and continued or dismissed early in the day. They agreed
that upon the opening of Court in the morning they would
all appear and state the reason of the delay and jointly ask
that the cases might be reinstated and argued. Major Ira
C. Paine (then a leading lawyer of Racine and uncle of
Judge Paine) was chosen to present the request. The
Major was somewhat irascible and had, when excited, a high
falsetto note in his voice. After he closed his appeal to the
Court a moment's consultation was held between Chief Jus-
tice Dixon and his colleagues which resulted in a denial of
the motion, the Chief Justice remarking that the bar must
remember that nothing was more uncertain than the time
when cases would be reached in this Court. At this Major
Paine jumped to his feet and said in his shrill treble: "Yes
there is, Your Honor; yes there is; it's a good deal more
uncertain how the cases will be decided after they are
reached." The remark disturbed the dignity of the bench
for several minutes.

1 54 The Story of a Great Court

The following brief summary of the leading events in the
short life of Judge Paine is found as a preface to the mem-
orials presented to the Supreme Court after his death: 5

"Byron Paine, late an associate justice of the supreme court
of Wisconsin, was born in Painesville, Ohio, October 10, 1827.
In the autumn of 1847, he removed to Milwaukee with his father,
Gen. James H. Paine, with whom he studied law in that city.
He was admitted to the bar in 1849; was clerk of the senate of
Wisconsin in 1856; was elected county judge of Milwaukee
county in 1857, and held that office until the first of June, 1859,
wben he took his seat as one of the associate justices of the
supreme court of this state, to which position he had been chosen
at the previous spring election, for the full term of six years,
to fill the vacancy created by the expiration of the term of the
Hon. Abram D. Smith. On the 10th of August, 1864, for the pur-
pose of entering the military service of the United States, he
tendered his resignation of his judicial office, to take effect on
the 15th of November following. He was appointed lieutenant-
colonel of the Forty-third Regiment of Wisconsin Volunteer In-
fantry, and continued in the service until May, 1865. He then
resumed the practice of the law in Milwaukee; but on the 10th of
September, 1867, he returned to his former seat on the supreme
bench, having been appointed by the governor upon the resigna-
tion of Mr. Justice Downer. At the following spring election
in 1868, he was elected for the residue of Judge Downer's term,
which would expire on the first of June, 1871. He appeared in
the consultation room for the last time on the 23rd day of No-
vember, 1870; from which time he was confined at his own home
by a severe attack of erysipelas, until his death.

"On the first three days of the January term of the supreme
court, to wit: the 10th, 11th and 12th days of January, 1871, the
court met and transacted business without the presence of Judge
Paine. On the third day, the illness of the absent justice con-
tinuing to be of an alarming character, the court adjourned until
the 23rd of the same month. On the evening of the 13th Judge
Paine died."

I think no man who has reached the Supreme Bench in
this state has been better loved than Paine. He reached

5 27 Wis. 23.

Dixon and Paine 1 55

that goal by call of the people before he was thirty years
of age ; he was called not because the people knew him to
be a great lawyer (though such he in fact was), nor because
he had made a great record as a judge, but because the pub-
lic heart had been touched and thrilled by the great battle
that he had made for the freedom of man in the Booth case.
Few popular heroes win their laurel crowns in the court
room, but Judge Paine was one of the few.

But though he was carried to the bench by a great wave
of sentiment, it is certain that no mistake was made. For
once at least sentiment reached the same conclusion which
calm judgment with nice measurement of abilities would
have been compelled to reach. Byron Paine needed no aid
from mere sentiment or claptrap of any kind. It was said
of him by Edward G. Ryan on the occasion of the presenta-
tion of the memorials before referred to : 6

"He was emphatically a marked man. His character was un-
common. There was no possibility of confounding him with the
crowd of respectable mediocrity. His was a high type of man-
hood, physical, mental and moral. He was strong in all the
nobler attributes of humanity; singularly free from all its
meaner weaknesses; he was essentially a gentleman, not by force
of training, but by the intelligence and integrity of his manhood.
He was not a man of genius, but he had a force of character, a
firmness of will, a strength of conviction, which made his high
ability of more value to the world than genius often is."

Speaking of the Booth case, Mr. Ryan on the same oc-
casion said,

"The printed brief which he submitted in this court in that
case was the ablest argument I ever met against the constitu-
tionality of the fugitive slave act. It is a professional loss that
it was not inserted at length in the report of the case. It es-
tablished in my mind his great learning and resources as a cul-
tivated lawyer."

6 27 Wis. 34.

1 56 The Story of a Great Court

Referring to Judge Paine's management of Booth's de-
fense on the trial of the indictment in the federal court Mr.
Ryan said,

"I shall never forget his closing argument. It has been my
lot during a long professional life to encounter many able advo-
cates; but I never listened to an argument before a jury more
perfect for the case than that was."

This is high but well merited praise. A sketch of his
life, understood to be from the pen of the late Chief Justice
Cole, appears with the memorials presented to the Supreme
Court.7 There can be no closer contact between man and
man than the contact of the consultation room, nor can there
be any place where more intimate and just judgments can be
formed as to the abilities and personal qualities of another.
From these considerations Chief Justice Cole's tribute pos-
sesses far greater significance than the ordinary eulogy, and
it is inserted here in full :

"Of the early life of Judge Paine we really know but little.
It was doubtless not unlike that of the youth generally of his
native state (Ohio) who happened to be blessed, as he was, with
most kind and affectionate parents in moderate circumstances.
It may therefore be assumed that there were no incidents in his
early life of special interest, or which in any manner presaged
his future brilliant career. He must have received in his youth
a thorough academical education, and he certainly acquired some
knowledge of the Latin language. But he never made preten-
tions to any great familiarity with Latin authors, and in the
estimation of some, rather underrated the value of a thorough
classical education. He, however, became a very fine German
scholar; could read that somewhat difficult language with great
ease, and of course with much satisfaction; and at one time had
so fully mastered the language, that he was able to deliver polit-
ical speeches in German. But this was after he removed with
his father's family to Wisconsin, and when he began to take an
active part in the discussion of the great political questions of
the day. Even up to the period of his last illness, Judge Paine

■' 27 Wis. 58.

Dixon and Paine 1 5 7

seemed to delight in occasionally turning aside from the severe
writers of his chosen profession, to refresh his mind with the
noble productions of Lessing, Schiller and Goethe. He read law
in Milwaukee in the office of his father, General James H.
Paine, and was admitted to the bar of this state in 1849. With-
out any particular information upon this point, it is quite safe
to say that he must have been a hard student, reading with care
and discrimination the elementary works upon the different
branches of equity jurisprudence and the common law, and then
becoming well grounded in the leading principles of legal science.
For some time after his admission to the bar, not being pressed
with a large practice, he had an ample opportunity to write for
the public press upon such subjects as he felt a peculiar interest
in, and this opportunity he well improved, to his great advantage
in after life. For by these frequent contributions to the news-
paper press, and the popular discussions which they necessarily
led him to engage in, Judge Paine acquired a facility of com-
position, a readiness to express his ideas, either orally or in
writing, with a clearness of expression, a force of logic, and an
eloquence rarely equalled, and never excelled, by any public man
of the state.

"But a few months after the admission of Judge Paine to the
bar, Congress passed the fugitive slave law of 1850. This enact-
ment, so cruel and inhuman in its provisions, as many good peo-
ple thought, certainly freighted with much evil and mischief in
the then state of public sentiment in regard to chattel slavery,
was at once challenged upon constitutional grounds by some of
the ablest and best lawyers in the country. An event soon hap-
pened in this state which brought the discussion as to the valid-
ity of the law to a practical issue. In March, 1854, an alleged
fugitive slave, by the name of Glover, was seized by the United
States marshal as the property of one Garland, of Missouri, un-
der this law. Some persons rescued Glover from the custody of
the marshal, and set him at liberty. Certain parties, supposed
to have been present, aiding and assisting in the escape of
Glover, were then arrested for a violation of its provisions, and
committ'd to prison. The persons thus imprisoned sued out a
writ of habeas corpus, and the question of the constitutionality
of the law was finally presented to the supreme court for de-
cision. Judge Paine made the leading argument against the
validity of the law, and his views prevailed with the court. The

1 58 The Story of a Great Court

argument made by him on that occasion he regarded as the
greatest intellectual effort of his life. It was certainly a most
masterly discussion of the question involved, and established his
reputation as one of the ablest constitutional lawyers in the
country. He had a great fondness for the investigation and
study of constitutional questions, and the discussion of them
afforded a fine field for the display of his great powers of reason
and logic. He was sincerely attached to the Union and the
constitution of the United States, and desired to see them main-
tained in their original purity and integrity. His view of the
federal government was, that it was a government of delegated
powers; that it was supreme within the scope of those powers;
but that it could not rightfully exercise any power not expressly
granted in the constitution, or which was not incidental and
necessary to the proper execution of some power clearly granted.
The preservation of the complex system of state and federal
government he deemed of vital importance for the security of
liberty and personal rights. But to secure the blessings of
liberty, and to perpetuate the Union, it was essential to maintain
the reserved powers and rights of the states in all their in-
tegrity. Hence, he was always ready to vindicate the rights of
the states, whenever in his judgment those rights were usurped
by the general government. But his affection was as strong and
his zeal as active to sustain the just rights and powers of the
one as the other. He favored no new glosses, no new inter-
pretations calculated to make the federal constitution a different
instrument from the one our fathers had made, construed and
adopted. And if experience had shown that there were defects
in the instrument, then the wise course was to remedy them by
proper amendments, and not by doubtful construction. This, in
brief, was the constitutional doctrine of Judge Paine. He had an
intense hatred of slavery, and resisted with all the energy of
his nature its insidious encroachments, whether under the guise
of constitutional power or in its more open violation of sacred
rights and principles. Therefore to overthrow and annul the
fugitive slave law was a labor in which his head and heart
worked together in perfect accord. After his argument just re-
ferred to, he continued his practice at the bar but a short time.
He never acquired what would be called an extensive and lucra-
tive practice. But he was always laborious as a lawyer; mas-
tered fully the law and facts of every case entrusted to his

Dixon and Paine 1 59

charge; never sought to succeed on any mere technicality, but
only upon the strength and real merits of his cause; was clear
and strong in argument; thoroughly in earnest in what he said;
treating his opponent fairly and ever perfectly honest with the
court. Such was his sincerity and love of truth that no one
ever heard him insist upon a position before the court that his
better judgment admonished him was unsound. He was, in a
word, a high-minded, conscientious, thoroughly upright lawyer;
proud of his profession; desiring to see its members working
together for the improvement of legal science, cherishing fra-
ternal feeling among themselves, and ever maintaining a high
standard of morality and excellence.

"In 1857, Judge Paine was elected county judge of Milwaukee
County. Under the circumstances, this was a great popular
tribute to his qualifications as a lawyer and his worth and in-
tegrity as a man. The Republican party, of which he had been
from its organization an active and powerful leader, was largely
in the minority in the county. A democratic candidate was reg-
ularly nominated for the office by that party. The office was an
important one. In addition to its civil jurisdiction over a certain
class of cases, the county court was vested with probate powers.
It is the peculiar duty of that court to settle the estates of de-
ceased persons, to adjust the accounts of guardians, to guard and
protect the rights and interests of widows and orphans, who are
frequently unable to protect themselves. Such was the public
confidence in Judge Paine, that the electors of Milwaukee county
did what is not always done in this country — they elected the
best man regardless of party. They fully appreciated how es-
sential it was to have a wise and incorruptible judge in that
place, and they put him there. They never had reason to regret
their choice. Judge Paine held the office of county judge until
he was elected judge of the supreme court, in the spring of 1859.
He remained on the bench of that court until November, 1864,
when he resigned his office and entered the volunteer forces of
the United States, raised to suppress the rebellion. He was ap-
pointed lieutenant-colonel of the Forty-third Wisconsin Infantry.
It is doubtful whether the entire loyal states furnished another
instance of a judge of the highest state court resigning his
position upon the bench to accept such an appointment, or even
any appointment in the army. And yet this was so in accord
with the disinterested and patriotic spirit which marked the

60 The Story of a Great Court

conduct of Judge Paine, that it excited no surprise and scarcely
a remark among his friends. Some of them well knew what a
trial it had been to his feelings that he could not enter the
service at the very commencement of the war. But controlling
reasons of a private nature forbade his doing so. He had no
opportunity to distinguish himself in this service, even if the
acquisition of military fame and distinction had been the in-
ducement for his entering the army. But no such motive oper-
ated upon his mind. He went into the army solely from a sense
of patriotic duty, and to aid in sustaining the Union in the great
crisis of its history. At the close of the war he returned to his
home and his practice, and continued to labor in his profession
until his appointment to the bench of the supreme court, Sep-
tember 10, 1867. He remained upon the bench of that court,
discharging faithfully the highly responsible duties of his office,
until stricken down by the illness which caused his death.

"The question as to Judge Paine's eminent qualifications and
fitness for this position is settled finally — conclusively put at
rest — by the published decisions of the supreme court. These
will abundantly vindicate, it is believed, so long as they exist,
his reputation and character as an able, independent and in-
corruptible judge. Causes of great difficulty, magnitude and im-
portance have come before the court while he has been upon the
bench, have been determined, and have passed into judgment.
The record is therefore made up; so far as he is concerned, it
cannot be changed; and his judicial fame and merits may rest
upon it as it is. His friends should be willing, as they doubtless
are willing, to let his published opinions decide the matter. Do
not these opinions show patient and careful examination; labor-
ious research and investigation; a proper deference to authority;
just discrimination of adjudged cases; a clear and firm grasp of
sound principle? Do they not show that he at least sought to
decide causes according to the well established rules and prin-
ciples of law, impartially, justly, without regard to personal,
party, or any unworthy consideration? That he made mistakes
and sometimes fell into error, is no more than saying that he
had the infirmity of our common nature. It is impossible to
get a just idea of his strength and ability as a judge from any
one of these opinions. Those upon the true limits and principles
of taxation, and upon questions of constitutional law, seemed
most fully to call forth the resources, as they taxed most severely

Dixon and Paine 161

the powers, of his mind. Many of his decisions might be cited
as fine specimens of judicial reasoning and clear persuasive
argument. The remark was sometimes made, that he was too
little inclined to follow in the beaten path of the law — to stand
super antiquas vias. If by this was implied that he had not
such a blind reverence for authority that he dare not question
an unsound decision which had the support of a great name, or
any number of them, the remark was undoubtedly just. He cer-
tainly had but little idolatry for mere precedents as such, which
violated correct principles. His mind was critical, but not revo-
lutionary. He laid no violent hand upon the great systems of
equity and common law jurisprudence which the great sages of
the past have left us. But he realized that those systems, how-
ever wise and excellent, were still not perfect. They will bear
improvement, and must at times be modified to adapt them to
the wants of a highly refined society and a new condition of
things. What wise jurist thinks otherwise? He also had a just
appreciation of the responsibility of his office. He knew that an
independent, pure and intelligent judiciary was a sheet-anchor
of our institutions; and, as far as he could, he labored to render
it all that, in this state. No one will say that the fountains of
justice were polluted by him.

"From his first appearance in public affairs, he enjoyed a
large measure of public favor and confidence. This was doubt-
less due to the liberality of his principles and his consistent
course of action. Having capacity sufficient to take a leading
part in the most important affairs, he never sought office. His
sympathies were large, and always on the side of liberty, human-
ity and progress. He gave his earliest and best efforts to the
cause of the poor, oppressed slave. His whole soul revolted at
the 'horrid fantasy that there could be property in man.' Every
good cause in him had a friend. With the Latin poet he could
say: 'Homo sum; humani nihil a me alienum puto;' 'I am a
man; I think nothing that relates to man foreign to my feel-
ings."

"He enjoyed the full confidence and affection of his associates
upon the bench, who fully appreciated his many noble qualities
of head and heart. And it is true, to use the language of a
great man, when speaking of another almost equally distin-
guished: 'Political eminence and professional fame fade away-
and die with all things earthly. Nothing of character is really

11

1 62 The Story of a Great Court

permanent but virtue and personal worth.' (Mr. "Webster's re-
marks on the death of Jeremiah Mason, vol. 2.) Virtue and
personal worth Judge Paine indeed possessed in a high degree,
if ever man did. He was temperate, truthful, sincere, continent.
He wronged no man. He outraged no rules of morality. His
palm never itched for unlawful gain. He was true and faithful
to his friends. He was true and faithful to all public trusts.
He would not have done a base act for any place or any profit.
He would have felt a stain upon his reputation more keenly
than a wound upon his body. Under no temptation, under no
trial, did his moral feeling lose its 'sensibility of principle and
chastity of honor.' He was of rare simplicity of character,
large hearted, charitable as far as his means would allow, ever
preferring to be estimable rather than seem to be so.

"He read much outside of his professional studies. He had an
inquiring, critical mind. His apprehension was quick, his power
of acquisition remarkable, and his memory very tenacious. He
was intellectually honest; not afraid to read what might be said
against his views, and ready to accept the truth from any source.
He read much upon theology, and reflected more upon the great
problems of human destiny. These queries seemed to be con-
stantly hovering in his thoughts: Whence did we come? Whither
do we go? And why have we been summoned on the shores of
earthly being? That he solved these momentous questions to
his own satisfaction, even, no one can affirm. But he had de-
cided convictions upon the subject of religion. He brought to
the examination of that subject, as of all others, an honest, in-
dependent spirit. It was impossible for him to accept any man's
creed unless it commended itself to his reason and moral sense.
Whatever opinions he entertained upon religious subjects, he
retained to the last, and there is no evidence that he was dis-
satisfied with them, even in presence of death itself.

"He had favorite authors that he was accustomed to resort
to at all times, turning them in his hand both day and night.
He was very fond of the dramas of Shakespeare, the poetry of
Milton and Byron; he greatly admired the manner and style of
Webster's great efforts, and read with infinite relish Scott and
Thackeray. He placed the latter author far above Dickens as
a writer of fiction. Indeed he did not greatly admire Dickens,
which seemed a little strange, as he had himself a great deal
of humor in his nature, and a nice sense of the ridiculous.

Dixon and Paine 1 63

"He was blessed by nature with a fine, vigorous constitution.
He was nearly six feet in height, and well proportioned. His
countenance indicated great resolution and decision of character.
He was very fond of active out-door sports, especially hunting.
He was so full of vitality and life that no one, before his sick-
ness, would have hesitated to predict that he was to have
'length of days in his right hand, and in his left hand riches
and honor." When a man full of years and full of honors comes
to his grave 'like a shock of corn cometh in his season,' we
readily acquiesce in the providence which removes him from
earth. It is with a somewhat different feeling that we see the
strong man fall, when in the full maturity of manhood, while
in the full vigor of his mental and physical powers, when his
fame and usefulness are widening, and his life-work but partly
done."

64 The Story of a Great Court

CHAPTER XIV

THE FARM MORTGAGORS AND JUDGE COLE'S SECOND CAMPAIGN

The year i860 was a stirring one in national and state
politics. The old Democratic party which had guided the
destinies of the nation for the greater part of the time since
the days of Jefferson had been rent in twain. The northern
and southern wings of the party had finally separated at
Charleston and the division had become complete by the
nominations of Breckenridge and Lane by the southern wing
and of Douglas and Johnson by the northern wing. The
Republican party, flushed with local successes all over the
north and imbued with all the enthusiasm which devotion
to a great moral principle incites, placed before the people
as its candidate for President the great rail splitter sprung
from the loins of the common people and preferred above
the polished eastern statesman Seward. It was a time of
political disintegration and turmoil.

The effects of the panic of 1857 had not yet passed away ;
times were still hard ; there was no national currency, state
banks were still failing, and a man who received a bank bill
in payment for a debt could not tell whether it would be
good on the morrow. The national campaign was active
and acrimonious. As it progressed and the Democratic
factional fight gave promise of dividing the party into nearly
equal parts and thus making the election of Lincoln pos-
sible, threats of secession by the southern wing of the party
became louder and louder and these threats were answered
by threats of force on the part of the north.

Cole's Second Campaign 1 65

Stirring as national politics were, however, in the summer
of i860 there was another' question which came to the front
in the southern part of the state which agitated several
thousand of the farmers in that region more than the ques-
tion of the preservation of the union or the freedom of the
slaves.

Reference has been made in a preceding chapter to the
great number of notes and mortgages executed by farmers
in several of the southern counties and given to railroad
companies in exchange for railroad stock during the years
of great railroad building prior to the year 1857. The panic
of 1857 had wiped out all of this stock and left many of
the farmers who executed the mortgages facing financial
ruin. To relieve them if possible the legislature had passed
chapter 49 of the laws of 1858, intended to deprive the
assignees of such notes and mortgages of their rights as
holders of commercial paper or, in other words, making the
defense of fraud good not only against the original payee,
but against an innocent purchaser as well. The farmers to
a man repudiated the mortgages and rested upon two claims ;
first, that railroad companies had no power under their
charters to accept anything in payment for stock except
cash, and, second, that the mortgages were obtained by
means of fraudulent representations and (under the law of
1858) were invalid for this reason in the hands of any per-
son, even though he might be an innocent purchaser. Ac-
tions to foreclose some of the mortgages were begun and
brought to trial in 1859 and Judge David Noggle in the
first circuit and Judge John E. Mann in the third circuit
both upheld the contention that the railroad companies had
no power to accept notes and mortgages in exchange for
stock sold and Judge Noggle upheld the defense of fraud

1 66 The Story of a Great Court

as against an innocent purchaser. Having obtained these
rulings in their favor in the trial courts the farm mortgagors
rested in fancied security. The cases were appealed to the
Supreme Court, however, and came on for hearing in Feb-
ruary and March, i860, but were not decided until June
and July of that year.1 Clark v. Farrington and Blunt v.
Walker held that the companies might lawfully receive a
note and mortgage in payment of a stock subscription, al-
though their charters did not expressly authorize payment to
be made in that way, the broad ground being taken that a
corporation in exercising the powers expressly conferred
upon it might adopt any proper and convenient means tend-
ing directly to accomplish those powers which did not
amount to the transaction of a separate unauthorized busi-
ness. In the Cornell case it was further held, following the
very early cases, that a bona fide purchaser of negotiable
paper took not only the paper itself but the mortgages col-
lateral thereto free from all defenses of which he had no
actual notice. In considering this question the act of 1858
was discussed and summarily disposed of as unconstitutional
on the ground that the legislature could not impair the
obligations of an existing contract. The discussion of this
question in Judge Dixon's opinion in the Cornell case was
comprised in a few brief sentences ; after stating the general
rule that vested contract rights could not be divested or im-
paired by legislation, he says :

"In these cases the plaintiffs had, by the act of transfer and
the operation of the law as then in force, an immediate and
vested right to look to the makers for full payment regardless
of any equities which existed as between them and the company.
This right the legislature could not destroy, or cut off, either by

1 Clark v. Farrington, 11 Wis. *306; Blunt v. Walker, 11 Wis.
*334; Cornell v. Hichens, 11 Wis. *353.

Cole's Second Campaign 167

changing the rules of pleading or the laws of evidence, or by
endeavoring to operate directly upon the right itself."

This conclusion seems inevitable now but it came with a
rude shock to the farm mortgagors. It spelled bankruptcy
and ruin to many of them and they at once began to take
measures to organize for defense. There had been already
formed local associations called farm mortgage leagues and
having a central organization called the Grand League. A
meeting of the Grand League was held at Rolling Prairie
July 5, i860, at which it was resolved to establish a news-
paper organ and to call a state convention of farm mort-
gagors at Watertown July 12th. The convention was held
and was largely attended ; the victims of eight railroads were
represented, coming principally from the counties of Dodge,
Columbia, Green Lake, Adams, Green, Winnebago, Wal-
worth, Rock, La Crosse, Waukesha, Kenosha, Washington
and Ozaukee, which were the counties which had suffered
most. A permanent organization was effected called the
Grand State League of Farm Mortgagors, a constitution
and by-laws adopted and adjournment was taken until
October following.

Mr. A. M. Thomson of Hartford (in later years editor of
the Milwaukee Sentinel) was himself a farm mortgagor and
writer of force and ability and he was designated to publish
the official paper of the league, a neat four page country
weekly, the first number of which was issued from Hartford,
August 11, i860, under the name of the "Home League."
It contained some local and political news, but was independ-
ent in politics and specially devoted to the interests of the
Farm Mortgagors. This paper ran nearly four years and
was suspended by reason of lack of support March 5, 1864.
A practically complete file of the paper (probably the only

1 68 The Story of a Great Court

one) is in the possession of the State Historical Society at
Madison and from this file I have obtained much of the
data for what is here said about the farm mortgage move-
ment, a movement which assumed great proportions and for
several years intimidated political parties, dominated legis-
lation and threatened the independence of the Supreme
Court. It forms an interesting story, concerning which a
book might well be written, but which can only be briefly
referred to here. The object of the League was to influence
public opinion, legislatures, and, if possible, courts, by show-
ing a united front. It is said in the first number of the
Home League that there were six thousand of the farm
mortgagors who owed about $5,000,000, and there seems
no good reason to doubt the statement. Such a mass of
voters acting together constituted a force to be reckoned
with. No political party could afford to offend them.

The following are the closing paragraphs of an editorial
in the first number of the Home League :

"The Home League is -the farm mortgagor's flag! It is the
olive branch to those who desire peace, but the gleam of the
battle axe to such as prefer war. That flag has been nailed to
the mast by their own brawny arms, and woe to the kid gloves
that essay to tear it down. * * * Does it do any good to
ring the alarm bell when the conflagration spreads at midnight?
Does it do any good to fire the signal gun when the ship is
sinking? Why, even wild horses, it is said, with instinctive
caution, set one of their number to keep sentinel while the herd
is feeding to give alarm of the approach of danger, and is it
not wisdom in us to put a watchman on duty when we know
there are robbers about? The rattlesnake gives fair notice ere
he strikes; so beware 0 stockjobber when you hear the rattle!
The fang follows the warning!"

In another editorial in the same number of the paper it
is said that the decision in Clark v. Farrington and the com-
ments of leading papers of the state thereon showed that

Cole's Second Campaign 169

the Court and the press were both on the side of the bond-
holder ; "the former deciding adversely to the mortgagor and
the latter justifying and extolling the unrighteous judg-
ment."

It seems to be true that the leading papers of the state,
i. e. the papers published in Milwaukee and the larger towns,
approved of the decisions in the farm mortgage cases on
the ground that any other decision would subject the state
to the charge of repudiation and thus would effectually ruin
the credit of the young state; there were, however, some
papers published in the smaller towns which sympathized so
strongly with the farm mortgagors that they did not hesitate
to denounce the decision ; the Democratic papers hoping to
gain a party advantage thereby, and the Republican papers
being all the more bitter because all the members of the
Court were known to be Republican in politics. A number
of expressions of this kind are reproduced in the first num-
ber of the "Home League" and from them two may be
quoted as typical.

The La Crosse Union (a Democratic paper), said:
"Those farmers who voted the Republican ticket last fall
under promise that a Republican Supreme Court would release
them from their railroad obligations are now waking up to their
sorrow. The greater the steal, the greater the Republican lead-
ers labor to make it legitimate. It may be a good tbing for
the state but it pains us to see the thousands of little farms
with their white cottages or more humble cabins, the growing
crops, the labor of years, the result of toil, the earnings of
honest men, intended to be left to the widow and orphans, all
swept into the pockets of railroad owners as the roulette keeper
sweeps the dollars into the bag under the table and turns
again to catch new victims. It may be an honor to legalize
fraud but it is not honest nor is it humanity. There is scarce
a county in the state but soon will see going forth from the
little homes, hallowed by joy and made sacred with grief, leav-

1 70 The Story of a Great Court

ing a loved fireside wet with tears, a caravan of broken hearts
and blasted hopes, wending its way on toward the golden sunset
where fraud, trickery and dishonesty is not yet in the full tide
of successful operation."

The Wisconsin State Rights (a Republican paper), said:
"The Supreme Court may do what it pleases. It may over-
throw all the law of corporations and encourage combined
swindling to the last degree, but an appeal will be taken to the
great jury of the people. There can be little doubt of the ver-
dict. Justice, common sense, law, right and equity are on the
side of the farmers. The community will not stand tamely by
and see hundreds of their best citizens cleaned out through the
operation of lying, deception and fraud in their worst forms,
and we trust none other in the state will. If the decision shall
meet with the contempt and disrespect from the people which
its mutable doctrines provoke the astute court may thank itself.
It may have the natural fruits of its incubation to itself. The
people, when they fully understand the nature of the decisions
in the cases, will sit in effective judgment thereon."

Nor was the denunciation of the decisions confined to
the newspapers. Mr. James H. Knowlton of Janesville, one
of the most prominent and active of the early lawyers of
the state, reviewed the decisions from a legal point of view
in a long communication published in the "Home League"
in the numbers dated September 8th and September 15th
respectively and took the ground that the Court was wrong
in holding that corporations possessed all the powers con-
venient for the carrying out of their express powers, and
arguing strongly that they possessed only the powers ex-
pressly granted to them by statute and such incidental pow-
ers as were necessary in order to accomplish their express
purposes ; as it was not necessary that the railroad com-
panies should receive notes and mortgages in payment for
their stock he maintained that the decisions were wrong and
gave entirely too great powers to corporations. In view of

Cole's Second Campaign 1 7 1

the very widespread dissatisfaction as to the aggressions of
corporate power which was to sweep over the country half
a century later the closing words of Mr. Knowlton's brief
are interesting ; they are as follows :

"The doctrines laid down in this opinion apply to all cor-
porations. If they are the law, the rights of the people must
soon lie buried beneath the crushing weight of irresponsible
monopolies."

The second convention of the Grand State League of
Farm Mortgagors was held at Watertown, October 9, i860,
and a committee, of which A. M. Thomson was chairman,
was appointed, to prepare an address to the people of the
state. In the mean time local lodges of the league, with
regular stated meetings, were being formed in all the com-
munities where there were a sufficient number of farm mort-
gagors to justify it, and thus a very complete organization
of a fraternal order was perfected.

Judge Cole had been elected in the spring of 1855 for a
term of six years and hence the election for his successor
must necessarily take place in the spring of 1861 and natur-
ally in the fall of i860 the thoughts of the farm mortgagors
began to turn toward the question of who that successor
should be.

Probably it was not seriously expected that the Court
would reverse its former holding, even if a new member
should be put on in Judge Cole's place, but it was unques-
tionably expected that legislation of some sort would be
obtained making the collection of the farm mortgages very
difficult, if not impossible, and it was of great importance
that a man should be placed on the bench in sympathy with
the farm mortgagors in order that they might have a friend
at court when the question of the constitutionality of the
expected legislation should be presented for decision. In

1 72 The Story of a Great Court

an editorial in the "Home League" of October 27, i860, it
is said that a rumor is in circulation that Judge Dixon now
repudiates the decision in Clark v. Farrington on the ground
that Judge Paine's opinion is exactly the reverse of the de-
cision actually made by the Court. The absurdity of this
rumor is apparent when it is remembered that Judge Dixon
himself wrote the opinion in Blunt v. Walker (decided with-
in a month after Clark v. Farrington) in which the same
principles laid down in the latter case were emphatically ap-
proved and reaffirmed. The editorial is extremely bitter in
its language and closes with the statement, "That he
(Dixon) ought to be impeached we have every reason for
believing."

In the same issue is to be found a communication from an
anonymous farm mortgagor containing the following sen-
tences with regard to the Supreme Court :

"These judges are my friends and do very well as a general
thing for a 'boy court,' but we who have the votes with which
to manufacture judges intend to supply their places one of these
days with men who have the nerve to grapple with great ques-
tions and are not to be warped from their line of duty by the
clamorous voice of railroad thieves and stock jobbers, even when
backed by a venal press."

The reference to the "boy court" is better understood
when it is remembered that in the fall of i860 Chief Justice
Dixon was but thirty-five years of age and Associate Justices
Paine and Cole were but thirty-three and forty-one years
of age respectively.

The address to the people, prepared by the committee of
which Mr. Thomson was chairman, appeared just as the
legislature of 1861 was assembling and will be found printed
at length in the issue of the "Home League" of January 12,
1861. It details at length the wrongs of the farm mort-
gagors and appeals for legislative help.

Coles Second Campaign 1 73

In the same number appears a communication suggesting
that the state should assume the debts of the farm mortgag-
ors. In his message to the legislature (which appears in the
same paper) Governor Randall suggests that the railroad
land grant lands be sold with the consent of Congress
and the proceeds used to relieve the burdens of the mort-
gagors. Both of these propositions were manifestly chimer-
ical and came to nothing. The legislature, however, spent
much time endeavoring to devise a law which, while not
impairing the obligations of contracts, should throw such
difficulties in the way of foreclosing the railroad mortgages
as to render them nearly or quite valueless. The task was
a difficult one as may be imagined. There was little if any
party politics involved. The members coming from farm
mortgage districts, whether Republicans or Democrats, were
nearly all anxious for the passage of some law helping the
mortgagors out of their difficulties and few members from
other districts wished to antagonize the farm mortgage vote.
The question was, how far could legislation go in making
the mortgagees' lot uncomfortable and still escape condemn-
ation by the courts ? There were some members indeed, and
notably among them were John G. Clark of Grant County
and Wyman Spooner of Walworth, who boldly denounced
the attempts to nullify contracts by making their enforce-
ment impossible, but they made little impression and chapter
88 of the laws of 1861 was passed early in March, 1861,
and published three days later.

The act covers eight pages, relates only to mortgages
given for stock in corporations and is an interesting example
of a legislative attempt to accomplish unconstitutional ends
by strictly constitutional means. In a word, it makes fore-
closure proceedings so long, laborious and uncertain that, in

1 74 The Story of a Great Court

effect, it takes away any effective remedy, and this was un-
questionably the result desired.

Its principal provisions are in substance (i) that a com-
pulsory reference shall be had and that all testimony which
either party may desire to give be taken by the referee ;

(2) that a motion may be made before the court to strike
out or suppress all or any part of the testimony taken ;

(3) that an appeal may be taken from any order made on
such motion, which appeal shall constitute a stay of pro-
ceedings ; (4) that any issue of fact be tried by a jury on de-
mand of either party; (5) that if fraud or want of consid-
eration be set up as a defense the instrument itself shall be
deemed prima facie to be held by the plaintiff with full notice
of all equities existing between the original parties, and the
plaintiff's oath shall not be deemed sufficient evidence to
remove the presumption; (6) that plaintiff, if defeated in
the action, shall file the mortgage and note for cancellation,
and in case of appeal the same shall not be effective till the
note and mortgage are filed and all costs paid; (7) that the
referee shall have power to require production before him
of any record, paper, book or memorandum belonging to or
which ever belonged to the corporation, and any such record,
paper, book, memorandum or statement in writing made by
any officer, agent, director or employee in the due course of
his business as such shall be held an admission of the cor-
poration and sufficient evidence as against the corporation
of the facts stated in it; (8) that all such actions shall be
brought and tried in the county where the mortgaged prem-
ises are situated provided that the persons contesting the
validity of the instrument shall be entitled to a change of
venue for the reasons provided by law in other civil actions ;
(9) that the defendant shall not be required to pay costs on

Cole's Second Campaign 1 75

continuances or on appeal until after final judgment in the
action, and that plaintiff shall be required to give security
for costs on application of any defendant; (10) that the
referee shall be entitled to receive ten cents per folio for all
writing necessarily done by him and ten cents for every mile
necessarily traveled in going to the place fixed for taking
the testimony, all of which charges must be paid (unless
waived by the referee) before the testimony is reported to
the court ; ( 1 1 ) that either party may appeal to the Supreme
Court from final judgment by filing and serving a written
notice of appeal within four years after written notice of the
judgment, which notice shall constitute a stay of proceed-
ings until the appeal is determined; (12) that in case plain-
tiff recover judgment and the land be sold no title shall be
acquired by the purchaser until the time for taking an ap-
peal has expired; (13) that no judgment for deficiency shall
be rendered in such an action; (14) that any defense which
may be made by the makers of the mortgage may also be
made by all persons having any interest in the lands ;
(15) that if any mortgagee advertise the mortgaged prem-
ises for sale under a power of sale in the mortgage, the cir-
cuit or county court of the county upon petition of the
mortgagor, stating that the mortgage was obtained by fraud
or given without consideration, shall make an order en-
joining the sale and ordering an issue to be made up and
tried in the circuit court in the same manner as prescribed
in the act for foreclosures; (15) in all such actions the par-
ties shall be limited to the remedies prescribed by the act;
and (16) that no witness shall be excused from answering
any material question, but his testimony shall not be used
against him criminally.

1 76 The Story of a Great Court

The farm mortgage question was unquestionably the most
interesting public question which came before the legislature
during the whole session and it provoked much debate.
Meanwhile, however, the question as to whether there should
be party nominations made of candidates for the judicial
election in April was vexing the politicians.

The Republican politicians had received a severe lesson in
the spring of i860 when they had turned down Dixon's
name and nominated A. Scott Sloan simply because of his
views on state rights and had been rebuked by the people
at the polls ; on the other hand the Democrats had been de-
feated by more than 20,000 votes at the presidential election
in the fall of i860 and manifestly were in no condition to
make a winning fight. Moreover the shadow of the farm
mortgage agitation was over the whole political field. While
neither party wished to surrender to the farm mortgagors,
at the same time neither party wished to put up a candidate
known to be antagonistic to them. There were also serious
differences of opinion in both parties. Judge Cole had been
elected on the state rights issue, and while the ultra state
rights men were still in control that doctrine was every day
losing ground on account of the secession movement in the
south, which was but the logical result of the extreme state
rights view which the Republicans of Wisconsin had
adopted. So Judge Cole was not popular with that section
of the Republican party which believed in the supremacy of
the federal authority, nor with the farm mortgage element.
On the other hand, the Democrats were demoralized by their
recent sweeping national defeat ; and the weakness of the
closing days of the Buchanan administration was driving
thousands of the strongest men of the party into the Repub-
lican ranks.

Cole's Second Campaign 1 77

Thus matters drifted along without party action until
February 20, 1861, when a caucus of Republican members
of the legislature was held and after full discussion it was
resolved to present no party candidate to the people.

At about the same time calls began to be circulated among
the bar and the people requesting Judge Cole to stand for
re-election as a non-partisan candidate. This served to clar-
ify the situation. Whatever else Judge Cole stood for he
certainly did not stand for the ideas of the farm mortgagors
for he had been a member of the Court which had held the
mortgages valid and set aside the law of 1858 intended to
relieve the mortgagors of their burdens. It was evident
that the farm mortgagors must look elsewhere for help.

Naturally and almost necessarily they turned their eyes
to James H. Knowlton of Janesville ; he if any one was the
logical candidate. He was a brilliant lawyer and had been
very prominent in the history of the state. He had stood
side by side with such legal giants as Jonathan E. Arnold,
Edward G. Ryan, Matt H. Carpenter and Harlow S. Orton
in such cases as the Hubbell impeachment and the Bashford-
Barstow controversy; he had also been deemed worthy to
be upon the same ticket with the lamented Whiton as a
candidate for Associate Justice of the Supreme Court at
the judicial election in 1852. But more than all this, in the
eyes of the farm mortgagors at least, he had dared to attack
the decision in the Clark and Farrington case and declare
that decision to be bad law in a newspaper article which was
at least an able and lawyerlike argument, whatever may be
said as to its correctness. Mr. Knowlton was a Republican
and for this reason might be expected to cut into Judge
Cole's vote, moreover he was willing and even anxious to
run. Mr. Knowlton was then living at Janesville and in
12

1 78 The Story of a Great Court

February calls were put in circulation in Janesville and in
other parts of the state, asking him to become a candidate.
Judge Cole accepted the call upon him in a communication
dated March 6th and Mr. Knowlton accepted under date of
March 13th and the campaign was on.

The Democracy generally seem to have been disposed to
let the two Republicans fight it out without interference, but
a faction of the party led by Beriah Brown of Milwaukee,
chairman of the Democratic state central committee, thought
the opportunity to run in a Democrat too good to be lost and
in March the committee took the responsibility of naming
Charles A. Eldridge of Fond du Lac, afterwards member of
Congress for some years, as the Democratic candidate. Mr.
Eldridge was absent from the state when this announcement
was made and on his return a few days later he withdrew
his name. No further nomination was made, but some five
thousand Democrats refused to accept Mr. Eldridge's de-
clination and persisted in voting for him.

The campaign between Cole and Knowlton was conducted
with some vigor by the farm mortgagors. They generally
conceded Judge Cole's ability but urged that he was in
sympathy with stock jobbers, as shown by the farm mort-
gage decisions. Returns were slow in coming in after the
election and the first returns came principally from the farm
mortgage country and showed enormous losses for Cole.
In some of the towns of Washington County he received but
a beggarly half dozen of votes or none at all. For several
days it looked very much as though Knowlton was elected
and his supporters confidently claimed that such was the
result and Judge Cole's friends were not disposed to se-
riously contest the claim. But about a week after the
election, as the returns from the northeastern and northern

Cole's Second Campaign 1 79

parts of the state began to come in, the prospects changed
and about ten days after the election it was generally ad-
mitted that Judge Cole was re-elected. His final majority
over Knowlton amounted to something more than five
thousand votes.

Thus ended in well deserved defeat another attempt to de-
feat a sitting judge because of a decision. The idea that an
honest judge is to meet with defeat whenever a decision
made by him does not accord with the popular idea upon
the subject is an idea which can only make timeservers and
cowards of the occupants of the bench. It is at least one
degree worse than the idea that an honest judge should be
defeated because his political views are at variance with
the majority. Fortunately for the stability and manhood of
the bench both of these ideas have been generally repudiated
in Wisconsin. The election of Judge Dixon in i860, in the
face of a Republican party nomination against him, and the
election of Judge Cole in 1861 in the face of a demand from
the farm mortgagors that he be defeated because of a deci-
sion, are the two early finger posts which pointed the way
to non-partisan judicial elections in Wisconsin. To the
credit of the state be it said that these early examples have
been generally followed.

Early in the January term, 1862, chapter 88 of the laws of
1 86 1 came before the Court for review 2 and was condemned
as substantially impairing the obligations of contracts in a
brief opinion written by Judge Cole. Without going into
the details of the law he thus characterized it:

"It is difficult to perceive how any candid person capable of
reading the law and comprehending its provisions, can fail to
see upon its very face an intention to clog, hamper and em-

2 0atman v. Bond, 15 Wis. *20.

1 80 The Story of a Great Court

barrass the proceedings to enforce the remedy, so as to destroy
it entirely and thus impair the contract so far as it is in the
power of the legislature to do it."

Judge Paine concurred in the decision but placed his con-
currence on the ground that the law infringed that provision
of the constitution which guarantees to every person a cer-
tain remedy in the law for all injuries or wrongs to person,
property or character.

Thus the second attempt of the legislature to relieve the
mortgagors from their contracts failed and again the Court
was compelled to bear the odium of the failure. It seems
best to make brief reference at this time to the further legis-
lative attempts which were made along this line in order
that the whole subject may be consecutively treated. In
April, 1862, an act was passed making elaborate provisions
for the creation of sinking funds in the hands of commis-
sioners to which the various railroads were to contribute a
certain percentage yearly and out of which payments were
to be made to the holders of farm mortgages who chose to
surrender their securities up to certain given percentages
of the face thereof, but as this act never came before the
Court no time need be spent in considering it.3

By chapter 305 of the laws of 1863 a new and special
action to quiet title of real estate and cancel mortgages
thereon was created which was evidently expressly intended
to cover this class of mortgages ; it provided for publication
of the summons against unknown holders of the mortgage
and for an adjudication declaring the same void if it was
shown to have been obtained by fraud, also that the judg-
ment should have the same conclusive effect against un-
known defendants as against absent defendants and that any

3 Chap. 330, Laws 1862.

Cole's Second Campaign 1 8 1

appeal from the judgment must be taken within six months
from its entry and not thereafter ; it also provided for a
jury trial on demand of either party which should not be
set aside for informality but should be conclusive on the
facts in the case. Following this act came chapter 169 of
the laws of 1864 which provided that in every foreclosure
of a mortgage given to a corporation every issue of fact
upon demand of either party should be tried by a jury,
whose verdict should be conclusive as in other cases of trial
by jury. This act came before the Court at the January
term, 1866,4 and it was held that in an equity case the Court
was not obliged to submit an issue to a jury unless it thought
proper to do so, and the power of the legislature to make
the rinding of the jury in such a case conclusive was ques-
tioned. In 1867, however, the legislature again returned to
the subject and passed chapter 79, which contained sweeping
provisions that in all foreclosure actions all issues of fact
should be tried by a jury, unless the right was waived ; that
all power of the Court to pronounce judgment in such an
action without the intervention of a jury was abrogated, ex-
cept where the parties expressly waived jury trial, and that
the verdict should be conclusive, as in cases of common law
origin.

This law came up at the June term, 1868,5 and was held
unconstitutional in a very lucid opinion by Judge Paine on
the ground that the constitution had vested the circuit court
with the judicial power of the state, both as to actions at
law and in equity and hence the legislature could not with-
draw from that court the judicial power in equitable actions
and confer it upon juries.

•* Truman v. McCollum, 20 Wis. *360.
5 Callanan v. Judd, 23 Wis. 343.

1 82 The Story of a Great Court

Here the efforts of the legislature to relieve the farm
mortgagors seem to have ended in what might be called
complete failure. This conclusion, however, would hardly
be an accurate one. It is true that the relief laws had all
been set aside but still they had been of some practical effect.
While on the statute books they had undoubtedly served as
a club under the fear of which many holders of mortgages
had deemed it best to settle their claims at a reduction and
sometimes a considerable reduction from the face value.
Probably not many of the farmers paid dollar for dollar of
the principal and interest of their mortgages and some se-
cured very favorable settlements.

In reviewing this long contest one can hardly help feeling
considerable sympathy for the mortgagors. After all has
been said that may be said about the inviolability of con-
tracts and the unconstitutionality of legislation impairing
the obligations of contracts the fact remains that six thou-
sand and more of the sturdy farmers of the state had been
sadly victimized. Not a few of them had been the dupes of
coldblooded swindlers, while others had simply acted on the
erroneous supposition (in which both the farmer and the
railroad agent innocently shared) that the farmer's land
would be vastly enhanced in value by the construction of the
railroad.

But whether the farmers suffered from deliberate fraud
or from a mere honest mistake none of them had in fact
received a dollar in value for the mortgage on his farm.
The layman who is threatened with the foreclosure of a
large mortgage upon his home is not likely to be particularly
moved by the argument that a law relieving him from his
difficulty would impair the obligation of his contract, when
in fact he received no value for the mortgage and its present

Cole's Second Campaign 1 83

holder bought it for a song. One can hardly blame men
placed in this unfortunate situation for organizing and at-
tempting to obtain legislation which should avert financial
ruin.

On the other hand, the Court showed commendable cour-
age in a difficult situation. Doubtless the judges would have
greatly preferred to decide the other way. They would
have achieved great present popularity by such a course.
But they hewed to the line and preserved inviolate the legal
principles which the constitution had laid down, though they
were threatened with defeat and denounced as the tools of
stock jobbers and swindlers.

Taken altogether the farm mortgage chapter is a chapter
in the history of the Court of which every citizen may well
feel proud. An elective bench in the midst of great popular
clamor and threats of defeat preserved its judicial inde-
pendence intact, refused to be coerced or dragooned and was
finally sustained in its course by the people at large.

1 84 The Story of a Great Court

CHAPTER XV

WAR QUESTIONS ; THE CLASH WITH PRESIDENT LINCOLN

The first seven years of the history of the Supreme Court
had been eventful, not to say exciting, years. The Court
had been obliged to act judicially on a number of questions
political in their nature concerning which the public mind
was at fever heat. It had defied the judicial power of the
United States and practically ousted an acting chief magis-
trate of the state from his office. Its judges had been
violently denounced as usurpers and tyrants on the one hand
and hysterically applauded as deliverers from federal despot-
ism on the other, and they had all reached their seats after
contests as violently partisan as could well be imagined.
Nor was the Court to be soon released from the consider-
ation of public questions Avhich were political in their nature.
The great civil war was approaching more rapidly than any
one knew : naturally it was to bring its own new and difficult
questions, but few could have anticipated that as a result
of one of these new questions the same Court which locked
horns with Chief Justice Taney as to the constitutionality
of the fugitive slave law was to stand shoulder to shoulder
with Taney in opposition to President Lincoln and deny the
President's power to do an act which he deemed absolutely
essential to the saving of the Union, yet such was the fact.

Probably no war in the world's history had raised so many
questions which came before the courts for decision as our
civil war was destined to raise and a moment's reflection
will demonstrate that this was only natural. Since the days

The Clash with President Lincoln 1 85

of Alexander the Great, the tyrant has ever been the suc-
cessful warrior. Republics have indeed existed and Re-
publics have waged successful wars, but the genius of the
true Republic is not for war, least of all civil war, but for
peace. Especially is this true of the Republic formed by
the colonists of America. They had fled from Europe for
the express purpose of escaping tyranny ; they had braved
the terrors of the ocean and defied the dangers of the wilder-
ness and its savage hordes because they would have no
despotic rule, but would have the rights of freemen. When
they formed their constitution they laid emphasis first and
last upon individual liberty and its adequate protection.
They took infinite precautions to guarantee to themselves
and their children freedom of thought, of speech and of
action, freedom from arbitrary arrest, fair and open jury
trial as well as all the other rights and privileges which had
been dear to the Anglo Saxon heart since the days of Runny-
mede but which had often been greviously disregarded by
Tudor and Stuart kings. Thus they fenced in the executive
power with constitutional inhibitions and restrictions so that
the chief magistrate became frequently little more than a
figure head.

They themselves had suffered from the exercise of ar-
bitrary power, they were jealous of it and would have none
of it. If this was the situation as to state constitutions it
was doubly true as to the federal constitution. At the time
of its adoption and up to the very outbreak of the civil war
the federal government was unquestionably viewed askance
and with suspicion by the people at large. True they had
voluntarily organized the national government but still it
was generally regarded rather as an unpleasant necessity
than as a desirable institution, and whenever any section felt

1 86 The Story of a Great Court

the weight of federal power that section had been prompt to
threaten nullification or secession or both and this tendency
was fully as great in the north as in the south.

Grudgingly they had given power to the federal govern-
ment and jealously they watched its exercise. They had
been specially careful to limit the powers of the President.
The danger that a strong and ambitious executive might
some day arise who should stretch forth his hand and grasp
the kingly crown was evidently very real to them and so
they took care to place the great powers of government so
far as possible in the hands of Congress and simply made
the President commander in chief of the army and navy and
required him to see that the laws were faithfully executed.
These were practically all of the independent governmental
powers given to the chief magistrate ; in the negotiation of
treaties and in the appointment of officers (even including
the members of his own official household) he could do noth-
ing save with the consent of the Senate, while the power of
making war and of providing armies and navies was con-
ferred upon Congress alone.

With such limited power vested in the executive and so
many sweeping constitutional guarantees against violations
of individual liberty, all of which the courts were bound to
enforce, it was inevitable that when civil war broke out there
must come clashes between the executive and the citizen.
Individual liberty and war are utterly incompatible. He
who successfully prosecutes war must be able to exact un-
questioning obedience ; he must for the time being be a
despot; paper constitutions drafted in the quiet of the
council chamber with their nice checks and balances will
have little weight with the warrior when their provisions
tend to thwart the execution of measures necessary to the

The Clash with President Lincoln 1 87

successful prosecution of the war ; constitutional government
and war cannot exist in the same territory, the clash between
the warrior and the constitution will be unavoidable and the
appeal to the courts will follow as a natural result.

Among the rights preserved in practically every state
constitution is the right to the free exercise of the great writ
of liberty, the writ of habeas corpus ad subjiciendum. By
this writ every man deprived of his liberty by private or
official power is entitled to be brought before a magistrate
and have the cause of his detention examined into judicially
and if he be not detained in pursuance of the laws of the
land is entitled to be discharged. It is the writ which
guarantees the citizen from arbitrary arrest and makes im-
possible an English or American bastille. The federal con-
stitution after enumerating the powers given to Congress
contains certain inhibitory clauses and among them this,

"The privilege of the writ of habeas corpus shall not be sus-
pended unless when in cases of rebellion or invasion the public
safety may require it."

Up to the time of the civil war there had been no serious
doubt in the minds of either lawyers or laymen as to the
proposition that the power to suspend the operation of this
great writ was vested in Congress alone. In England un-
lawful and arbitrary suspension or disregard of the writ by
kingly power had been one of the grievances which was ever
at the front during all of the numerous contests between the
people and the kings from the time of Magna Charta down
to the great habeas corpus act of Charles the Second, when
the remedy was supposed to be secured from aassault by
executive power for all time.

Speaking of the power to suspend the writ Blackstone

says (Vol. I, p. 136) :

"But the happiness of our constitution is, that it is not left
to the executive power to determine when the danger of the

1 88 The Story of a Great Court

state is so great as to render this measure expedient; for it is
the parliament only or legislative power, that whenever it sees
proper, can authorize the crown by suspending the habeas cor-
pus act for a short and limited time, to imprison suspected per-
sons without giving any reason for so doing."

The makers of the federal constitution, presumably fol-
lowing this principle, placed the clause recognizing the writ
and preserving it from suspension except in case of rebellion
or invasion, in the section which defines and limits the pow-
ers of Congress, and thus, though the question had not come
before the courts for decision, the opinion was well nigh
universal that the power to suspend the writ was with Con-
gress alone.

At the time of the conspiracy of Aaron Burr in 1807 Pres-
ident Jefferson, deeming that the public welfare called for
the suspension of the writ, communicated his opinion to
Congress in order that Congress might act upon the subject ;
the Senate passed a bill suspending the writ, which was de-
feated by a large majority in the house, but neither the
President nor any member of Congress suggested at any
time that the President might exercise the power himself.
Chief Justice Marshall in the case of Ex parte Ballman, 4
Cranch, 95, decided in 1807, said (though the point was not
before the Court) :

"If at any time the public safety should require the suspension
of the powers vested by the act" (i. e. an act granting to the
federal courts the power to issue writs of habeas corpus) "in
the courts of the United States, it is for the legislature to say
so."

Judge Story in his Commentaries on the Constitution
(5th Edition, Sec. 1342) says:

"It would seem, as the power is given to Congress to suspend
the writ of habeas corpus in cases of rebellion or invasion, that
the right to judge whether the exigency had arisen must exclu-
sively belong to that body."

The Clash with President Lincoln 1 89

When President Lincoln came to Washington in March,
1861, he found Washington and its environs filled with
active or passive disunionists and honeycombed with plots.
He was a good lawyer and, of course, knew the construction
that had always been placed on the clause quoted, but he
doubtless felt that the preservation of the Union could not
wait on the slow processes of courts. It was a case of
necessity and necessity knows no law. He determined to
take the bull by the horns and exercise the right of sus-
pension regardless of what the courts might say and on the
27th of April, 1 86 1, he addressed to Lieut. Gen. Scott an
order authorizing him to suspend the writ of habeas corpus
at any point on or in the vicinity of the military line between
Philadelphia and Washington if necessary for the public
safety, either personally or through any officer in his com-
mand. Similar orders were afterwards issued for other
lines and places and on May 25th John Merryman was ar-
rested at Baltimore by military authority, charged with en-
listing soldiers for the confederate army and confined in Fort
McHenry. He sued out a writ of habeas corpus from Chief
Justice Taney but General Cadwallader, who was in com-
mand of the fort, refused to obey the writ on the ground
that the privilege of the writ had been suspended by the
President. An attachment being issued against General
Cadwallader for his disobedience, the officer who attempted
to serve it was denied admission to the fort. No further
efforts were made to enforce obedience to the writ, but the
aged Chief Justice wrote and filed an opinion in which he
denied the authority of the President to suspend the privilege
of the writ and forcibly gave his reasons for holding that
the power to suspend the writ was vested in Congress alone.1

1 Ex parte Merryman, 9 Am. Law Reg. 524.

1 90 The Story of a Great Court

Thus the contest ended in the complete triumph of the mili-
tary over the civil power so far as the fate of Merryman
was concerned. The times were too troublous and the
loyalty of the North to President Lincoln was too pro-
nounced to permit of anything like serious resistance to any
act which he deemed necessary in the great struggle for its
life which the nation was then going through.

The academic question whether the power to suspend the
privilege of the writ was vested in the President or in Con-
gress was not so easily disposed of, however ; a war of
pamphlets broke out in which the subject was discussed by
eminent lawyers with great vigor and ability. A few of
these are gathered in the volume of law pamphlets entitled
"Writ of Habeas Corpus" in the Wisconsin State Library.
The most important of these contributions to the constitu-
tional literature of the land is the argument of the eminent
lawyer, Mr. Horace Binney of Philadelphia, in which the
power of the President to suspend the privilege of the writ
is very ingeniously and ably maintained. It is said in the
note on page 215 of the second volume of Story on the Con-
stitution (5th Edition) that Mr. Reverdy Johnson and Pro-
fessor Theophilus Parsons held the same opinion as Mr.
Binney. Attorney General Bates in July, 1861, sent a letter
to the House of Representatives taking the same ground but
there were many very able arguments made upon the other
side. The opinion of the bench and bar probably inclined
to the view that the President had transcended his power.
As the Congressional campaign of 1862 approached the
President was denounced by the Democrats as a violator of
the Constitution and political excitement ran high. The
Wisconsin Democratic convention of that year adopted a
long and eloquent address and sent it forth broadcast which,

The Clash with President Lincoln 191

while demanding the vigorous prosecution of the war, de-
nounced the violation of the Constitution by the President in
various ways but especially in the matter of the suspension
of the privilege of the writ of habeas corpus. This address
was called at the time the "Ryan address" because under-
stood to have been prepared by Edward G. Ryan.

Drafts becoming necessary in the summer of 1862 to fill
the depleted ranks of the Union armies and these drafts be-
ing sometimes the occasion of riots and disorder, the Pres-
ident on the 24th day of September, 1862, issued a proclama-
tion declaring that all persons resisting the drafts should
be subject to martial law and suspending the writ of habeas
corpus as to all persons imprisoned in any fort, camp, arsenal
or military prison by military authority.

A draft riot occurred at Port Washington, Ozaukee
County, November 10th following and one Kemp was ar-
rested by the special provost marshal of the state for par-
ticipation in the riot and turned over to Gen. W. L. Elliott,
who kept him imprisoned at Camp Randall in the city of
Madison. A writ of habeas corpus was sued out of the
Supreme Court December 4, 1862, and General Elliott de-
clined to produce the body of Kemp before the Court, but
made a return setting up the facts of the arrest and justify-
ing the imprisonment under the proclamation of the Presi-
dent suspending the writ of habeas corpus. This brought
the question squarely up for decision. Edward G. Ryan ap-
peared and made an elaborate argument in support of the
petitioner to the writ and there was no appearance upon the
other side.

There can be no doubt that the case attracted the attention
of the federal government and of the people at large ; at
last the question had emerged from the academic field and

1 92 The Story of a Great Court

had come before a court which had already shown itself un-
afraid of a conflict with federal authority. Still it was a
court of high standing for ability and composed entirely of
Republicans who certainly would not desire to embarrass a
Republican administration or give aid and comfort to its
critics. If its decision should be adverse to the alleged right
of the President to suspend the writ, the opponents of the
President would consider themselves justified in their ar-
raignment of him as a lawbreaker.

That the case was given earnest consideration befitting its
importance there can be no doubt. On the 13th day of
January, 1863, a decision was rendered holding that the
President had no power to suspend the issuance of the writ
in places where war did not actually exist and that such
power was vested solely in Congress. Each of the justices
wrote an opinion and all concurred in the result.2

Chief Justice Dixon summed up the matter in the leading

opinion in these words :

"And first, I think the president has no power, in the sense of
the ninth section of the first article of the constitution of the
United States, to suspend the privilege of the writ of habeas
corpus. It is, in my judgment, a legislative and not an executive
act; and the power is vested in congress. Upon this question it
seems to me that the reasoning of Chief Justice Taney in Ex
parte Merriman is unanswerable."

Judge Paine's opinion was more elaborate but reached the
same conclusion. In characteristic language Judge Paine
answered the claim that the act of the President should be
sustained as a necessity of the war power, as follows :

"All acknowledge the terrible necessities of the war power;
but the more terrible those necessities, the stronger is the argu-
ment for confining them strictly to the field of conflict. Within
those limits let the war power rage, controlled by nothing but
the laws of war. But outside of them let the constitution, with

2 In Re Kemp, 16 Wis. *359.

The Clash with President Lincoln 1 93

all its safeguards, remain undisturbed. Let it stand, like the
cities of refuge or the temples of the gods, a shield against il-
legal violence, even to the guiltiest traitor that ever raised his
sacriligious hand against it."

That the conclusion reached was unwelcome to the Court
is very clearly evidenced by the following language of Chief
Justice Dixon at the close of his opinion :

"These I believe to be the real questions presented: and in
stating my convictions of the law, I desire to add that they are
given without the slightest disrespect to the president, who has
in all his actions, been governed by the highest motives of pa-
triotism, public honor, and fidelity to the constitution and laws.
Penned at the gloomiest period of our public misfortunes, when
over fifty thousand of the noblest of the land, answering the
summons, had fallen a sacrifice to the cause of our nationality,
when one division of the army of the Union, already most sadly
repulsed, was threatened with complete overthrow by superior,
almost irresistible numbers, and another, broken and wavering,
was retiring before the restless and implacable foe — when the
only way to national life, honor and peace, lay through the fire
and blood of battle — and when, in response to a recent call for
additional forces, instead of the utmost loyalty and patriotism
on the part of every citizen of the loyal states, each asking where
he could be most useful, or how he could best promote the wel-
fare and safety of his country, there was reason to apprehend,
in some quarters, factious and disloyal opposition — the proclama-
tion in question is not a welcome subject of criticism. As not
unfrequently happens in the affairs of war, it is easier, some-
times most painfully so, with time for deliberation, to point out
mistakes after they are committed, than to see and avoid them
amid the difficulties and dangers by which the military com-
mander is at the moment surrounded. If, under these circum-
stances of national and executive embarrassment, the president
has transcended his lawful authority, he has committed an unin-
tentional error, which he will be the first to repair, and the last
to vindicate. My duty, however, compels me to judge his acts,
not by his intentions, but by the constitution and laws, giving a
fair and reasonable scope to all the powers which they confer
upon him."

The effect of this decision coming from a court of recog-
nized ability and unquestioned loyalty was immediate.
13

1 94 The Story of a Great Court

Party leaders saw at once that there must be action by Con-
gress which should relieve the President of the charge of
lawbreaking which could now be made with far greater force
than ever before. On the third of March, 1863, less than
sixty days after the decision in the Kemp case, Congress
passed an act providing that the President during the ex-
isting rebellion wherever in his opinion the public safety re-
quired it, might suspend the writ in any case, and that when
he did so no military or other officer should be compelled
upon habeas corpus proceedings to produce the body of any
person held by authority of the President, but upon cer-
tificate showing that the detention was by order of the Presi-
dent the proceedings under the writ should be suspended as
long as the suspension by the President should remain in
force and the rebellion continue. Under the provisions of
this act President Lincoln issued a proclamation September
15, 1863, suspending the privilege of the writ in cases where
persons were held under the command of the government
as prisoners or as soldiers.

Upon its face the act seems pretty clearly to be simply
a delegation of legislative power. The language is that the
President "is authorized to suspend the privilege of the
writ," not that the privilege of the writ is or shall be sus-
pended in cases in which the President shall determine that
proper occasion exists therefor.

The validity of this act came before the Court in the
January term, 1864, in the case of Oliver 3 where a writ of
habeas corpus was sued out by a father on behalf of his
minor son who had enlisted in the army while under the age
of eighteen and hence in violation of the law of Congress
on the subject. The sole question in the case was whether

3 In Re Oliver, 17 Wis. *681.

The Clash with President Lincoln 1 95

the privilege of the writ was legally suspended by the act
and proclamation, for it was certain that the detention was
illegal because the minor was less than eighteen years of
age.4 The application was made by Silas U. Pinney on
behalf of the petitioner and it may be assumed that it was
presented with ability and learning. The writ was denied
in an opinion by Judge Paine, but not without much diffi-
culty as to the proper construction of the act. He acknowl-
edges very serious doubts as to whether the law is not
merely a delegation of legislative power to the President, but
he finally concludes that it may properly be construed as
a suspension by the legislature with power to the executive
to determine the proper occasion, in other words, a legisla-
tive suspension which took effect only upon the ascertain-
ment of the facts by the President.

The conclusion was certainly a difficult one to reach in
face of the language of the act and it will be interesting to
note Judge Paine's language, for it must be admitted that he
had a singular ability for expressing in accurate and felicit-
ous language a delicate distinction. He says, after quoting
the language of the first section of the act :

"Upon this language and that of the remainder of the section,
which is of a similar character, I doubted whether the act could
be sustained. But a law must not be judged by its artificial struc-
ture merely, but according to its substance and effect. And I
have finally come to the conclusion that although this act pro-
fesses to confer on the president authority to suspend the privi-
lege of the writ, whenever in his judgment the public safety
should require it during the present rebellion, yet that is itself
an expression of the legislative judgment that the time has al-
ready arrived when the public safety requires the legislature to
provide for a suspension, and that it does provide for a suspen-
sion, not absolute, but to take effect according to the judgment
of the president whether the authority conferred should be exer-
cised in particular cases or not. Suppose that instead of being

* In Re Higgins, 16 Wis. *351.

1 96 The Story of a Great Court

in its present form, this act had expressly declared that the pub-
lic, safety required provision to be made for a suspension of the
privilege, and had then provided that during the present rebel-
lion the writ should be suspended in all cases in which the presi-
dent might elect to have himself and his subordinates relieved
from the duty of obeying the writ. I think if such had been its
form it could fairly have been sustained within the reasoning of
the cases cited. The legislature would then have exercised its
own function of determining that the emergency had arisen,
requiring the privilege to be suspended, and would have made
general provision for it, leaving the president, however, a dis-
cretionary power about using the authority conferred in particu-
lar cases. Such a power may be confided to him. And although
the language of the act as it now is affords stronger ground for
a mere verbal argument that it was an attempt to transfer the
entire legislative function to the executive, its real substance and
effect are the same as they would have been in the form sup-
posed. The law itself suspends the right in those cases where
the president, in the exercise of the discretion conferred upon
him, elects to have it suspended."

Another question of vital importance in connection with
the prosecution of the war came before the Court imme-
diately after the Kemp case, namely, the question as to the
validity of the draft laws. As early as the summer of 1862
the great wave of patriotic feeling which swept over the
north when the first guns were fired upon Fort Sumpter had
receded. Discouragement at the slow progress of the war
had taken the place of the confidence which reigned at its
beginning and voluntary enlistments had practically ceased ;
and this, too, at a time when it had become obvious to all
that an army far exceeding in size any army which had
previously been contemplated must be put in the field if
the war was to be successful.

By an act of Congress passed February 28, 1795, the
President was authorized to call forth the militia of the
states to repel invasions or suppress insurrections and this
law had been construed as vesting the power in the Presi-
dent to conclusively decide when the exigencies named in

The Clash with President Lincoln 197

the law existed.5 In order to render this law more effective
Congress passed an amendatory act July 17, 1862, providing
that whenever the President should call forth the militia he
might fix their period of service, not exceeding nine months,
and that "if by reason of defects in existing laws or in the
execution of them in the several states or any of them it
shall be found necessary to provide for enrolling the militia
and otherwise putting this act in execution, the President is
authorized in such cases to make all necessary rules and
regulations."

In the summer of 1862 the President called upon the states
to furnish several hundred thousand additional soldiers and
promulgated rules and regulations for the making of drafts
for the militia in the various states, which formed a complete
scheme governing the whole subject. These rules were
put in force in Wisconsin and in the states generally and
several residents of Manitowoc County being drafted and
taken into custody as militia men brought habeas corpus
proceedings to secure their release.6

The claim was that the act of 1862 was unconstitutional
because it was an attempt on the part of Congress to dele-
gate its legislative power upon the subject of detaching
drafting and calling forth the militia to the President. This
contention was rejected by the Court and it was held in an
opinion by Judge Cole that the making of rules for the en-
rolling and detaching of the militia were largely ministerial
acts which might properly be performed by the chief ex-
ecutive.

At the same time it was held that a resident alien who
had declared his intention to become a citizen of the United

b Martin v. Mott, 12 Wheaton, 19.
* In Re Griner, 16 Wis. *423.

1 98 The Story of a Great Court

States, though not in fact a citizen of the United States, was
liable to be drafted into the military service of the United
States because he had become a citizen of this state by
virtue of his declaration of intention.7

The legislative session of 1861 came to its end just as the
war opened. On the thirteenth of April an act was passed
authorizing the Governor, in case of a call for troops by
the President, to take all necessary steps in organizing vol-
unteers to meet the call and appropriating $100,000 for the
purpose ; the act also authorized the Governor to issue state
bonds to the amount of $100,000 for the same purpose.8

Three days later this act was amended by raising the
amount of the cash appropriation to $200,000 and making
the same raise in the amount of the authorized bond issue.
After making these preparations for the war which had
already begun the legislature adjourned. It soon became
evident, however, that millions rather than hundreds of
thousands would be required for the suppression of the re-
bellion and the Governor reconvened the legislature in spe-
cial session May 15, 1861.

At this session a number of war measures designed to
meet the existing situation were passed. Among these were
an act authorizing municipal corporations to raise money
by taxation for the support of the families of volunteers,9
an act providing for the raising of not exceeding six regi-
ments of infantry for active duty, with a reserve of two
regiments, and appropriating one million dollars therefor/0
an act prohibiting the rendering of aid to the rebellion and

1 In Re Wehlitz, 16 Wis. *443.

s Chap. 239, Genl. Laws, 1861.

» Chap. 2, Laws 1861, Spec. Session.

10 Chap. 4, Laws 1861, Spec. Session.

The Clash with President Lincoln 1 99

directing the seizure of arms or munitions of war intended
for use by the rebels,11 an act appropriating $50,000 for the
purpose of arms and accoutrements of war,12 also an act
adding five dollars per month to the pay of all volunteers
having dependent families.13

The most important act of the session, however, was
Chapter 13, which authorized the Governor, Treasurer and
Secretary of State to issue bonds and borrow money on the
credit of the state to an amount not exceeding one million
dollars. As the state could only borrow this amount of
money "to repel invasion, suppress insurrection, or defend
the state in time of war" 14 it was very evident that the
validity of any bond issue would be seriously questioned, for
the state itself was not even remotely threatened with in-
vasion nor was there any insurrection within its limits.

In this dilemma, Governor Randall appealed to the jus-
tices of the Supreme Court to give an opinion upon the
validity of the bonds in advance. It is certain that the
justices had no power to give any such opinion. Some
courts of last resort are endowed with such powers and
authorized or required to render opinions to the executive
department as to the constitutionality of legislative action
in advance of any controversy, but such power has never
been given to the Supreme Court of Wisconsin. Any
opinion which the justices might give, therefore, was not
only coram non judice but absolutely unauthorized and im-
proper. Courts have no power to decide questions in ad-
vance of a real controversy unless the power be given them
by legislative act.

11 Chap. 5, Laws 1861, Spec. Session.

12 Chap. 6, Laws 1861, Spec. Session.
"Chap. 8, Laws 1861, Spec. Session.

11 Const. Wis. Art. VIII, Sees. 4, 6, 7 and 10.

200 The Story of a Great Court

But the emergency was to the last degree grave. If any
situation could justify the doing of an unauthorized act by
the justices this was the situation. Unless money loaners
could be satisfied that the bonds were valid they would give
little for them and the governor's arm would be well-nigh
paralyzed.

In this situation Chief Justice Dixon and Associate Jus-
tice Cole sent the following joint letter to the Governor in
response to his anxious inquiry.

"STATE OF WISCONSIN, SUPREME COURT,

"Clerk's Office, Madison, June 5th, 1861.
"His Excellency Alex. W. Randall,
Governor of Wisconsin,

"Sir: — We are in receipt of your communication of the 4th
inbt asking our opinion as to the constitutionality of chapter 239
of the general laws of 1861, entitled 'an act to provide for the de-
fense of the state and to aid in enforcing the laws and maintain-
ing the authority of the federal government,' and chapter 13 of
the extra session held in May, 1861, entitled 'an act to provide
for borrowing money to repel invasion, suppress insurrection and
defend the state in time of war,' and as to whether bonds, issued
under the above acts and in conformity to their provisions, would
be valid and binding against the state.

"Your excellency is pleased to intimate that it has become a
necessity in the present exigencies of the state and country to
appeal to us for an opinion upon the above question. Yielding
to this emergency, we have felt it to be our duty to give you our
opinion upon the question suggested in your communication, and
we would therefore state that we have considered the above men-
tioned laws, and from the examination we have given them we
entertain no doubt as to their constitutionality, and we are of
the opinion that the bonds issued in conformity to their provi-
sions will be valid and binding upon the state of Wisconsin.
"Respectfully yours,

"Lutiier S. Dixon, Chief Justice,
"O. Coi,e, Associate Justice.

"P. S. Mr. Justice Paine is at present in Milwaukee and has
had no opportunity of acting upon the subject matter of your
communication.

"O. Cole."

The Clash with President Lincoln 201

By the aid of this decision, rendered in advance, the
bonds were negotiated and none ever had the hardihood to
contest their validity.

The last act passed by the legislature of 1861 at its reg-
ular session (Chapter 309) was an act exempting from civil
process all volunteers in the military service of the United
States, and suspending all legal proceedings against such
volunteers as long as their service continued. This act was
somewhat amended by Chapter 7 of the laws passed at the
extra session of 1861 and its constitutionality challenged in
several cases which came before the Court at the June term,
1862.15 It was held unconstitutional as impairing the obli-
gation of contracts in a brief opinion by Judge Cole. The
ground of the decision was that the law took away all
remedy for the breach of the contract for an indefinite
period and that the taking away of all remedy was in effect
the destruction of the obligation of the contract itself.
From this conclusion Judge Paine dissented, but filed no
opinion.

15 Hasbrouck v. Shipman, 16 Wis. *296.

202 The Story of a Great Court

CHAPTER XVI

CHIEF JUSTICE DIXON'S SECOND CAMPAIGN

Chief Justice Dixon's term was to expire in January,
1864, and the election of his successor was to take place
in the preceding April. The state rights issue, which all
but defeated him in i860, was practically dead. Except for
a few irreconcilables, the Republicans had become satisfied
that there was no room in their party for such a doctrine.
The secession of the southern states was but the practical
application of the doctrine of defiance of federal authority
which the Booth case inculcated and the object lesson thus
afforded was sufficient. Then, too, the Chief Justice had
fully demonstrated his great abilities in the meantime and
the state had come to know him and feel proud of him. He
had been elected largely by Democratic votes in i860 and
there seemed to be no good reason why the Democrats
should not support him again. Many of them in fact de-
sired to do so and thus it seemed quite probable that he
might be elected without opposition. He was to meet a
very bitter fight, however, and in order to understand the
reasons for this it is necessary to take a brief glance at
the political situation in the fall of 1862 and prior thereto.

The wave of patriotic feeling which swept over the north
when the guns of South Carolina were turned on Fort
Sumpter in 1861 wrought havoc with the Democratic party.
Many of its best members felt that there was not room in
the north for two parties, but that all should unite in sup-
port of the administration and that the only practicable way

Dixon's Second Campaign 203

to do so was to vote the Republican ticket. In order to
welcome and encourage these voters, the Republicans soon
began to call their party the Union party, or the Republican
— Union party. The great mass of the Democrats, how-
ever, felt averse to leaving the historic party whose achieve-
ments they remembered with pride and also felt that it
was wise that there should be two parties. The great ma-
jority of these men were just as patriotic, just as willing
to make sacrifices for the preservation of the Union, and
just as earnest supporters of the war for the Union as the
mass of the Republicans. They and their sons went to the
war by thousands and tens of thousands. Indeed the civil
war could hardly have been brought to a successful close
had it been otherwise. The writer was a youth of nine
years when the civil war broke out, but he remembers those
days most vividly. His father, Horatio Gates Winslow, was
one of the "War Democrats" at Racine, who ever main-
tained his membership in the party, but whose hand, voice
and pen were ever at the service of the Union cause. Phys-
ically unable to enter military service himself, his place of
business was the headquarters for patriotic activities of all
kinds. No war meeting was complete without his presence,
and no movement in aid of the prosecution of the war lacked
his help. There were very many such. Scant justice has
been done to these men by the historians generally.

But notwithstanding the great preponderance of patriotic
voters in the Democratic party, it was at the same time in
some sense an opposition party and naturally, if not neces-
sarily, the faultfinders, the dissatisfied, the believers in the
ultra state rights doctrines all arrayed themselves under
its banners.

204 The Story of a Great Court

As the year 1862 wore on without any decisive successes
for the Union arms, but rather with discouragement and
disaster, enthusiasm waned very perceptibly at the north
and the faultfinders multiplied. Some found fault with the
lack of vigor in the prosecution of the war ; some with its
too vigorous prosecution ; some found fault with the ar-
bitrary arrests found necessary by the President, and some
with the leniency of the government in its treatment of
suspected persons ; some complained because the negroes
had not been emancipated and some because they thought
the war was being turned into an abolition crusade. All
of this dissatisfaction tended directly to weaken the Repub-
licans and strengthen the Democrats. Not that all of the
dissatisfied Republicans joined the Democratic party by any
means, but many did so and many more became lukewarm
and staid away from the polls at election time. It was a
time of dissatisfaction, doubt and discouragement. Three
hundred thousand more soldiers were called for by the
President ; the taking of Richmond seemed further off than
ever before and early in September Lee crossed the Potomac
and the bloody battle of Antietam was fought, leaving the
Union army in possession of the field, but too exhausted to
pursue the foe or interfere with his orderly retreat.

Under these circumstances, discouraging indeed to Re-
publican prospects, the congressional elections of 1862 ap-
proached. No state ticket was to be elected in Wisconsin,
consequently no state convention would ordinarily have
been called ; but legislative and county officers were to be
elected and early in August the Democratic party leaders,
deeming that an advantage might be gained by placing an
address before the people issued a call for a convention, to

Dixon's Second Campaign 205

be held in Milwaukee in September, which call is inserted
here at length, in order to show the gravity of the situation
as seen through Democratic eyes:

"The State Centra! Committee of the Democratic party of the
state of Wisconsin, after consultation with many Democrats from
various parts of the state, have concluded to call and now do
hereby call a state convention of the Democracy to meet at Mil-
waukee on the 3rd of September next at noon.

"It is considered fitting that the only national and historical
party now left in the country should give solemn expression to
their views on the present perilous condition of constitutional
government, the fearful civil war in which the nation is now
engaged, the danger of a final and utter destruction of the Union
established by the sacrifices and wisdom of our fathers and the
constitutional means necessary to secure to the future the bless-
iDgs of the past. The Democratic party, always loyal, always
true to the constitution, and now as ever determined to maintain
the- government under it, has, at this time and this hour when
the Union is in such imminent peril, and constitutional liberty
on the American continent threatened with destruction, a most
solemn duty to perform. In view of this duty, with unselfish
patriotism let us meet and counsel together.

"C. A. Eldridge,
"Chmn. State Central Committee."

The convention was held and was largely attended; it
resolved to issue an address to the people, which was pre-
pared and submitted by Edward G. Ryan. It has passed
into history as the "Ryan address." In eloquent periods it
reviewed the history and achievements of the Democratic
party, declared for the vigorous prosecution of the war and
the crushing of the unholy rebellion, but denounced with
severitv various alleged infractions of constitutional and
legal rights by the President and his party in the suspension
of the writ of habeas corpus, the making of unlawful mil-
itary arrests, the transportation of persons accused of crime
to other states for trial, the trials of accused persons before
military tribunals, the suppression of freedom of the press,

206 The Story of a Great Court

the abolition of slavery in the District of Columbia, and
other violations of rights guaranteed by the constitution.1

When this address was presented to the convention for
consideration George B. Smith of Madison made an elo-
quent speech, in which, while approving of the abstract
principles stated in the address, he argued against its adop-
tion, because he believed it unwise, and he proposed to sub-
stitute resolutions simply declaring the devotion of the party
to the Union and the Constitution, and its readiness to make
all possible sacrifices to support the government and de-
precating any effort to divide the people of the north on
old political issues until the rebellion was suppressed and
the authority of the government restored.

S. U. Pinney of Madison read to the convention an elo-
quent extra from a speech delivered by the lamented Doug-
las in 1861, in which he recommended a cessation of party
strife until the government was rescued from its perils ;
after reading the extract he moved that it be substituted in
place of the proposed address.

Both propositions were overwhelmingly rejected and the
address was approved and sent forth broadcast to the peo-
ple.

It is not proposed here to discuss the merits or the de-
merits of this address. It was called a disunion document
by the Republicans ; it was deprecated as a sort of a fire
in the rear by the War Democrats. For a year at least it
was made the test by which the quality of a man's Dem-
ocracy was to be determined in Wisconsin. At the state
convention held August 4, 1863, at which Henry L. Palmer
was nominated for Governor, it was re-adopted and ap-
proved. Soon after this, however, a public protest came.

1 Madison Daily Patriot, Sept. 6, 1862.

Dixon's Second Campaign 207

On the 20th of August a preliminary meeting of War Dem-
ocrats was held in Milwaukee and a convention of War
Democrats was called to meet at Janesville, September 17th
following. This convention was attended by such men as
Arthur McArthur, J. E. Arnold, Matt H. Carpenter, Wm.
C. Allen, Edward S. Bragg, A. Hyatt Smith, Geo. H.
Walker, J. J. Tallmadge, C. D. Robinson, and many others
who up to this time had been loyal Democrats, and it
enthusiastically passed resolutions and issued an address to
the people, pledging hearty support to the war and demand-
ing its most vigorous prosecution, and repudiating the Dem-
ocratic platform and the Ryan address. The Democratic
Bourbons were in the saddle, however, and remained there
and succeeded in driving many of the War Democrats into
the Republican party.

The address certainly did no good to the Democratic
cause in the state, however sound its legal propositions
were. The great majority of voters, both Republican and
Democratic, felt that when the existence of the Union was
at stake it was no time to discuss abstract legal propositions.
Especially when the very fact of such discussion was hailed
by the enemy as a sign of serious division at the north and
an encouragement to continued resistance to the federal
arms.

Notwithstanding the fact that the address probably alien-
ated more votes than it attracted, the election in November,
1862, reflected very clearly the prevailing feeling of dis-
satisfaction with the administration. The legislature at an
extra session in September, 1862, had passed a law enabling
soldiers to vote while in the field, under the supervision of
military officers,2 but even with this advantage (for the

2 Chap. 11, extra session 1862, bound in volume for 1863.

208 The Story of a Great Court

great majority of the soldiers in the field, whether Repub-
licans or Democrats at home, naturally voted the Repub-
lican or Union ticket, because they were so deeply impressed
with the necessity of supporting the administration) the
general election of 1862 resulted in a practical Democratic
victory. Three out of the six Congressmen elected were
Democrats and the Democratic county tickets were success-
ful in many counties, while the legislature, though repub-
lican in both branches, was only so by very small margins.

But encouraging as the local result was to the Democratic
politicians, the results in the great middle states of the
North were far more encouraging. New York, Ohio, In-
diana, and Illinois were swept by the party and the ma-
jority of the new House of Representatives were also Dem-
ocrats.

It seemed to the leaders of the party that the reaction
from Republicanism had come and thus the approaching
election for Chief Justice of the Supreme Court was viewed
by many of them seriously as an opportunity for regaining
party prestige and placing a representative of the party
upon a bench where it had had no representative for years.
The principle of non-partisanship in judicial elections had
as yet obtained no very serious hold upon the people, es-
pecially in the estimation of a party which deemed itself in
the majority.

On the 26th day of January, 1863, Charles A. Eldridge
of Fond du Lac, Chairman of the Democratic state central
committee, issued a formal call for a Democratic convention,
to be held at Madison on the 25th day of February "for the
purpose of nominating a candidate for Chief Justice of the
Supreme Court, to be supported by the Democracy at the
coming election."

Dixon's Second Campaign 209

A few days before the assembling of the convention and
on the 13th of January, 1863, the decision of the Supreme
Court in the Kemp case before mentioned 3 holding that the
President had no power to suspend the operation of the
writ of habeas corpus, was announced and was hailed by the
Democracy generally as a vindication of the doctrines of
the Ryan address. About one hundred delegates attended
the convention (the number of votes cast would indicate an
attendance of over one hundred and sixty, but this results
from the fact that many delegates were empowered to cast
two votes), and ex-Governor Nelson Dewey was elected
chairman with Edward G. Ryan chairman of the committee
on resolutions.

An informal ballot being taken, John W. Cary of Mil-
waukee received 32 votes, M. M. Cothren 30, M. A. Ed-
wards 23, E. Wakely 15 and the balance were scattering;
Cary directed Ryan to withdraw his name, after doing
which Ryan nominated Dixon, extolling him as an upright
judge and a true Democrat in principle : "Dixon," said
Ryan, "is a man who does not care for party and is in the
essentials as good and sound a Democrat as could be found
in the state." Moses M. Strong arose and opposed the
endorsement of Dixon and formally nominated M. M. Coth-
ren. Satterlee Clark of Dodge County was skeptical as to
Dixon's orthodoxy as a Democrat ; he wanted to know
whether he was in favor of the confiscation and the eman-
cipation proclamations, and, if not, whether he fully agreed
with the principles of the Ryan address ; if he did not agree
with the address he did not consider him a Democrat.
Joshua La Due of Milwaukee thought Dixon a good enough
Democrat for him ; he (Dixon) had just rendered a decision

a In Re Kemp, 16 Wis. *359.
14

2 1 0 The Story of a Great Court

upholding the federal constitution (referring to the Kemp
case). The second informal ballot being taken, it resulted
as follows: Cothren 44, Dixon 51, Edmonds 25, Cary 17
and the balance scattering. The first formal ballot resulted
as follows: Cothren 76, Dixon 68, Edmonds 18 and J. E.
Arnold 1 ; the second formal ballot nominated Cothren, he
receiving 88 votes and Dixon 73. Thus, by a very close
vote, Dixon was rejected. It is evident that the capacity of
the Democratic party to make mistakes is not a recent
acquirement. The convention adopted a platform evidently
the work of Ryan, which is interesting as showing the at-
titude of the Ryan Democrats at the time. It is as fol-
lows : *

"(1) Resolved, that a judicial convention of the Democratic
party held for the purpose of nominating their candidate for a
seat on the bench of the Supreme Court of the state, is not the
proper opportunity to enter into a discussion of party differences
or party principles, and that this is the less necessary as the
political position of the Democratic party in this state is now
well defined and settled. But that a judicial convention is em-
phatically a fit and appropriate occasion to declare certain con-
stitutional principles without assent to which the Democratic
party cannot consent to support a judicial candidate.

"(2) Resolved, that in all things relating to the state govern-
ment the state constitution is the supreme law, and that in all
things relating to the national government the constitution of
the United States is the supreme law of the land; that there is
no power, state or national, outside of or inconsistent with the
provisions of the constitution; that all assumption or assertion
of unconstitutional power by the state or national government is
a dangerous and treasonable usurpation which the Democracy
will not sanction or tolerate.

"(3) Resolved, that the government of the United States can
claim no powers not granted by the constitution expressly, or by
necessary implication as an incident to powers expressly granted;
that it is a government of delegated powers, and that the public
security and the perpetuation of American liberty peremptorily

4 Madison Daily Patriot, Feb. 26, 1863.

Dixon's Second Campaign 21 1

require a strict construction of its provisions and grants; and
that it is not the spirit or duty of the American people to submit
to new, loose and dangerous rules of construction which tend to
subvert the safeguards of the government and the rights of the
states and people and which, if unchecked, will aid in making
the great American experiment of free constitutional government
an utter failure and all previous American history a fable. That
it is the peculiar duty of the Democratic party to support and
defend the constitution as our forefathers made it, and as our
fathers and ourselves prospered under it, vital and sacred against
all usurpations by all persons, people, bodies and officers. And
that to this end it is our solemn duty to see that the judiciary is
so constituted that the constitutions of the state and of the Union
shall be safe in their hands, as the holiest trust of the people to
their servants, to be upheld and maintained without compromise
or exception against all assaults from every source.

"(4) Resolved, that on these principles we submit our nominee
for the office of Chief Justice to the people of this state for their
suffrages, fully believing that the people will be found true to
their own liberties and duties in electing him to that high office.

"(5) Resolved, that the Democratic party of this state utterly
condemns all efforts by the President and Congress to convert
the existing war into an abolition crusade, all efforts by the
President and Congress to change our old system of government
into a military despotism, all efforts of the President and Con-
gress to break down the liberties of the people and the gov-
ernment of the states by an overshadowing government dif-
ferent from the limited system established by the constitu-
tion, all efforts by the President and Congress to take one
iota from or add one iota to the constitution as established
by our fathers; and that we pledge our party to a faithful sup-
port of the constitution against all who assail it, whether fanatic
factions or faithless officers of any and every grade of authority,
and that we will do this under all denunciations showered upon
us by the faithless amongst the people and under all persecu-
tions inflicted upon us by a usurping government."

While the improved prospects of the Democratic party in
the state and nation were doubtless the main reasons for
the rejection of Dixon as a candidate and the nomination of
a partisan Democrat, there was another consideration which
must have had a considerable, if not a controlling-, influence

2 1 2 The Story of a Great Court

on the action of the party at this time, and that was the
attitude of the farm mortgagors toward Dixon.

This organization was still in existence and still feared
by both parties. True, the Supreme Court had set aside the
law which the legislature of 1861 had passed for the relief
of the mortgagors,5 but this had only added fuel to the
flame. It was now certain that Dixon was against them
and if they could do nothing else they could at least defeat
the man who had actively assisted in riveting the chains of
debt upon them.

The temper of the organization generally may best be
ascertained from the columns of the official organ before
mentioned, the "Home League." In the issue of February
16, 1863, the Madison correspondent of the paper (prob-
ably the editor, A. M. Thomson, in person) writes that the
Republicans had caucussed several times on the subject
of the approaching judicial election ; that the brilliant Matt
Carpenter was the candidate of some while the names of
David Taylor, O. H. Waldo, David Noggle and John R.
Bennett had also been mentioned; that both parties were
embarrassed by the farm mortgage question, neither de-
siring to ignore it as they were both well satisfied that no
man would be allowed to go on the bench who was known
to be openly hostile to that interest. The article then pro-
ceeds as follows: "While it might be imprudent for the
mortgagors to insist that no man but one pledged to their
interests shall be elected, they have the right to protest
against the election of any man who is openly pledged
against them. They know their rights, and knowing dare
to maintain them."

5 Oatman v. Bond, 15 Wis. *20.

Dixon's Second Campaign 2 1 3

In the issue of the same paper of date April 4th, and on
the eve of the judicial election, the editor in a long editorial
denounced Dixon as a Democrat, as the candidate of all
the lawyers of the state who had farm mortgages to collect,
also as the candidate of the corporations, the railroads, the
tax title speculators and of all the other interests of the
state except its true interests. The editorial goes on to say,
"Before such a judge the people are always beaten, as wit-
ness the action of that court in their notorious decision de-
claring unconstitutional the law taxing railroads, the mo-
ment one of their actions squinted a little against the specu-
lator they made indecent haste to reverse it, though they
persisted that their first decision was the law. The judicial
question is surrounded by perplexing embarrassments, and
it is the duty, as well as the privilege, of every intelligent
man to act boldly and conscientiously in the matter."

What sort of a situation might have developed had Dixon
been nominated by the Democratic convention it is impos-
sible now to say. He had asked for no indorsement at the
hands of any convention. Prior to the meeting of the
Democratic convention he had been put in the field as a
non-partisan candidate by calls signed by large numbers of
lawyers, both Democrats and Republicans, and these calls
he accepted.

On the day following the Democratic convention the

Republican legislative caucus was called together for final

action on the judicial question, and passed the following

resolution :

"Resolved, that we have full confidence in the ability, upright-
ness and impartiality as a judge of Hon. L. S. Dixon; that In
the discharge of the high and responsible duties of Chief Justice
of the Supreme Court we believe he has been governed only by
an earnest and conscientious desire to administer justice under

2 1 4 The Story of a Great Court

the constitution and the laws, and that we have entire faith in
his loyalty and unswerving patriotism;

"Resolved, that we do not approve of conducting judicial elec-
tions upon party issues;

"Resolved, that tbis caucus adjourn without balloting for Chief
Justice."

This seems like rather fainthearted praise. Perhaps it
was the best course that could have been pursued. It gave
to Dixon a quasi-certificate of party approval which doubt-
less counted with the voters who were inclined to vote the
party ticket under all circumstances and there were many
such in those days. At the same time there was much dis-
cord in the Republican ranks. The attitude of the farm
mortgagors, a majority of whom were doubtless Repub-
licans, has already been noticed. It is said that the League
had a meeting in Milwaukee, at which they resolved to
support Cothren ; G the irreconcilables who still stood by the
doctrines of the Booth case gave Dixon a very grudging
support or none at all ; the ardent supporters of President
Lincoln were inclined to rank him as a Democrat on ac-
count of the decision in the Kemp case, and Ryan's warm
indorsement of him as a sound Democrat in principle did
much to encourage this idea. At this time the indorsement
of Ryan was sufficient condemnation in the eyes of those
Republicans who regarded the "Ryan address" as a dis-
union document, and there were many such.

Thus there was much lukewarmness in the Republican
support of Dixon; the Racine Journal (Rep.) said that
many of the people could look on the contest with indif-
ference, as the woman did when she saw her husband and
the bear fighting, not caring which whipped; the Grant
County Herald (Rep.) bitterly assailed Dixon as not a

e Wis. State Journal, March 28, 1863.

Dixon's Second Campaign 2 1 5

Republican and saw nothing to choose between the can-
didates. The great majority of the Republican papers,
however, supported Dixon. The Democratic press gener-
ally, if not universally, supported Cothren. In March he
(Cothren) made a tour of a part of the state and it was
charged that he was treating to whiskey. He was also
called a copper head and a drunkard, and thus the campaign
took an acrimonious personal tinge.

As the campaign advanced it became evident that the
vote would be close, with the chances in favor of Cothren,
and it seemed that the soldier vote alone would save him
from defeat. Reference has already been made to the law
passed in September, 1862, allowing soldiers to vote while
on the field, but this law applied by its terms only to gen-
eral elections held in November, hence in the absence of
further legislation there could be no soldier vote cast at the
judicial election in the spring. This law had been attacked
as unconstitutional in the case of Chandler, who had re-
ceived the majority of the home vote for sheriff of Dane
County in November, 1862, but had been defeated by the
soldier vote if the same was legal.7 The case was argued
and submitted January 27, 1863, but no decision had been
announced in February and March wore on and still the
case was undecided. In this situation the legislature passed
chapter 59 of the laws of 1863, extending the soldiers' right
of suffrage to judicial elections in the spring; the act was
approved March 16th and published March 17th and went
into effect at once.

On the 25th day of March the Chandler case was de-
cided and the constitutionality of the first act upheld Judge
Paine writing the opinion and all the judges concurring.

1 State ex rel. Chandler v. Alain, 16 Wis. *398.

2 1 6 The Story of a Great Court

The question decided vitally affected the approaching
judicial election, because if the law allowing soldiers to
vote in November was valid then the law allowing them
to vote in the spring at the judicial election was also valid.
The question will doubtless occur to the mind of a lawyer
at once whether Chief Justice Dixon should not have re-
fused to take part in the case inasmuch as his own election
would in all likelihood depend upon the ruling made.
When the facts are all considered, however, it seems clear
that there is no just ground on which to criticise his action.
When the Chandler case was presented and argued in Jan-
uary there was no question involved in it which apparently
could ever affect Judge Dixon. At that time there was
no law allowing soldiers to vote at judicial elections and
none proposed. Assuming that the case took the usual
course it was undoubtedly considered and decided in the
consultation room some time in February, certainly long
before March i6th, for the elaborate opinion of Judge
Paine must have taken two weeks at least for its proper
preparation. Therefore it is beyond doubt that both when
the case was argued and when it was considered and de-
cided by the judges there was not only no impropriety in
Judge Dixon's taking part in the discussion and decision,
but he had no excuse for declining to take part. To refuse
to act would be to shirk his duty.

The case was a novel and delicate one ; it manifestly called
for the wisdom of the whole bench and Judge Dixon had
no course open to him either in January or February, but
to shoulder his share of the burden.

When the decision was announced, however (owing to
the action of the legislature nine days previously) it directly
affected the prospects of Judge Dixon's election, for it was

Dixon's Second Campaign 2 1 7

morally certain that the great majority of the soldier vote
would be cast for him. What was he to do under these
circumstances ?

He must have considered the question and I have no
doubt he answered it somewhat in this manner: "If I an-
nounce that I took no part in the decision I shall announce
a falsehood, for I did take part in the discussion and de-
cision of the case and cannot now change the fact. My act
in taking part was absolutely right at the time, and I shall
make no false pretense of judicial delicacy. Lawyers ex-
amining the record in the future will appreciate the exact
situation."

This, I think, would be likely to be his thought. Dixon
possessed a great store of moral courage and was careless
of criticism when he felt that criticism was unjust ; he would
not descend to hypocritical pretense and it would have been
mere hypocritical pretense for him to say that he had taken
no part in the case.

When the returns of the election first began to come in
it was evident that the contest would be close ; for several
days both sides claimed a majority of the home vote, but
Cothren's gains went steadily on and it finally appeared
that he (Cothren) had received a majority of about 4,000
of the home vote. The soldier vote, however, reversed this
result and gave Dixon a net majority of about 4,000 votes.

Thus Dixon was twice elected as an independent candi-
date, once against a Republican party nominee, and once
against a Democratic party nominee. Truly he was the
great protagonist in Wisconsin of fearless judicial action
and of non-partisanship in judicial elections.

2 1 8 The Story of a Great Court

CHAPTER XVII

THE RAILROAD TAX DECISIONS

The attentive reader of the last preceding chapter will
probably have noticed that one of the arguments urged by
the farm mortgagors against Judge Dixon in the campaign
of 1863 was that the Supreme Court had made a decision
declaring the railway taxation law unconstitutional and then
to please stockjobbers had reversed the decision. This, of
course, was in effect a charge of favoritism or corruption or
both and considered as such was absolutely groundless.
The Court had, however, changed front twice on the ques-
tion and a review of the decisions can hardly fail to be
interesting.

The only provision of the state constitution which pur-
ports to govern the general principles of taxation is Sec-
tion 1 of Article VIII, which simply says, "The rule of
taxation shall be uniform, and taxes shall be levied upon
such property as the legislature shall prescribe."

This laconic and important provision was adopted by the
constitutional convention of 1848 after a debate in the com-
mittee of the whole of less than half a day, which debate
was devoted entirely to the question whether it was ad-
visable to enumerate in the constitution the classes of prop-
erty which should be exempt from taxation, or give the
legislature power to fix exemptions from time to time as it
might deem best.

It cannot be for a moment supposed that the convention
meant by this clause that there should be no taxation except

The Railroad Tax Decisions 2 1 9

taxation of property. There were many excellent lawyers
in that convention, including Chief Justice Whiton and
Cole, and they well know that excise taxation was a widely
used and very valuable form of taxation, and it is well nigh
ridiculous to imagine that they intended to strike this power
from the hands of the state by a clause simply purporting
to regulate property taxation. The only sensible conclusion
as it seems to the writer (and this is the view adopted by
the Court in a recent case),1 is that the convention by this
clause desired to place the power of exemption of property
from taxation in the hands of the legislature and to require
that property taxation should be uniform. It is as though
the clause read : "Taxes shall be levied upon such property
as the legislature shall prescribe upon a uniform rule."

In 1848 when the constitution was adopted the state was
still a part of the frontier and property taxation was really
the only form of taxation which could be seriously regarded
as a source of revenue. Taxation of occupations or any
other form of excise taxation could not be expected to bring
in any appreciable sums to the public treasury. Such tax-
ation only brings satisfactory results in thickly settled com-
munities. Manifestly this was the reason that the debate
in the convention related only to the taxation of property
and the question where the power to exempt property
should be placed. It was assumed that the state had the
power to tax occupations without special mention of such
power in the constitution and, further, that little could be
derived from such taxation in any event.

All this appears very clearly to the writer from exam-
ination of the printed journal of the second constitutional
convention,2 as well as the newspaper report of the debate

1 Nunnemaoher v. State, 129 Wis. 190.

2. Journal Const'l Conv. of 1848, pp. 113-195 et seq. 202-205.

220 The Story of a Great Court

appearing in the Wisconsin Democrat of Jan. 5, 1848. The
principal parts of the debate were incorporated by the
writer in the opinion of the Court in the Nunnemacher case
before cited and may be there referred to.

The coming of the railroad, however, in the early fifties
changed the situation very materially ; here was an industry
requiring for its successful operation not only vast amount
of property but a kind of property quite difficult, if not
practically impossible, to subject to piecemeal and unequal
taxation by the separate communities through which it ope-
rated its business. Manifestly some other form of taxation
which should not involve the possibility of the severing of
the system into separate parts by local tax sales would be
very desirable in dealing with this new and important in-
dustry. To this suggestion the legislature soon responded
by passing Chapter 74 of the laws of 1854, entitled "An Act
taxing railroads and plank roads," which provided that all
railroad and plank road companies should pay into the state
treasury one per cent of their gross earnings for the pre-
vious year, in lieu of all taxes, and authorized a levy upon
the entire property and franchises of the company and sale
of the same in case of default.

It seems very clear that if this was taxation of property
it was impossible to sustain it. By no process of reasoning
can a tax of one percent upon the gross earnings of a busi-
ness be called taxation upon a uniform rule with other prop-
erty of the state which is appraised and taxed according to
its value and not according to the revenue obtained from it.
Naturally the law was at once attacked as unconstitutional
by the railway companies. In 1855 the action of the Mil-
waukee & M. R. Co. v. Waukesha County brought to test
the law was tried before Judge Hubbell on the circuit bench
and he upheld the law on the ground that it provided not

The Railroad Tax Decisions 221

for a tax, but really for exemption from taxation and for
the payment by the company of compensation to the state
for such exemption. The case was immediately brought
to the Supreme Court by appeal and was argued by Edward
G. Ryan for the appellant and Finch & Lynde for the
respondent, and the judgment of the trial court was af-
firmed. The bench at this time was composed of Whiton,
Smith and Cole, the first and last named having been mem-
bers of the convention which framed the constitution.

Unluckily and for some reason never fully explained no
formal opinion was written in the case. It was perhaps as
important a case as the Court had ever had presented to
it, but notwithstanding this fact only a mere memorandum
of the points decided was made, the memorandum was lost
and the case did not go into the reports. It seems probable
that the judges did not realize the importance of the de-
cision at the time.

Upon the strength of this decision the taxing officers all
over the state omitted railway property from the assessment
rolls for the years immediately following 1854, and such
property paid no local taxes. Under a decision of the
Court made in 1859 such an omission if illegal would in-
validate the entire general tax.3

No further attacks were made upon the law until 1859,
after the decision of the Supreme Court in Knowlton v.
Supervisors of Rock County.4 This last named case in-
volved the constitutionality of an act of the legislature pro-
viding that farming lands within the city limits of Janes-
ville should not be taxed more than half of one percent,
whereas the other taxable property in the city was subject

s Weeks v. Milwaukee, 10 Wis. *243.
49 Wis. *410.

222 The Story of a Great Court

to a tax of one percent or more ; it was held and very
rightly held, as it seems, that such a law clearly violated
the constitutional provision that the rule of taxation should
be uniform. It was a case of the taxation of acre property
by one rule and platted property by another rule and seems
entirely indefensible.

Prior to the decision of this case at the June term, 1859,
Chief Justice Whiton had died and been succeeded by
Judge Dixon, while Judge Smith had been succeeded by
Judge Paine, and only Judge Cole was left on the bench
of the three judges who decided the early unreported rail-
road case. As matter of fact that early case had little
legitimate bearing upon the Knowlton case, but it was re-
ferred to and relied on by counsel, and Judge Dixon in the
opinion of the Court thus disposes of it:

"Upon the argument we were referred to, and much stress was
laid by the defendant's counsel as an authority sustaining his
positions, upon the decisions of this court in the case of The
Milwaukee and Mississippi Railroad Co. v. The Board of Super-
visors of the County of Waukesha and others, made at the June
term, 1855. Upon examination of the records and files of the
court in that case, we can find neither head note nor opinion. As
a matter of fact, we are told that none were ever written. We
are therefore without any authoritative information as to the
points there determined, or the views taken by the court; and
under such circumstances we can hardly say that we should not
consider the questions there involved as still open. However,
from the best information we have been able to obtain, we are
relieved from any embarrassment growing out of the doctrines
which it was claimed by counsel were established by it; as we
learn that it was determined by the court that no question of the
exercise of the taxing power was involved in it."

Judge Cole dissented with vigor, holding to the view that
property with differing characteristics might be classified
and subjected to different rates of taxation without violating
the Constitution, providing that the classification was

The Railroad Tax Decisions 223

proper. He then goes on to give his own personal recol-
lections of the decision in Mil. & M. R. Co. v. Supervisors
of Waukesha County, the unreported railroad case decided
in 1855. On this subject he says, after stating what that

case was :

"This court, after as full an examination and as careful con-
sideration as has been given to any case, which I have partici-
pated in deciding, sustained the law; the validity of which had
been called in question. Though no opinion has been prepared,
yet the points decided were written out by one of the members
of the court, and, as he informs me, placed upon file with the
papers in the case. It appears that the paper containing these
points has been misplaced or cannot now be found. Still, I sup-
posed the ground of that decision was well understood through-
out the state. This court did not decide, as has been intimated,
that the law of 1854 did not impose a tax in the just and proper
sense of that term, but was a payment made to the state by the
several corporations, to which the law applied, in the nature of
a bonus or compensation for the exemption granted. This is
certainly not the place to state, at length, the reasons which led
the court to the conclusions arrived at in the case, even if I had
the time to do so; and I shall barely allude, therefore, to the
construction we then placed upon section one of article VIII of
the constitution, to show that it would have been competent
within the principle of that decision, for the legislature to have
provided that the farming and garden lands, within the limits
of the city of Janesville, might be subject to a different rule of
taxation for city purposes, than the other real estate therein sit-
uated."

He then proceeds to state in substance that it was decided
in the Mihvaukee case that property might be classified,
i. e. that all railroad property might be put in one class and
be subjected to one rule or percentage of taxation, while
other essentially different kinds of property could be class-
ified by themselves and each subjected to its own rule or
percentage, and that so long as the classification was proper
the rule of uniformity was not broken. It is interesting,
to say the least, to note the varying statements with regard

224 The Story of a Great Court

to the unreported case; Judge Dixon says that "we are
told" that no opinion or headnote was ever written and that
"we learn that it was determined by the Court that no
question of the exercise of the taxing power was involved
in it."

This statement seems diametrically opposed to Judge
Cole's assertion that the Court "did not decide, as has been
intimated, that the law of 1854 did not impose a tax in the
just and proper sense of that term."

Judge Cole further says that though no opinion was pre-
pared the points decided were written out by one of the
members of the Court and, "as he informs me," placed upon
file with the papers in the case.

The member of the court referred to could be only
Judge Smith (Judge Whiton being deceased), and Judge
Smith was still the official reporter of the Court. Now
comes a most remarkable fact. Judge Smith, in reporting
the Knowlton case, inserts as a note the Milwaukee case
complete with the arguments of counsel, the decision of
Judge Hubbell at the circuit and an opinion brief indeed but
with all the indicia of a formal opinion, and beginning in
the usual way, "By the Court, Smith, J.," and places the
following note at its head, "(The following paper contains
all the opinion of the Court which has ever been written,
except the order affirming the decree of the circuit court,
and which has been discovered since the opinions in Knowl-
ton v. Supervisors of Rock County were written — Rep.)."

This amounts to a categorical statement by Judge Smith
that it is the statement of points decided which Judge Cole
refers to as having been written out by one of the members
of the court and placed on file with the papers in the case.
One can come to no other conclusion without charging

The Railroad Tax Decision 225

Judge Smith with deliberately manufacturing the document
after the decision in the Knowlton case, and this is not to
be thought of. Regarding it, therefore, as the statement of
points decided in the Milwaukee case, we find by reading
it that two points affecting the merits were decided in that
case : First, that the law does not violate the uniform tax-
ation rule provided all railroad property of the same class
is taxed alike or exempted alike as it appears to be ; Second,
that the court does not think that the law imposes a tax
within the meaning of the constitutional provisions and
therefore is valid so far as the government is concerned.

The first proposition is the proposition which Judge Cole
says was decided, and the second proposition seems very
like the proposition which Judge Cole says was not decided.
There was evidently a radical difference between Judge
Cole's recollection and Judge Smith's recollection, for it
must have been upon Judge Smith's recollection that Judge
Dixon based the statement in his opinion that "we learn that
it was determined by the court that no question of the
exercise of the taxing power was involved in it." Assum-
ing, as we apparently must, that the memorandum pub-
lished by Judge Smith in the note to the case was the long
lost statement of points filed at the time, then it seems that
Judge Smith's recollection was the better. There is just
one way in which they may perhaps be harmonized. The
memorandum says that it was held that the act does not
impose a tax within the meaning of the constitutional pro-
visions; Judge Cole says that it was not held that the act
did not impose a tax in the just and proper sense of that
term. Now if the constitutional provision refers only to
property taxation and the law was considered to be an
excise law, or law levying an occupation tax, both state-
15

226 The Story of a Great Court

merits might be true. The tax was not a tax of the kind
referred to and regulated by the constitution, but was a
tax within the broad and true sense, as every excise or
occupation tax is, although it has also contract elements

in it.

This is practically the conclusion to which the court came
when the whole subject of taxation was presented in the
railway and inheritance tax cases presented in the year
1906. Reference to those cases will disclose that the his-
tory of the early decisions and especially the unreported
decision was there quite fully reviewed.5

The discussion of the Milwaukee case in the Knowlton
case, and especially the statement by Judge Cole that the
Milwaukee case was overruled by the later case, again in-
volved the railway tax law of 1854 in serious doubt, and
the state brought an action of mandamus in January, i860,
to compel a delinquent plank road company to pay one per
cent of its gross earnings into the treasury of the state,6
and thus the question was again presented.

In this case Judge Paine wrote the opinion. He and
Judge Dixon agreed that there could be no classification
and difference in rates between the different classes of
property; that uniform taxation of property meant equal
taxation according to valuation; that the law in question
was a property tax law, and not a licensing act, or a police
measure, and hence violated the rule of uniformity and was
void.

Judge Smith was still the reporter of the Court and ap-
parently gave some additional information to the Judges

5 State v. Railway Companies, 128 Wis. 449; C. & N. W. Ry. Co.
v. State, 128 Wis. 553; Nunnemacher v. State, 129 Wis. 190.
e State v. W. L. & F. R. P. Co. 11 Wis. *35.

The Railroad Tax Decision 227

with regard to the decision in the unreported case, for
Judge Paine says :

"It is claimed at the outset, that the question has already been
decided by this court in the case of the Milwaukee and Miss. R. R.
Co. v. The Supervisors of Waukesha, which was decided several
years ago, but in which there never was any opinion written.
The same position was taken in Knowlton v. Supervisors of Rock
Co.; and it was there intimated in the opinion of the chief jus-
tice, that under the peculiar circumstances of that decision, not
knowing the precise ground upon which it rested, nor the reasons
of the court, we could hardly feel bound by it as an authority.
Its effect, however, was at that time avoided by the fact that,
according to the best information we had of it, the court held
that the imposition upon the railroad was not a tax within the
meaning of the constitution. The source of that information
was a letter written by one of the judges to one of the counsel
in the case, stating the points decided. And it was there said
that the court held: 1. That the amount required to be paid by
the railroad company was not a tax; and that if it was a tax, the
constitutional requirement of uniformity was complied with, in-
asmuch as all railroads were taxed alike. Mr. Justice Cole, how-
ever, who was then on the bench, places his decision upon the
last ground, and does not understand that the court relied very
strongly upon the first."

It will be noticed that it is now said that one of the
Judges .(necessarily it must have been Judge Smith) wrote
a letter to one of the counsel, and in this letter it was said
that the Court held "i. That the amount required to be
paid by the railroad company was not a tax." The state-
ment that the decision was contained in a letter seems to
introduce a new element of uncertainty into the question
as to what was really decided in the early case. Judge
Cole again dissented on the same grounds as in the Knozvl-
ton case.

In the opinion of the Court Judge Paine takes up and
disposes of the claim that the exaction may be sustained
as a license fee, and not a property tax, and rejects it. for

228 The Story of a Great Court

various reasons, among which are, that it is called a tax
in the title of the act, that the law provides for no license,
does not pretend to grant any authority or privilege to do
any act and hence does not perform any of the functions
of a license law.

The subsequent history of the railway tax litigation and
the final overruling of the Plank Road case is briefly given
in the opinion of the Court in the Nunnemacher case, supra,
and the statement there made is inserted here because it
seems to present the matter fully as well as the writer could

hope to do again.

"This decision was made at the January term, 1860, and evi-
dently threw the financial systems of the state and municipali-
ties into great disorder. The legislature at once passed chs. 173
and 174, Laws of 1860; the first-named chapter exempting all
railroad property from taxation, and the last-named chapter pro-
viding for taxation of railroads by the license system. In these
acts the attempt of the legislature to follow the suggestions of
the court in the Plank Road Case (11 Wis. 35) and make a law
which should, in fact, be a license law is very manifest. Every
reason suggested in that case why the law of 1854 could not be
considered a license law was observed, and an attempt made to
obviate it. But the question would not down. It was presented
gain in Kneeland v. Milwaukee, 15 Wis. 454, in 1862, when the
extent of the financial ruin and governmental paralysis resulting
from the holding in the Plank Road Case was evident on every
hand. The Court in this case, after affirming the Plank Road
Case upon the first argument, entertained a motion for rehear-
ing, and while Justices Dixon and Paine remained of the same
opinion upon the merits they finally agreed in overruling their
former decision and returning to the decision in the Milwaukee
& M. R. Co. Case, on the ground of stare decisis. So the law was
settled in this stato that the act of 1854 was constitutional.

"The only thing that can be said to, have remained doubtful
was the question as to what ground or grounds the decision in
the Milwaukee & M. R. Co. Case went on. According to Judge
Smith's memorandum, the only contemporaneous written evi-
dence which we have, it went upon two grounds: (1) That if a
tax, it did not violate the rule of uniformity because all railroad

The Railroad Tax Decision 229

property was treated alike, and (2) because the court did not
deem it a tax within the constitutional provisions (i. e. sec. 1 of
art. VIII of the constitution). This second proposition can only
mean that it was not a tax upon property. According to Judge
Cole it was not decided that the law did not impose a tax, but
Justice Paine in the final opinion in the Eneeland Case treated
this difference of opinion as, in fact, immaterial, and said that
all that, it was necessary to know was that it was held that, if
it was a tax, it was no violation of the rule of uniformity, and
that the law was held to be no violation of the constitution. It
is not very surprising that Judge Cole's recollection should not
agree with the written memorandum. Doubtless the discussion
in the consultation room took a wide range, and all know how
rare it is that two persons will remember a long conversation
or consultation alike. Both versions may be practically harmon-
ized on this theory, namely, that it was held not to amount to
a property tax under sec. 1 of art. VIII of the constitution, as
Judge Smith says, but was held to be an exercise of the inherent
taxing power of the state. Judge Smith's memorandum nowhere
negatives this theory, but rather tends to support it, while this
also justifies Judge Cole's statement that it was not held that the
law did not impose a tax. However this may be, it would seem
that the question is authoritatively settled in the case of Wis.
Cent. R. Co. v. Taylor Co. 52 Wis. 37, 8 N. W. 833, where it was
held, after an historical review of the cases in an opinion by the
present chief justice, that 'the decision of this court in the case
of Milwaukee & M. R. Co. v. Waukesha Co. 9 Wis. 449, appears
to be eminently sound on all points involved, and all contained
in subsequent opinions inconsistent therewith is hereby disap-
proved.' Just what is meant by 'all points involved' may not bo
entirely certain, although it would seem to refer to the points
named in the memorandum of the decision made by Judge Smith;
but there can be little doubt as to what is meant by the phrase
'all contained in subsequent opinions inconsistent therewith.'
The positions which Justices Dixon and Paine took in the Plank
Road Case (11 Wis. 35) which were inconsistent with the Mil-
waukee & M. R. Co. Case and upon which the latter case was
overruled were that the railroad tax was a tax upon property,
and that hence it was void because not uniform under sec. 1 of
art. VIII, and these positions are certainly disapproved by the
Taylor County Cas*. So we regard it as settled by the necessary
effect of the decisions named that the railroad tax legislation of
1854, and a fortiori the railroad license legislation of I860 and

230 The Story of a Great Court

of following years, while imposing a tax in the proper sense, did
not impose a tax upon property within the meaning of sec. 1 of
art. VIII of the constitution, but was in fact excise taxation upon
the privilege of transacting business."

It is only history now to recall the fact that the railway
tax law of i860 remained upon the statute books with
changes and increases befitting the growth of the great
business from the time of its enactment up to the passage
of the ad valorem tax law of 1903 ; 7 that the same system
of taxation by license of the business and exemption of
property has been extended to street railways, electric light
companies, and telephone and telegraph companies, and
that for many years these occupation or privilege taxes
aggregated millions and formed the principal source of the
revenues of the state.

1 Chap. 315, Laws 1903.

Paine's Resignation 231

CHAPTER XVIII

JUDGE PAINE'S RESIGNATION AND THE APPOINTMENT OF
JASON DOWNER

After Chief Justice Dixon's re-election for a full term
in the spring of 1863 it might well be anticipated that the
bench would remain as then constituted for a number of
years at least.

All of the judges were young and vigorous; both Dixon
and Cole had recently and successfully run the gauntlet of
the farm mortgage movement and had overcome factional
opposition in their own party, while Judge Paine certainly
had little reason to apprehend the result of the campaign
for re-election which he would be compelled to make in the
spring of 1865. Democratic hopes which had risen so high
in the fall of 1862 were practically extinguished in the sum-
mer of 1863. The administration needed only victories in
the field to arouse again the drooping spirits of the Repub-
licans, and these victories came in July, 1863, when Vicks-
burg and Gettysburg sounded the death knell of the Con-
federacy. There was little prospect that any faction or any
party would be bold enough to nominate a candidate against
Judge Paine if he chose to run again. Moreover, the ju-
dicial work was congenial to him and he had fully demon-
strated his eminent fitness for the bench.

Nevertheless, as has been briefly stated in a preceding
chapter, Judge Paine resigned on the tenth day of August,
1864, for the purpose of entering the military service of
the United States, and did actually enter the service' as

232 The Story of a Great Court

lieutenant-colonel of a regiment and continued therein until
May, 1865, when the war had practically ceased.

At this distance of time Judge Paine's action seems
strange, not to say unaccountable. When he resigned the war
was in fact in its last stages, and it was apparent to all
that the end was only a question of months. There was no
great emergency ; no danger of disruption of the Union ;
there was no situation even suggesting the necessity that a
high official of the state, performing public duties of the
highest importance should lay down those duties and take
up arms. Why then did Judge Paine resign?

The writer will not presume to answer this question pos-
itively, but will simply say that he has little doubt that
Judge Paine entered the army because he desired to demon-
strate to all his entire loyalty to the Union. If the question
be asked why Judge Paine should feel it necessary to make
a practical demonstration of his loyalty the answer is not
far to seek.

Up to the time of the outbreak of the civil war the Re-
publican party in Wisconsin had been an ultra state rights
party ; it had made the doctrines of the Booth case the test
of party fealty and had won its victories on that platform ;
Judge Paine had been the chief and most brilliant exponent
of these doctrines and was still so regarded. But as the
war dragged along year after year, and as it became more
and more evident that the southern states founded their
entire contention on the doctrine of state rights it became
evident to the great mass of the party that they must part
company with the state rights idea 'and that if the Union
was to exist the doctrine that each state could nullify any
federal law displeasing it must be abandoned. There was
a very respectable minority of the party, led by such men as

Paine's Resignation 233

Timothy O. Howe, who had always opposed the principles
of the Booth case and claimed that federal power must be
supreme upon all federal questions, and as the war pro-
gressed this minority had the satisfaction of seeing their
ideas vindicated and approved by the great majority of
the party.

Judge Paine fully appreciated this change of sentiment
in his party associates, but he never himself abandoned the
principles upon which the Booth case rested. To him those
principles were essential to human freedom. He had em-
braced them in early manhood and fought a successful
battle for their vindication as gallant and knightly as ever
was fought by any Galahad in coat of mail. He could not
abandon them ; they were a part of his very life ; to him they
did not mean disunion or secession, whatever others might
think. He afterwards drew the distinction between the
state rights doctrines of the Booth case and the doctrine of
secession in a dissenting opinion in a case arising in I869,1
and which will be more fully treated later in this work.

But the distinction which his accurate legal mind saw
existing between the two doctrines was too fine for the great
mass of the people to appreciate. To them state rights
meant the right to secede. In their view the doctrine of
state rights was directly responsible for the existence of a
war which had drained the country of millions upon millions
of its treasure and thousands upon thousands of the flower
of its youth.

Judge Paine could not help seeing the popular verdict
though protesting against its correctness. He saw himself
pilloried in the public estimation as believing in the right of

i Knorr v. Home Ins. Co. 25 Wis. 143.

234 The Story of a Great Court

secession. This could not fail to grieve him sorely and his
conclusion doubtless was that the only effective way to
prove his absolute loyalty to the Union and his hatred of
secession was to enter the army and prove it by "wager
of battle."

This was thought by some of his contemporaries to be
the controlling reason for his resignation, and there seems
to the writer little doubt of the fact.

Judge Paine's last appearance on the Supreme bench
(prior to his return to it after the close of the war) was
on the nth day of August, 1864; his resignation, however,
did not take effect until November 15th following, on which
day his successor, Jason Downer, of Milwaukee, who had
been appointed by Governor Lewis to fill the vacancy, took
his seat.

There is very little historical material at hand from which
to draw any extended sketch of the life of Jason Downer
prior to his service as Justice of the Supreme Court. He
was fifty-one years of age at the time of his appointment
and had practiced law at Milwaukee for twenty-two years,
during which time he had built up a profitable and steady
business. His career as a lawyer had not been brilliant or
startling, but it had been successful because he combined
with a clear head and logical mind great industry and un-
questioned integrity. He was a safe counselor, a diligent
student and a careful, thrifty man of business, who ac-
cumulated a considerable property, much of which went at
his death in 1884 to endow the Milwaukee-Downer Wom-
an's College.

Perhaps the most satisfactory sketch of his life now exist-
ing is the sketch prepared by Hon. D. H. Johnson of Mil-

Paine's Resignation 235

waukee, and presented to the Supreme Court May 15, 1884,2
as follows :

"The sober, diligent, and well-rounded career of Judge Downer
was free from startling adventures, and was calculated to com-
mand respect, rather than inspire enthusiasm. His eulogy, like
his own utterances, should he characterized by decent modera-
tion, just discrimination, and careful abstention from irrelevant
and overdrawn statements.

"Jason Downer was born at Sharon, Vermont, September 9,
1813. His father was a wealthy farmer, as wealth was counted
in those days. He remained at the homestead farm until he was
nineteen years of age. He then entered Kimball Union Academy
at Plainfield, New Hampshire. In 1834 he entered Dartmouth
College and graduated in 1838. He soon afterwards went to
Louisville, Kentucky, where he studied law and was admitted to
practice. In 1842 he removed to Milwaukee. About that time
the Milwaukee Sentinel was established. Mr. Downer was one of
the original proprietors of the paper, and for about six months
he filled the editorial chair. He retired from that position in
favor of Gen. Rufus King. Thenceforth he devoted himself to
the practice of the law.

"In 1842, Milwaukee was a small, straggling, lake-shore vil-
lage, giving slight promise of its future greatness. Its commer-
cial and manufacturing prosperity was visible only to the eye of
faith. A reference to the files of the first volume of the Sentinel
will show that Mr. Downer had the faith and sagacity requisite
to discern the destiny of his chosen home. He was satisfied to
grow with its growth and wait for his just share of the business
and wealth in store for it. From 1842 to the day of his death he
was a loyal Milwaukean, always taking a deep interest and fre-
quently an active part in the various enterprises whose history
constitutes the main chapters in the annals of the city.

"In November, 1864, he was appointed an associate justice of
this court in place of Byron Paine, resigned, and the following
spring he was elected to that position for a full term. He par-
ticipated in the labors of this court until September 11, 1867,
when he resigned.

"His judicial career, including a brief period when he occu-
pied the circuit bench, by appointment to fill a vacancy, did not
exceed three years. But it was long enough to establish his
standing as a learned, industrious, and able jurist.

■- CO Wis. p. xxxii.

236 The Story of a Great Court

"By far the greater portion of his active life was spent in
the practice of the law in Milwaukee county. At the Milwaukee
bar his powers were formed; there they were put forth in their
full vigor for more than thirty years; there he acquired the pro-
fessional distinction that led to his elevation to the bench; there
he earned the greater part of his fortune. He returned to the
Milwaukee bar when he laid by the judicial ermine, and he was
a member of that bar down to the day of his death. It is there-
fore eminently fit that the Milwaukee bar should announce his
death to this court and here bear testimony to his worth.

"As a lawyer he was distinguished for the extent and depth
of his learning, for the soundness of his judgment, and for pro-
fessional diligence and fidelity. As an advocate he was strong
and convincing, whether .dealing with questions of law or fact.
If lie lacked the eloquence and magnetism of Ryan, Arnold, and
Carpenter, or the ingenuity and originality of Byron Paine, the
deficiency was well supplied by the soundness and extent of his
learning and the clearness of his views. His arguments were sel-
dom ornate, never florid, but always direct and to the point. As
an adviser he was cautious and conservative, not given to rais-
ing false expectations, never blind to the strength of the adver-
sary's case, and never tempted into that wild professional
partizanship so apt to injure the cause which it espouses. In
short, his cases did not run away with him. He was therefore
justly considered among the safest of advisers. It was mainly
this quality that built up for him a large practice and an enviable
fame. His clients felt secure in his judgment, his learning, and
his industry. He was chary of promises of success, and was apt
to accomplish more than he predicted.

'As a judge his record was made here. I need not say to this
court that it is an honorable record. The reports of his opinions
are redolent of deep learning and vigorous thought. They are
models of clearness and conciseness. He was the organ of the
court in the promulgation of some of its important decisions, and
th<^ court has never, I believe, been embarrassed by any loose-
ness or redundancy in his manner of pronouncing its judgments.
It is surely better that one's style should be colorless than that
it should be colored by prejudice or whim, or darkened by un-
certainty.

"In his business relations his thrift and his integrity went
hand in hand. He accumulated a handsome fortune, but he
wronged no man. In all his business ventures his caution and
his enterprises were happily balanced. He was not afraid of

JASON DOWNER.

Paine's Resignation 237

large and complicated undertakings, and he was not reckless or
thoughtless in small and simple matters.

"It is but justice to add that although he made little public
show of any non-professional attainments or accomplishments, he
was in fact a ripe scholar and a diligent student of the ancient
and modern classics.

"In his domestic relations, it is enough to say that he was
above reproach. He leaves behind him a well-earned reputation
for probity, diligence, and ability. The disposition which he
made of his large estate in his last will and testament may well
serve as a model for other rich men. Without neglecting any
of the claims of kindred and friends, he remembered in a munifi-
cent manner an institution of learning in which he felt an inter-
est, and did not couple his gift with any of those absurd and
crotchety conditions which often make such a bequest a burden
rather than a help."

Chief Justice Cole's estimate of him is interesting, and
a part of it is as follows :

"He was a hard student and exclusively devoted to his profes-
sion. The prizes of political life did not excite his ambition or
have attraction for him. And he gave his whole heart and soul
and energy to the study and practice of his chosen profession.
They seemed to be his delight by day and his solace by night.
The law is said to be a jealous mistress, who will tolerate no
rival. As a rule she certainly bestows her highest favors, her
brightest honors, upon those who court her most assiduously and
with the most unwearied devotion. This Judge Downer did do;
consequently he became, and was acknowledged to be, a thorough
and profound lawyer. In his arguments before this court he
never indulged in any declamation or in fine speaking, but ad-
dressed the understanding and reason. His efforts were never
enlivened by any flashes of wit or humor, nor embellished with
any eloquent and rhetorical language. His arguments were plain,
clear, forcible, and learned. His manner earnest, direct, — at
times, owing to the strength of his convictions, almost dogmatic.
But when he closed his argument you were sure to have an ex-
haustive discussion of the law and facts on his side of the case,
all presented in a lucid order with great clearness and force of
reasoning.

"On Judge Downer's appointment to this bench he brought into
exercise the same useful and laborious habits, patient industry,
and careful examination of causes, which had characterized his

238 The Story of a Great Court

practice at the bar. He conscientiously investigated each case
for himself and mastered all its facts. He had great respect for
authority, and wished to walk in the old paths of the common
law; super antiques vias legis. He had a strong sense of justice,
and thought the rights of parties would be the most fully pro-
tected and secured by a rigid adherence to settled principles.
Some thought he was too technical and did not sufficiently ap-
preciate the necessity for new rules, or the modification of old
rules to meet the demands of modern society and its ever chang-
ing business relations. The opinions which he delivered from
this bench are well described in the memorial as being distin-
guished for the soundness of their logic, the depth of their learn-
ing, and as safe and valuable precedents and expositions of the
law. He remained on the bench for about three years, during
which period he left in the published reports an enduring monu-
ment to his industry, discrimination, and exact and comprehen-
sive learning. To say that he was honest and impartial in the
discharge of his duties as a judge may be faint praise, but it is
true nevertheless."

Judge Downer was elected without opposition in the
spring of 1865, being the first instance of that kind in the
history of the Court, and remained upon the Supreme bench
nearly three years, during which time many important ques-
tions were presented to the Court and decided, in all of
which he took his full share of the burden. Some of these
cases will be more fully referred to hereafter. There seems
no reason to doubt the correctness of Chief Justice Cole's
estimate of his abilities as a judge. It seems quite certain,
however, that he did not entirely enjoy the work upon the
bench. During these years the volume of work began to
increase with considerable rapidity, and evidently the labors
of the bench became somewhat onerous to him. He was
in easy circumstances financially, and in the fall of 1867
he tendered his resignation to Governor Fairchild, to take
effect on the tenth day of September.

Byron Paine, who had returned from the war in May,
1865, was again practicing law in Milwaukee, and Governor

Paine* s Resignation 239

Fairchild without hesitation re-appointed him to the bench,
an act which was universally recognized as not only a grace-
ful act, but as the most fitting appointment that could have
been made.

By virtue of this appointment the state regained in its
service the ability and experience of Byron Paine upon the
bench of its highest court, and might reasonably hope to
retain him in that position for many years, for he was then
not quite forty years of age.

240 The Story of a Great Court

CHAPTER XIX

MORE WAR QUESTIONS

In a former chapter a number of very important cases,
involving questions arising out of or closely connected with
the civil war in its earlier stages have been considered.
There were other questions of a similar character which
arose later, which are deserving of mention and which will
be taken up in the present chapter.

The first cases presenting questions arising out of the
civil war and its prosecution were two cases regarding the
validity of the enlistment of minors without the consent of
their parents or guardians.1 The federal law provided that
no person under the age of eighteen should be mustered
into the federal service. In the Gregg case, the minor was
over eighteen, but under twenty-one years of age, and had
enlisted without the consent of his father, and it was held
that the enlistment was valid ; in the Higgins case, where
the enlisted person was under eighteen years of age, and
had so stated to the recruiting officer, but was enlisted with-
out his father's consent, the enlistment was held unauthor-
ized and the boy was discharged from military control.

On the 25th of February, 1862, the President approved
an act of Congress authorizing the issuance of United
States treasury notes, familiarly known as greenbacks, and
declaring that they should be "a legal tender in payment of
all debts, public and private."

1 In re Gregg, 15 Wis. *479; In re Higgins, 16 Wis. *351.

More War Questions 241

The question whether Congress had power under the
Constitution to declare anything except gold and silver coin
to be legal tender in payment of pre-existing obligations was
a serious and much mooted one.

It was squarely raised at the January term, 1864, in a
foreclosure action where it appeared that in October, 1862,
the defendant had made a tender of the full amount of the
debt in treasury notes.2 The lower court had held that the
tender was not good because not made in coin. The court,
in an opinion written by Judge Paine, sustained the validity
of the act, following the decision of the Supreme Court of
New York in a then very recent case.3 In the New York
case Chief Justice Denio dissented and wrote a very elabo-
rate and able opinion. Judge Paine in his opinion first says
that the reasons for holding the act valid are so fully set
forth in the opinions in the New York case that it would
be mere repetition to re-state them. He then proceeds, how-
ever, to take up the dissenting opinion of Chief Justice
Denio, and in a very lucid argument attempts to demonstrate
the inconsistency in the positions taken by that great jurist.
It would take some courage to attempt to show that an
opinion of Chief Justice Denio was erroneous in its logic,
yet that is what Judge Paine did, and the question whether
he did not do it successfully is, I think, an open one. Both
opinions are worth reading.

It will be remembered that the Supreme Court of the
United States met this question in 1869, and first held in an
opinion by Chief Justice Chase that the act was void as
applied to pre-existing debts,4 but when the question was

2 Breitenbach v. Turner, 18 Wis. *139.

•'< M. B. S. & L. Bank v. Van Dyck, 27 N. Y. 400.

* Hepburn v. Griswold, 8 Wall. 603.

16 -

242 The Story of a Great Court

again presented in the following year the Court, after sev-
eral arguments and by a bare majority, overruled the Hep-
burn case and affirmed the constitutionality of the law
against very strong dissenting opinions by Chief Justice
Chase, and Justices Clifford, Field and Nelson.5

The last named cases, or "the legal tender cases," as they
were familiarly called, aroused much criticism at the time
among the bar and the people. When the Hepburn case
was decided there were but eight justices in commission and
a vigorous dissent was filed by Justices Miller, Swayne, and
Davis ; Mr. Justice Grier was physically very feeble and,
while he participated in the consultation room in the deci-
sion of the case, had already sent his resignation to the
President, and sat for the last time on January 31, 1870,
two days after the decision.

The decision in the Hepburn case was disappointing to
the government and to the people generally, and was not
generally accepted as final, especially in view of the feeble
condition of Mr. Justice Grier, who voted with the majority.

The two vacancies on the bench were filled by President
Grant by the appointment of William Strong of Pennsyl-
vania, February 18, 1870, and Joseph P. Bradley of New
Jersey, March 21, 1870. It was currently charged by the
enemies of the administration at the time, that these ap-
pointments were made for the purpose on the part of the
President of packing the Court in order to prepare the way
for overruling the Hepburn case. Justices Strong and
Bradley were very able men who were entirely worthy of
seats on the Supreme bench ; the charge that the bench was
intentionally packed to accomplish the reversal of the Hep-
burn case was one easily made and hard to disprove, and

5 Knox v. Lee, 12 Wall. 457.

More War Questions 243

the fact that both judges voted to reverse that case lent
some color to the charge ; it may probably be safely assumed
that the President took care not to appoint any jurist known
to be hostile to the law, but, on the other hand, it cannot
be supposed for a moment that he went further than this.

At the January term, 1865, another federal war measure
came before the Court, namely, the stamp act of July 1,
1862, which provided, among other things, for the affixing
of stamps to ''writs or other original process by which any
suit is commenced in a court of record." 6

The action in which the validity of the law was attacked
had been dismissed in the circuit court because no stamp
had been affixed to the appeal papers, and the sole question
in the supreme court was whether the dismissal was right.
The Court held that the provision in question was void be-
cause such writs or other processes were the essential means
by which the state governments exercise their judicial func-
tions, and hence must be exempt from taxation by the fed-
eral government ; otherwise the federal government must
have the power to tax all the means used by state govern-
ments to carry out their duties, and if it has the power to
tax, it has the power to tax to excess, and thus destroy the
ability of the state governments to perform their functions.

The opinion in this important case was written by Judge
Cole, and is an example of his logical reasoning and terse
but clear judicial style at its best.

In this case Judge Downer dissented and wrote an able
opinion which is also well worth reading in connection with
Judge Cole's opinion. Judge Downer's position was that
the tax was in no sense a tax on the instrumentalities of the
government, but on the individual who commences a law-

0 Jones v. Estate of Keep, 19 Wis. *369.

244 The Story of a Great Court

suit. He instances the fact that the state levies a tax of
one dollar on every civil suit commenced in a court of
record, but that this tax had never been supposed to be a
tax on the instrumentalities of government, and says, "The
idea that underlies both the state and United States law
* * * is that the individual suitor is taxed. * * * It
is a tax on the person who caused the lawsuit, who is in
the wrong, and against whom the aid of the state is in-
voked."

The same federal law required stamps to be put on every
deed of conveyance of land, and the question whether this
covered tax deeds executed under the laws of the state was
presented at the September term, 1867,7 and the Jones case
was followed in an opinion by Judge Dixon, who briefly
says, "We are of opinion that Congress possesses no con-
stitutional power without the assent of the states to tax the
means or instruments devised by the states for the purpose
of collecting their own revenues ; and for our reasons in
support of this conclusion we refer to the opinion of this
Court in the case of Jones v. The Estate of Keep."

Another important question arising at the close of the
war was the question of the validity of the state law of
1865 (Chap. 14), authorizing towns, villages and cities to
levy taxes to pay bounties (not exceeding $200) to men who
might have enlisted or should thereafter enlist under the
call of the President for 300,000 men made in December,
1864, or any subsequent call.8 The act also provided for
payment of bounties to persons who before being drafted
furnished substitutes, and for giving pecuniary aid to the
families of volunteers and drafted men.

• Sayles v. Davis, 22 Wis. *225.

s Brodhead v. Milwaukee, 19 Wis. *624.

More War Questions 245

The main argument here was that such purposes could not
be said to be public or municipal purposes, but purely private
purposes ; that it was taking the money of citizens at large
and giving it to an individual, the public being in no legal
sense benefited by the transaction. Following a Pennsyl-
vania case then recently decided,9 the Court sustained the
law in an opinion by Chief Justice Dixon, against a sharp
dissent by Judge Downer, who was of opinion that as to
volunteers who had enlisted before the voting of the tax
the law was void, because the city or town had no special
public interest in the payment of such bounties ; he also
thought the law was by its terms inapplicable to the city
of Milwaukee.

An echo of the Ozaukee draft riots of 1863 was heard at
the January term, 1867, in a case in which one of the persons
who was resisting the draft and was arrested and detained
for a time sued ex-Governor Salomon for false imprison-
ment.10 The Governor justified his action on the ground
that he, as Governor, was enforcing the draft laws and law-
fully used the discretionary authority conferred upon him
by the President under the provisions of the draft laws of
the United States. In the trial court judgment went for
the defendant, and that judgment was affirmed by the Su-
preme Court in an opinion by Judge Downer, in which the
Governor's contention was fully sustained.

An extract from the opinion will give an idea of Judge
Downer's pithy and terse style :

"It is clear that the defendant did not transcend the discre-
tionary authority conferred upon him. His acts must therefore
be regarded, in a certain sense, as the acts of the president. The
same principles apply to his defense as would to that of a mili-

" Speer v. Blairsville, r,0 Pa. St. 150.
if>Druecker v. Salomon, 21 Wis. *621.

246 The Story of a Great Court

tary commander, if sued for acts by him done in fighting a battle
to put down an insurrection or rebellion.

"But it is said, such executive power is dangerous to liberty.
Admit it. It is also absolutely necessary to every free govern-
ment. Ever since the downfall of the feudal aristocracies of
Europe, the champions of freedom have labored so to limit execu-
tive power as to prevent usurpation and despotism; and they
have succeeded in England and in this country, by throwing
around it various checks and safeguards. Not one of these
would we remove, or do aught to impair its efficiency. While,
however, executive power is dangerous to liberty, no government
has ever existed long without it. Without it, in the great crises
which await every nation, government dissolves in anarchy."

Probably the most interesting case decided by the Court
at this period was the case involving the question of the
right of negroes to vote.11 The decision in favor of the right
came as a great surprise to the greater part of the people
of the state, and in order to understand how it came about
and why it was a great surprise it is necessary to hark back
to constitutional times.

Section i of Article III of the State Constitution, after
enumerating the various classes of citizens entitled to vote,
provides that the legislature may at any time by law extend
the right to others, but that no such law shall be effective
until submitted to vote "at a general election and approved
by a majority of all the votes cast at such election."

The legislature of 1849 passed an act (Chapter 137) con-
ferring the right of suffrage on all colored male residents
over twenty-one years of age, provided that a majority of
all votes cast at the general election in November of that
year should be cast in favor of such extension of the right.

The question was submitted at this election, separate bal-
lots and ballot boxes being provided. The great majority
of the electors voting did not take interest enough in the

11 Gillespie v. Palmer, 20 Wis. *544.

More War Questions 247

question to vote upon it. The total votes cast for Governor
was nearly 32,000, of which Dewey (Dem.) received 16,649,
Collins (Whig-) 11,317, and Chase (Free Soil) 3,761. But
upon the question of negro suffrage only 9,330 votes were
cast, of which 5,265 were for and 4,075 against the exten-
sion of the ballot to the negro.

There were very few who claimed that a majority of
all the votes cast at the election had been cast in favor of
the proposition. True there were some ardent negro sym-
pathizers who held this view, and among them was Sherman
M. Booth of Milwaukee, who argued in the columns of the
Free Democrat that because a majority of the votes cast
upon the subject were favorable the proposition had carried.
He found very few who agreed with him, however, and
when the state board of canvassers made the official canvass
in December they certified that the whole number of votes
cast was 31,759 (this being the total vote cast for the state
office for which the great number of votes was cast), of
which 5,265 were cast in favor of equal suffrage to colored
persons and 4,075 were cast against equal suffrage to col-
ored persons.12

This was virtually a determination that the proposition
had been defeated, and it was accepted by press and public
generally as the end of the matter.

When the general revision of the statutes was made in
1858 no one claimed that the negro suffrage law of 1849 was
a part of the state law of the state, and no notice was taken
of it. The negroes themselves did not suppose that they
possessed the right to vote, and made no claim to it, except
perhaps in some few cases.

12 Wisconsin Express, Madison, Dec. 25, 1849.

248 The Story of a Great Court

So universal was the impression that the law of 1849 had
been rejected by the people that the Republican legislature
of 1865 passed an act (Chap. 414) providing for submission
of the question again to the people. This time it was pro-
vided that the vote should be upon the regular ballot and
cast in the regular ballot boxes, so that there would be less
danger of an insignificant number of votes being cast.

There was much difference of opinion in the Republican,
or Union, party, as it was then called, and the platform of
that year contained no reference to the question.

As finally canvassed the vote on the proposition stood
46,588 in favor and 55,591 against it, thus defeating it, al-
though Lucius Fairchild, the Union candidate for Governor,
was elected by a majority of about 10,000. This time it
was defeated by a clear majority of all the votes cast, what-
ever theory of the meaning of that expression might be
adopted.

It seemed that the question had been set at rest for a time,
but not so. There were those who still believed that the
law of 1849 had been in fact constitutionally approved by a
majority of all the votes cast, and among these was Byron
Paine, who was now again practicing law at Milwaukee,
having returned from the war. Whether it was on his
suggestion or not I do not know, but at the November elec-
tion of 1865 a negro named Gillespie, who possessed all the
qualifications of an elector, except the Caucasian blood, if
that was necessary, presented himself at the polls in Mil-
waukee, offered his vote, and upon its rejection sued the
inspectors for damages for the wrong done him.

Byron Paine brought the action and put his whole heart
in it as he had put it in the Booth case eleven years before.

More War Questions 249

He was then fighting to make the negro a freeman ; he was
now fighting to insure to the negro the necessary weapons
of the freeman. A demurrer to the complaint was sus-
tained in the circuit court, but upon appeal the Supreme
Court unanimously held that the law of 1849 was approved
by the people, because a majority of all the votes cast upon
that subject were cast in favor of the proposition.

Judge Downer wrote the opinion of the Court, and it is
undoubtedly one of the most important opinions which he
wrote during his brief term on the bench. There may well
be two ideas as to the abstract correctness of the holding,
but the arguments in its favor are certainly strong, and it
has been accepted in Wisconsin as settling the law on the
subject of the number of votes required to carry any ques-
tion submitted to vote of the people ever since its rendition.

Thus it came about that just after the white voters of the
state thought they had decided by a decisive vote that the
ballot should not be extended to the colored man, they woke
up one morning to find that for sixteen years the colored
man had been and still was a legal voter. It was something
more than a surprise — it amounted to a practical joke upon
an entire state.

250 The Story of a Great Court

CHAPTER XX

CHIEF JUSTICE DIXON'S RESIGNATION, REAPPOINTMENT AND
RE-ELECTION

Chief Justice Dixon was not a good business man ; he
was careless of money and was always hard up. The salary
of a Justice of the Supreme Court was fixed by the law
creating the Court in 1852 at $2,000. This amount had
been increased by Chapter 102 of the laws of 1857 to $2,500.

Upon this princely income the Chief Justice had lived and
supported his family since his appointment in 1859, each
year seeing his needs increase and his income decrease as
greenbacks diminished in purchasing power. It is said that
Mrs. Dixon bestowed upon him the title of "Cheap" Justice,
and she was well justified in doing so, but the gibe was too
grimly truthful to be very humorous.

The niggardliness of the salary was faintly appreciated by
the legislature of 1867, and they passed a brief act (Chap.
33) fixing the salary of any Justice "hereafter elected or
appointed" at $3,500. This act was approved March 21,
1867, and was published and went into effect March 26th.
Under the constitutional provision forbidding any increase
or diminution of the compensation of any public officer
"during his term of office" 1 the act could not have been
made applicable to persons holding office at the time of its
passage during their existing terms. By universal preced-
ent, however, it had been considered that if a person was

1 Const. Wis. Sec. 26, Art. IV.

Dixon's Resignation and Reappointment 251

appointed to fill a vacancy he could lawfully receive the in-
creased salary, even though the law increasing the same was
passed during the part of the original term which his pred-
ecessor held.2

Chief Justice Dixon's term was not to expire until Jan-
uary, 1870, and thus it seemed certain he would get no
benefit from the increase of salary until after his re-election
in the spring of 1869, — but under all the precedents if he
were to resign and some third person were to be appointed
to fill out the term such third person would be entitled to
the increased salary. Such being the case there was no
reason in law why he might not resign and leave the matter
of an appointment in the hands of the Governor. If, after
his resignation had been accepted and his term of office
closed, the Governor chose to reappoint him he would, if he
accepted the reappointment, be serving another term and
would be lawfully entitled to draw the increased salary. He
had nearly three years yet to serve at the beggarly salary
of $2,500, if he let the matter pursue its natural course.
Under these circumstances he concluded to resign, and he
presented his resignation to Governor Fairchild March 27,
1867, who accepted it and upon the same day reappointed
him.3 There can be little question but what this course was
anticipated by the legislature when the law was passed, nor
can there be any question but that the people generally rec-
ognized the pitiful meagreness of the former salary. The
act was not seriously criticised at the time, but was later
on as we shall see.

Concerning the ethics of the matter, the writer has but
a word to say. If Judge Dixon resigned without communi-

2 State v. Frear, 138 Wis. 536.

a Records of Executive Office, Wisconsin.

252 The Story of a Great Court

cation or arrangement with the Executive, and simply ran
his risk of reappointment no just criticism of his action
can be made by anyone.

I have information, however, which I cannot doubt, that
prior to his resignation he told at least one friend that he
was certain that he would be reappointed. This means, of
course, that either he or someone for him had been assured
by the Governor of reappointment ; this is assumed to be
the fact by the opinion in the case of State v. Frcar, supra.
I have always felt great reverence for Chief Justice Dixon,
both as a lawyer and as a man ; I have also felt high regard
for Governor Fairchild, but if it be a fact that it was ex-
pressly or impliedly arranged between them that the Chief
Justice should resign and be at once reappointed it seems
to me that the result was a successful evasion of the con-
stitutional provision inhibiting the change of compensation
during an officer's term of office. I should greatly prefer
that it had never taken place.

However, the whole matter was soon to go before the
people for their verdict, for the appointment only held until
the following spring, and it was necessary that the Chief
Justice should be re-elected in the spring of 1868, if he were
to serve out the full term for which he was elected in 1863.

In passing it is interesting to notice that Judge Cole was
re-elected in the spring of 1867 substantially without oppo-
sition. It is true that Lucien P. Wetherby of Hudson, who
had been circuit judge of the eighth circuit from 1861 up
to 1867, received 8,239 votes for the position, but he made
no campaign and was not in fact a candidate, but is under-
stood to have supported Judge Cole. Judge Cole received
46,895 votes ; it is probable that the vote for Judge Wetherby
was principally made up of farm mortgagors and their

LUTHER SWIFT DIXON.
At the age of 60 years.

Dixon's Resignation and Reappointment 253

friends, who could neither forgive nor forget the decision
upon the farm mortgage relief laws.

Judge Downer having resigned in September, 1867, and
Judge Paine having been appointed to fill the vacancy, it
became necessary to elect two Justices in the spring of 1868.
There was no doubt, of course, that both Dixon and Paine
would be candidates to succeed themselves, they would not
have accepted appointments if they did not desire election
in the spring. The Democrats had had no representative
upon the bench since the retirement of Judge Smith in 1859 ;
while they were in the minority in the state, the difference
between the two parties was only a few thousands, and it
seemed to many of them that if there was anything in the
principle of non-partisanship in the selection of Judges it
ought to be a principle which would work both ways once
in awhile. There had been some Democratic successes in
the state elections in the fall of 1867, and the leaders of
the party determined to take the gambler's chance and nom-
inate two candidates and gain control of the bench if pos-
sible. The chance was by no means a forlorn one; the
farm mortgage feeling against the Judges who had ren-
dered the unpopular judgments was still very bitter, while
the matter of the resignation and reappointment of Dixon
was a card which might prove of considerable strength, and
the negro suffrage decision was regarded as unpopular.

The Democratic state central committee called a state
convention to meet February 19, 1868, for the purpose
among other things of nominating candidates for Chief Jus-
tice and Associate Justice. The Republican convention was
called one week later for the same purposes.

At the Democratic convention Charles Dunn, the Conner
Chief Justice of the territorial court, then sixty-eight years

254 The Story of a Great Court

of age, was named for Chief Justice, and E. Holmes Ellis
of Green Bay for Associate Justice. At the "Republican
Union" convention held one week later, Chief Justice Dixon
and Judge Paine were renominated, but the nomination of
Judge Dixon was not made without a struggle.

Circuit Judges William P. Lyon of the first circuit, and
Joseph T. Mills of the fifth circuit were placed in nomina-
tion for the Chief Justiceship. Judge Lyon was strongly
urged by A. H. Barnes of Walworth County, O. S. Head of
Kenosha and Stoddard Judd of Milwaukee, in speeches
which expressed great apprehension that Judge Dixon could
not be elected if nominated. On the informal ballot Dixon
received 140 votes, Lyon 92 and Mills 27. Judge Dixon,
having shown greater strength than both of the other can-
didates, was on motion of Mr. Barnes of Walworth County
unanimously nominated. Following this nomination, Judge
Paine was nominated by acclamation, and the campaign
was on.

For the first time since the election of 1852 the control
of the bench was at stake at a single election. The ap-
proaching presidential election added earnestness to the
struggle, for the prestige of victory in the spring would
mean much in the fall campaign, and the contest became bit-
terly partisan, as well as bitterly personal. Judge Dixon
had been through two heated contests, but he was now
to enter a fight more rancorous and abusive than either
of the others. Judge Dunn was of Kentucky birth
and had always been an unswerving, if not an ex-
treme, Democrat ; he had voted ' for Breckenridge in
i860. In the spring of 1868 the passions and prejudices
aroused by the civil war were still at fever heat and the
word "copperhead" was readily applied to anyone whose

Dixon's Resignation and Reappointment 255

views did not coincide with those of the dominant party.
Judge Dunn was immediately assailed by the Republican
press as a secessionist at heart and a "copperhead" in fact ;
he was also accused of being immoderate in his use of
liquors. But the personal abuse did not stop here. As has
been said, Judge Dunn was more than sixty-eight years of
age ; he had seen twelve years service on the territorial
bench, but that service had closed in 1848, since which time
he had been practicing law at the old territorial capital,
Belmont, where he resided; it was charged that he was
"a superannuated pro-slavery fossil," that he had not kept
up with the times, that he was ignorant of code practice,
that he had been unable to practice his profession with suc-
cess under it.

It will be remembered, perhaps, that he was a member
of the second constitutional convention, and acted as chair-
man of the judiciary committee, and thus exerted great in-
fluence in the molding of the constitution. He strongly op-
posed that clause of the constitution giving foreigners the
right of suffrage after one year's residence in the state,
and favored a residence of five years. Whether his views
would not prevail were the question to be presented now
is at least an open question. However, in 1868 the feeling
was decidedly the other way, and embittered appeals were
made to foreign born voters to defeat the man who had
wished to restrict or postpone the exercise of the right of
suffrage by newcomers.

The entire injustice of the personal abuse of Judge Dunn
may be best demonstrated by reading the tributes to his
character presented to the Supreme Court after his death
in 1872, and the telling reply thereto by Judge Cole, who
had known him from the early days.4

4 30 Wis. 21.

256 The Story of a Great Court

The Democrats, on the other hand, were not slow to reply
in kind. They at once attacked Judge Dixon's resignation
and reappointment as a palpable violation of the spirit, if
not of the letter of the constitution. This attack had enough
of truth in it to make Judge Dixon's supporters wince, and
several replies going over the whole matter and justifying
the action from a legal standpoint were published in the
Republican papers, of which one of the most satisfactory
will be found as an editorial in the State Journal of January
16, 1868.

While the organ of the farm mortgagors had suspended
publication and many of the farmers had settled with the
holders of the mortgages, the feeling among the victims
was still strong against the judges who had upheld the law
of contracts, and prevented the legislation for their relief
to become effective. Revenge might perhaps be had, if not
relief. The Democratic press fostered these bitter feelings
as much as possible and revived the old charge that the
judges had favored stock jobbers and railroad corporations
by applying extreme rules of law in their favor. Thus the
charge was made by the Jefferson County Banner that
"Dixon and Paine have decided that to be valid in favor
of railroad corporations which they have asserted to be
void between individuals," referring to the case of Crosby
v. Roub, 16 Wis. *6i6.5 This charge was of course false,
as examination of the case discloses. Just prior to the
election a broadside was widely circulated through the farm
mortgage country, reciting the wrongs heaped on the farm
mortgagors by the Court, ascribing to Judge Dunn the
authorship of Chapter 49 of the laws of 1858, which was
declared unconstitutional in the Cornell case,8 and appeal-

5 Wisconsin State Journal, March 28, 1868.
e Cornell v. Hichens, 11 Wis. *353.

Dixon's Resignation and Reappointment 257

ing in impassioned phrases to the farm mortgagors to vote
against the judges who had wrought the mischief.7

This circular was signed "Farm Mortgagor," and was
addressed to "Brother Farm Mortgagors:" a few sen-
tences from it will show its bitter character :

"Every lawyer in the state (except those employed against us)
has told us that we have a good defence; every circuit judge be-
fore whom any of these farm mortgage suits have been tried
has decided our defence to be good. Dixon himself while at the
bar so advised his clients, and so decided while sitting as Judge
of the Circuit Court of Jefferson County. Why did Dixon, when
he got upon the bench of the Supreme Court so suddenly change
his mind. Let him who can answer. Shall we meekly bow the
head and kiss the hand that scourged us? Are railroad swindlers
and eastern sharks to be preferred to honest men? * * *

"Brothers, let us forget party in this contest, let us remember
our wrongs, our losses, and our sufferings. We have been in
their hands, they are now in ours. Let us show them the same
mercy that they in our great trouble showed to us. It is time
that they should at least taste the bitter bread that they have
so long compelled us to eat."

The Milwaukee Sentinel of March 24, 1868, urged the
election of Dixon and Paine in order to maintain the stabil-
ity of the Court in analogy to the Supreme Court of the
United States, where the appointments are for life, and de-
fended Judge Dixon's action in resigning after the act in-
creasing the salaries.

There was evidently fear of defeat in the Republican
party management, as is well shown by the issuance of a
long circular to the voters on the 23rd of March, 1868. In
this circular the Republican State Central Committee charge
the Democrats with the responsibility for the partisan con-
test which is on and say that however desirable it may be
that partisan considerations should be dropped when judi-
cial officers are to be chosen, it is impracticable to do so

7 Wisconsin State Journal, April 9, 1868.
17

258 The Story of a Great Court

while one political party insists on making such considera-
tions paramount to all others. It is then charged that the
chief reasons why the Democrats now wish to elect Dunn
and Ellis are (i) because a presidential election is at hand,
and a victory in the spring would give the party prestige
not only in the state but in the whole country, and (2) be-
cause, if elected, Dunn and Ellis would be expected to re-
verse the negro suffrage decision. The address concludes
by warning Republicans of the danger and appealing to
them to work hard to keep Wisconsin in line staunch and
true.8

The negro suffrage decision of 1866 also provoked much
criticism on the part of the Democratic press. Examina-
tion of the files of the Milwaukee News (which was then
the principal Democratic newspaper of the state) for the
months of February, March and April, 1868, will show the
scope and course of the Democratic campaign. It consisted
principally of violent criticism of the Judges for their de-
cisions in the cases of great public interest which had been
presented to them, denouncing such decisions as either fool-
ish or corrupt. The decisions principally attacked were,
the railroad tax decisions, the farm mortgage decisions, the
decision as to the soldiers' right to vote, and the negro
suffrage decision. An anonymous correspondent of the
Milwaukee News of March 18, 1868, thus refers to the last

named decision:

"The negro suffrage question, after having been repeatedly de-
feated before the people and such decision of the people acquiesced
in by the whole people with no dissenting voice for over fifteen
years, was decided by the Court in a trumped up case against
the plain accepted commonsense meaning of the constitution in
a way that pleased the party in power."

s Milwaukee Sentinel, March 28, 1868.

Dixon's Resignation and Reappointment 259

The same correspondent refers to the resignation and
the railway tax decisions as follows :

"One judge goes through the farce of resignation and reap-
pointment to pocket an extra $1,000. Another makes up and
writes out an argument against the constitutionality of a law,
and then on the score of policy decides against his own argu-
ment."

The storm raged most fiercely about Dixon's devoted
head; the fight between Paine and Ellis was only an ac-
cessory to the principal battle between Dixon and Dunn.

For two or three days after the election it was claimed
by the Democrats that the result was in doubt, but there
was really no substantial doubt at any time of the re-elec-
tion of Dixon and Paine, although not by large majorities.
The final count showed that in a vote of a trifle over
138,000 Judge Dixon had a majority of 6,777, and Judge
Paine a majority of 5,765.

In the matter of the resignation and reappointment Judge
Dixon had literally put "himself upon the country," and
the country had vindicated him.

This was his last campaign ; he was re-elected for a full
term in the spring of 1869 without opposition, and probably
could have remained upon the bench for many years with-
out further serious opposition. He had successfully with-
stood the temproray gusts of feeling and passion aroused
by the fugitive slave law question, and the farm mortgage
question, and had demonstrated his paramount fitness for
the bench by not moving a hair's breadth from the line of
duty, notwithstanding public clamor. From this time out
he was to reap the reward of his manhood and independ-
ence; with each succeeding year his state has view with
greater pride and satisfaction the judicial career of Luther
S. Dixon.

260 The Story of a Great Court

CHAPTER XXI

THE LAST APPEARANCE OF THE STATE RIGHTS HERESY

At the January term, 1870, the question of the power of
a state court to release by habeas corpus a person held in
custody by a federal official under federal laws came again
before the Court, and at the June term preceding the cog-
nate question of the power of federal courts either by writ
of error or change of venue to obtain jurisdiction over ac-
tions properly commenced in state courts was also pre-
sented.

These were the questions presented in the Booth case,
where the Court had defied the United States Supreme
Court, and refused to obey its mandate.

The Tarble 1 case was a certiorari action, brought to re-
view the order of a court commissioner upon habeas corpus
discharging Edward Tarble from the custody of a recruit-
ing officer of the United States because he was not eighteen
years of age when he enlisted.

The case was on all fours with the Higgins case2 al-
ready considered in this work, where the Court had affirmed
the order of a court commissioner discharging a minor
from military service on the same ground. But in the
Higgins case the jurisdiction of the state court to entertain
habeas corpus proceedings and discharge an enlisted man
from the military service of the United States had not been
questioned, and hence passed without mention.

1 In re Tarble, 25 Wis. 390; Knorr v. Ins. Co. 25 Wis. 143.

2 In re Higgins, 16 Wis. *351.

End of the State Rights Heresy 261

In the Tarble case, however, the United States District
Attorney, Hon. G. W. Hazleton, raised the question of ju-
risdiction of the Court, and made that the only question in
the case. Of course, if the Booth case was to be followed
the question whether the State Court had jurisdiction was
not only settled in the affirmative, but conclusively settled
beyond the power of the Federal Courts to interfere; but
the world had moved on a long distance since the final ap-
pearance of the Booth case. Abstract theories which
seemed vital to the preservation of individual liberty at that
time had been proven under the stress of civil war to be
so far incompatible with the powers which the federal gov-
ernment must possess in order to preserve its own exist-
ence that they must give way if the nation was to remain.
Judge Paine himself had been in the army and had actual
experience of the necessities of the situation. Did he and
Judge Cole retain their former views or nor? This was
the question upon which the case would turn.

The exact question presented in the Knorr case was
whether Congress had power under the constitution to pro-
vide for the removal of a cause commenced in a state court
against a citizen of another state to a federal court, i. e.,
whether the 12th section of the judiciary act of 1789 was
valid.

This question had been met by the Court in 1861 in the
case of Moseley v. Chamberlain* and it was there held by
Justices Cole and Paine that Congress had no such power,
Chief Justice Dixon dissenting.

So the question in the Knorr case was also a closed ques-
tion, if the former decisions of the Court were to be fol-
lowed.

3 18 Wis. *700.

262 The Story of a Great Court

The Knorr case was presented at the June term, 1869,
and resulted in a reversal of the doctrine of the Mosclcy
case by the votes of Judges Dixon and Cole, in the face,
however, of a dissenting opinion by Judge Paine.

Judge Cole wrote the opinion of the Court, and had evi-
dently come to the conclusion that there was no longer any
use in holding to the extreme doctrine that there could be
no removal of a cause from state to federal courts where
the citizenship of the parties was diverse. He abandoned
the doctrine not because convinced of its unsoundness, but
because convinced that it was useless to seek to maintain
the doctrine in the face of the holdings of the United States
Supreme Court. After holding that the defendant insur-
ance company must be treated as a citizen of New York,

he says :

"As stated by the chief justice, in the case of Moseley v. Cham-
lerlain (18 Wis. 700), I have always been of the opinion that
congress has no power to provide for the removal of a cause
from a state to a federal court, and, consequently, that the
twelfth section of the judiciary act is invalid. I shall not, how-
ever, attempt to give any reasons for that opinion at this time.
Suffice it to say, as that opinion was maturely formed, after all
the examination and reflection I could bestow upon the question,
it remains unchanged. But my adhering to that opinion now
would be of no earthly advantage, that I can see, to any person
or any principle. On the contrary, it would only be productive
of great embarrassment, trouble and expense to these parties,
and others similarly situated. For we well know that the su-
preme court of the United States, in the exercise of that juris-
diction which it assumes, would pronounce all the proceedings
in the state court, after the application for removal was made,
as coram non judice."

Judge Paine filed an eloquent dissenting opinion which
almost persuades one as he reads it of its correctness.

This was really a receding of one step from the radical
doctrine of the Booth case. That case in substance held
that the clause of the federal constitution which says that

End of the State Rights Heresy 263

the federal judicial power "shall extend to all cases in law
and equity arising under this constitution, the laws of the
United States * * * to all cases * * * between
citizens of different states" * did not cover cases rightfully
commenced in a state court. This really indefensible posi-
tion was now abandoned.

It is interesting to note in this connection that in a case
decided at the following term 5 Judges Cole and Paine held
(Chief Justice Dixon dissenting) that where a foreign
plaintiff had brought his action in a state court against a
citizen of the state he thereby irrevocably elected to pursue
his remedy in the state court, and could not remove the case
to the federal courts and that the act of congress purport-
ing to give him that right was invalid. This ruling was re-
versed by the Supreme Court of the United States in the
same case in February, 1872.6

The Tarble case followed in January, and here the simple
question was whether a state court had jurisdiction to dis-
charge by habeas corpus a prisoner held by a federal officer
under federal laws. In this case Judges Cole and Paine
adhered to the doctrines of the Booth case, and affirmed the
discharge against Chief Justice Dixon's dissent. In this
case Judge Paine wrote the opinion of the court, and made
it as strong probably as human reasoning could make it.

It is interesting to read the opinions of Judge Paine in
the Knorr and Tarble cases side by side. It is evident that
in them he endeavored to set forth with the strongest logic
and most convincing phrase the doctrine of the jurisdiction
of the state courts to determine the validity of federal im-
prisonment, and the doctrine that the United States Courts

4 Const. U. S. Art. ITT, Sec. 2.

B Whlton v. C. & N. W. Ry. Co. 25 Wis. 424.

«C. & N. W. Ry. Co. v. Whlton, 13 Wallace, 270.

264 The Story of a Great Court

could not be given power to interfere with or reverse a rul-
ing of the state court in a proceeding properly brought in
that court. It seems evident that he was writing partially
at least with a view of vindicating himself in the eyes of
posterity ; they may be said to constitute his "apologia pro
vita sua."

Extracts from these opinions will serve well to show the
quality of his reasoning and the beauty of his style. In the
Tarble case, on the question of the jurisdiction of a state
court to enquire into and decide upon the validity of the
judgment or order of a federal court, he says:

"That. Court" (i. e. the Supreme Court of the United States)
"suggests, in the Booth case, that this court could no more in-
quire into the legality of the imprisonment of a citizen of this
state within its borders, under the order of a federal court, than
it could send its writ into Michigan and inquire as to the legality
of the imprisonment of a person there. It may be conceded that
the state and federal judicial systems are distinct and separate,
and independent of each other, as those of different states. Such
a concession is clearly contrary to the existence of that appellate
jurisdiction over the state courts which the federal court has
asserted and exercised. But the repugnance between the doc-
trine of the Booth case now under consideration and the exist-
ence of that appellate jurisdiction will be hereafter noticed. I
allude now to that illustration of the court simply to say, that, If
the validity of a judgment of a court of Michigan should be
drawn in question in any court of this state, in the exercise of
its ordinarj- jurisdiction, the court here could decide, and must
necessarily decide, whether the court of Michigan had jurisdic-
tion to render it. The fact that the two jurisdictions are utterly
foreign to each other does not prevent either from deciding to
that extent upon the validity of the judgments and proceedings
of the other. Here, too, the federal authority is clear and em-
phatic. In the case of Rose v. Himely, 4 Cranch, 241, the court
sustained the right of an American court to decide collaterally
upon the jurisdiction of a court of Santo Domingo. The chief
justice said: 'The great question to be decided is, was this sen-
tence pronounced by a court of competent jurisdiction? At the
threshold of this interesting inquiry, a difficulty presents itself,
which is of no inconsiderable magnitude. It is this: Can this

End of the State Rights Heresy 265

court exawdne the jurisdiction of a foreign tribunal?' The latter
question he answered in the affirmative, and in discussing it h9
said: 'A sentence professing on its face to be the sentence of a
judicial tribunal, if rendered by a self-constituted body, or by a
body not empowered by its government to take cognizance of
the subject it had decided, could have no legal effect whatever.
The power of the court, then, is of necessity examinable to a cer-
tain extent by that tribunal which is compelled to decide whether
its sentence has changed the right of property. The power un-
der which it acts must be looked into; and its authority to de-
cide questions which it professed to decide must be considered.'
And again, he says: 'Upon principle it would seem that the
operation of every judgment must depend upon the power of
the court to render that judgment, or in other words, on its ju-
risdiction over the subject-matter which it has determined.'

"Although all this doctrine is, as before remarked, entirely
familiar, I have felt justified in thus quoting it from the supreme
court of the United States, in order to show that when this court,
in the Booth case, assumed the power, in the exercise of its ordi-
nary jurisdiction to issue the writ of habeas corpus, to pass col-
laterally upon the jurisdiction of the district court of the United
States to pronounce the judgment under which Booth was im-
prisoned, it was not assuming any such unwarrantable or un-
heard of power as it has been charged with doing; and that, on
the contrary, whatever might be said as to the correctness of
ist decisions, still, in exercising the right to decide the question,
it was proceeding upon a principle universally recognized, and
exercising a right that is and must of necessity be exercised by
all courts. For there is no just reasoning upon which any dis-
tinction can be asserted between a habeas corpus and any other
judicial proceeding or suit, in respect to the right of the court
to decide upon the validity of the judgment of any other court
that may be drawn in question.

"it is true, that, as states have no extra-territorial jurisdiction,
and each can, therefore, by the writ of habeas corpus, inquire
into the legality of imprisonment only within its own limits,
such a proceeding would be less likely to draw in question the
validity of any foreign judgment, than would litigation concern-
ing rights of property. But this can make no possible difference
in respect to the right of the court to decide the question, if it
should arise. And although such a case may be very unlikely to
arise, yet if any one should assert a right to imprison any per-
son within this state under the judgment or order of a court of

266 The Story of a Great Court

Michigan, or of any other state or country, it would scarcely be
claimed that the entire separation of the two sovereignties, and
the absence of any power to review the judgments of such other
court, would prevent this court from inquiring upon habeas cor-
pus into the legality of such imprisonment.

"But under our peculiar system, where the state and federal
governments, with their distinct judicial systems, exercise a
divided sovereignty and jurisdiction over the same territory and
people, such a question may well arise, as it did in the Booth
case. And for this court, in that case, in the exercise of its ac-
knowledged jurisdiction of the writ of habeas corpus, where the
judgment of the district court was returned as the justification
for Booth's imprisonment, to pass upon the question whether
that court had jurisdiction to pronounce such judgment, was no
more a usurpation of authority, that it would have been to have
passed upon a judgment of a court of Michigan or any other
state, if such had been set up in justification. The fact that the
district court might render a valid judgment that would justify
imprisonment in this state, and that no court of another state
could do so, does not vary the question. That fact gives no
validity to its judgment rendered without jurisdiction, and has
no legitimate tendency to impeach the right of the state court
to pass upon this question. And there is nothing in the relations
between the federal and state governments, nothing in the con-
ceded supremacy of the constitution and laws of the United States,
nothing in the nature or character of the federal courts them-
selves, which can have any just effect to make their judgments an
exception to that universal rule, which, as already seen, they
have so emphatically asserted, or to place them on any different
footing, in this respect, from that on which the judgments of all
other courts must stand."

In his dissenting opinion in the Knorr case he draws the
distinction between the doctrine of secession and the doc-
trine of state rights as understood by him. If any one
could draw that distinction satisfactorily he could do it.
After stating that if the appellate jurisdiction of the United
States Supreme Court over State Courts in fact exists then
there is in reality no such thing as state rights, because the
state courts become then simply inferior courts of a system

End of the State Rights Heresy 267

in which the United States Court is the superior and final
arbiter, he says :

"But if under our system where the powers of sovereignty are
divided between the federal and state governments, this juris-
diction does not exist, then no common arbiter has been pro-
vided to decide conclusively for both such questions of difference
as may arise concerning the delegated and reserved powers. It
would then be proper to speak of state rights as such, for the
states would then hold the reserved powers by a tenure as valid
as that by which the federal government holds the delegated
powers. The powers of neither could be wrested from it by the
judgment of the other. And this is all that the idea of state
rights properly understood ever involved. It asserts no claim
that the judgment of the state tribunals is at all binding upon
the federal government upon questions involving their respec-
tive powers. It claims only that judgments of the Federal
Court are alike inefficacious to bind the state. I am aware that
the idea of state rights is at present exceedingly odious and
unpopular. It is branded as a legal and political heresy and held
directly responsible for the attempt at secession with all its dis-
astrous consequences; but the two claims are entirely distinct
and dissimilar. Secession is revolutionary; state rights not.
Secession seeks to withdraw and overthrow the powers admitted
to have been delegated to the Federal government. State rights
makes no such effort. Secession throws off entirely all obliga-
tion under the Constitution of the United States. State rights
throws off none of that obligation, but concedes that that Con-
stitution and the laws made in pursuance of it are the supreme
lav/ of the land, and that it is the sworn duty of its tribunals to
regard and enforce them as such."

Judge Paine was right as far as he went ; secession was
revolution and state rights was not necessarily revolution ;
but he did not seem to appreciate that state rights as he
advocated it, though not revolution, was necessarily legal
and governmental chaos. Judge Paine lived less than a
year after the decision of the Tarble case. Doubtless he
appreciated before his death that it was another "lost
cause," but whether he appreciated it or not such was the
fact, and had it not been so the national government could

268 The Story of a Great Court

not have existed save as an impotent and nerveless shadow
of a government unable to execute its own decrees save by
the courtesy of the states, and worthy only of contempt.

The Tarble case was taken to the Supreme Court of the
United States and reversed, Chief Justice Chase dissenting.
It was held in the opinion that a State Court has no author-
ity to discharge on habeas corpus a prisoner held by a
United States officer under the authority or claim of author-
ity of the United States government, and that whenever
that fact appears the State Court can proceed no further.
This case may be said to have settled the law upon the sub-
ject ; it has been acquiesced in by all State Courts since
that time, and is now the unquestioned law.7

This decision was made in March, 1872. Judge Paine
died in January, 1871 ; consequently he never knew how
completely the doctrine to which he had dedicated a large
part of his life and his talents was finally swept away for-
ever.

1 U. S. v. Tarble, 13 Wallace, 397.

Death of Paine 269

CHAPTER XXII

DEATH OF JUDGE PAINE AND APPOINTMENT OF JUDGE LYON

The old triumvirate upon which the bench composed of
Dixon, Cole and Paine was now permanently restored, and
there seemed no reason why it should not continue for
years. On the 13th day of January, 1871, however, Judge
Paine died as the result of a short but severe attack of
erysipelas. Barely forty-three years of age and apparently
in the best of health, his sudden death was a most profound
shock to the people of the state, the great majority of whom
did not even know that he was sick.

Byron Paine was very dear to the hearts of the people.
Since that day in May, 1854, when at the age of twenty-six
he had appeared in the Supreme Court as the champion
of human freedom and successfully challenged the consti-
tutionality of the fugitive slave law in the Booth case, the
people had loved him and delighted to honor him ; and right
well had he deserved the love and honor, for his abilities
were as great as his character was pure.

There was an universal outburst of grief throughout the
state. The legislature being in session, Governor Fairchild
at once sent a special message notifying the houses of the
sad event; following an eloquent and touching tribute by
Harlow S. Orton, then a member of the assembly, resolu-
tions of condolence were adopted by both houses, and on the
25th of the same month the death was formerly announced
to the Supreme Court ; at which time addresses were made
by John W. Cary, E. G. Ryan, and Winficld Smith of
Milwaukee, J. S. Curtis of Green Bay, Charles E. Dyer of

270 The Story of a Great Court

Racine, S. U. Pinney of Madison, and Daniel Hall of Water-
town, in addition to which resolutions of love and respect
adopted by the bar of the Supreme Court and by the bar
associations of Milwaukee, Green Bay, Racine and Madison
were presented. To these tributes Chief Justice Dixon re-
sponded most feelingly.1

But the business of the Court must go on notwithstanding
the call of death ; the great increase of manufacturing and
transportation enterprises which had followed the close of
the civil war had brought with it new and numerous ques-
tions, and the business of the Court was rapidly increasing
year by year. There were but three men to bear the load
even when the bench was complete, and hence there could
be no unnecessary delay in filling the vacancy.

In this emergency I am certain that Governor Fairchild
did not feel the necessity of spending any considerable time
in deliberation. I think he had no doubt as to whom he
should appoint from the very first moment. William Penn
Lyon of Racine at that time had been judge of the first cir-
cuit court for a little more than five years, and had signally
demonstrated his fitness for the judicial office; he had made
a nisi prius judge remarkable for his judicial equipoise,
clearness of mind and firm but just and reasonable enforce-
ment of the law.

Governor Fairchild knew Judge Lyon's record and quali-
fications well, and felt no necessity for extended formal
endorsements. On the 20th day of January Judge Lyon
was appointed to fill the vacancy and on the 26th of the
same month he took his seat. Governor Fairchild himself
told the writer more than twenty years later that he re-
garded the appointment of Judge Lyon to the Supreme

1 27 Wis. 23-58.

Death of Paine 271

bench with greater satisfaction than any other single act
of his long administration.

Judge Lyon was a man of strong natural legal mind and
excellent legal education and experience, of strong physique
and handsome person; he had seen life from many angles
and he brought all his talents, his experience, and his vir-
tues to a place where they could be and were utilized to the
utmost for nearly a quarter of a century. Judge Lyon's life
had been varied and interesting, more so in fact than that
of any of his colleagues.

He was born of Quaker parentage at Chatham, Columbia
County, New York, October 28, 1822. His early educa-
tional opportunities were confined to district and select
schools, and these only at intervals, but at fifteen he had ac-
quired what was for the period a fair English education,
including some knowledge of algebra, geometry and na-
tural philosophy, beside some acquaintance with Latin. He
taught a district school for a time at the age of fifteen, but
teaching was not to his taste, and he soon went to Albany
where he obtained employment as clerk in a grocery store,
spending his leisure hours assiduously in attending the
courts and legislative sessions, in which direction the at-
traction was strong.

In 1841 his father and the family, including the future
judge, removed to Wisconsin and settled in what is now
the town of Lyons in Walworth County, which, I believe,
was named after the family. For three years he did farm
labor, excepting during his two terms of school teaching ;
but he read Blackstone and Kent meanwhile, and in 1844
entered the law office of Judge George Gale at Elkhorn as
a law student. After a few months with Mr. Gale he went
home to work through the harvest, and soon after was at-
tacked with an acute inflammation of the eyes, which pre-

272 The Story of a Great Court

vented all use of the eyes for a year. In 1845 he entered
Judge Charles M. Baker's law office at Geneva, and re-
mained there until the spring of 1846, when he was admitted
to the bar. At once he commenced to practice law at Lyons
(then Hudson), being elected a justice of the peace the
same spring. He remained here five years and removed in
1850 to the village of Burlington, Racine County, where he
formed a partnership with Caleb P. Barns, the leading prac-
titioner of the place. Here his talents began to receive due
recognition, business came to him in increasing volume, and
in 1854 he was elected District Attorney of Racine County,
and removed to Racine, the county seat, in the spring of
1855. He was now well before the public eye, and was
soon at the head of the firm of Lyon and Adams, which be-
came one of the leading firms at the Racine bar at a time
when the Racine bar was one of the strongest in the state.

Two terms were spent in the office of District Attorney,
and in the fall of 1858 he was chosen by the Republicans as
their candidate for the assembly and elected. It was his
first legislative experience, and he was but thirty-six years
of age, but such was the estimation in which he was held
that he was chosen speaker of the assembly in the session
of 1859 and performed the duties most acceptably. He was
re-elected to the assembly in the fall of 1859 and was again
chosen speaker at the session of i860.

When the call to arms came in 1861 Mr. Lyon could not
resist the call of duty, and he raised a company which be-
came Company K of the Eighth Regiment of which he be-
came captain, his commission being dated August 7, 1861.
This was the famous "Eagle" Regiment which had with it
for a mascot the live eagle, "Old Abe."

The regiment left Madison October 12, 1861, and by the
2 1 st was in conflict with the Confederates under Jefferson

WILLIAM PENN LYON.

Death of Paine 273

Thompson at Greenville, Mo., and assisted in the victory at
that time gained. In this battle Captain Lyon took an ac-
tive part.

Captain Lyon remained in active service during the entire
war. Interesting as it would be to follow his steps, it is
hardly within the scope of the present work. That he was
a good soldier, and a commander beloved by his troops
goes almost without saying. In August, 1862, he became
colonel of the 13th Wisconsin Regiment, and with his regi-
ment performed duty in the states of Kentucky, Tennessee,
Alabama, and Texas, until the resignation of his commission
September 11, 1865. Subsequently he was brevetted a
brigadier general of U. S. Volunteers, dating from October
26, 1865.

Judicial honors come to him unasked and unexpectedly
in April, 1865, while he was still on duty in the field. This
was the manner of it.

David Noggle, a man of strong natural abilities but lim-
ited education, had been Circuit Judge of the first circuit
(then composed of Racine, Kenosha, Walworth, Rock and
Green Counties) since his appointment by Governor Ran-
dall in July, 1858. He had made some very determined
and bitter enemies both among the bar and the people.
There were charges of dishonesty and unworthy methods
openly made against him when the spring of 1865 ap-
proached, at which time the election of a successor was
due. No attempt will be made here to determine the ques-
tion of the truth or falsity of these charges. Judge Noggle
was a forceful and ambitious man ; he was fully determined
to succeed himself; he caused his nomination papers to be
circulated among the bar in the winter of 1865 as he held
court in the various counties of his circuit. The bar gen-
erally do not wish to actively antagonize a judge before
18

274 The Story of a Great Court

whom their cases are about to be tried; whether from this
cause or not Judge Noggle's "petitions" were generally
signed bv the bar of his circuit. Only a very few refused
to sign. The late Chief Justice Cassoday told the writer
that he himself refused to sign.

It seemed for a time that there was to be no opposition
to Judge Noggle ; his machine seemed to be perfect and he
had the prestige of being "in."

But there were men who had deep sense of personal
wrong (whether justifiably or not is not material here)
against Judge Noggle, and they were willing to go through

the

"Patient search and vigil long
Of him who treasures up a wrong."

if thereby they might defeat him.

Among these was William H. Tripp of Rock County, who
had been a member of the assembly in 1857. To him more
than to any one else is due the credit of launching Judge
Lyon upon a judicial career. He first suggested the name
of Lyon as a candidate and he was mainly responsible for
the calling by a self-constituted committee of an independ-
ent judicial convention, which met at Elkhorn, Walworth
County, March 17, 1865.

In numbers the convention was ludicrously small ; there
were eleven gentlemen present from Rock County (John R.
Bennett and John Winans of the Janesville bar being among
them), seven from Walworth County, one from Racine
(Colonel Lyon's home county), one from Green County,
and none at all from Kenosha.

Lack of numbers, however, did hot dismay the gentlemen
who made up the convention. What they lacked in num-
bers they made up in determination. They promptly nom-
inated Colonel Lyon, appointed a committee of notification,

Death of Paine 275

and a committee to prepare and distribute a campaign ad-
dress, and adjourned.

The entire thing had been done without Colonel Lyon's
knowledge or consent. On the 19th of March, 1865. the
news reached him at or near Huntsville, Alabama, and he
wrote home concerning it as follows :2

"March 19, 1865. — I was awakened about ten o'clock last night
by one of the boys, who told me I had a telegram from home but
there was no bad news in it. It was from Janesville, announc-
ing my nomination as Circuit Judge. I am entirely in the dark
about the position of affairs there, but if matters are as I suppose
I see no earthly chance for my election. I concluded, however,
that a defeat would not hurt me much and so accepted the nom-
ination. It is tantalizing to be a candidate for so important a
place and know nothing of your position or prospects. The time
is so short between the nomination and the date of election that
I shall probably lose most of the army vote. I shall not be un-
happy about it if I am defeated, and you must not be."

The audacity of the move at first provoked mirth and
ridicule on the part of Judge Noggle's adherents. Prac-
tically all the newspapers of the circuit, even including
those in Colonel Lyon's home county were committed to
the support of Judge Noggle ; the bar had generally signed
his call ; supervisors, jurors and other prominent men had
almost universally signed it, and it seemed little less than
madness to undertake such a campaign.

But there was no dismay in the camp of the insurgents.
Colonel Lyon accepted the nomination in a modest and
graceful letter ; the committee prepared and gave forth an
address to the people libellous in every line if not true,
wtiich was went all over the circuit,3 and published in the
local papers. In this circular it was charged that Judge

2 Reminiscenses of the Civil War by Mrs. Adelia C. Lyon, pp.
208-9.

a Janesville Gazette, March 26, 1865.

276 The Story of a Great Court

Noggle at once took sides in a case on trial and became un-
fair; that the appeals taken from his judgments were nu-
merous, and that in three-fourths of the appeals the judg-
ments were reversed ; that he refused to obey the Supreme
Court ; that he favored those who were fighting their taxes,
and granted injunctions without reason in such cases, thus
hindering and delaying the public business; that he was
deficient in scholarship to such an extent that his published
opinions were a mortification to the people of the circuit
on account of their many ludicrous literary blunders. The
following extract will show the direct language used in the
address: "It is notorious that the present incumbent of
the judicial bench of this circuit * * * has employed
himself personally for many months in procuring calls for
his own nomination. These have been circulated in his own
court while he was on the bench and thrust by his agents
offensively before members of the bar while their cases were
on trial, and at the end of the term to jurors. If this be
true, and we appeal to a cloud of witnesses who have seen
it, then he must be pronounced unworthy of re-election. It
is time that the people of this circuit had placed upon the
bench a man above such acts and nearer to the high moral
and intellectual standard of the first judge whom they chose
to that position, the lamented Whiton."

In addition to this address a broad side containing dis-
tinct charges of dishonesty in several business transactions,
and signed by reputable citizens of Janesville, was widely
circulated ; this broadside will be found preserved among
the archives of the State Historical Society at Madison. It
formed the basis of a libel suit after the election which, as
the writer has been informed, the defendants finally settled
by the payment of damages.

Death of Paine 277

It will thus be seen that the campaign was bitter, but
still the advantage seemed to be with Judge Noggle, who
had his earnest friends as well as his earnest enemies.
When the votes were counted, however, it was found that
Colonel Lyon had received a decisive majority even with-
out the soldier vote.

The newly elected judge returned to Wisconsin after the
acceptance of his resignation from the army about the first
of October, 1865. Judge Noggle having resigned before
the expiration of his term of office, Judge Lyon was ap-
pointed to fill the vacancy, and he commenced his judicial
duties December 1, 1865.

From this time until his appointment to the Supreme
bench his duties upon the circuit bench kept him fully occu-
pied. The circuit was then large and he had little time be-
tween terms. It is only justice to say that he made almost
an ideal trial judge. Calm, fair, gentle in manner but firm
and strong of determination when occasion required, his
court ran easily and without apparent effort, but always
with the consciousness that there was a master hand at
the helm. Every lawyer and every client had and felt that
he had fair treatment, that he had been allowed to present
his case, and that it had received the best attention which
judge and jury were able to give it. He became endeared
to the hearts of the people of the circuit as few men have
been either before or since, and there was universal regret
to part with him when he was translated to the Supreme
bench.

I do not think Judge Lyon ever claimed the gift of elo-
quence cither as a writer or an orator, yet such claims have
been made by many upon far less basis of fact than could
be presented in favor of Judge Lyon's claim.

278 The Story of a Great Court

Several public addresses made by him are preserved in
a volume recently published by Mrs. Lyon (his wife, who
is recently deceased) for private distribution, entitled "Rem-
iniscences of the Civil War," and they will be found to jus-
tify the assertion that upon appropriate occasion at least
Judge Lyon was capable of lofty thought clothed in lan-
guage entirely fitting to the thought.

On July 4, 1866, the tattered battleflags of the various
Wisconsin regiments were presented to the state for pres-
ervation at the capitol, and Judge Lyon was chosen as the
representative of the soldiers to present them in appropriate
words to Governor Fairchild, acting for the state. He dis-
charged this task with conspicuous ability, and from this
address I extract the following, which will serve to illus-
trate its thought and diction :

"This is a sublime spectacle; and I repeat with emotion of
profound gratitude that the most efficient, the most powerful
agency in producing a result of such priceless value, was that
spirit of deep, heartfelt sympathy for our soldiers, and that ac-
tive interest in their welfare, so universally manifested by our
people at home during the whole period of the war.

"And now, sir, having acknowledged our obligations to our
people, I return for a few moments to the theme which the occa-
sion presses more directly upon our attention. These banners
are the glorious symbols of our national unity, the material rep-
resentations of the institutions of freedom and of the patriotism
of the people. Like the cross to the believer — to the soldier the
flag under which he fights is the cherished emblem of his faith
and his hope and the object of his devoted love. To his mind,
the honor of the flag is synonymous with individual honor and
with the honor and glory of the State and the Nation, and in-
cludes them all. Every patriotic heart cherishes the same senti-
ment.

"Hence do these banners become to us the symbols and em-
blems and mementoes of all the labors and sacrifices and prayers
of all the people for the success of our arms. In this view they
have a history; a history eventful, thrilling and glorious in some
of it? details, and yet inexpressibly mournful and touching and
sad in others. A history which may never be traced on parch-

Death of Paine 279

ment or fully uttered by human lips, yet which is written in
indelible characters upon the hearts and memories of thousands
throughout the land.

"The mother who sent forth her son with prayers and blessings
and bitter tears from her peaceful home, to fight and die for his
country, and who sits today by her desolate hearth-stone and
weeps because he returns no more, and yet who thanks God that
she had an offering to lay upon the altar of her bleeding coun-
try; the wife whose husband sleeps his last, dreamless sleep upon
some distant Southern battlefield, and from whose life the light
and joy and beauty have gone out forever; these, and every sor-
rowing, desolate heart made such by the war, are amongst the
custodians of this wonderful history. So, also, is every soldier
who has marched and fought beneath these banners; so, also, is
each patriot who has labored in civil life for the success of our
arms, or who has breathed fervent prayers to heaven for the
triumph of the right.

"But I must hasten to a conclusion. When these banners
were entrusted to our care we promised with hands uplifted to
heaven that we would defend the honor of the State and the
Nation, of which these were the symbols, under all circum-
stances and to the last extremity; and in behalf of those to
whom they were thus entrusted I solemnly declare that this
promise has been faithfully performed.

"So we return these banners to the State, from whence we re-
ceived them. They are bruised and torn and tattered; but,
thanks be to God, there is no stain of dishonor upon one of them!

"Receive them sir, from our hands, and deposit them with the
archives of the State. Let us always fulfill our sacred obliga-
tions to those who are maimed or who fell in their defense, and
to their helpless families; and as we gaze with affectionate ven-
eration upon these sacred symbols of our national faith, let us
never forget the lessons of patriotism and of fidelity to duty
which their history inculcates."

It was by no means an easy task to follow Judge Paine
upon the bench. The remorseless accuracy of his thought,
the clearness of his reasoning, and the simple eloquence of
his verbal expression combined to make his opinions legal
classics. Judge Charles E. Dyer of Racine truly said of
him on the presentation of the bar memorials before men-
tioned, "He stood not always upon precedent, but at times

280 The Story of a Great Court

struck out new paths in the far reaching field of the law,
seldom failing, however, to plant his judgments upon the
basis of sound logic. His analytical mind always first
sought safe premises from which it progressed to unanswer-
able conclusions."

Perhaps all this may not be unreservedly said of Judge
Lyon, still, in the writer's judgment, there is no great room
for choice between the two in respect to the quality of their
minds, indeed in their essential traits they seem surprisingly
alike. Both had a strong sense of justice, both had the rare
faculty of stripping the non-essentials from a case and go-
ing at once to the vital question, both were content to part
with precedent if precedent spelt injustice, and both pos-
sessed terse simplicity of style and clarity of thought which
make their opinions a delight to the lawyer.

General Edwin E. Bryant of Madison very truly said of
him, "It is but stating a truth to say that no man ever stood
higher than Judge Lyon for all the qualities and equipoise
of qualities that constitute the just judge; confidence in his
integrity is universal ; his mind is happily constituted to see
the right of a case. Calm, patient, unbiased, he brought to
investigation that sincere desire to be right that opens the
mind to perceive justice. His professional labors covered
a period of forty-eight years. He was judge twenty-eight
years, of which twenty-three years were on the bench of
the Supreme Court. His style is remarkable for its simple
directness, lucidity and freedom from ornament."

Judge Lyon was a trifle more than forty-eight years of
age when he took his seat upon the Supreme bench, and
was in vigorous health physically and mentally. His life
had been singularly varied and active. He had been law-
yer, a legislator, a soldier and a trial judge, and in each
capacity he had met the responsibilities thrown upon him

Death of Paine 281

with the calm grasp which comes from conscious but in no
sense egotistical strength. He came to this crowning work
of his life possessed of a wealth of experience both with
men and things which rarely falls to the lot of a man less
than fifty years of age. His service began at a time which
may properly be called the beginning of a new period. The
Court had been in existence some eighteen years ; during
that time the state had grown from a frontier community
composed of straggling rural settlements far distant from
each other to a great state of more than a million souls,
with prosperous cities, great railroads and manifold indus-
tries. The time during which the jurisprudence of the state
was being fundamentally molded and the general policies
determined had largely passed, but a period fully as impor-
tant was beginning, namely the period when with the great
growth of wealth and population and the development of
great industrial and transportation corporations, new legal
and economic questions were pressing to the front and de-
manding wise solution. The volume of the business of the
Court had largely increased with the close of the civil war,
and was still increasing. While formerly the decisions of
a vear filled only a single volume of reports, more than two
volumes were now required, and the end was not yet. So
Judge Lyon's new position was not one of elegant leisure,
but rather a position in which he was to spend twenty-three
years in hard, unremitting and tedious labor ; but he entered
on it cheerfully, with the determination to do his entire
duty. He had the confidence and respect of his veteran col-
leagues, Dixon and Cole, and together these three men
carried the great and increasing burden of the litigation of
the state until the resignation of Chief Justice Dixon in
June, 1874.

282 The Story of a Great Court

An innovation which he at once made in the manner of
the preparation of opinions, while not vastly important in
itself, may well be noticed, because it is essentially charac-
teristic of the man. The judges had been accustomed in
their opinions to take up and treat the questions presented
without making any preliminary statement of the facts of
the case, or of the result in the trial court, leaving those
matters to be supplied by the official reporter. This method,
while generally satisfactory, left much to be desired at
times, for in a complicated case with a large record, it could
not always be certain that the reporter would accurately
distinguish between the facts which were material, and
those which were immaterial to the Court's treatment of
the case. Of course, the judge writing the opinion should,
of all persons, be able to extract and present the vital and
necessary facts, and so Judge Lyon from the first prefaced
every opinion with a brief statement of the salient and neces-
sary facts, and the result in the trial court. These state-
ments were at first made a part of the opinion, but soon
were printed separately, with a statement that they were
prepared by Justice Lyon, and in Volumes twenty-nine and
thirty of the reports the reporter printed a notice, stating
that in all cases where the opinion was written by Justice
Lyon, the statement of facts was also from his pen, whether
they appeared as part of the opinion or not. For some
years Judge Lyon remained alone in this practice, but as
new judges came on the bench his example was followed,
and before he left the bench every judge prepared his own
statement of facts, and it is now one of the unwritten rules
of the Court.

While the work of the Court during the first three years
of Judge Lyon's service was arduous and steadily increas-
ing in volume, these years were doubtless pleasant years to

Death of Paine 283

him. The judges were all comparatively young men and
all vigorous in body and mind. Judge Cole, who was the
eldest, was but fifty-one years of age at the time of Judge
Lyon's accession, while Judge Lyon himself was forty-eight
and Judge Dixon forty-five. They were all capable of hard
work, all intellectually honest, and were of congenial tastes,
and dispositions, and we may be sure there was very little
friction.

284 The Story of a Great Court

CHAPTER XXIII

LYON V. PULLING

Judge Paine's term of office would have expired on the
first Monday of January, 1872, and hence the election for
the next full term was due in April, 1871. Had Judge
Paine lived he would doubtless have been elected as his
own successor, without opposition, but his death, and the
appointment of his successor by the Governor at a time so
close to the election changed the situation radically in the
opinion of some of the Democratic lawyers and politicians,
especially those in the northern and northern central por-
tions of the state. They said, and with some degree of
truth, that a non-partisan judiciary could only be secured
by giving both parties representation on the bench, and that
the Governor should have demonstrated his belief in the
principle by placing a Democrat upon the bench to sit with
the two Republicans already there. However, Judge Lyon
was on the bench and his friends were enthusiastically for
him, and hence, if the Democracy desired a representative,
there was no way open except to place another candidate
in the field. By this time the idea of a party convention to
nominate judicial candidates . seems to have been perma-
nently abandoned, and the convention had been succeeded
by the legislative party caucus, which, after consultation,
put candidates in the field. In pursuance of this custom
legislative caucuses were held by both parties on the even-
ing of February gth. At the Democratic caucus Harlow S.
Orton, who was then a member of the Assembly, was nom-
inated, but he immediately declined to run ; at the Repub-

Lyon v. Pulling 285

lican caucus a resolution was unanimously adopted which
ran as follows :

"Whereas, in the opinion of the Republican state central com-
mittee, it is not deemed advisable or necessary to nominate a
candidate in view of the course which has generally pursued
by the Republicans of this state in selecting candidates for
Judges of the Supreme Court without the interposition of a nom-
inating convention, but through the recommendation of the Re-
publican members of the legislature in session at the Capitol,
and

"Whereas, his Excellency, the Governor, has appointed Hon.
William Penn Lyon of Racine to serve out the unexpired term
of the late Judge Byron Paine, therefore,

"Resolved, that we recognize the appointment of Judge Lyon
as one eminently fit to be made; that in his election to the bench
of the Supreme Court for the full term the people of this state
will secure the services of an honest man, an able lawyer, an
experienced jurist, and an incorruptible judge, whose integrity
is above reproach, a fit successor to the lamented Paine, a worthy
associate of the two judges who have so long, so ably, and so
well constituted a majority of the Court and contributed to make
it fully equal to any Court of last resort in the several states of
the Union; to the intelligent voters of Wisconsin for Associate
Justice of the Supreme Court we recommend the election of Will-
iam Penn Lyon."

The declination of the Democratic caucus nomination by
Mr. Orton made it seem for a time as if Judge Lyon would
have no opponent, but there was a feeling on the part of
some Democrats that they ought to have a representative
upon the bench, and that this was the only way to make the
bench really non-partisan. On March 7th the Madison
State Journal stated that some Democratic papers in the
state had placed Judge David J. Pulling's name at the head
of their columns, but the Journal also stated that it did not
believe he would allow his name to be used. In this, how-
ever, the Journal was mistaken. Judge Pulling was then
and had been for some years presiding judge of the third
judicial circuit, which included the county of Winnebago

286 The Story of a Great Court

and city of Oshkosh. He was recognized as a very able
lawyer and a nisi prius judge who dispatched business not
only with rapidity but with a masterly grasp of the case
and the principles of law involved. Judge Pulling was un-
questionably ambitious, but he was also an able politician,
and he did not propose to lead any forlorn hope, or enter a
fight lost before it was begun. It is said in Berryman's
Bench and Bar of Wisconsin (Vol. 2, p. 79) that "when first
called to be a candidate he peremptorily declined." How-
ever, this may be, it seems certain that he was not averse
to making the contest if he could be convinced that he stood
a good chance of election, and his friends accordingly took
steps to make the call more emphatic. Petitions were
largely circulated among the bar requesting him to run,
which received many signatures and many of the Demo-
cratic editors of the state also joined in the request. The
members of the Democratic state central committee met
and tendered their support, and on the 8th of March the
Democratic members of the legislature met in caucus and
formally nominated him.

On March nth Judge Pulling published an acceptance,
addressed as follows:

"To Hon. John W. Cary et al. members of the bar; Hon. Sam.
Ryan, Jr. et al. members of the press; Hon. Andrew Proudfit et
al. members of the state central committee; Hon. P. V. Deuster
et al. State Senators, and Hon. D. W. Maxon et al. Members of
the Assembly."

In this acceptance he said in substance that when a few
weeks earlier it was proposed that he be nominated for the
position by the Democratic state central committee, and
the Democratic members of the legislature, he declined, be-
cause he believed the office ought not to be treated as a
purely political office, and because his personal preferences
were opposed to running; but that, many newspapers hav-

Lyon v. Pulling 287

ing put up his name, and having read the proceedings of
the Democratic members of the legislature, as well as the
requests from the Democratic state central committee, and
from a large number of attorneys of both parties, he did
not feel at liberty to refuse.

While the campaign was quiet, there is no doubt that it
was pressed with considerable energy by Judge Pulling
and his partisans. It was a time when the Republican dis-
satisfaction with President Grant, which resulted in the
Liberal Republican movement in 1872, was becoming acute,
and thus Democrats were feeling somewhat encouraged.
The attempt was made also to give Judge Pulling's canvass
the character of a non-partisan movement, but without
much success. The Milwaukee News of March 18th said
that it was informed that on the death of Judge Paine the
two surviving judges on the Supreme bench, Dixon and
Cole, requested the Governor to appoint a Democrat as
Paine's successor. The State Journal of March 20th denied
this statement on the authority of the Governor himself.
The Winnebago County Press published an article claiming
that at some time in the past Judge Pulling in his real estate
operations at Menasha had given to purchasers of land
deeds which he represented to be full warranty deeds, which
in fact contained warranties against his own acts only, and
that he had been burnt in effigy by his victims.

Judge Lyon remained quietly at work at his desk, al-
though the writer feels little doubt, from his own recollec-
tion of the campaign made against himself under somewhat
similar circumstances twenty-four years later, that the ex-
perience was not altogether a pleasant one.

The election was held on April 4th, and Judge Lyon re-
ceived a majority of 11,668 for the unexpired term of about
nine months, and 11,647 f°r the full term of six years.

288 The Story of a Great Court

These majorities were somewhat greater than the Repub-
lican majority at either of three immediately preceding
gubernatorial elections, so that it is evidence that the at-
tempt by Judge Pulling's friends to give his candidacy the
aspect of non-partisanship was unsuccessful.

Dixon's Notable Opinions 289

CHAPTER XXIV

SOME OF CHIEF JUSTICE DIXON'S NOTABLE OPINIONS

Casual reading of Chief Justice Dixon's opinions leaves
the impression that they were written easily and without
spending a great deal of time in polishing or cutting them
down ; not that they are carelessly written, but that at times
they seem to lack compactness. There is in them, however,
at all times an abounding virility, a certain assured and
easy swing which comes from the possession of intellectual
strength, a power to gather up the case and consider it with
the comprehensive mental grasp of a master mind. His
literary style has not the stately grandeur of Ryan, nor the
remarkable clarity of thought and purity of diction of Paine,
but it has a strength and convincing power which is all its
own, and which renders it impossible, for the writer at least,
to assign it to position inferior to that of either of the
judges named, so far as its merits as judicial writing are
concerned.

In order to judge of the character and strength of his
opinions, it will not be amiss to consider a few of his more
important cases, and give extracts from the opinions.

At the very first term after Judge Dixon's appointment
to the bench a very interesting case involving the construc-
tion of the homestead law came before the Court.1 This
law exempted from execution sale a quantity of land (in a
city or village) not exceeding one-fourth of an acre, "and
the dwelling house thereon." 2

i Phelps v. Roonoy, 9 Wis. *70.
2 Sec. 51, Chap. 102, Wis. Stats. 1849.
19

290 The Story of a Great Court

A judgment debtor owned a three story and basement
store building in the city of Milwaukee ; the basement and
first story being rented for business purposes, and the sec-
ond and third stories being occupied by the debtor and his
family as a residence. The question was whether that fact
made the entire building exempt as a homestead. In an
opinion by Judge Cole, the Court held (Judge Dixon dis-
senting) that the whole property was exempt as a home-
stead.

The case evidently appealed strongly to Judge Dixon's
sense of justice and fairness, and he filed a strong and con-
vincing dissenting opinion. Like many other dissenting
opinions, it forms more interesting reading than the ma-
jority opinion. I do not think this is necessarily proof that
it is sounder or abler. Dissenting opinions are generally
written under strong sense that the Court is radically wrong,
and then, too, there is a sense of freedom which the writer
feels and which enables him to cut loose and discuss ques-
tions entirely fearlessly, because he is not speaking for the
Court, and placing on record the law for the future, but is
simply expressing his own ideas for which no one but him-
self is responsible. Speaking from experience, I can say
that it is frequently a luxury to write a dissenting opinion.
The question in the case was, of course, whether this store
building was in any proper sense a "dwelling house" within
the meaning of the statute, even giving the statute the most
liberal construction possible, in order to preserve the ex-
emption. Chief Justice Dixon said not, and reinforced his
opinion in this fashion :

"I think it an utter perversion of language to call this build-
ing a dwelling house. It is not, in any fair sense of the word.
Xo one knows it as such; no one calls it such. A circumstance
worthy of note here, and which appears from the case, is, that
neither the defendant, nor any of the witnesses called to testify.

Dixon's Notable Opinions 291

not even those called by him to prove that it was his dwelling
house, call it by that name. No one ever seems to have imagined
that it was a dwelling house. It seems to have been left for the
courts to make that discovery. The defendant, in his mortgage,
called it 'store No. 107 East Water Street,' and every witness
spoke of it in that way, or as 'the Rooney store.' If the defend-
ant had possessed a water power upon the premises, which he
had improved by the erection of a mill or a factory, in some
part of which he resided, the result must have been the same.

"We are told in history that Diogenes, the celebrated cynic
philosopher, at one time took up his abode in a tub belonging to
the temple of Cybele; I suppose the tub became ipso facto a
dwelling house in the ordinary sense of that word, and that here-
after strict propriety of language will require us to say that he
lived in a dwelling house belonging to the temple instead of a
tub. Nay, more, I suppose the moment the philosopher got into
the tub, the whole temple instantly became a dwelling house,
and that he might, had he been so inclined, have claimed it as
exempt under the operation of a statute like ours.

"If tomorrow a man in Madison should sell to another a lot in
the city of Milwaukee, which the purchaser had never seen, and
should represent to the purchaser that it had a dwelling house
upon it, and should convey it as a house and lot, and the next
day the purchaser should go to Milwaukee to see his property,
I sincerely believe, if he had never heard of the decision in this
case, that he would be surprised to find himself the owner of a
lot with a shot tower upon it. If afterwards he should return to
the seller and complain of fraud and misrepresentation, I sup-
pose the justification of the seller would be that the courts had
decided that whatever building a man lives in, is a dwelling
house; that at the time he sold, his family resided in the tower,
and therefore the purchaser had got what he bargained for. I
mention these things for no other purpose than to show what
appears to me to be the absurdity of the meaning attached to
the words dwelling house, and how totally variant it is from
our common understanding of them."

A motion for rehearing being made, Judge Dixon wrote
another opinion, elaborating his views and adopting the rule
of the Iowa Supreme Court to the effect that a division of
the building should in such case be made horizontally, and
the non-exempt part sold.

292 The Story of a Great Court

The question has been presented in many jurisdictions,
and it is undoubtedly true that the majority of the courts
have held, as the Court held in the Phelps case, that the en-
tire building must be considered exempt. Nevertheless, the
view taken by the Cbief Justice has been approved by a
number of courts, and the question may be truly said to be
doubtful. The practical difficulties in the way of a hori-
zontal division constitute perhaps the strongest argument
against Judge Dixon's view. As most of the states are now
limiting the value of the property which can be held exempt
as a homestead, the question has ceased to have the impor-
tance which it once had.

Another case at the same term presented fully as im-
portant a question, namely, how far may the legislature
change or curtail existing remedies without impairing the
obligations of contracts, or infringing upon that certain
remedy in the law for all wrongs which the constitution
guarantees to every person.3 The law attacked was what
was called the "mortgage stay law" of 1858,4 which pro-
vided that in actions to foreclose mortgages executed prior
to its passage the defendants should have six months' time
in which to answer, instead of twenty days as before, and
that the premises should only be sold upon a previous notice
of six months, instead of six weeks as had been the practice.

This law was plainly passed to give mortgagors relief
from speedy foreclosure in the hard times following the
panic of 1857, when practically the whole state was bank-
rupt. The Court reached the conclusion that the legislation
was constitutional because, though the remedy was altered
still a substantial remedy was left according to the course
of justice as it existed at the time the contract was made,

3 Von Baumbach v. Bade, 9 Wis. *559.
* Chap. 113, Laws 185&.

Dixon's Notable Opinions 293

or, in other words, it was held that the legislature may alter
and vary existing remedies so long as a substantial remedy
is left, and the rights and interests of the parties are not
materially impaired. This doctrine has been consistently
followed by the Court ever since that case.

Judge Paine concurred in the judgment, but filed a sep-
arate opinion, basing the result on different reasoning.
Both opinions are well worth reading, and they furnish a
good concrete illustration of the differing mental character-
istics of the respective authors.

In the fall of 1859 Chief Justice Dixon was confronted
with the mandate of the Supreme Court of the United
States in the Booth case, and the question whether that man-
date was to be filed and obeyed. He could not settle this
question affirmatively, because Judge Cole's position was
certain in favor of standing by the former attitude of de-
fiance, while Judge Paine could not sit. Judge Dixon
could do nothing but define his position, his vote would
avail nothing if against Judge Cole's view. However, he
deemed it his duty to investigate and determine the question
for himself, though he must have known that an affirmative
opinion would bring down on his head the wrath of the
state rights Republicans, who were then in command of the
party, and probably work his defeat in the approaching elec-
tion. He. was then but thirty-four years of age, but he pre-
pared and filed what is perhaps his ablest opinion on a ques-
tion which was fully worthy of it. In all the opinions
which have been written on the subject of the appellate
jurisdiction of the federal Supreme Court over cases de-
cided in. the state courts, I know of none more satisfactory
than this. After stating his conclusion that the second sec-
tion of the third article of the United States Constitution
gives congress the power to provide for an appeal to the

294 The Story of a Great Court

federal Supreme Court from judgments in state courts in
the cases mentioned in the judiciary act of 1789, he says:5

"Under the different circumstances, I would not, at the risk
of repeating what has often been said before, venture to assign
a reason for the conclusions to which I have arrived, but would
content myself with simply referring the reader to those au-
thorities and works where the whole question will be found
fully discussed. But since, in view of what appears to have
been the former solemn action of this court, we have arrived at
a point in our system of double allegiance, where "fidelity to the
state is treason to the United States, and treason to her, fidelity
to them/' I trust I shall be excused for stating, briefly as I can,
some of the positions taken by those who assert the appellate
jurisdiction, which appear to me to be unanswerable, and which
in my humble judgment never have been, and never can be
shaken by those who oppose it.

"Before proceeding to state these views, I wish to say that in
disposing of this question, I have endeavored to decide it on the
constitution itself fairly and legitimately interpreted, well re-
membering 'that "a frequent recurrence to fundamental princi-
ples," is the only means of sustaining the government in its orig-
inal purity, and of preserving the original landmarks established
by its framers,' and believing that those 'fundamental principles'
are to be found in that instrument and not elsewhere; and be-
lieving, furthermore, that if there are evils fairly to be appre-
hended from its settlement either way, they are such as are
necessarily incident to every form of human government, and
that they are not to be remedied by any judicial powers of con-
struction which would give to the government an authority
which it does not possess, or take from it any which is conferred
by the constitution; but that the remedies lie in the hands of
the people who created it, and who can apply them or not, as ex-
perience and wisdom shall dictate. I have not, therefore, on the
one hand, pictured before my mind a gloomy congregation of states
'disrobed' of their sovereignty, and prostrated at the feet of the
general government by means of federal usurpation and assump-
tion, nor, on the other, the weakened and powerless republic,
begging at the hands of the mighty rulers of the states, the
privilege of executing her laws within their borders. I have
not placed on one side of me the horrors of 'consolidation' and
'despotism,' and on the other those of 'dissolution' and 'anarchy,'

5 Ableman v. Booth, 11 Wis. *498-*503.

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Dixon's Notable Opinions 295

and endeavored to make choice between them. Neither have I
attempted nicely to adjust and balance the centripetal and centri-
fugal forces of our government. These, though very proper to
be considered in connection with such a question, are not the
considerations which should control and govern the judicial
mind. Its action is to be determined by the plain letter and
spirit of the constitution, leaving the adjustment of such mat-
ters to the people who made, and who can unmake or amend it.
The judiciary are not responsible for the consequences whicb
flow from a proper construction of that instrument. While I
have a bigh regard for those illustrious judges and statesmen
wbcse opinions I adopt, I trust it does not diminish my respect
for those equally illustrious, who differ from them in opinion. I
have not yielded my assent to the doctrines of the federal courts
through any mean spirit of 'dignified judicial subordination,* nor
as 'hoary usurpation of power and jurisdiction, or time-honored
encroachments on the reserved rights of the sovereign states,'
rendered sacred by 'their antiquity,' but because I believe those
doctrines to be right. Neither policy, expediency, 'uniformity,'
the peculiar characteristics of the controversy before me, nor
vague speculations upon possible events or contingencies which
may never happen are the foundations upon which I would frame
a legal conclusion upon a constitutional question. With these
remarks I will state the view of the constitution which, for the
most part, leads me to the conclusion to which I have arrived."

After citing the federal cases of Martin v. Hunter6 and

Cohens v. Virginia,7 where the United States Supreme

Court directly held that the words "all cases in law and

equity" in the federal constitution mean all such cases in

any court, state or federal, in which a federal question is

raised, he says :

"It was further remarked by the court that the constitution un-
avoidably dealt in general language; that it did not provide for
minute specification of powers, or declare the means by which
those powers should be carried into execution. It was foreseen
that this would be a difficult and perilous if not an impracticable
task. Hence its powers were expressed in general terms, leav-
ing it to congress from time to time to adopt its own means to

«1 Wheaton, 304.
f 6 Wheaton, 264.

296 The Story of a Great Court

carry into effect legitimate objects, and to mould and model the
exercise of its powers as its own wisdom and the public interests
should require. They observed that a distinction seemed to be
drawn between the two classes of cases enumerated in the con-
stitution. The first class included cases arising under the con-
stitution, laws and treaties of the United States; cases affecting
ambassadors and other public ministers and consuls, and cases
of admiralty and maritime jurisdiction. In that class the ex-
pression was that the judicial power should extend to all classes.
That as these cases were of vital importance to the sovereignty
of the union, the original or appellate jurisdiction in them ought
therefore to be commensurate with the mischiefs intended to be
remedied and the policy in view. But that in the subsequent
clauses, which embraced all the other cases of national cognizance
and formed the second class, the constitution seemed, ex indus-
tria, to drop the word all and to extend the judicial authority not
to all controversies, but to controversies in which the United
States should be a party, etc., leaving it to congress to qualify
the jurisdiction, original or appellate, as sound policy might
dictate. It was furthermore said by the court that, as the state
tribunals might, in the exercise of the powers with which the
constitution found them invested, as the courts of independent
sovereignties, have and exercise concurrent original jurisdiction
over all or some of the cases provided for in the constitution,
and as the constitution contemplated that they should exercise
such jurisdiction, and as many cases under the constitution, laws
and treaties of the United States might arise in the state courts
which could not originate or exist in the federal courts, it would
necessarily follow, if the constitution was held to limit the ap-
pellate jurisdiction to cases pending in the courts of the United
States, notwithstanding the absolute and imperative language of
the constitution that, 'the judicial power shall extend to all cases
in law and equity arising under this constitution,' etc., that there
would be a very large class of cases under the first and most im-
portant clause of the section which could never be reached by
the federal courts, either by virtue of their original or appellate
jurisdiction.

"It is this conclusion, to which a denial of the appellate juris-
diction inevitably leads, that determines my mind upon the ques-
tion. I have looked in vain through the arguments and com-
mentaries of those who maintain that there is no appellate juris-
diction, for a satisfactory answer to it, I can find none. It is
either passed in silence, or with a few general remarks, founded,

Dixon's Notable Opinions 297

for the most part, on assumptions which cannot be sustained. It
virtually makes the first and leading clause, which declares that
the judicial power of the federal courts shall extend to all cases
arising under the constitution, laws and treaties of the United
States, a dead letter — mere surplusage, and limits those courts,
in a great majority of instances, to taking jurisdiction of such
cases merely as an incident to the jurisdiction which they ac-
quire by reason of the character of the parties litigant under the
minor grants of power contained in the subsequent part of the
section; for all practical purposes under such construction, the
first clause might as well have been entirely omitted. The judi-
cial power of the federal courts would have been nearly as exten-
sive, without, as with it, the only difference being that with it, a
shadow of power is given with reference to a particular, and by
far the least numerous of any class of cases, where otherwise the
character of the parties would not confer jurisdiction; that is,
in those cases where the plaintiff is able, from the nature of his
case, to set up in his declaration or complaint, some right or
equity against the defendant, arising under the constitution, laws
or treaties of the United States. In such cases, the facts con-
ferring jurisdiction, would, by the plaintiff's showing appear af-
firmatively upon the record, and the court might entertain the
case. Without the power of appeal, this, so far as I can see, is
the utmost practical effect that can be given to the clause in
question. Such a construction, if it were not directly at war
with the words used, is, in my opinion, altogether too narrow
and illiberal. It makes the provision altogether inadequate for
the ends designed to be attained by it, viz: Protection and preser-
vation to the government, by means of its own judiciary, and an
equal regard to the constitutional rights of all of its citizens."

Two important cases, involving serious questions of cor-
porate and legislative power, were presented at the June
term, i860, and in both cases the opinions were written by
the Chief Justice.8 In the first of these cases the question
was whether the legislature could directly or indirectly di-
vest a municipal corporation of its private property without
the consent of its inhabitants, and the question was an-
swered in the negative.

s Town of Milwaukee v. City of Milwaukee, 12 Wis. *93; Has-
brouck v. City of Milwaukee, 13 Wis. *37.

298 The Story of a Great Court

In the second case cited, the city of Milwaukee had been
authorized by legislative act to expend $100,000 in building
a harbor, and issue bonds to pay therefor ; the city pro-
ceeded to expend not only the $100,000, but made contracts
far in excess of that sum ; the contractor completed the
work, and a further act of the legislature was then passed
authorizing the city to issue such amount of bonds as might
be necessary to complete the harbor, but the city issued no
bonds under it. The contractor then brought action against
the city for the balance of the contract price exceeding the
$100,000, and the question was whether the city was liable
for this excess. The Court held that the city had not the
power to engage in a work of internal improvement like
building a harbor, without specific legislative authority ; that
the contracts providing for a greater expenditure than
$100,000 were void as to the excess, for want of corporate
power, and that the subsequent act authorizing the issue of
bonds for the excess was not sufficient proprio vigore to
constitute a ratification, and that only evidence showing that
such act was procured with the assent of the corporation or
had been subsequently acted upon or confirmed by it would
make it available as a ratification which would bind the cor-
poration.

Probably the most frequently quoted opinion which Chief
Justice Dixon ever wrote is the opinion in the Kellogg case,
which came up at the January term, 1871. This was the
case in which the doctrine of proximate cause in negligence
actions was first extensively discussed and settled in accord-
ance not only with reason, but with the great mass of deci-
sion which has followed since that time. Though not per-
haps entitled to the name of a pioneer case, still it may

"Kellogg v C. & N. W. Ry. Co. 26 Wis. 233.

Dixon's Notable Opinions 299

truthfully be said to be one of the first to luminously treat
and settle the very important question as to what may be
considered the proximate cause of an injury in that vast
flood of negligence actions which was then beginning.

The action was brought against the railway company,
charging that it allowed great quantities of dry grass and
weeds to accumulate on its right of way, and that they were
set on fire by sparks from its engines, which fire was carried
by the wind to the adjoining field of the plaintiff, and totally
destroyed his stacks of grain. The argument of the rail-
road company was that the plaintiff's damages were too
remote from the alleged act of negligence, and resulted from
intervening independent causes, such as a strong wind
which was blowing, and the extreme dryness of the time.

The first opinion in the case is quite brief, and by no
means forms a satisfactory treatment of the question, and
Judge Paine filed a dissenting opinion. On motion for re-
hearing, however, the Chief Justice wrote a very exhaustive
and satisfactory opinion, discussing the question fully, both
upon reason and in the light of the limited number of au-
thorities, English and American, then in existence, bearing
on the subject, and lays down substantially the rule which
has been followed ever since, both in this jurisdiction and
in the great majority of other jurisdictions, that, where an
injury is the natural and probable, though not the necessary,
consequence of a negligent act, and one reasonably to be
anticipated according to the usual experience of mankind,
the negligent act is the proximate cause of the injury. It is
in all respects a very satisfactory opinion, but I have found
no way of making an extract from it which would give any
adequate idea of its quality, and I leave the reader to exam-
ine it for himself.

300 The Story of a Great Court

Fully as interesting was the question presented in Sutton
V. IVauwatosa,10 which was whether a man driving cattle to
market on Sunday in violation of the Sunday law could re-
cover damages of a town on account of a defective highway
bridge, which gave way under the cattle, and killed some
of them. Did his violation of the Sunday law bar him from
recovering?

There were Massachusetts decisions holding in the affirm-
ative, but the Chief Justice discusses the question most satis-
factorily, and comes to the conclusion that the doing of an
unlawful act at the time of the injury will not prevent a re-
covery, unless the act was of such a character as would
naturally tend to produce the injury ; and the driving of the
cattle to market on Sunday would not tend to break down
the bridge any more than the same act on Monday.

In discussing the question, he says:

"In the present case the weight of the same cattle, upon the
same bridge, either the day before or the day after the event
complained of, when the plaintiff would have been guilty of no
violation of law in driving them would most unquestionably
have produced the same injurious result. And if, on that day
even, the driving had been a work of necessity or charity, as if
the city of Milwaukee had been in great part destroyed by fire,
as Chicago recently was, and great numbers of her inhabitants
in a condition of helplessness and starvation, and the plaintiff
hurrying up his drove of beef cattle for their relief, no one
doubts the same accident would then have happened, and the
same injuries ensued. The law of gravitation would not then
have been suspended, nor would the rotten and defective stringers
have refused to give way under the superincumbent weight, pre-
cisely as they did do on the present occasion. There are" many
other violations of law, which the traveller or other person pass-
ing along the highway may, at the time he receives an injury
from a defect in it, be in the act of committing, and which are
quite as closely connected with the injury, or the cause of it, a3
is the violation of which complaint is made against the present

i<> 29 Wis. 21.

Dixon's Notable Opinions 301

plaintiff. He may be engaged in cruelly beating or torturing his
horse, or ox, or other animal; he may be in the pursuit of game,
with intent to kill or destroy it, at a season of the year when
this is prohibited; he may be exposing game for sale, or have
it in his possession, when these are unlawful; he may be in the
act of committing an assault, or resisting an officer; he may be
fraudulently passing a toll gate, without paying his toll; and he
may be unlawfully setting or using a net or seine, for the purpose
of catching fish, in an inland lake or stream.

"All of these acts prohibited by the same chapter or statute
in which we find the prohibition from work and labor on Sun-
day, and some of them under the same, but most under a greater
penalty than is prescribed for that offense, thus showing the
character or degree of culpability which was variously attached
to them in the opinion of the legislature. And there are many
other minor offenses, mala prohibita merely, created by statute,
which might be in like manner committed. There are in Massa-
chusetts, and doubtless in many of the states, statutes against
blasphemy and profane cursing and swearing, the prevention of
which seems to be equally if not more an object of solicitude and
care on the part of the legislature, than the prevention of labor,
travel or other secular pursuits on Sunday, because more se-
verely punished. It has not yet transpired we believe, even in
Massachusetts, that the action of any person to recover damages
for an injury sustained by reason of defects in a highway, has
been peremptorily dismissed because he was engaged at the time
in profane cursing or swearing, or because he was in a state of
voluntary intoxication, likewise prohibited under penalty by
statute."

The doctrine of the Sutton case has been approved in
many jurisdictions, and may be said to be the law of the
land ; in Massachusetts the legislature has come to the re-
lief of the courts, and provided that the provisions of the
Sunday law shall not constitute a defense to an action for
injury suffered by a person on that day.

Many other important opinions by Chief Justice Dixon
might well be cited and quoted from, but it is not within
the scope of this work to follow the course of mere private
litigation. Enough examples of his opinions have already
been given to demonstrate their high quality. One opinion,

302 The Story of a Great Court

unique in the occasion which called it forth, as well as the
circumstance that no action was pending when it was writ-
ten and filed, seems to deserve mention.

When in January, 1874, a change of administration took
place, and the Democratic, or reform, administration came
in with Governor Taylor, there was great pressure for jobs
about the capitol by the privates in the victorious political
army. The position of crier or janitor in the Supreme
Court had always been filled by the Court itself, and was
at this time held by Christian Henry Beyler, a very com-
petent and satisfactory employee. The longing eyes of a
perspiring patriot discovered the place, however, and the
superintendent of public property assumed to remove Mr.
Beyler and appoint the patriot in his place. The new ap-
pointee came and saw, but can not be said to have con-
quered. The members of the Court concluded that the time
had come to demonstrate that the Court had power to choose
its own bailiff, and the Chief Justice wrote and filed one
of his most vigorous opinions in vindication of that power.11

In this opinion, after stating that the members of the
Court, in order to avoid unpleasantness, had made applica-
tion to the superintendent of public property to withdraw
his interference and allow the service to remain as it was,

he says :

"Fortunately for the members of the court and for the public
service in which they are engaged, they are left in no such atti-
tude of humiliation as compels them to petition the superintend-
ent, or any other administrative or executive offer, to redress
the wrong; nor are they obliged to suffer the inconveniences and
trouble which must flow from it if not so redressed. It is a
power inherent in every court of record, and especially courts
of last resort, to appoint such assistants; and the court itself is
to judge of the necessity. This principle is well settled and
familiar, and the power so essential to the expedition and proper

« In Re Janitor, 35 Wis. 410.

Dixon's Notable Opinions 303

conducting of judicial business, that it may be looked upon as
very doubtful whether the court can be deprived of it. As a
power judicial and not executive or legislative in its nature, and
one lodged in a co-ordinate branch of the government separate
and independent in its sphere of action from the other branches,
it seems to be under the protection of the constitution, and
therefore a power which cannot be taken from the court, and
given to either the executive or legislative departments, or to
any officer of either of those departments."

This language seems sufficiently definite and positive, but
when he reaches the end of the opinion there is a note of
defiance which clearly shows the very serious character of
the clash. After stating that the conclusion of the Court is
that the power to appoint and remove is possessed by the
Court alone and that the janitor theretofore appointed must
be retained until his resignation or removal by the Court
with the same compensation as before, he says :

"In case his name shall be omitted by the superintendent from
the pay-roll, so that his compensation cannot be made to him
monthly as heretofore, it will devolve upon the next legislature
to make the requisite appropriation and likewise to provide
against the recurrence of similar contingencies in the future. It
is not within the range of presumption, or a supposition to be for
a moment indulged, that any legislative body will neglect or
refuse to make such appropriation or to enact suitable measures
for the future; but if it should refuse to appropriate, the ap-
pointee will have his remedy by action against the state in the
manner prescribed by law."

It is perhaps unnecessary to say that the Court retained
its janitor, and that there have been no further attempts
by either legislative or executive power to interfere with
such appointments.

As the end of his term approached, Chief Justice Dixon
became more and more dissatisfied with his financial situa-
tion. He was now receiving a salary of $4,000 a year, and
if he should be re-elected in the spring of 1875 he would re-
ceive $5,000 per annum after the first Monday in January,

304 The Story of a Great Court

1876. This, however, was no great inducement. He was
conscious of his abilities, and well aware that if he were at
the bar he could command compensation almost princely in
comparison to the salary. He saw his youth and manhood
slipping by with ever accelerating speed, and each year he
found himself in deeper financial difficulties.

He therefore determined definitely to resign, and in June,
1874, he tendered his resignation to the Governor, and
formed a law partnership in Milwaukee.

Edward George Ryan 305

CHAPTER XXV

EDWARD GEORGE RYAN

Upon receipt of Chief Justice Dixon's resignation, Gov-
ernor William R. Taylor first offered the position to Colonel
William F. Vilas, then not quite thirty-four years of age,
but doubtless the most brilliant of the younger generation
of lawyers in the state. It must have seemed a glittering
prize to the future statesman, but he declined, as it is said,
on the advice of his father, who thought the future had
greater rewards in store for his gifted son if he remained
in the practice.

Thereupon on the 17th day of June, 1874, the Governor
appointed Edward George Ryan of Milwaukee to the vacant
seat, and the appointment was at once accepted. The ap-
pointment was quite favorably received by the press and
public, although with considerable surprise. It was by no
means the case of the appointment of an unknown or ob-
scure person to high office. Mr. Ryan was very far from
that, as we have already seen ; he had on numerous occa-
sions taken a commanding part in matters of the highest
importance in the political and judicial history of the state,
and had demonstrated beyond cavil or doubt his great abili-
ties as an advocate, an orator and a scholar. But it may
fairly be said that there was a widespread doubt as to
whether his abilities, great as they confessedly were, were
of the character which would render him a great or suc-
cessful judge. He was nearly sixty-four years of age, his
temper was known to be uncertain and at times violent, he
had had no experience upon the bench, his entire profes-
20

306 The Story of a Great Court

sional life had been spent at the bar, the great cases in
which he had appeared were of the kind which aroused the
deepest passions and party feelings, and it was felt that
the great qualities which had given him prominence as an
orator and advocate were not of the kind which would tend
to promote success upon the bench. Thus the appointment
was in many quarters looked upon as an experiment, and,
at the best, a doubtful one.

However, the experiment was made and Judge Ryan took
his seat with the good will and good wishes of all, and for
more than six years presided in the highest tribunal of the
state, and during that six years he not only dispelled the
doubts which followed his appointment, but added vastly to
the standing and prestige of a Court which already stood
high among the courts of the nation, and in his opinions
upon great questions left a monument to his memory more
enduring than brass or marble.

More than a score of years have now passed since his
death ; the mists of passion and prejudice have passed away ;
the clamor of the political partisan has ceased ; time has
drawn the kindly mantle of forgiveness, if not of forget-
fulness, over all mere infirmities of temper, and the time
has come when a just and appreciative estimate may well be
made of the character and abilities of this great man.

A few months before his death, during the early part of
the year 1880, he was applied to by a Mr. Reed, who was
preparing a book on the Bench and Bar of Wisconsin, for
some biographical material; after considerable urging he
wrote a brief sketch of his life in a letter to his son Hugh
(now a prominent lawyer of Milwaukee) and authorized
him to make such use of it as he chose in preparing an
article for Mr. Reed. This, I believe, is the only written

Edward George Ryan 307

document left by the Chief Justice relating to the history of
his life. It is dated July 2, 1880, and reads as follows :

"I was born at New Castle House, my father's residence, near
the village of Enfield in the County of Meath (Ireland) Novem-
ber 13, 1810. My father, Edward Ryan, was a son of the family
of Ryan of Ballinakill. He had married Abby, eldest daughter
of John Keogh of Mt. Jerome, the chairman of the famous Cath-
olic committee. At the time of my birth, my father was a pros-
perous man, the owner of lands purchased in part with the for-
tune he received with my mother. Between the peace of 1815
and the passage of the Corn Laws he was ruined as almost all
others were who owed money on land. He then removed to
Blackhall in the County of Kildare, which he rented and where
he lived till near his death, barely supporting his family. My
mother's father was a very wealthy man who died while I was a
mere youngster. He left an annuity to my mother for the pur-
pose of educating her children. There were ten of us, and we
all received an excellent education. I received mine at Clon-
gowes Wood College, where I remained for seven years, from
1820 to 1827. I was always destined for the law, in the study of
which I was nominally engaged in 1828 and 1829. But I was
an expensive and improvident youth, and a great burden to my
father. I had exaggerated notions of the ease with which men
get on in this country, and I finally obtained my father's consent
to come here. So I came in 1830. I did not know then, but
have long since known that my father expected me to fail and
to return to Ireland. I was too proud to do so. I studied law
in New York, as I could, supporting myself by teaching. I was
admitted in 1836 and came that year to Chicago. Up to that time
I had never known what sickness was, but I was particularly
subject to miasmatic diseases, and I was in very poor health dur-
ing the whole time I remained in Chicago.

"In 1842 I was married to your mother, Mary, eldest daughter
of Hugh Graham, and immediately moved to Racine. I lost your
mother in 1847, and, as soon as I rallied from the blow, prepared
to move to Milwaukee, and moved there in December, 1848.
When I first went to Racine it seemed doubtful which would be
the larger place; that doubt was settled long before I moved. In

1850 I was married to Caroline Willard, daughter of

Pierce of Newburyport, Mass. The rest you know as well as I.
Above you have the outlines of my life. You can fill it up for
Mr. Reed, using no superlatives and making it a mere biography.'
I gave the same data to the late Colonel Slaughter, who wrote

308 The Story of a Great Court

an extravagant panegyric, of which I was heartily ashamed. I
have an instinctive aversion to putting my face, of which I am
not proud, in a book, and I have a perfect horror of the distorted
caricatures of wood cuts which they put in Wisconsin publica-
tions."

Here the autobiographical sketch ceases. None can ac-
cuse its author of egotism.

He had reached the ripe age of three score years and ten
when he wrote the foregoing. While his life has been full
of disappointments, and had resulted in failure from a finan-
cial point of view, it had been tumultuous and stirring ; he
had played the leading part in many a serious drama that
had moved the great heart of the public to the utmost;
he had had great opportunities and he had seized some of
them and scored brilliant intellectual triumphs ; he had been
abused, maligned and condemned, but his great abilities
had never been questioned ; his life had been one of storm
and stress, like a day full of darkness and tempest, but made
glorious by a great burst of golden light flooding the sky
at its close.

Such being the case, this brief record of his life must be
considered as provokingly meagre and unsatisfactory. The
outlines certainly need filling up. though the limits of this
work will not admit of great detail.

Mr. Ryan was of Roman Catholic parentage, and was
baptized when six days old by the Rev. Lawrence Graham
R. C, Pastor of the parish of Rathcone. This appears by
a certificate found among Judge Ryan's papers, dated March
4, 1834, signed by the reverend gentleman himself, who, it
seems, was still after the lapse of twenty-four years pastor
of the parish. When and why he left that communion and
attended the services of the Episcopal church I have been
unable to ascertain. I judge from the tone of one of his
essays, which I shall hereafter refer to, that he rejected the

Edward George Ryan 309

claims of the church to settle authoritatively and finally all
questions of belief, but this is mere surmise.

I have found nothing that throws any light on his life in
New York further than he himself has told us. Doubtless
it was a period of hard work and poverty. He received his
second naturalization papers April 9, 1836, and was ad-
mitted to the bar May 13th following. He soon came to
Chicago. His practice here was not so engrossing as to
occupy all of his time, but his active mind could not brook
idleness and he became in 1839 tne editor of a Democratic
paper called the Tribune, through which for about two
years he gave expression to his views upon the politics of
the day in vigorous English and stately periods which must
have spent their force far above the heads of the frontier
community at which they were levelled. The paper died
in 1 84 1. I find among his papers a commission signed by
Thomas Carlin, Governor, and Lyman Trumbull, Secretary
of State, dated March 4, 1841, appointing him State's At-
torney for the 7th Judicial Circuit of Illinois. Whether his
term of office expired, or whether he resigned I do not
know, but evidently he tired of Chicago, and came to Ra-
cine with his young wife in 1842. While living here he was
elected a delegate to the first constitutional convention held
in 1846, and took a very prominent part in the debates of
that body. After his removal to Milwaukee he was asso-
ciated at different times as partner with a number of prom-
inent lawyers, among whom were Judge J. G. Jenkins and
Sen. M. H. Carpenter, and he was engaged in many impor-
tant causes, some of which were of state and even national
importance, which will be referred to later in this volume.
During the years 1870, 1871 and 1873 he was City Attorney
of the city of Milwaukee, and in June, 1874, as before stated,'
he was called by the Governor to be Chief Justice of the

3 1 0 The Story of a Great Court

State. This appointment crowned a long and troubled life.
Don knew his own abilities as well as his infirmities

full well. When he was appointed he said, "This is the sum-
mit of my ambition, it is the place to which I have looked,
but it has been so delayed that I have ceased to expect it."
is physical appearance is thus described in the book
called "Fathers of Wisconsin:"

"In person Mr. Ryan is five feet ten inches in height, weighs
about ISO pounds, neither of robust nor delicate frame, but mus-
cular, sinewy and capable of much long and continued labor.
His movements are quick, and his step elastic; his complexion
is florid, his hair light, his eyes blue, large and expressive."

Although 1 saw him in my boyhood at a time when he
was perhaps fifty years of age, I do not remember his ap-
pearance at that time, and my only distinct recollection of
his personality is that which is left on my memory by his ap-
pearance upon the supreme bench. He was then quite
bowed by age, and his walk was plainly infirm, but the pierc-
ing brilliancy of the eyes, which seemed almost starting from
from his head as he bent them upon a lawyer who was argu-
ing a case before him, I shall never forget. He was a good
listener ; he apparently gave his whole mind to the case,
and it always seemed to me that he was dissecting the case
and the argument in his mind. With that gaze bent upon
one, pettifogging seemed out of the question, and any at-
tempt to lead the judicial mind astray worse than useless.
His features were large and striking, rather than handsome ;
his face would attract attention at any time and in any com-
pany, but when illuminated by the fire of intellectual combat
the eyes blazed, and the whole countenance seemed leonine
in its strength.

Chief Justice Cole in reply to the addresses of the bar
after Judge Ryan's death, referred to him as having a "sus-
ceptible" temper. This mild expression was characteristic-

Edward George Ryan 3 1 1

ally kind, but extremely inadequate. From his very youth
Mr. Ryan was afflicted with a violent temper. It was un-
reasoning and unreasonable. The most trivial incidents
aroused his anger, and when aroused it was almost impossi-
ble to appease it. By his ebullitions of temper he drove his
clients from his door and well nigh wrecked his profes-
sional career. He made bitter enemies without necessity or
reason, and alienated those who would fain have been his
friends. This failing was the curse of his whole life, it was
the greatest weakness in a character which in other respects
had most if not all of the elements of true greatness.

In an eloquent and discriminating eulogy delivered by ex-
Senator Vilas before the Supreme Court soon after Judge
Ryan's death,1 he truly said of this failing: "The chiefest
misfortune of his life was his weakness in presence of his
own passion. That subdued and governed him, turning his
power to his own destruction. It made him terrible to his
friends as well as his enemies ; tyrannical, perhaps some-
times cruel, where he should have been tender and loving;
suspicious and jealous where he should have been confiding;
violent and hostile where he ought to have been friendly.
It led him into false positions from which he was too proud
to withdraw. It stood in the path of his advancement among
men like a flaming sword. It turned friends into enemies
and froze off the tendrils of life. It brought humiliation,
grief and loneliness to his soul and his hearthstone." Judge
Jenkins, upon the same occasion, said of this same failing,
"The life of Judge Ryan was one long struggle — a struggle
against himself, a struggle against untoward fortune, a
struggle against infirmity which the world knew little of and
allowed not for. And so to most men he seemed arrogant
and proud, whereas to those who knew him best he was,-

i 50 Wis. 23.

3 1 2 The Story of a Great Court

when acquit of infirmity, compassionate and considerate."
I shall not dwell upon this serious infirmity of temperament.
It was an inborn, not an acquired or cultivated failing;
doubtless it was greatly aggravated by his ill-health in later
years ; its most serious effects descended upon his own head ;
it seemed necessary to speak of it, however, in speaking of
the character of the man ; it throws light upon many things
in his life which are otherwise inexplicable ; it explains in
some degree at least why there was so much of disappoint-
ment and bitterness and failure in it ; why he made so few
warm friends, and why at the close of a long life he was
solitary and alone.

Turning from this painful subject, we shall find many ad-
mirable characteristics upon which we may dwell with pleas-
ure. His nature was deeply religious. Whether or not there
is any truth in the report which is given currency by Mr.
Reed in his Bench and Bar that his parents designed him
for the priesthood I know not, but it is certain that he came
of a reverent and religious parentage, and that he carried
the impress of those early influences through his life to the
very end. In Milwaukee he was for a long time a com-
municant and attendant of one of the Episcopal churches,
and at Madison of Grace church. That his thoughts were
often directed toward religious subjects is shown by the
character of several essays or lectures which he left among
his papers, among which are lectures on "Faith," and
"Heresy," and on unfinished lecture on "The Crucifixion,"
all of which will be referred to later ; he often, especially in
his later years, discussed the great problems of life and im-
mortality, and always with the strong convictions of a Chris-
tian. Thus Chief Justice Cole in his reply to the addresses of
the Bar before mentioned says of him, "I well remember that
on one occasion he put an end to our conversation on these

Edward George Ryan 3 1 3

intensely interesting questions by uttering with great solem-
nity of manner, substantially this language, 'As for myself, I
know I possess a soul — an intellectual and moral part which
is immortal. I believe that I shall have a conscious personal
existence after death; that I shall meet beyond the grave
friends and those I loved here, that I shall know them and
they will know me. All this I as firmly believe as I believe
that I shall see the sunlight tomorrow if I live.' "

Not only did he have this theoretical belief, but he also
made practical application of his belief in the Christian re-
ligion by prayer. I know this not only from the fact of his
regular attendance at church, but also from having found
among his papers, which were kindly placed at my disposal
by Mr. Hugh Ryan, a manuscript prayer, much worn and in
his own handwriting, which I believe to be original and evi-
dently prepared by him for daily use after he came to the
bench. Its beauty and simple pathos should give it a place
in any liturgy. I cannot forbear quoting it in full.

"0 God of all truth, knowledge and judgment, without whom
nothing is true or wise or just, Look down with mercy upon
Thy servants whom thou sufferest to sit in earthly seats of judg-
ment to administer Thy justice to Thy people. Enlighten their
ignorance and inspire them with Thy judgments. Grant them
grace truly and impartially to administer Thy justice and to
maintain Thy truth to the glory of Thy name. And of Thy In-
finite mercy so direct and dispose my heart that I may this day
fulfill all my duty in Thy fear, and fall into no error of judg-
ment. Give me grace to hear patiently, to consider diligently,
to understand rightly and to decide justly. Grant me due sense
of humility, that I be not misled by my wilfullness, vanity or
egotism. Of myself I humbly acknowledge my own unfitness
and unworthiness in Thy sight, and without Thy gracious guid-
ance I can do nothing right. Have mercy upon me a poor, weak,
frail sinner, groping in the dark; and give me grace so to judge
others now, that I may not myself be judged when Thou comest
to judge the world with Thy truth. Grant my prayer I beseech
Thee for the love of Thy son, our Savior, Jesus Christ. Amen."

3 1 4 The Story of a Great Court

I also found among his papers a manuscript form for daily-
family prayers, also in his own handwriting and rivalling in
beauty and dignity the personal prayer just quoted.

Again Judge Ryan passionately loved justice and hated
oppression or wrong. It may perhaps be said that he was
frequently unjust and cruel to bis personal friends and this
is true ; but it is also true that this was the result of his un-
controllable temper which carried away his judgment and
blinded his mental vision, and hence this fact cannot be con-
sidered as in any degree impeaching the sincerity of his love
of justice. Akin to this was his love of truth and hatred of
anything like hypocrisy and time serving. That which he
believed he proclaimed without thought of popularity or
fear of the result. Thus, although he was always a Demo-
crat, he became the leading counsel for Bashford in the cele-
brated case of Bashford v. Barstow, in 1856, when it seemed
that the will of the people was about to be defeated by fraud,
and in the course of that litigation vindicated the principles
of honest government, although the result was to place a
political opponent in the Governor's chair. The famous
Ryan address of 1862, before mentioned, also demonstrates,
as it seems to me, this same quality. While this address was
ill-timed and doubtless gave aid and comfort to the enemy, it
was in no sense a disunion document ; it denounced the rebel-
lion of the Southern States as "unnecessary, unjustifiable,
and unholy,'' and demanded the most vigorous prosecution of
the war, and the burden of it consisted of an impassioned
appeal for the maintenance of the constitution of the United
States against certain measures and acts which had been
deemed necessary by the administration for the due prosecu-
tion of the war, such as the suspension of the writ of habeas
corpus by the executive, arbitrary arrests, and other acts of

Edward George Ryan 3 1 5

doubtful constitutionality. Here appeared Mr. Ryan's great
respect for established law. He reverenced the constitution
and when he saw it invaded and disregarded, as he deemed,
he hesitated not to denounce such acts with all the vigor of
his matchless rhetoric, though he must have known that his
act would bring upon his head, as it in fact did, a storm of
obloquy ; a storm which lasted for years, and effectually
killed any political ambitions which he possessed.

Instances might be multiplied of his love of abstract jus-
tice, his reverence for law, and his hatred of wrong, but
others have written of these qualities far more effectively
than I can hope to do. Judge Jenkins, in the address be-
fore spoken of, says :

"He possessed none of the arts of the courtier; he would
neither bow subservient to power, nor be patient in the presence
of wrong and oppression. Like the oak of the forest, he could
break but not bend. Power might crush him, it could not si-
lence him. So he was often the champion of the lowly against
the powerful: — I think out of abhorrence of the oppressor, rather
than from sympathy for the oppressed. He hated the wrong
more than he loved the victim of the wrong. Such a man could
never be popular; he never sought to be. He despised the popu-
larity that is run after. He challenged the fame that waits upon
grand deeds, upon great intellectual and moral power. Men ad-
mired him. The world recognized a grand intellect and mar-
velled at its power. It apprehended his great acquirements and
honored him; but it could not love him. It neither compre-
hended the man, nor allowed for his infirmity. Indeed he never
sought the world's appreciation. He was all sufficient to him-
self. He shut himself up within himself, asking neither sym-
pathy nor love. He seemed of different mould from other men;
above the need of sympathy or too proud to claim it."

It goes without saying that such a man must have had a

high i ide of professional and judicial ethics. The tributes

of lifelong acquaintances leave us not in doubt as to these

matters, but he has expressed himself so eloquently as to the

• of the duties of lawyers and judges in his famous ad-

3 1 6 The Story of a Great Court

dress to the University Law class of 1873 that I cannot do
better than to quote a few sentences. Of the lawyer he says :
"This is the true ambition of the lawyer: To obey God in the
service of society; to fulfill His law in the order of society; to
promote His order in the subordination of society to its own
law adopted under His authority; to minister His justice by the
nearest approach to it under the municipal law which human in-
telligence and conscience can accomplish. To serve man by dili-
gent study and true counsel of the municipal law; to aid in solv-
ing the questions and guidiog the business of society according
to law; to fulfill his allotted part in protecting society and its
members against wrong, in enforcing all rights and redressing
all wrongs; and to answer before God and man according to the
scope of his office and duty for the true and just administration
of the municipal law. There go to this ambition, high integrity
of character and life; inherent love of truth and right; intense
sense of obedience, of subordination to law, because it is law;
deep reverence of all authority, human and divine; generous
sympathy with man, and profound dependence on God. These
we can all command. There should go high intelligence. That
we can not command. But every reasonable degree of intelli-
gence can conquer adequate knowledge for meritorious service
in the profession."

Of the Judge he says :

"The Bench symbolizes on earth the throne of divine justice.
The judge sitting in judgment on it is the representative of
divine justice, but has the most direct subrogation on earth of
any attribute of God. In other places in life the light of intelli-
gence, purity of truth, love of right, firmness of integrity, single-
ness of purpose, candor of judgment, are relatively essential to
high beauty of character. On the bench they are the absolute
condition of duty, the condition which only can redeem judges
from moral leprosy. * * * The judge who palters with jus-
tice, who is swayed by fear, favor, affection, or hope of reward,
by personal influence or public opinion, prostitutes the attri-
butes of God and sells the favor of his maker as atrociously and
blasphemously as Judas did. But the light of God's eternal
truth and justice shines on the head of the just judge and makes
it visibly glorious."

Higher ideals than these could hardly be expressed in
human languag-e. That deep reverence for God and for law

Edward George Ryan 3 1 7

and order before spoken of shines forth from the quoted
lines with the clear radiance of the sun at noonday. Did
he fail at times to reach the height of these ideals? Prob-
ably so, but does poor human nature ever realize and live
up to its ideals? If it did the ideals would be no longer
ideals. It may be said with confidence that whatever Judge
Ryan's failings were it was never charged for a moment
that he willfully departed from these high ideals of profes-
soinal and judicial conduct. His mind was clean, his
thoughts pure, vice did not allure, loose living did not at-
tract him.

It has been said that a good man always has a deep re-
spect for woman. Judged by this test, Judge Ryan was a
good man. His respect for woman and womanhood was
deep and almost reverential. Whenever and wherever he
has written or spoken of woman or womanhood he has done
so with a deference as charming as it is appreciative and re-
spectful. True he had his own ideas of her proper sphere,
which were expressed quite fully in his lecture entitled "Mrs.
Jellyby," which will be referred to later. He had no patience
with the "new woman," even at the moderate stage of de-
velopment which she had reached forty years ago ; what he
would have thought of the "new woman" of the 20th century
can be easily imagined. His idea was not that woman was
inferior to man, but that she was intended by the Creator
for a different and really nobler sphere of action, and that it
was a perversion of the divine purpose to attempt to take
her from that sphere. When Miss Lavinia Goodell moved
for admission to practice as a lawyer in 1875, Judge Ryan
wrote the opinion of the Court denying the application and
and said, among other things :

"There are many employments in life not unfit for female
character. The profession of the law Is surely not one of these.-
The peculiar qualities of womanhood, its gentle graces, its quick

3 1 8 The Story of a Great Court

sensibility, its tender susceptibility, its purity, its delicacy, its
emotional impulses, its subordination of hard reason to sym-
pathetic feeling are surely not qualifications for forensic strife.
Nature has tempered woman as little for the judicial conflicts
of the court room as for the physical conflicts of the battle field.
Woman is moulded for gentler and better things."

This view is more fully brought out in the Jellyby lecture
and need not be dwelt upon now.

In addition to the admirable qualities already mentioned,
it may be said that he loved truth, as he loved law and jus-
tice, with a love that was almost worship. Deceit and false-
hood stirred his indignation profoundly. He was careless
of money ; avarice and greed were foreign to him ; large fees
tempted him not ; the wealthy client whose cause seemed
tainted with wrong or whose conduct displeased him was
turned from his door just as quickly as the client who came
in rags. It goes without saying that he died poor ; he had
no faculty or inclination for acquiring this world's goods.
It is related of him that he once said in debate :

"I never so much esteem my Divine Master, I never feel such
a nearness to the Nazarene, as when I read that in His exalted
and righteous anger He scourged the money-changers and drove
them from the temple."

An incident which occurred while he was on the bench
well illustrates his jealous regard for his own honor, as well
as his emotional character. He received one morning by
mail a one hundred dollar bill, with a letter requesting a
favorable decision in a case about to be argued. The letter
came from a German who had come to Madison to watch
his case, and who probably had no idea of the impropriety
or criminality of the act. Judge Ryan took the letter and
bill to Judge Lyon who was sitting in the same room, and
said in a voice trembling with emotion and with tears run-
ning down his cheeks, "What has there ever been in my life
that would lead any one to believe that I could be bribed ?"

Edward George Ryan 3 1 9

Judge Lyon soothed him with the assurance that the would-
be briber doubtless supposed all judges to be approachable
with money, and advised laying the matter before the Dis-
trict Attorney, which was done, and the man was at once
prosecuted and fined $ioo for his crime.

Some further anecdotes which have been already printed
may not be out place as throwing light upon his character.
The following anecdote was long current in Milwaukee, and
is related in the work called The Bench and Bar of Wiscon-
sin, prepared under the direction of Mr. Berryman, the
State Librarian, and published in 1898. While in partner-
ship with Senator Carpenter, there was employed a clerk
in the office who was more especially under Mr. Carpenter's
direction, and against whom Mr. Ryan had taken a violent
and uncontrollable dislike, which was so extreme that he
could not abide his presence in the same room. At one time
while Mr. Carpenter was absent attending court in Beloit,
this clerk came into Mr. Ryan's room and asked him if he
had any instructions to give him as to the office work.
"Yes, sir, I have," said Ryan, and, turning to his desk, has-
tily wrote a few lines, sealed the note, handed it to the clerk
and directed him to take it to Mr. Carpenter as soon as he
could. The clerk, impressed with the importance of the
message, rushed to the station, just succeeded in catching
the train as it was moving out, and on his arrival in Beloit
made equal speed in taking the note to Mr. Carpenter, who
was engaged in trying a case. Tearing it open, Mr. Car-
penter read as follows :

"Matt H. Carpenter,

"Dear Sir : I want you to keep your lackey out of my

office.

"Yours respectfully,

"E. G. Ryan." '

320 The Story of a Great Court

Tradition frequently affixes a vigorous adjective to the
word "lackey" in the note.

General Bryant, in an article in the Green Bag, relates
the following incident :

"He was once arguing a case in the Supreme Court of the
United States. Chief Justice Chase presided and during Ryan's
argument the great chief justice turned to an associate and be-
gan a "whispered conversation. Perceiving this Ryan paused
and waited until the chief justice turned, as if to inquire the
cause of his silence. Then Ryan said, with great dignity but
significant impressiveness, 'What I am saying is worth hearing.'
It is said that the chief justice blushed deeply and afterward
gave perfect attention."

As an instance of his sarcasm, it is related that on being
informed that a legal acquaintance had married a fortune
and obtained a fine federal appointment, he exclaimed : "God
bless him ! The lucky, lazy dog ! He never opened his
mouth but to yawn and never opened it but a sugar plum
fell into it."

Another anecdote which was current at Racine when I
was a young practitioner (but for the truth of which I do
not vouch), runs as follows: When Hon. Experience Esta-
brook of Lake Geneva was attorney general in 1852 or 1853,
Mr. Ryan was engaged in the argument of a case in the
Supreme Court in which the Attorney General was opposed
to him, and in the course of his remarks Mr. Ryan referred
to Mr. Estabrook as "this vagabond Attorney General."
The Court was shocked by this breach of courtesy toward
its officer and the Chief Justice presiding called Ryan to
order and informed him that he would be required to show
cause when the Court came in after the noon recess why he
should not be punished for contempt of court. Ryan came
in at the appointed time with a dictionary and showed that
the word vagabond was an adjective as well as a noun ; that
as an adjective it meant simply "strolling or wandering from

Edward George Rayn 321

place to place," that he had used it as an adjective and sim-
ply in this inoffensive sense, and that it was strictly true,
because the Attorney General resided at Lake Geneva and
only came to Madison as duty called, and thus he might be
truly said to stroll or wander from place to place. The
judges conferred a moment and decided that the explanation
did not explain, and a fine of $50 and costs was imposed.
As he paid the fine at the clerk's desk, he said in a reflective
way, but loud enough to be distinctly heard, "I am com-
pelled to pay this fine because the Supreme Court of Wis-
consin doesn't know the difference between a noun and an
adjective." Another version of the story is that after he
paid the fine he walked up and down the room and said
sotto voce, "I have been fined $50 for expressing my opinion
of the Attorney General of this Court. Great Heavens !
What would I have been fined if I had expressed my opinion
of the Court itself?"

The two stories immediately following were told to the
writer by Judge James G. Jenkins of Milwaukee. Soon
after the publication of Darwin's book on the Origin of
Species, when the doctrine of evolution was the principal
subject of discussion everywhere, a man came into Ryan's
office in Milwaukee to sell tickets for a lecture by some dis-
tinguished person on the new doctrine. Ryan was busy,
and not inclined to pay any attention, but the man became
insistent, explaining that the lecture must be worth hearing
on account of the great importance of the subject ; finally
Ryan became aroused, and, turning to the ticket peddler,
said with characteristic vehemence : "Sir, you may be de-
scended from a monkey, but I know that God Almighty
made me."

During the early '60s an eccentric clergyman named
James Cooke Richmond was rector of the Episcopal church
21

322 The Story of a Great Court

in Milwaukee which Ryan attended. The reverend gentle-
man was continually in difficulty with some part of his con-
gregation, and a meeting was held at one time in a law office
in Milwaukee between the Rector and the leaders of the
opposing faction with the idea of settling if possible some
more than usually troublesome difficulty. The insurgents
were represented by counsel at the meeting and Ryan rep-
resented the rector. The lawyer who represented the in-
surgents made a statement in which there were included
some very uncomplimentary remarks about Mr. Richmond,
which so aroused Ryan's ire that he jumped from his seat,

spat in the lawyer's face and exclaimed, "I will be

if I will calmly sit here and hear my pastor in-

sulted." There was a clinch at once, but the combatants
were separated and the incident was closed for the time,
but probably never forgiven.

Dr. Charles H. Vilas, whose boyhood and early manhood
were spent in Madison, related to me this story: Strolling
into the old Supreme Court room one day while arguments
were going on, he found Mr. Ryan arguing a case in his
usual earnest and eloquent manner ; as he paused for a
moment Chief Justice Dixon said to him, "But Mr. Ryan,
did not your client have a complete and adequate remedy
by legal proceedings?" Mr. Ryan, advancing toward the
bench, and shaking his finger said impressively, "I tell you,
Mr. Chief Justice Dixon, there are wrongs for which there
is no adequate remedy, except the toe of the boot properly
applied."

A witty Milwaukee friend once said to Ryan (referring
to his utter inability to control his temper), "Ryan you ought
to be incorporated and have a board of directors."

An anecdote, showing his unconsciousness of the splendor
of his own diction, may not be out of place. In the January

Edward George Ryan 323

term, 1875, the divorce case of Campbell v. Campbell came
before the Court. It involved simply the question of ali-
mony, but in the course of the opinion which Judge Ryan
wrote there occurs a tribute to marriage as a divine insti-
tution, the majesty and beauty of which can only be appre-
ciated by reading it. Judge Dixon, who but a few months
before had been chief justice, was attorney for the prevail-
ing party in the case and came to the consultation room
after the decision was announced, and desired to read the
opinion. Judge Ryan said, "Let me read it to you ; you
will find it hard to read my writing." At this point Judge
Lyon, who was present, said to Judge Dixon, "And when
he reads it, Judge, remember what he said to us a few
months ago about the rhetoric in the opinions of this Court."
It seems that shortly before Judge Ryan's elevation to the
bench he had expostulated with the judges on the great
amount of rhetoric which they were putting in their opin-
ions, and it was to this that reference was made. Judge
Ryan read the opinion to Judge Dixon, and then came to
Judge Lyon's desk as though troubled, and said, "Do you
really think, Judge, that that opinion is rhetorical?" To
this Judge Lyon replied that he thought it was slightly
rhetorical. The answer seemed to surprise Judge Ryan, and
he said no more, but a mere reading of the opinion will show
to any one that finer rhetoric is very rare.

That Judge Ryan was a profound scholar, there can be
no question. As well might one doubt the resistless power
of Niagara while standing on its brink as to doubt the learn-
ing and scholarship of Ryan while reading one of the mas-
terpieces of his massive brain. Whether the subject be re-
ligious, philosophical or purely legal, the sweep of his
eloquence is overwhelming. His English is pure and un-
dented; every word expresses the exact shade of meaning

324 The Story of a Great Court

desired. The sentences are short and intensely virile. He
well understood the telling force of the short Anglo-Saxon
word, the brief explosive sentence, the startling antithesis,
the striking epigram, and he used them all with marvellous
effect, but he also was master of metaphor and simile, of
the stately period and the classic allusion, and these also he
called to his aid at will. They all flowed in a limpid and
copious stream, apparently without stint, and without effort,
as though language was his plaything and eloquence his
birthright. All knowledge seemed at his command, satire,
philosophy and logic his willing handmaids. He trans-
formed and illumined the most commonplace subject. Wit
and humor he had in good degree, but it was apt to be
trenchant and sarcastic, rather than rollicking. It was more
often than otherwise used to drive home a telling shaft of
ridicule or tip a barb of satire. His power over invective
was absolute, and he was not slow to use it ; pitiless and
scathing, it left its unhappy victim to writhe in helpless
agony. His conclusions were always radical and frequently
extreme. This was the natural result not only of his dis-
position and temperament, but largely also of the brilliancy
of his literary style. He who makes frequent use of anti-
thesis and epigram will surely make literature which will
chain the attention and thrill the heart, but he will almost
as surely be guilty of exaggeration and inaccuracy. The
temptation is too great to be resisted ; truth will be sacri-
ficed to style ; antithesis is ineffective if it be not extreme,
epigram falls flat if it be not radical. By their striking and
brilliant effects they often take captive the judgment for the
moment and lead it to a conclusion which calm reflection
will afterwards repudiate. But if we admit, as I think we
must, that this was the case with Judge Ryan, we must still
admit that his writings, whether legal, philosophical or re-

Edward George Ryan 325

ligious, show a marvellous power of reasoning-, a depth of
learning rarely equalled, an ease and grace of composition
which carries the reader spellbound upon its current, and
that there runs through them all the great strong note of
genius ; they claim our admiration and attention with an
imperious and resistless demand which can come only from
merit.

The question as to whence came these great and com-
manding qualities will naturally be asked. That he was en-
dowed by nature with a massive intellect cannot be doubted,
but that he developed and added to his great natural abili-
ties by lifelong study can as little be doubted.

As appears from the autobiographical sketch before
quoted, he left college with his degree at the early age of 17.
This fact does not, I think, necessarily indicate great pre-
cocity. I have no knowledge of the standing of the institu-
tion. I do not remember ever to have heard of it in any
other connection, except that Francis Mahoney ("Father
Prout"), author of "Shandon Bells," was one of its alumni.
Presumably it was a small institution, giving that predom-
inance to the classics which was universal at the time. It
can hardly be supposed that it furnished anything approach-
ing what we now call a liberal education. But whatever its
merits or defects, here it certainly was that the beginnings
of the learning of the great Chief Justice were acquired, and
here it was that the foundations of the splendid literary
edifice which he left behind him were doubtless deeply laid.
But it is evident that his education was only begun in
college ; much as he may have there learned, it was but the
prelude to a lifelong course of study. Books were his de-
light, and he read them not to pass the hours away, but to
lay up the contents in the treasurehouse of his brain, where
they were always at his command. Contact with men and

326 The Story of a Great Court

things, the fierce attrition of mind against mind in the pro-
fession broadened and developed him. His conversation
was a perpetual delight, and he delighted in it. Dictionaries
surrounded him, and were in constant use ; he was content
with no written sentence until it was perfect. Slovenly
writing was an abomination to him ; the proper word was
the word to be used, and there was but one proper word.

To quote again from Senator Vilas :

"So in all his labor of writing, dictionaries were his com-
panions and friends. He trusted to no one of them, but sur-
rounded by many he gathered from the best linguists the perfect
hue of intelligence and beauty that belonged to every word he
used, and set it then in happy harmony with its fellows in the
finished picture of thought which his every period became. Such
discipline had its reward. His style is his own, strong, clear
and beautiful; not wholly without fault, but as worthy of study
a3 Addison's; not always in his opinions perfectly judicial, but
turning from the path only to bring in gems of beauty by the
way. To be able to write as Edward G. Ryan has written is a
crown of glory in letters, a sufficient title to literary renown."

His knowledge of the law was profound. When he spoke
or wrote on legal subjects, he spoke or wrote as one having
authority. Mindful of precedents, he did not follow them
with a blind and slavish reverence because they came from
the pen of a Coke or a Mansfield, but because they were the
voice of the law, which was to him as the voice of God.

While Judge Ryan's fame must always rest primarily
upon his achievements as a lawyer and a judge, it must not
be forgotten that he left some efforts in the line of general
literature which by reason of beauty of style and strength
of thought should of themselves serve to rescue his name
from oblivion. It is true that these remains are not many
in number, and most of them exist only in manuscript, but
they are well worth our attention. His first serious literary
efforts seems to have been poetical in their nature. There
is among his papers a large blank book, handsomely bound

Edward George Ryan 327

in leather and marked on the outside, "E. G. R. 1835." ^
seems to have been intended to contain the poetical works
which he deemed worthy of preservation. It contains, how-
ever, but five short efforts, each occupying about a page, and
the rest of the book is blank. The first of these bears the
heading, "Written at College, February, 1827," and is in
the nature of a complaint that he cannot follow his own will
as to his vocation, but must submit to the dictation of his
parents or guardians.

The second consists of a number of verses written on the
ship Atlantic in a storm in January, 183 1. They are sombre
in their nature, and evidently written in contemplation of
possible shipwreck. One verse may, perhaps, be quoted :
"Then Welcome death, if nothing worse

Than from existence thus to sever

I'd harter not man's earliest curse

For all life gives, and life forever;

Thee — fortune's sickening child may shun

Thee — heroes brave — to meet in sorrow

I know no hope beyond this one,

I am today — and not tomorrow."

The other verses are in similar vein and they seem to in-
dicate an agnostic condition of the mind. Another is enti-
tled "Lines written in a young lady's album at her repeated
request, March, 1831." These are also deeply tinged with
melancholy, as the following verse will show :
"You spoke — the soft tone of those flattering words

O'er this desolate heart is yet stealing,

You looked — but you saw not its festering chords

As they thrilled to a long blighted feeling.

For as the fond hope of youth, that from love caught its tone

And still, still promised hope for the morrow.

But ere one short month had yet made her my own,

Died — and left me alone to my sorrow."

He was not yet twenty-one years of age when he wrote
these lines ; whether there had been any foundation in his life

328 The Story of a Great Court

for the intimations of wrecked love which they contain, or
whether they are simply an excursion into that luxury of
imaginary woe into which the poetical mind so frequently
turns without apparent cause, I do not know. The other
verses are entitled, "The Exiles, a duet," 183 1, and "Occa-
sional Lines," May, 183 1 ; both are serious in their nature
and in much the same vein as those quoted. Here his
poetical efforts end, if we except a parody on Moore's, "Oft
in the Stilly Night," which is preserved among his papers
undated and entitled, "Mr. Ryan's Song." The first verse
runs as follows :

"Oft in the stilly night

Ere slumber's chain hath bound me,

Fond memory brings the light

Of other days around me;

The toasts, the lays

Of drinking days,

The bumpers gay then swallowed,

The nights we spent in devilment,

The aching heads that followed.

Thus in the stilly night,

When my poor throat is roasted,

Fond memory brings the light

Of many a health I've toasted."

It would be a fair guess from this effusion that he did not
allow the "festering chords" of his heart to absorb his en-
tire attention. Blackstone abandoned poetry for the law.
Ryan did the same: I do not think there is any just ground
to regret the decision in either case.

Passing to his manuscript essays or lectures before spoken
of, doubtless the most finished of them is the one entitled,
"Mrs. Jellyby," which was delivered as a lecture a number
of times to appreciative audiences. It was evidently written
shortly after the appearance of Dickens' novel "Bleak
House." In this lecture Mrs. Jellyby is taken as the type
of the strong-minded or new woman, who desires to share

Edward George Ryan 329

the ballot with man. After paying a deserved compliment
to the amiable personal character of Mrs. Jellyby, and sug-
gesting that her desire to share with man his public duties
should be examined without prejudice, he says that con-
servatism meets her with the statement that her position in
modern society is the best possible position for her, and
could not be improved. He then pays his respects to mere
conservatism in the following inimitable manner :

"Pure conservatism is always wrong, civilization is never
fixed. No Joshua has power to stay the course of the human
mind. Change is the necessity of human history, progress the
duty of the human race. Pure conservatism has no place in
the annals of mankind. It concedes the past but denies the
future. It worships the actual but anathematizes the possible.
Its creed is the present, because it is the present. It holds with
Pope that 'whatever is is right.' It is a bigot of the present
without sympathy with the past, or prophecy of the future.
Content where it finds itself, pure conservatism sits down by
the wayside while the march of civilization passes by and presses
on to the promised land of the future, guided on its dark way by
faith in the destiny of man as by a pillar of fire. Civilization
never pauses, and the progress of society is the progress of both
sexes. The amelioration of the condition of woman must keep
pace through all time with the amelioration of society. The
civilization of both sexes is inseparable. God hath joined them
together, and man hath no power to put them asunder. Con-
servatism would have given the same answer to woman In any
age of the world."

The writer then rapidly sketches the great advance in the
position of woman from patriarchal times to the present
coincident with the advance of the position of man, and con-
cedes that Mrs. Jellyby is right in her insistence that there
must and will be further advance in woman's position, but
suggests that mere change may not be progress, but may be
simply retrogression. Granting that there have been hard-
ships in woman's position, especially as to property rights,
he proceeds to argue that in God's economy men and women

330 The Story of a Great Court

were created to perform different, not identical duties, in
human life and society. After noting the evident differences
in the mental and physical qualities of man and woman, he
says, "These distinctions are not the inferiority of one sex
to the other. What man gains in general force is compen-
sated to woman by the purer beauty of her mental, moral
and physical organization. It is no more woman and her
master than it is man and his mistress. The differences be-
tween the sexes are not the mere favoritism of nature to
either sex, they are her exquisite adaptations of the agent to
the function."

The writer then paints in glowing language the functions
and position of woman as the mistress of the home, the first
priestess and teacher of the human race, and shows that the
influence so wielded by her is greater than governments or
philosophies, and asserts that every position assumed by
woman which detaches her from the home or lessens her
adaptation for the performance of the peculiar duties of the
home is a sin against nature.

This is the central idea of the whole essay, namely, that
the natural endowments and duties of man and woman are
essentially different, but at the same time co-ordinate and
not inferior the one to the other ; that God has so designed
the two sexes, and that the attempt by one sex to invade the
province of the other is a perversion of the divine purpose,
and that hence the attempt by woman to perform govern-
mental duties which necessitates her practical abandonment
of her character as mistress of the home and the guardian
of the cradles of the race is not progress but error. This
argument may perhaps have been as strongly put by others,
but I have never seen it.

Another essay, entitled "Faith," is an eloquent plea for
faith both in our fellowmen and in God, taking for his text

Edward George Ryan 331

the words of the Psalmist, "The fool hath said in his heart,
'There is no God.' " The following excerpt may be said to
be the keynote :

"Faith is a fruitful mother — Hope and Charity her twin first-
born. 'The greatest of these is charity.' The greatest, not the
first; greatest in degree, not first in order. Without faith there
is no charity. Faith comes before charity; charity follows after
faith. Man must believe before he can love; he loves only be-
cause he believes. Faith, hope and charity all operate externally,
but faith must go before to show the way, and hold the light.
The Apostle speaks of faith without charity, but not of charity
without faith. There may be faith without hope or charity, but
there is neither hope nor charity without faith, unless we believe
there is nothing to hope, nothing to love."

The essay develops into an argument in favor of the idea
that the Episcopal Church of this country is a true branch
of the Apostolic and Universal Church into which should in
time be gathered the great body of the American people.

The essay entitled "Heresy," opens with the following

tribute to Christianity :

"It is often said that Christianity is the great element of mod-
ern civilization. It is more; it is civilization itself. It is the
essential distinction between the ancient and the modern order.
It found a sensual civilization and replaced it by a spiritual. If
our civilization is imperfect, it is because our Christianity is
imperfect. Pure Christianity would be pure civilization. It
gave to man his great charter of the freedom and immortality
of the soul. It gave him a dignity and a career far above his
mere animal being. It redeemed him from being, at his best, a
polished brute. It revealed to him his soul, and his destiny, and
inspired his life by the knowledge of Eternity and the sense of
immortality. It revealed a new order here and hereafter. As a
new civilization its effect has not been upon the Christian alone.
* * * It is abroad in the world to humanize all races and
creeds. Christianity has its temporal as well as its eternal uses.
It not only drew the veil from before eternal truth; it also re-
vealed to man his own nature and relations in life, and founded
the highest temporal philosophy. Philosophy has sometimes
mistaken it for an enemy and wrestled with it. But whatever in
philosophy found a real antagonist in Christianity has died the

332 The Story of a Great Court

death of error. True philosophy finds its surest ally in Chris-
tainity. True philosophy finds its surest foundation in revela-
tion. Religious disbelief has no place in modern philosophy.
Skepticism, not faith, is supersitition now. Christianity gave a
soul to Philosophy that had no soul before."

This essay is an earnest plea for freedom of the individual
soul in matters of faith and a protest against any attempt to
fetter the operations of the mind. A few sentences will
show its drift.

"Human enactments cannot control the operations of the mind.
The soul is not the subject of legislation; opinion cannot be im-
posed by law. The law can operate on the external manifesta-
tions of the thoughts, passions and feelings, but it cannot oper-
ate on the thoughts, passions and feelings themselves. Punish-
ment of thought may make cowards and apostates; it cannot
make converts. Punishment affects us outwardly; reason, feel-
ing and passion control us inwardly. The law may torture, de-
face or kill the body, it cannot imprison the mind. The soul is
an outlaw. The spirit of man is inviolate. His mind is subject
to no human authority. * * * For nineteen centuries it has
been, and while time lasts it will be the most solemn right and
duty of every intelligent man to study for himself after his abil-
ity the life and teachings of Christ, to adopt or reject up on his
own conscience the faith of Christ; and adopting it to accom-
plish for himself, with the aid of all light cast upon it by the
efforts of others, but in submission to Christ's word only, a com-
prehension of Christ's religion, and to determine for himself
within and for his own conscience, how far historical Christian-
ity has obeyed or rebelled against the very law of Christ him-
self."

The last of the essays upon religious subjects is entitled,
"The Crucifixion," and is merely an unfinished fragment.
It presents the crucifixion as the central fact of all human
history. Let me quote a few characteristic sentences :

"Thus centrally and momentously in history stands the dread
mystery of the crucifixion; the sacrifice of the incarnate Son of
God to redeem man from sin and death. The imagination stands
appalled before the cross. The soul pales, and the heart quivers
to think of it. And yet we cannot choose but contemplate it.
"We cannot study the things of time or eternity without it. Turn

Edward George Ryan 333

whither we may we meet the awful fact, and there is dread
fascination in it. We cannot escape it. We all have a portion
in it. Not Simon of Cyrene alone bore the cross of our Lord
after him. Planted by God as the monument of our redemption,
we look upon the cross with awe; but with reverence which is
inseparable from awe we look into the gospel of the cross to
study the crucifixion."

Enough has perhaps been said of the essays, although
they present an inviting field for further consideration. On
every page they glow with wisdom, wit and eloquence ; but
the preparation of essays and lectures did not form the busi-
ness of Judge Ryan's life ; he was a lawyer first, and to his
chosen profession he gave the best efforts of his genius.
The essays were but the diversions of his all-embracing in-
tellect.

His address to the graduating law class of 1873 has al-
ready been mentioned. It is a legal and literary classic.
There have been many such addresses made by distinguished
men, but I have yet to read one which so completely fills the
ideal as this one. It takes a lofty view of the law, and of
the legal profession. It opens with the sentence, "Law in its
highest sense is the will of God !" This is the keynote, and
from this he deduces the proposition that lawyers and judges
who perform their duty faithfully are in a true sense the
ministers of God's justice.

"There it stands, the profession of the law; subrogated on
earth for the angels who administer God's law in heaven; there
it stands, charged with the peaceful protection of every public
rigbt of the state, of every civil and religious right of the peo-
ple of the state; charged with the security and order of society.
In peace tbe life, liberty and property of the country, its personal
freedom and its political symmetry are in its ultimate keeping."

I think this address may well be called Judge Ryan's lit-
erary masterpiece. Its loftiness of thought is only equaled
by the magnificience of its rhetoric. It abounds in brilliant
epigram ; satire sparkles on its pages like priceless jewels

334 The Story of a Great Court

in a kingly crown. Witness his characterization of the pet-
tifogger, a part of which I quote :

"Behold the pettifogger, the blackleg of the law. He is as
his name imports, a stirrer up of small litigation, a wetnurse of
trifling grievances and quarrels. He sometimes emerges from
professional obscurity, and is charged with business which is
disreputable only through his own tortuous devices. For the
vermin cannot forego his instincts even among his betters.
* * * Indeed he is the troglodyte of the law. He has great
cunning, he mistakes it for intelligence. * * * He knows all
things. Nothing is new to him. Nothing surprises him. Noth-
ing puzzles him. But it is in the law that his omniscience shows
best. His talk is of law incessantly. He has a chronic flux of
law among his followers. He prates law mercilessly to every-
one except lawyers. He discourses of his practice and his suc-
cess to the janitor of his office, and the charwoman who washes
his windows. He revels in demonstrative absurdity, and boasts
of all he never did. He is the guide, philosopher and friend of
vicious ignorance. He is the oracle of dullness. * * * There
is a variety of the animal known by the classic name of shyster.
He has forced the word into at least one dictionary, and I may
use it without offense. This is a still lower specimen; the petti-
fogger pettifogged upon; a troglodyte who penetrates still deepen
darkness. * * * He thinks all lawyers are as he, but not so
smart. He believes in the integrity of no man, in the virtue of
no woman. He loves vice better than virtue. He enjoys dark-
ness rather than light. His habits of life lead him to the back
lanes and dark ways of the world. He is the counsel of guilt.
He is the attorney general of crime."

No young lawyer should consider himself ready to prac-
tice until he has read this address. No law library should
be considered complete which does not contain it. In these
days of commercialism in the law it would be well if its lofty
sentiments could be printed in letters of gold upon the door-
posts of every law school in the land.

As has been before said, Mr. Ryan was a delegate from
Racine to the first constitutional convention, which assem-
bled in Madison in 1846. This may be said to have been his
introduction to the people of the young state. Few knew

Edward George Ryan 335

him or appreciated his abilities when the convention opened,
but none of his colleagues doubted his great powers as a
debater and a lawyer when it closed. He was chairman of
the Committee on Banking, and took strong ground against
banks of issue, as well as against the granting of banking
powers to corporations ; he also strongly opposed an elective
judiciary on the ground that the terms of office of judges
should be permanent. The constitution proposed by the
convention was rejected by the people largely on account of
its restrictions upon banks. He was a delegate to the Demo-
cratic National Convention held in Baltimore in 1848, and
removed to Milwaukee in December of that year. Here he
soon attained that prominence as a lawyer which his abili-
ties deserved, and his services were sought after in many im-
portant causes. Among these were a number of notable
criminal cases, of which the Radcliffe murder case of 1852
was perhaps the most celebrated one. In this case he ap-
peared for the prosecution with Mr. A. R. R. Butler. Upon
the defense there appeared Jonathan E. Arnold and Abram
D. Smith. It was a veritable battle of the giants, for the
four men named were all in the very first rank of the Wis-
consin bar. The trial lasted for more than two weeks, and
attracted great crowds, so much so that when the evidence
had been taken the court adjourned to a large public hall
in order to accommodate the desire of the people to hear
the great forensic duel. It was perhaps the greatest op-
portunity that Ryan had then had to demonstrate his power,
and he did not fail to take advantage of it. A few sentences
from his address to the jury will serve to give an idea of its

lofty tone :

"Life is the gift of God, yet one which any however weak may
take away, but which not the united power of all men In all
countries and of all times can restore. * * * It is not that
we crave for the defendant's blood that we stand here. We pity

336 The Story of a Great Court

him. God knows that we pity him, and those that are connected
with him. But we stand here for the blood of the living. It is
not for the blood of Ross, but for the blood of every one in this
hall and in this community; it is for the blood of those yet un-
born, and of all who are to live after us; it is that murder may
cease, that men may reflect, pause, turn cowards before they
strike down their fellowmen; it is because the law of God and
the law of man, and the safety and existence of society demand
it, that we stand here and urge upon you the conviction of this
defendant."

Notwithstanding a very strong array of circumstantial
evidence (for none had seen the act), the defendant was ac-
quitted. Judge Levi Hubbell, then Circuit Judge, and ex-
officio a member of the Supreme Court, was on the bench,
and so convinced was he of Radcliffe's guilt that when the
verdict of acquittal was rendered, he asked the foreman in
surprise, "Is that your verdict." "It is," said the foreman.
"Then may God have mercy on your consciences," said the
Judge. This incautious remark of Judge Hubbell cut deeply,
and one of the jurymen, William K. Wilson, appeared be-
fore the legislature on the 26th of January, 1853, and de-
manded the impeachment of Judge Hubbell, charging him
with numerous acts of official misconduct upon the bench.
Thus was initiated the first and (up to the present time)
the last impeachment trial which the State has witnessed.
Here, too, Judge Ryan was the leading figure, here at last
he stepped fully and fairly into the greatest forum of the
State, where every eye was turned upon him, where party
passions and personal hatreds were turned loose, and where
not the future alone, but the distinguished past, as well of
one of the State's most honored sons hung trembling in the
balance. Judge Hubbell was an ambitious and able man.
He was a Democrat in politics, and that party was then in
control ; he was courteous and dignified in manner, of great
industry and prompt in the despatch of business. Inspired

Edward George Ryan 337

by the sense of personal wrong, Wilson ran down every
wandering rumor, and presented to the Assembly a long
array of charges and specifications covering almost every
phase of judicial misconduct. The Assembly resolved to
report articles of impeachment, and appointed as managers
of the prosecution Messrs. H. T. Sanders, G. W. Cate,
J. Allen Barber, P. B. Simpson, and E. Wheeler. The man-
agers employed Mr. Ryan to conduct the case, and upon him
fell the brunt of the battle. His opening argument was
made on June 13, 1853, and the trial continued until July
nth of the same year. The testimony was voluminous and
the legal questions arising were many and intricate, but he
met all the questions, whether of fact or law with a quick-
ness of mental discernment, a brilliancy of rhetoric and a
wealth of learning which amazed his friends as well as his
enemies. Writ and satire sparkled in his speech, apt quota-
tions and allusion added splendor to his diction, while ever
and anon merciless invective gleamed like the fabled sword
Excalibur.

He had need of all his talents, for opposed to him was
Jonathan E. Arnold, his antagonist in the Radcliffe case,
one of the ablest lawyers who ever graced the bar of the
State. The result was an acquittal upon all of the charges.
Upon most of the specifications the majority for acquittal
was large, but upon one the vote stood twelve for conviction
and twelve for acquittal. It is impossible to give extended
extracts from the many addresses made by Judge Ryan dur-
ing the course of this trial, nor even any adequate resume.
It was reported in shorthand, and fills a volume of more
than eight hundred pages, copies of which are now quite
rare. The criticism (and perhaps the only criticism) to be
made upon the conduct of the case is that the charges were
pressed with a vehemence amounting almost to extrava-
22

338 The Story of a Great Court

gance, and this fact must have gone far to create sympathy
for the accused. A single extract from his peroration will
perhaps serve to demonstrate all I have said as to the
strength of his diction, as well as to the scathing power of

his invective.

"It is a habit in many of the states to place a statue of justice
upon their courthouses and capitols. It is well, Mr. President,
that no such statue adorns the dome of this capitol, before the
judgment in this cause shall have settled the standard of public
justice in this State. If by your judgment this defendant is to
be the model of judicial integrity, let the statue of justice be
ordered for your Capitol. But be true to your standard. Fol-
low no false precedents. It is the habit to represent Justice as
a pure, young and beautiful maiden, chastely and modestly
robed, with her eyes blindfolded, with her virgin hand holding
out the pure scales of Justice, suspended and poised in the open
light of day before the world. That has been the sculptor's
dream of justice, sanctioned by the nations of the earth. But
with a new standard, follow no old precedents. £.sk your sculp-
tor for no pure, blinded virgin as your ideal of justice. Tell him
to erect upon the dome of this Capitol the marble image of a
jaded, decayed, broken, unclean, diseased wanton, blinking from
behind the distorted bandage put upon her eyes to dupe the
scruples of mankind, and reaching forth the hand which has
dropped the sword of justice, to put the weight of avarice and
lust and every unclean passion into the scales to bear down truth
and right."

The Booth case and the Bashford case followed the Hub-
bell impeachment in rapid succession, and in both of these
thrilling and important controversies Mr. Ryan took a lead-
ing part as we have already seen. Notwithstanding his
commanding abilities, however, his infirmities of temper
had stood in the way of his success in the ordinary practice
of the law, and for two or three years before his elevation
to the Supreme Bench he had been glad to accept the posi-
tion of City Attorney of the city of Milwaukee.

EDWARD GEORGE RYAN.
At the age of 45 years.

Ryan's Notable Opinions 339

CHAPTER XXVI

NOTABLE OPINIONS OF JUDGE RYAN

The first case which came before the newly constituted
bench was not only a great one, but one which may truly
be said to mark the beginning (in Wisconsin) of the great
struggle between corporate power and privilege on the one
hand, and the people on the other.

The day of the little railroad of a hundred miles or more
in length, operating one or two daily trains and doing a
small business local in its character, had gone ; the great
railroad corporation, operating thousands of miles of road,
doing an interstate business amounting to many millions
annually, and attempting perhaps to pay dividends on fabu-
lous amounts of watered stock, had come, and the people
had begun to realize the changed conditions.

Two really great railway corporations were then operat-
ing in Wisconsin, namely, the Chicago, Milwaukee and St.
Paul, and the Chicago and Northwestern companies. Be-
tween them, they covered practically the whole state, but
their termini were in adjoining states and their interests
were largely foreign. They had generous charters which
clothed them with full powers to regulate freight rates and
passenger fares as they chose. By means of this power they
could either make or break a given community or locality
by the single stroke of a pen as whim or interest might
dictate. The long tilled fields of Wisconsin had now begun
to come into competition with the virgin acres of Minne-
sota and Dakota, which were almost boundless in their fer-
tility, and it required but slight discrimination on the part'

340 The Story of a Great Court

of the railroads to put the Wisconsin shipper at a great dis-
advantage in the race with his more favored western
brother.

The cry that railroad freight rates were exorbitant, arbi-
trary, and discriminative became a very loud one. It was
taken up by the Patrons of Husbandry, a national organiza-
tion of farmers, commonly called the "grangers," which now
had become a great power in the west, and in the fall of
1873 the long rule of the Republican party was broken by
the election of William R. Taylor, the Democratic, or "re-
form" candidate, as governor, and a legislature which may
be properly called the first distinctively anti-railroad legisla-
ture in Wisconsin.

In the senate there were seventeen Republicans and an
opposition of sixteen senators, made up of Democrats, lib-
eral (anti-Grant) Republicans and so-called reformers; in
the assembly there were forty-one Republicans and fifty-
nine opposition members of various brands ; but there was
a clear majority in both houses in favor of railroad rate
regulation.

An act fixing maximum freight rates and passenger fares
to be charged by the railroads of the state, and providing
penalties for disobedience, popularly known as the "Potter
law" (because introduced by Robert L. D. Potter, a Repub-
lican senator from Waushara County), was promptly passed
and approved by Governor Taylor. It was one of the very
first laws which attempted to fix railroad rates, and was
brief but quite comprehensive. It divided the railroads of
the state into three classes, according to volume of business,
fixed maximum passenger rates per mile for each class, and
then divided freights into special classes, and fixed maxi-
mum rates to be charged for the transportation of each
class. It also created a railroad commission, composed of

Ryan's Notable Opinions 341

three members, and gave this commission power to investi-
gate into the actual cost of the roads, their gross and net
receipts and indebtedness, and to reduce the freight rates
fixed by the law when it could be done without injury to the
road. The law went into effect in April, 1874, but was ab-
solutely disregarded by the great railroad companies, who
took the ground that their charters formed inviolable con-
tracts with the state, and gave them power to fix freight
rates as they chose, with which power the legislature could
not interfere.

Early in July, 1874, Hon. A. Scott Sloan, then Attorney
General of the State, filed informations in the Supreme
Court, and moved for writs of injunction against both of
the great railway corporations already named to restrain
them from charging greater passenger and freight rates
than were permitted by the act. With the Attorney General
in this litigation were associated I. C. Sloan, his brother,
Harlow S. Orton and ex-Chief Justice Dixon, all great law-
yers; for the Northwestern Company, C. B. Lawrence and
B. C. Cook of Chicago and George B. Smith of Madison
appeared, and for the St. Paul Company, John W. Cary of
Milwaukee and Phillip L. Spooner of Madison.

The motions were argued together in August, 1874, the
arguments occupying nearly or quite a week. Before the
question of the power of the legislature to regulate rates
could be taken up two preliminary questions had to be con-
sidered, namely, the extent of the original jurisdiction of the
Supreme Court, and whether it covered such a case, and the
further question whether the constitution makers, when they
named the writ of injunction in connection with the strictly
prerogative writs like mandamus and habeas corpus in the
last clause of Section 3 of Art. VII of the constitution, in-
tended to raise it to the character and give it the functions

342 The Story of a Great Court

of a prerogative writ, or intended to leave it simply a judicial
writ or order issued in aid of a judgment, either interlocu-
tory or final. The case was worthy of the Court which
heard it, and of the eminent counsel who argued it.

It was decided September 15, 1874, and the state was suc-
cessful on all points raised.1 Not only was the original ju-
risdiction of the Court sustained on the ground that the
question was one affecting the sovereignty of the state, its
franchises and prerogatives, but the power of the legislature,
by virtue of that clause of the constitution reserving the
right to alter or repeal corporate charters,2 to control its
corporate creations by reasonable regulations not confisca-
tory in their effect was fully vindicated.

The opinion was written by Chief Justice Ryan, and prob-
ably it is his greatest. The case has passed into the books as
a leading case. It was the first case to mark out with pre-
cision the previously ill-defined field of the original jurisdic-
tion of the Supreme Court, and it also was a pioneer case in
vindication of the legislative power of control over corpora-
tions. It has been cited with approval in fifteen states, as
well as in the federal courts. Had Chief Justice Ryan writ-
ten no other opinion than this, his high rank as a jurist
would still have been secure.

All the questions raised are treated in a style which be-
trays not only the master hand of the learned lawyer, but
the lucidity and eloquence of the great orator. The opinion
was read at length from the bench by the Chief Justice, a
proceeding which was very unusual in the Court, and con-
sumed nearly or quite an entire session. It left no substan-
tial question undecided, and in fact terminated the entire
litigation. The railroad companies recognized the futility

1 Att'y Gen. vs. Ry. Co's. 35 Wis. 425.

2 Const. Wis. Sec. 1, Art. XI.

Ryan's Notable Opinions 343

of further litigation and concluded to obey the law while it
existed ; reserving to themselves the right to take measures
to secure a legislature which would repeal the law, in which
they succeeded two years later. The times were not yet
ripe for efficient railway regulation ; the Potter law was
ahead of its time, but it and the decision under it remained
as landmarks, by the aid of which a later generation reached
effective results.

It would be impossible to give any adequate idea of the
opinion by isolated extracts, but a quotation or two may not
be out of the way. In discussing the remedy by injunction,
after noting the marvellous growth in wealth and power of
modern corporations, he says :

"It would have been a mockery of justice to have left corpora-
tions, counting their capital by millions, their lines of railroads
by hundreds and even sometimes by thousands of miles, their
servants by multitudes, their customers by the active members
of society, subject only to the common law liabilities and reme-
dies which were adequate protection against turnpike and
bridge and ferry companies in one view of their relations to the
public; and in another view to the same liabilities and remedies
which were found sufficient for common carriers who carried
passengers by a daily line of stages and goods by a weekly wagon,
or both by a few coasting or inland craft, with capital and influ-
ence often less than those of a prosperous village shopkeeper.
The common law remedies, sufficient against these were, In a
great, degree, impotent against the great railway companies, al-
ways too powerful for private right, often too powerful for their
own good. It was in these circumstances that the English courts
of equity applied their restraining jurisdiction at public or pri-
vate suit, and laid on these great companies the strong hand of
equitable control. And all England had occasion to bless the
courage and integrity of her great judges who used so ably and
so freely and so beneficially the equity writ, and held great cor-
porations to strict regard to public and private right. Every
person suffering, or about to suffer their oppression by a disre-
gard of corporate duty may have his injunction. When their
oppression becomes public, it is the duty of the attorney general
to apply for the writ on behalf of the public."

344 The Story of a Great Court

The general claim made by the railroad companies that
the act of the legislature was confiscatory and violates the
rights of creditors of the companies, he answers as follows :

"Of the same type is the argument that ch. 273 violates the
contracts of these defendants with their creditors. This position
appears to us to rest in the absurdity that the mortgagor can
vest in his mortgagee a greater estate than he had himself. Per-
haps the statute may lessen the means of payment of the defend-
ants. So would a fine for homicide, under the police power of
the state. But to lessen the means of payment of a contract, is
not to impair the obligation of the contract. These defendants
took their franchises, and their creditors invested their money,
subject to the reserved power, and suffer no legal wrong when
that is exercised.

"It was said that ch. 273 violates the rights of property of
these defendants. We cannot perceive that it does. Whether it
will lessen the income of their property, we cannot foresee. We
only know that it does lessen their rates of toll. But it does not
wrongfully touch their property. As far as the franchise is to
be considered property, it was subject to this very limitation;
and the limitation is the exercise of a right over it, which does
not violate. The right of limitation entered into the property
and qualified it. And the act does not at all meddle with tho
material property, distinct from the franchise. It acts only on
the franchise, not at all upon the material property. And it ia
sufficient to say that they acquired the material property, as dis-
tinct from the franchise, subject to the alteration of the fran-
chise under the reserved power. That was a condition under
which they chose to hold their property; and they have no right
to complain when the condition is enforced. Their rights in
their material property are inviolate, and shall never be violated
with the sanction of this court. But they are no more violated
by this act and its enforcement, than by foreclosure of a mort-
gage or ejectment by paramount title. It is a right over prop-
erty which is enjoyed, not a wrong to right in property.

"We listened to a good deal of denunciation of chapter 273,
which we think was misapplied. We do not mean to say that
the act is not open to criticism. We only say that such criti-
cism is unfounded. It was said that its provisions, which have
been noticed, were not within the scope of the legislative func-
tion; as if every compilation of statutes, everywhere, in all
time, did not contain provisions limiting and regulating tolls;
as if the very franchise altered were not a rebuke to such clamor

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Ryan's Notable Opinions 345

It was repeated, with a singular confusion of ideas and a singu-
lar perversion of terms, that the provisions of the chapter
amount to an act of confiscation; a well defined term in the law
signifying the appropriation by the state to itself, for its own
use, as upon forfeiture, of the whole thing confiscated. It was
denounced as an act of communism. We thank God that com-
munism is a foreign abomination, without recognition or sym-
pathy here. The people of Wisconsin are too intelligent, too
staid, too just, too busy, too prosperous, for any such horror of
doctrine; for any learning towards confiscation or communism.
And these wild terms are as applicable to a statute limiting the
rates of toll on railroads, as the term murder is to the surgeon's
wholesome use of the knife, to save life, not to take it. Such ob-
jections do not rise to the dignity of argument. They belong to
that order of grumbling against legal duty and legal liability,
which would rail the seal from off the bond. They were not
worthy of the able and learned counsel who repeated them, and
are hardly worthy even of this notice in a judicial opinion.

"We have, according to our duty, dealt with the questions we
have considered as questions of law. We cannot judge of the
policy or of the fairness of the fact. That is for the legislature.
We can only say tbat it is the law. We cannot judge of the
propriety of these informations. That is for the law officers of
the state. We are only to determine what the law is, and to ad-
minister it as we find it, in causes over which we have no other
control. And we can join in no outcry against the law, which it
is our duty to administer. Neither can we countenance any out-
cry against the railroads. We cannot consider any popular ex-
citement against them warranted or useful. The railroads have
their rights, and so have the people. Whatever usurpation or
abuses, if any, the railroad companies may be guilty of, can find
a remedy in calm, just, appropriate legislation. And this court
will firmly and impartially protect all the rights of the railroads
and of the people, in all litigation which may come here. But
we can take no part in popular outcry against these companies,
or countenance any prejudice against them."

The question as to the extent of the original jurisdiction
of the Supreme Court was further elaborated by Chief Jus-
tice Ryan in the case of Attorney General v. Ran Claire,3
which arose at the January term, 1875, and the treatment

37 Wis. 400.

346 The Story of a Great Court

of it there is so full and satisfactory that it has served to
settle and define that jurisdiction ever since. That treat-
ment is as follows :

"It is not enough to put in motion the original jurisdiction of
this court, that the question is publici juris; it should be a ques-
tion quod ad statum reipublicae pertinet; one 'affecting the sov-
ereignty of the state, its franchises or prerogatives, or the liber-
ties of its people.' Att'y Gen. v. R. R. Companies, 35 Wis. 425.

"It was repeated in that case, as it had been held in Att'y Gen.
v. Blossom, 1 Wis. 317, that 'this court takes the prerogative
writs, for prerogative jurisdiction, with power to put them only
to prerogative uses proper.' Prerogative writs often go in aid
of private right or of local public right. But the original juris-
diction of this court is not only limited to the prerogative writs,
but it is confined to prerogative causes. The word properly im-
plies sovereign right. Jacob defines it as 'that power, pre-emi-
nence or privilege which the king hath and claimeth over and
beyond other persons, and above the ordinary course of the com-
mon law, in right of his crown.' And so we find the object of
the prerogative jurisdiction of this court declared in Att'y Gen.
v. Blossom: 'Contingencies might arise, where in the prerogatives
and franchises of the state, in its sovereign character, might re-
quire the interposition of the highest judicial tribunal to pre-
serve them.' And though the question did not arise in the case,
it is quite evident from all that has any bearing on it in Att'y
Gen. v. R. R. Companies, that to bring a case properly within the
original jurisdiction of this court, it should involve, in some
way, the general interest of the state at large. It is very true
that the whole state has an interest in the good administration
of every municipality; so it has in the well doing of every citi-
zen. Cases may arise, to apply the words of C. J. Stow, geograph-
ically local, politically not local; local in conditions, but directly
affecting the state at large. Cases may occur is which the good
government of a public corporation, or the proper exercise of the
franchise of a private corporation, or the security of an indi-
vidual, may concern the prerogatives of the state. The state
lends the aid of its prerogative writs to public and private cor-
porations and to citizens in all prOper cases. But it would be
straining and distorting the notion of prerogative jurisdiction to
apply it to every case of personal, corporate or local right, where
a prerogative writ happens to afford an appropriate remedy. To
warrant the assertion of original jurisdiction here, the interest
of the state should be primary and proximate, not indirect or

Ryan's Notable Opinions 347

remote; peculiar perhaps to some subdivision of the state, but
affecting the state at large, in some of its prerogatives; raising a
contingency requiring the interposition of this court to preserve
the prerogatives and franchises of the state, in its sovereign
character; this court judging of the contingency, in each case,
for itself. For all else, though raising questions publici juris,
ordinary remedies and ordinary jurisdictions are adequate. And
only when, for some peculiar cause, these are inadequate, will
the original jurisdiction of this court be exercised for protection
of merely private or merely local rights."

The case of State ex rel. Drake v. Doyle* arising in 1876
was in some respects quite as important as the railroad
cases. It involved the power of the state to impose condi-
tions upon foreign corporations desiring to transact busi-
ness in this state, and seemed to involve also a direct con-
flict with a decision previously made by the Supreme Court
of the United States. It arose in this wise : by chapter 56
of the laws of 1870 the legislature of Wisconsin had pro-
vided that a foreign insurance company might be licensed to
do business in this state upon filing with the secretary of
state documents, among which was an agreement not to re-
move any actions brought against it to the United States
courts. The Home Insurance Company of New York had
filed the agreement and received its license, and then when
suit was brought against it in the state court had petitioned
that court to remove the case to the United States court,
under the act of Congress providing for such removal. The
court denied the petition, tried the case and rendered judg-
ment for the plaintiff, and the Supreme Court of Wisconsin
on appeal affirmed the judgment in an opinion by Chief Jus-
tice Dixon, on the ground that it was perfectly competent for
the insurance company to waive its right of removal, and
that the courts would enforce its agreement to that effect.5

4 40 Wis. 175.

5 Morse v. Ins. Co. 30 Wis. 496.

348 The Story of a Great Court

This case went to the Supreme Court of the United States,
and the judgment was reversed by a divided court, the ma-
jority holding that the statute was an obstruction to the
right of a citizen of another state to remove a case to the
United States Courts guaranteed by the federal constitution,
and hence void.6 In 1872, by chapter 64 of the same laws of
that year, the legislature of Wisconsin passed another act
providing that if any foreign insurance company made a
petition to remove an action pending against it to the United
States Court, its license to do business in this state should
be immediately revoked by the secretary of state. Action
having been brought in the state court against the Conti-
nental Insurance Company of New York, it made its peti-
tion for removal to the United States Court, and the case
was removed. Thereupon a private citizen applied to the
Supreme Court of this state for a writ of mandamus, com-
pelling the secretary of state to revoke the license of the
company for this violation of its agreement. At first blush
it would seem that the case of Insurance Co. v. Morse was
decisive on the question, but the court held in a very learned
and persuasive opinion by the Chief Justice that the case
was not decided by the Morse case, and that the state, hav-
ing power to entirely exclude foreign corporations, had nec-
essarily power to license them to enter the state, upon con-
dition of their forbearing to exercise a right and revoke that
license upon their attempting to exercise it. The impor-
tance of the case and the gravity of the situation was fully
recognized, but there was no attempt to gloss over or evade
the points involved. The opinion was an unanswerable
argument based upon decisions rendered by the Supreme
Court of the United States itself. Of course, the case was
at once taken to the Supreme Court of the United States

c Insurance Co. v. Morse, 20 Wall. 445.

Ryan's Notable Opinions 349

and that Court, while announcing that the Morse case was
not overruled, in fact receded from the position taken in
that case, and affirmed the judgment of the Supreme Court
of Wisconsin. The result was not only a victory for the
state, vindicating its right of effective control over foreign
corporations, but also a rare tribute by the greatest judicial
tribunal of the nation to the reasoning powers of Chief Jus-
tice Ryan.

Great constitutional cases are, however, not very frequent
even in courts of last resort. The great mass of litigation
concerns merely private rights, and requires the application
of very ordinary legal principles; it gives neither oppor-
tunity nor excuse for bursts of eloquence. The desideratum
in such cases is a clear and accurate statement of legal prin-
ciples, and a logical demonstration of their application in
the case in hand, rather than a display of rhetoric. Yet
even in such cases it must be admitted that fitting language
and faultless diction add materially to the strength and con-
vincing character of the opinion.

A few extracts will show that Jude Ryan was not lacking
in this regard. Thus in the Craker case7 commonly known
as the "Kissing case," where a young lady passenger on an
accommodation train was forcibly kissed by the conductor,
and sued the railway company for damages, the following
very conclusive argument occurs in the opinion of the Chief
Justice. After noting the argument made by the railway
company that it might have been liable had the young lady
not been protected by the conductor from assault by a third
person, but was not liable when its own employee made the

assault, he says :

"Jt is contended, * * * as we understand it, that if one
hire out his dog to guard sheep against wolves, and the dog sleep

7 Craker v. C. & N. W. Ry. 36 Wis. 657.

350 The Story of a Great Court

•while the wolf makes way with a sheep, the owner is liable;
but if the dog play wolf and devour the sheep himself, the owner
is not liable. The bare statement of the proposition seems a
reductio ad absurdum. The radical difficulty in the argument is
that it limits the contract. The carriers' contract is to protect
the passenger against all the world; the appellant's construction
is that it was to protect the passenger against all the world ex-
cept the conductor, whom it appointed to protect her, reserving
to the shepherd's dog a right to worry the sheep. No subtleties
in the books could lead us to sanction so vicious an absurdity."

In Wight v. Rindskopf,8 where the question was whether
services rendered by a lawyer in endeavoring to influence
a public prosecutor, so that the client might escape with a
minimum punishment could be recovered for as legal serv-
ices, it was held that such a contract was against public pol-
icy and sound morals, and could not be the basis of a con-
tract to pay for them ; in the opinion it is said :

"The profession of the law is not one of indirection, circum-
vention or intrigue. It is the function of the profession to pro-
mote, not to obstruct the administration of justice. In litigation
a lawyer becomes the alter ego of his client; and professional
retainer rests in absolute and sacred confidence. But the duty
imposed by professional retainer is direct and open. Profes-
sional function is exercised in the sight of the world. Profes-
sional learning and skill are the only true professional strength.
Forensic ability is the only true professional influence on the
course of justice. Private preparation goes to this only as sharp-
ening the sword goes to battle. Professional weapons are wielded
only in open contest. No weapon is professional which strikes
in the dark. The work of the profession is essentially open, be-
cause it is essentially moral. No retainer in wrong is profes-
sional. A lawyer may devote himself professionally to the
legitimate business of his client, but he cannot be retained in
what may not be rightfully and lawfully done. He may defend
a wrong done in the past, but he cannot be privy to the doing a
wrong in the present. The profession is not sinless, but its sins
are all unprofessional. When a member of the bar is privy to
the wrongdoing of his client, he is his client's accomplice, not
his lawyer."

s 43 Wis. 344.

Ryan's Notable Opinions 351

A divorce action in 1875,9 afforded opportunity for an
eloquent tribute to Christian marriage, which is well worth
reading ; it runs as follows :

"It was argued that a statute providing for the support of the
wife by the husband, after divorce a vinculis, is a hard statute,
which should be strictly construed. It was urged that in such
a case the husband and wife are strangers; as merely so, as if
they had not been married; and that calling upon a divorced
husband to support his divorced wife, out of his subsequent es-
tate, is calling upon him to support a person standing in no rela-
tion to him, having no moral claim upon him. We cannot assent
to such a view, or even appear to sanction it by silence. With-
out considering the moral effect on society of the easy rule of
divorce current in our day, we take occasion to say that there are
things too sacred and too steadfast in nature, for any statute,
or any judgment under a statute, to affect. Judgment of divorce
can sever the legal bond of marriage, but it cannot undo the
natural relation which husband and wife bear to each other and
to their children, cannot help but bear, and must bear always.
Statutes and judgments may control the future, but cannot cancel
the past; may solve social, but cannot annul natural relations.
Marriage was before human law, and exists by higher and holier
authority — the Divine Ord^r, which we call the law of nature.
The law and the judgment of the law of the land may separate
husband and wife, and set them legally free; but law or judgment
cannot obliterate their cohabitation in marriage, or the natural
and indelible relation which cohabitation in marriage fixes on
them forever. It is shocking to the moral sense of mankind to
reduce the natural correlation of man and woman in marriage,
to a mere partnership of sex, absolutely effaced and undone by
dissolution. The natural tie of marriage is beyond the jurisdic-
tion of divorce; as essentially without the power of the law, as
the natural relation of parent and child. The power of the law,
over either, is limited to legal relations. It may attaint the
heritable quality of blood, but cannot corrupt the natural blood.
And the law which is impotent to estrange the mutual blood of
husband and wife in the bodies of their children, cannot estrange
the mutual bodies from whose union the children spring. The
natural seal of affinity is upon them. They can never again be
mere strangers on earth. The intercourse appearing in this rec-
ord between these unhappy parties, during their nine years of

9 Campbell v. Campbell, 37 Wis. 206.

352 The Story of a Great Court

legal alienation, proves that they are not strangers; that there
is a tie between them, a privity of life, an affinity of being, as
enduring in hate as in love, in disjunction as in cohabitation;
which survives in their child, and would survive their child in
themselves, as long as both should live; which God will not and
man cannot dissolve, until death shall part them.

"Naturam expellas furea; tamen usque recurret,
Et male pcrrumpet furtim fast.idia victrix."

Sometimes, though rarely, a play of wit lightens the opin-
ion, as in the case of Vassau v. Thompson,10 where a man
was sued because his dog worried a cow to death by chas-
ing it. It seemed that the master was not present, but had
been accustomed to set the dog upon cows on other occa-
sions. In a dissenting opinion in this case, the Chief Justice

says :

"The subject of the complaint is a dog and a cow, hereditary
enemies since the days of the House that Jack built. But in this
case it was the dog that killed the cow. * * * It would be a
violent and irrational presumption that either human or brute
servant, trained to a particular vice by a master whom he loves
and reverences would never indulge in the vice for his own
gratification without orders. Habit becomes a second nature,
and this dog presumably acquired a personal taste for oxtail."

When the conduct of client or counsel called for rebuke,
he was apt to administer it in scathing language, yet he
could be gentle, as the following instance demonstrates. An
eminent lawyer of Milwaukee when defeated in an impor-
tant case, made a motion for rehearing, and opened his brief
with the following sentence :

"The series of misfortunes which I have latterly met with at
the hands of this court has shaken my confidence in the result
of any effort I may make to convince the Court, or to obtain its
favorable judgment in any case where a serious contest is pos-
sible."

After quoting this sentence, the Chief Justice says :

"The fact may be as stated, though the late volumes of reports
do not quite appear to verify it. But the suggestion is not fair,

10 46 Wis. 345.

Ryan's Notable Opinions 353

either towards the learned counsel himself or toward the court.
For it may be an imputation of failure in the intelligent dis-
charge of duty equally to either. It does not seem to have oc-
curred to the learned counsel that the misfortune of which he
complains may be attributable to bis clients, or to the work
which they give him to do. A great judge once said that great
lawyers were frequently unsuccessful for the reason that, being
generally expensive luxuries, they are apt to be employed only in
desperate cases. This may be the occasion of the learned coun-
sel's complaint, and his consolation."

Extracts from his opinions might be multiplied almost in-
definitely to show how he illumined every legal question
which he discussed, but the proper limitations of this work
seem to forbid. Singularly enough, his opinions may be
searched almost, if not quite, in vain for any examples of
the vehement language or extravagant statement which were
so frequent with him as an advocate, and this notwithstand-
ing the fact that his health was shattered by disease. Either
his elevation to the Supreme Bench had sobered him, or his
exalted ideas of the proper functions of a judge had made
him more careful and considerate.

Chief Justice Cole has borne testimony to the fact that in
the consultation room he was uniformly courteous to his
associates, always the calm dignified judge, freely express-
ing views and discussing all questions of law and fact with
the manifest desire of reaching the right result. The truth
of this statement seems to be borne out' by the character of
his opinions. Ex-Senator Vilas says of them :

"His opinions were not only profound, but profoundly beauti-
ful in every circumstance which excites the admiration of a
lawyer. It is matter of no wonder that a great university of
the land has chosen them for recommendation to students of law,
as models of the purity, beauty and strength of the English
tongue. They will carry his name with growing honor to gene-
rations of students and lawyers yet unborn."
23

354 The Story of a Great Court

CHAPTER XXVII

ENLARGEMENT OF THE BENCH JUSTICES 0RT0N AND

TAYLOR

The business of the Court, which had been rapidly in-
creasing before Judge Dixon's resignation, continued to in-
crease after Judge Ryan's appointment with accelerated
speed. The flood of personal injury litigation had begun
to come and was to increase for many years. There were
no stenographers, typewriters, or even copyists. Each judge
wrote and copied his opinions in longhand. The purely
clerical work was necessarily very tedious in addition to the
heavy judicial labor. Judge Ryan's health was bad and his
temper worse. While on the bench or in the consultation
room he was the courteous, dignified and able judge, as we
know from Judge Cole's testimony, but there his courtesy to
his colleagues practically ceased. For weeks at a time he
would not speak to them when he met them outside of the
court room or consultation room. When they deemed it nec-
essary to increase the number of cases upon an assignment
from fifteen to twenty-five in order to keep up with the busi-
ness and clear the annual calendars, he strenuously objected,
and charged them with deliberately desiring to kill him with
labor. When fifteen cases had been argued, he would leave
the bench and take no part in the balance. He even went
so far as to urge his friends to try and secure the passage
of a law making the opinion of the Chief Justice prepon-
derating and decisive on all questions.

These harassing circumstances, combined with the un-
remitting and strenuous intellectual toil of the bench, were

Enlargement of the Bench 355

enough to wear upon the nerves of the strongest man.
Judge Lyon, however, was happily endowed with an even
temper, and he and Judge Cole calmly performed their
multiplying duties without complaint.

An instance of the kind of difficulties which these two
men had to meet during these years was related to the
writer by Judge Lyon many years after, and may, with no
breach of propriety, be repeated here. Judge Ryan had at
one time a great grievance against John Bascom, the great
president of the L^niversity of Wisconsin. Both men were
great intellectually, but their viewpoints were radically dif-
ferent. If anyone attacked the bench or bar, Judge Ryan
was ready to take up arms in defense of the profession im-
mediately. In a baccalaureate sermon preached at the Uni-
versity (I think in 1876 or 1877), President Bascom made
some strong comments upon the corruption of the bench,
as shown by the then recent disclosures concerning Judges
Barnard and Cardozo in New York. Judge Ryan took the
remarks as a denunciation of the bench in general, and his
indignation took fire at once, and he determined to make a
scathing reply at the time of the admission to the bar of the
graduates of the law school a few days later. This reply he
prepared and in it used his great powers of sarcasm and
invective remorselessly, and with telling effect. On reading
it to Judges Cole and Lyon and informing them of his in-
tention, they insisted that it should not be read in court.
Judge Ryan stormed and insisted that he would read it de-
spite their protests. They told him that if he commenced
to read it they would direct the crier to adjourn court, and
would quit the bench, thus leaving him without a quorum.
Judge Lyon was a man who would go far to avoid an un-
pleasant clash, but if he was convinced that duty required
him to take a given course bluster and threats had no effect

356 The Story of a Great Court

upon him. Judge Ryan had undoubtedly become aware of
this fact ; he was very angry and none knew what he would
do, but when the day came he had evidently realized the
futility of his intended action and did not attempt to read
the paper. It was preserved, as I understand, and is still
in existence, and is said to be a literary masterpiece.

It was becoming more apparent every year that the bench
must be enlarged or it would be overwhelmed with labor,
and in November, 1877, a constitutional amendment was
ratified by the people, increasing the number of judges upon
the Supreme bench from three to five, and fixing the length
of their terms at ten years instead of six.

In the winter of 1878 legislative caucuses were held by
both parties, and finally it was arranged that David Taylor
of Fond du Lac, a Republican, and Harlow S. Orton of
Madison, a Democrat, should stand together as non-partisan
candidates for the two new places on the bench. The ar-
rangement was unanimously ratified by the people, and the
two men were elected without opposition early in April,
1878, and commenced their duties on the eighteenth of the
same month.

They were each sixty years of age, but both were men of
strong physique and both had been lawyers of the highest
standing in the state for many years. It may well be imag-
ined that their coming was hailed with unfeigned relief by
the two judges who had been carrying so heavy a load for
years.

This increase in the number of judges greatly minimized
the embarrassment resulting from Judge Ryan's uncertain-
ties of health and temper, and from this time forward the
business of the Court, though large in volume, was carried
on with comparative ease.

Enlargement of the Bench 357

From the very earliest days of the state Harlow S. Orton
had been a commanding figure, both at the bar and upon
the political rostrum. He had held his own in intellectual,
legal and forensic combats with such men as Ryan, Whiton,
Arnold, the two Strongs, John W. Cary, Matt. H. Carpen-
ter, and with practically all of the legal giants of that period.
There was no question as to his abilities, although, as in the
case of Ryan, there was some doubt whether they were of
the highest judicial quality. His lifelong friend and long
time partner in the profession, Judge E. W. Keyes, gave the
following brief summary of his life and estimate of his
character at the time of the presentation of the memorial
of the bar to the Supreme Court after Judge Orton's death

in 1895 :x

"Judge Orton was born in Niagara County, New York, Novem-
ber 23, 1817. His father, Harlow N. Orton, M. D., was a native
of Vermont, and his mother, Grace Orton, nee Marsh, was born
nTConnecticut. His paternal ancestors migrated from England
in the middle of the 18th century, and his maternal progenitors
were of the early Puritans of New England. The members of
both branches of the family were enlisted in the service of the
Revolutionary war. Both of his grandfathers were Baptist
clergymen, who shouldered muskets and fought for liberty and
independence.

"Judge Orton was educated first at the common schools, and
later at the Hamilton academy and Madison University in his
native state, receiving at the latter institution his degree of
graduation. Upon leaving the university he became a school
teacher in Kentucky, and while thus engaged, in 1837, he began
the study of law. In the same year he left Kentucky to join his
brother, Myron H. Orton, late of this city, but now deceased, who
was then practicing law in La Porte, Indiana. At this place, in
1838, he was admitted to the bar, and began to practice in the
northern Indiana circuit. He became deeply interested in the
political campaign of the year 1840, and he was enlisted into the
service as a speaker in several of the states of the Union, making

1 90 Wis. p. xxxii.

358 The Story of a Great Court

nearly one hundred speeches advocating the election of General
tfarrison. In 1843 he was appointed probate judge of Porter
county by the governor of Indiana. In 1847 he moved to the ter-
ritory of Wisconsin, and commenced the practice of law in Mil-
waukee.

"In 1852 he became private secretary and legal adviser of Gov-
ernor L. J. Farwell, and moved to Madison, his last residence. In
1854 he represented the Madison district in the assembly of the
state. In 1859 he was elected judge of the Ninth judicial cir-
cuit, and re-elected without opposition. He resigned that office
in 1865 and resumed the general practice of his profession. In

1869 he was again elected to the legislature, and was re-elected
in 1871. In 1876 he was the candidate of his party for Congress,
but was defeated in a Republican district by a few votes. In the
same year he was appointed one of the revisers of the statutes
of the state. From 1869 to 1874 Judge Orton was dean of the
law faculty of the university, and during his term of service as
dean the degree of LL. D. was conferred upon him. In 1877 he
was elected mayor of Madison, and he served one term. From

1870 to 1878, the time of his election as justice, he was the senior
in the law firm of Orton, Keyes & Chynoweth. * * *

"Politically, Chief Justice Orton affiliated with the Whig party
until 1854, since then he has been an independent Democrat, but
he never identified himself with politics while on the bench, and
never allowed his decisions to be affected by partisan lines.

"Judge Orton has always taken a deep interest in history, lit-
erature, and art. He aided in the organization of the Wisconsin
State Historical Society, and was vice-president for many years,
having declined the presidency. He was also for a long time ac-
tively indentified, as a member, with the Wisconsin Academy of
Sciences, Arts and Letters. * * *

"Judge Orton was a remarkable man; he possessed a high or-
der of talent and ability. But in the first place I wish to speak
briefly of those qualities which found expression as a friend and
neighbor, in the everyday walks of life. In his intercourse with
the people of every class he was gentle, sympathetic, and kindly,
and he was gallant and courteous in a strong degree. His radiant
smiles and his ringing cheery voice were in themselves mediums
of encouragement and hope to all Who came within the circle of
his presence. He was natural and true, the same yesterday and
today; and his genial manners, wherever he might be, were as
a ray of sunlight to clear away the clouds. His demeanor was

™

HARLOW S. ORTOX.

Enlargement of the Bench 359

peculiar to himself. He was fashioned in a mold of his own;
there was no one like him. His geniality was proverbial. He
was a born actor, and in his style there was evidence at times of
the natural attributes of tragedy and comedy. In his step he
was light and active; his movements were graceful and dignified;
and he ever evoked, in his personal presence, the admiration of
those with whom he came in contact. He was democratic in the
highest and truest sense of the word; he was emphatically one
of the people. His feelings and sympathies went out strongly
and in no mistaken terms in behalf of the poor, the suffering, and
the downtrodden, as against injustice and oppression in whatever
form they might appear. As he was always ready to lend a
helping hand to relieve the distressed, to strengthen the weak,
and to give words of hope and encouragement to those who were
respondent and in trouble. These noble and manly qualities so
characteristic of Judge Orton, were given manifestation, in a
greater or less degree, every day of his life. His greetings to
friends and neighbors were cordial, sincere, and came from the
heart. The magnetism of his presence, the shake of his hand,
would seem to impart his own impulses and to gladden the heart
with pleasure almost unaccountable. The manner of his inter-
course with his fellow men, of high or low degree, was always
the same, prompt, cordial, and genuine. There was no selfish-
ness in it. He sought not to ply the arts of the intriguer or
politician, to reap benefits therefrom. It was all spontaneous
with him, the natural outpouring of his sincere and generous
nature.

"While, at times, he seemed inexorable in his ideas of pro-
priety, justice, and right, and perhaps was subject to the charge
of severity, still he was always reasonable and ready to modify
his views and opinions, of a personal or general nature, to cor-
respond with those of his friends and associates, when such
modification required no sacrifice of principle. He was a man
of firm and lasting friendships, true as the needle to the pole,
and while he was inapt to be presumptuous or to crowd himself
forward in his associations with others, yet he enjoyed in a high
degree close and intimate companionship.

"It is true, however, that he lived much within himself, keep-
ing closely within the family circle, and was disinclined to so-
ciety in its ordinary course. Still his sociability and fraternity
were strongly developed and cultivated by him on all possible oc-
casions.

360 The Story of a Great Court

"Judge Orton had a high sense of honor. He could not toler-
ate a mean or dishonest action in any one, and when knowledge
of such conduct came to him he would denounce it in language
forcible and strongly condemnatory."

On the same occasion ex-Chief Justice Cole paid a tribute
to him, from which I extract the following :

"I think I became acquainted with Judge Orton in the winter
of 1854. I well remember the first argument I ever heard him
make in court. It made a deep impression on my mind. It was
before his court in the case of Veeder v. Guppy, reported in the
3rd Wisconsin. The case was one which excited much interest
and public feeling in the neighboring county of Columbia, and
was hotly contested. Such giants in the profession as Judge
Alexander Stow and E. G. Ryan were engaged in the cause as
opposing counsel. When I mention that fact, it will be sufficient
evidence to every lawyer that Judge Orton's intellectual ability
and learning in his profession was then generally recognized;
otherwise, he would not have been called upon to meet such
antagonists in an important cause.

"From that day to the time he left the practice to take a place
on the bench of the circuit court, and subsequently on the bench
of this court, he maintained his position in the front rank of
the profession, and was justly regarded as one of the ablest law-
yers, and of the most eloquent advocates at the bar in this state.
He had a large practice in the trial courts and in this court. And
in this connection I may add, as I am now the only survivor of
ali those who participated, either on the bench or at the bar, in
the trial and decision of the novel and somewhat celebrated case
of Bashford v. Barstoiv, reported in the 4th Wisconsin, which, it
will be remembered, was a contest for the office of governor of
the state and excited intense interest and strong public feelings,
certainly in the political parties, Judge Orton appeared for the
defendant. He was associated with such eminent and accom-
plished lawyers as Jonathan E. Arnold and Matt. H. Carpenter,
but the burden of the argument upon all motions and questions
of law arising in the preliminary proceeding rested mainly upon
the shoulders of Judge Orton, who seemed, by consent, to be
given the management of the cause in court. The questions in-
volved were certainly new, — I might say, almost of first impres-
sion under our form of government. They could not, of course,
arise under any other form. Judge Orton met and discussed
these questions with wonderful learning and ability. He was

Enlargement of the Bench 361

called upon, likewise, to discuss them often on the spur of the
moment, without any time for reflection, examination of the au-
thorities, or even to make preparation, and against such lawyers
as Judge Timothy 0. Howe and E. G. Ryan, whose supremacy at
the bar will be questioned by no one. But Judge Orton was not
surpassed by any lawyer in the case in the efforts he put forth
or in the intellectual* powers he exhibited. His clients surely
had no grounds to ccmplain that his rights and interests in the
litigation had not been well and fully protected and presented to
the court.

"In 1859 Judge Orton was appointed judge of the Ninth circuit,
to fill the vacancy created by the resignation of Luther S. Dixon,
who was then commissioned as Chief Justice of this court. Judge
Orton could have retained his place on the bench of the circuit
court indefinitely, had be been so disposed, for he had made a
most acceptable judge, but he declined a re-election to the office
and resumed the practice.

"As an advocate, Judge Orton was most effective, often eloquent
and impassioned as a speaker. His mind was clear, logical, and
he had at his command a ready flow of vigorous language to ex-
press his ideas. He was earnest and sincere in the treatment of
all subjects. His sensibilities were lively and always excited by
any act of fraud or injustice which he was called upon to review;
and when he had to deal with such cases, which sometimes hap-
pens to every lawyer in practice, he did not soften his denuncia-
tions nor spare the wrongdoers, but hurled his words of wrath
and sarcasm with pitiless contempt and scorn. Woe to the man
who had excited his indignation by any base and dishonest con-
duct, for he was sure to receive a castigation in words which
stung like the whip of a scorpion. And yet he could and did
move human sympathies and excite deep emotion and tender feel-
ing, while he captivated the judgment and carried away the un-
derstanding of his hearers by his appeals. But enough will have
been said on this point when I add, he was a most effective
speaker, and by the enthusiasm of his temper and magnetism of
his manner he had great power and influence over courts and
juries."

The personality of Harlow S. Orton was one of the most
picturesque of any among a bar that was crowded with
picturesque characters. Many interesting anecdotes have
been related of him, but unfortunately most of them have
been lost.

362 The Story of a Great Court

Col. J. A. Watrous, of Milwaukee, vouches for the two
following anecdotes :

"In early life Judge Orton studied law and was admitted to
practice in Indiana. For some reason he gave up the law for
the ministry, and was the popular pastor of a Baptist church,
being known as the boy preacher. An unpleasant dispute be-
tween two of his church officers had a bad effect upon the pastor.
He called the officials together and tendered his resignation.
The officials took the matter under consideration, and decided
that they could not spare so eloquent and popular a minister.

" 'Well, brethren,' said the future chief justice, 'your determin-
ation is a great disappointment to me, for I have a strong desire
to return to law practice. However, I suppose I must remain
your pastor, but it is too damn bad.'

"The brethren consulted again and concluded that it was best
to let him go, and not long after that he started for Wisconsin.

"It was a day in 1848, the year that 'old rough and ready'
General Zach Taylor was the whig and Lewis Cass of Detroit
the democratic candidate for president, that the discredited boy
preacher and ambitious lawyer took passage on a boat at Chi-
cago for Milwaukee. At Racine a peace officer and three men
stepped on board. The sheriff, as Orton learned, was in charge
of a minister, and was taking him to Port Washington where
he had formerly lived, for trial, and the two business men, Hor-
ace T. Sanders and a Mr. Brown, were going along to see that
the elder had a square deal. The Indiana lawyer joined the
party, and when he learned the particulars, tendered his services
to defend the elder. Sanders, who seemed to be the leader,
gladly accepted, and the plan of battle was made.

"The prisoner and his two friends were to obey the lawyer's
orders without questioning. In passing let me say that Sanders
afterwards became a lawyer, was a state senator and in the civil
war led a Wisconsin regiment and became a brevet brigadier
general.

"A large crowd was waiting for the sheriff and his prisoner
when the boat landed at Port Washington. The court room was
crowded when the justice of the peace opened court. Lawyer Or-
ton took charge of the case for the defendant and at once showed
such skill and vigor that he quickly had matters moving. It was
made plain to him, however, that the people were strongly preju-
diced against the elder, and that the justice of the peace was in
strong sympathy with them. Evidence that should not have

Enlargement of the Bench 363

been received was stoutly objected to by Orton, but the justice
overruled him again and again. That angered the boy preacher
and after an exceptionally outrageous decision, Orton sprang to
his feet, and pointing a finger at the justice, said in a loud tone:

'You are a d d scoundrel,' and whirling around caught

the preacher by the shoulder and said, 'Come on elder. You
can't get justice in this court/ and led the way to the door.
Sanders, a giant in size, fell in behind the preacher-prisoner and
Brown behind him, and they forced their way through the ex-
cited crowd. They rushed to the hotel. Orton hurried the pris-
oner into a bedroom, locked him in and pocketed the key.

"By this time the sheriff had begun to take notice. He met
Orton on the stairs and demanded his prisoner.

" 'You have no prisoner, there is no case against him, and if
you don't mind what you are at I will have you on the way to
the penitentiary.'

"That alarmed the sheriff and he returned to the justice for
new orders. The court had been so frustrated by being called a
'd d scoundrel' that he didn't know what to do.

"Orton, Sanders and Brown, fearing an attempt to recapture
the elder, turned their attention to amusing the crowd. Sanders
smoked two large-sized cigars at a time, Orton made funny
speeches, and Brown was the contortionist. The assemblage
mellowed, got to laughing and seemed to forget their thirst for
the preacher's recapture.

" 'The steamboat cometh,' shouted Sanders, and the crowd
laughed again. Just as the steamer from Sheboygan was close
to the dock, Orton dodged back to the hotel, caught his client by
the arm, rushed him down the back way on a hot run and fairly
threw him onto the boat, in spite of the sheriff's efforts to pre-
vent it.

"Court adjourned and watched the steamer bear away the elder
and his rescuers. The case was dropped and the minister com-
pleted his year as pastor of the Racine church.

"Twenty years after that the Port Washington justice and
Judge Orton were members of the assembly and sat at adjoining
tables. The judge did not recognize the dignitary before whom
he had tried and won his first case in Wisconsin, and the justice
was content to remain silent on the subject."

It seems very certain that Judge < >rton was one of the
most eloquent and convincing jury lawyers whom the state
has ever seen; I never had the good fortune to hear him

364 The Story of a Great Court

upon such an occasion, but the testimony to that effect is
so uniform and overwhelming coming from those who did
hear him that there can be no doubt of it.

In 1875, when I was about to graduate from the Univer-
sity law school at Madison, the class after much discussion
decided to ask Judge Orton (then a practicing lawyer) to
deliver the commencement address ; Philip L. Spooner
(father of ex-Senator Spooner) was then Dean of the law
school, and when we told him of our choice, he said with
that grave and gentle air which endeared him to all of us,
"Why of course, that's all right, Harlow was born with an
oration in his mouth."

Apropos of this address, another story comes to me.
Judge Orton readily consented to deliver it, and while I
cannot remember its title, I remember very well that it dwelt
eloquently upon the great achievements of the bar of the
past, in the endeavor doubtless to imbue our minds with the
nobility of the profession. On the following day I over-
heard two men discussing the speech who were evidently
business men who had been in attendance on the commence-
ment exercises. One said to the other, "Well, what did you
think of Orton's address?" and the other replied, "It was a
fine speech. I must say, however, that I had always sup-
posed that the Almighty had considerable to do with the
management of the universe, but it seems now that I have
been mistaken, and that the lawyers have always done it
all."

David Taylor was a man cast in very different mold from
that of Harlow S. Orton, but he had been a no less distin-
guished figure in the state and territory since his arrival at
Sheboygan in 1846.

Not a natural orator as Orton was, but a prodigious
worker, a man capable of almost endless hard labor, he more

Enlargement of the Bench 365

than made up in the solid qualities of good judgment, in-
dustry and calm study what he lacked in brilliancy.

His life was thus sketched by the committee who pre-
sented the memorial to the Supreme Court after his death
in 1891 :

"David Taylor was born at Carlisle, Schoharie county, in the
state of New York, on March 11, 1818. On his father's side he
was of Irish ancestry, on the mother's of Dutch descent. He
graduated from Union College in 1841, and was admitted to the
bar at Cobleskill, N. Y., in 1844. After two years of practice
here, he turned his face to the opening west, and in February,
1846, came to the territory of Wisconsin. He visited Milwaukee
and Green Bay, but chose Sheboygan as his resting place, and
there formed a law partnership with Cyrus P. Hiller, in July of
that year. The copartnership of Taylor & Hiller continued until
Judge Taylor's elevation to the circuit bench. It enjoyed a large
practice, extending over a wide section of the state, which was
chiefly conducted by Judge Taylor. During these years he was
also an active leader in politics; originally as a Whig; after its
organization as an ardent supporter of the Republican party. He
was a member of the assembly in 1853, of the state senate in 1855
and 1836, and again in 1869-1870, always a recognized leader in
legislative work.

"He developed strong elements as a lawyer. Well equipped
in the learning of his profession, his very great industry, his
untiring energy, his clear and robust judgment made him a
strong man at the bar.

"In 1857 he was called to the bench. He was appointed judge
of the fourth judicial circuit to fill the vacancy caused by the
resignation of Judge William R. Gorsline. At the next election,
he was chosen to fill the full unexpired term. Upon its expira-
tion he was elected again, so that he served as circuit judge until
January 1, 1869. These terms covered an important period in
the growth of the state, especially in juridical affairs. They
concluded the trying time of war, when many new and most
important questions were brought before the courts, and Judge
Taylor earned wide reputation for judicial ability.

"Retiring from the bench, he resumed the practice of his pro-
fession at Sheboygan. In 1872 he removed to Fond du Lac,
where he entered into partnership with the late J. M. Gillet, and
subsequently with George E. Sutherland. He was in constant.

366 The Story of a Great Court

active practice; but did not allow the causes of his clients to
monopolize his time. His natural patient industry made him a
most valuable compiler of laws. He had already shown his abil-
ity and skill in this direction as one of the revisers who brought
out the Revised Statutes of 1858. In 1871 he gave to the profes-
sion the much-needed, excellent compilation of all our public
statute law, with valuable annotations, which became known by
the name of 'Taylor's Statutes.' It was but natural that when
the state undertook another revision Judge Taylor became one
of the revising commission appointed by this court, and was
made its president. This commission produced the Revised Stat-
utes of 1878."

Upon the same occasion William F. Vilas gave an elo-
quent estimate of his abilities and character, from which I
take the following:

"Judge Taylor's most distinguishing peculiarity, which gov-
erned and explained his career, his general conduct and man-
ners as well as accomplishments, was the constancy and inten-
sity of his devotion to the labors of the law. No man within my
range of observation ever gave himself more exclusively, so un-
ceasingly and untiringly, to this single field of thought and
effort. Whatever other studies may have engaged his care, if
any ever did for much time, he manifested in his later years
little interest in them. Beyond a passing attention to the cur-
rent affairs of the country and topics of the day, of which in-
formation came easily, he never seemed to yield himself or his
thoughts at length.

"But to the law he addressed a capacity for labor unexcelled
and rarely equalled, with a constancy as faithful as his capacity
was great. He seemed never weary, never wistful to interrupt
the calm, steady, unremitting assiduity of his toil. The magni-
tude of effort to understand or elucidate any subject under his
hand, the measure of time or personal labor, was no considera-
tion with him. No task was formidable to his simple steadfast-
ness. Through all the hours of the day, day after day, week in
and week out, year upon year, without excitement and without
ceasing, he bent his mind to the tasks, before him, toiling on with
each to its complete and satisfactory accomplishment, and enter-
ing upon the next as readily as he finished that in hand. Re-
laxation and recreation were nothing to him. Seemingly he
never desired either; holidays and vacations were merely inter-
ruptions. The pleasures and enjoyments which others indulge

DAVID TAYLOR.

Enlargement of the Bench 367

and seek, games, pastimes, entertainments, had no apparent
charm; and if he suffered them to check his labor, it was rather
from a consideration of others than to please himself. He was,
therefore, essentially a contemplative man, his mind ever medi-
tating his problem, the intellectual machinery always running,
always grinding its grist. His thought was ever introverted; his
attention occupied by that within him, not by things without.
Incidents external were rather a hinderance than a help; inter-
ruptions, not attractions.

"Necessarily, his were the manners of a pre-occupied man.
Yet such was his composure of countenance that his introspec-
tion was commonly not apparent to the ordinary observer, and
when he passed with slight notice a friend or acquaintance, it
happened not infrequently that the reason for it was denied the
credit due. But it needed only to enter the chambers of his
mind and witness the busy scene within, to understand the sub-
jects and the methods of his thought, in order to dissipate utterly
the superficial misconception. Once in appreciative communion
with him, the perception was instant and easy of simplicity and
sincerity of purpose, of patient effort to discern and unfold the
right, of sympathy with the interests and concerns of men, and
the utmost readiness to accept any aid or criticism which
helped him to solution of the doubt he wrestled with, or unfolded
the true course of thought. Any man more free of the mere
pride of personal opinion, less impatient of correction, more
ready to receive any benefit of another's thought, so that it truly
informed his own, I never encountered. In performance of the
public duty already mentioned — to which we were called by ap-
pointment of this court — it happened that he and I wrought
much together, in a close co-operation, not only on important
measures of the law, but often upon words and phrases, those
stubborn substantives of useful statutes. He was the old, well-
stored lawyer, surcharged with a life of study, long professional
and judicial service, and specially expert in statutory knowledge,
as one of the revisers of twenty years before and the compiler
of a later edition which had long superseded in use the former
work. He brought to the undertaking not only his extraordinary
ability for labor, but unusual fulness of legal learning and ripe-
ness of study. Yet the just precedence of these circumstances
he never manifested in anything but their value to the duty be-
fore* us. In every moment of conference, his acceptance was as
free and easy as his contribution of everything, in every form,
whether of suggestion or of criticism, that might promote the-

368 The Story of a Great Court

utility and excellence of the work in hand. I speak now to his
associates of many years in judicial labor; but confidently, that
your testimony may be invoked to superadd in more effective
tones the proof of these marks of a just, strong, honest-minded
man, too great and too generous, too simple and too true, to
think of anything but the worthy end of legal labor in its high-
est usefulness to men."

Cole's Last Contest 369

CHAPTER XXVIII

JUDGE COLE'S LAST CONTEST

Chief Justice Ryan was re-elected unanimously and with-
out opposition in 1875, and Judge Lyon received the like
compliment in 1877. From these facts it might well be as-
sured that the golden age had arrived when sitting judges,
who had demonstrated their fitness and ability, were not to
be opposed by partisan nominations, whatever might be their
political views or their decisions upon cases arousing public
interest. But while the sentiment in favor of non-partisan-
ship in the selection of judges for the Supreme bench had
unquestionably developed greatly, as evidenced by these
elections, it was not yet controlling.

Jude Cole's term was nearing its end, and the election to
choose his successor was to take place in April, 1879. As
has been seen, the Democrats had carried the state in 1873,
and had also elected the entire state ticket, except Governor,

in 1875. Tney had lost tne state °y a sma11 maiority onlv

in 1876, and, while they had lost in the state election of 1877,
they were still aggressive and determined, for nationally
the party was in excellent conditon ; it controlled the popular
house all through the administration of President Hayes,
and had small majorities in both senate and house in 1878
and 1879.

Thus everything seemed encouraging to "the hope that
springs eternal" in the Democratic breast, and as the end
of Judge Cole's term approached, the Democratic leaders,
with an invincible bourbonism worthy of a better cause, de-
termined to put up a candidate against him, and make an-
24

370 The Story of a Great Court

other supreme effort to obtain control of the bench. Their
deliberations resulted in the determination that Judge Coth-
ren must again, and for the third time, be led to political
slaughter and, in sooth, Judge Cothren seems to have been
a willing victim.

On the evening of February 19, 1879, a caucus composed
of Democratic members of the legislature and a number of
members of the Democratic State Central Committee was
held in Madison, at which Senator Thomas R. Hudd of
Green Bay was elected chairman. A. R. Bushnell, J. H.
Earnest, and Matt Anderson made speeches favoring the
nomination of Judge Cothren. Chairman Hudd made an
argument in favor of supporting Judge Cole, who it was
known would be an independent candidate. Mr. Hudd's
argument, however, found little favor with the caucus, and
a resolution was adopted requesting Judge Cothren to be-
come a candidate for the place, and recommending that the
State Central Committee formally place him in the field as
the Democratic candidate.

In response to this resolution, the Democratic State Cen-
tral Committee, on the 27th of February, issued a brief ad-
dress to the people, signed by Joseph Rankin of Manitowoc
as chairman, reciting the passage of the resolution of the
caucus, giving a brief sketch of Judge Cothren's career, and
formally presenting him to the people as a candidate for the
position, requesting "that our friends everywhere use all
honorable means to secure his triumphant election." * This
nomination was accepted by Judge Cothren a few days later,
and he made a trip through a considerable section of the
state in the interest of his canvass.

At about the same time that the caucus before mentioned
was held, calls began to be extensively circulated among the

] Madison Democrat, Feb. 27, 1879.

Cole's Last Contest 371

bar of the state, requesting Judge Cole to run as non-
partisan candidate. These calls were very generally signed
by Democrats as well as by Republicans, and one hundred
and five members of the legislature, including twenty Demo-
cratic members, signed Judge Cole's call.

No nomination was made by the Republicans, either in
caucus or convention, and so the contest became one be-
tween an independent candidate and a party nominee.

As a matter of fact, the so-called nomination of Judge
Cothren was not a real nomination, but only the work of a
self-appointed coterie of politicians, who did not really rep-
resent the party. There was clearly no desire on the part of
the party generally to enter on any campaign against Judge
Cole. It was quite well known that Judge Cole did not
sympathize with the ruling wing of the Republican party ;
it was said that he had not been at all pleased with the man-
agement of the party for years. Quite a number of Demo-
cratic papers through the state actively supported Judge
Cole, and others refused to support Judge Cothren. As for
the bar, the great majority in all parts of the state, except
perhaps in Judge Cothren's old circuit, supported Judge
Cole. At Racine, where the writer was then practicing, the
entire bar, with the exception of one firm, supported Judge
Cole, and the writer well remembers that he spent practically
the entire day in attendance at the polls endeavoring to pro-
cure votes for Judge Cole.

For some reason not particularly obvious, the Milwaukee
News, then the leading Democratic paper of the state, made
a very active and somewhat bitter campaign against Judge
Cole. Its efforts to find some plausible objections against
Judge Cole were somewhat amusing, and demonstrate the
scarcity of material in that line.

372 The Story of a Great Court

On the 23rd of February, the News, after stating the re-
sult of the legislative caucus, and commenting favorably on
Judge Cothren's ability and record, says :

"Judge Cole has occupied a seat on the bench for many years;
he has arrived at an age where man's perceptions grow dim, and
it is certainly a wise measure to retire him and seat a younger
and abler man in his place."

The great age of Judge Cole troubled the News exceed-
ingly ; on the 26th of February it said that Judge Cole was
the candidate of the Madison Ring or Regency and that

"He has been on the bench twenty-three years, and in all that
time has not developed such an immense ability that he should
be given a life lease of the position. Judges continued long in
office gradually fall into a rut from which it is impossible to
rescue them, and "when, as in this case, a candidate like Judge
Cothren is presented the interests of the people will be more
surely served by electing him than by retaining Judge Cole."

Again on the 4th of March the News recurred to the sub-
ject of age and said, "He is an old man, the duties are be-
coming irksome to him, he has arrived at an age when
United States Judges are retired and pensioned off." The
length of Judge Cole's official life and the desirability of
rotation in office were almost daily urged by the News in its
editorial columns.

The absurdity of these arguments based on Judge Cole's
great age and supposed waning faculties appears very
clearly when it is remembered that at this time Judge Cole
was fifty-nine years of age, in excellent health physically
and mentally, and was just twenty-six days older than Judge
Cothren.

When the News was overhauled by the Wisconsin for its
wild statements about Judge Cole's age, it developed (as
might have been expected) that the editors knew nothing
about Judge Cole's age, for it then said in the issue of March
8th that it did not know what Judge Cole's age was, but did

Cole's Last Contest 373

know that he had been an office holder for thirty-two years,
with but slight interruptions, and whether he were sixty-
seven or seventy-seven he should retire to make way for a
new man. The plain implication here that Judge Cole was
at least sixty-seven years of age, when he was in fact but
fifty-nine, might well be called dishonest politics.

In 1873 the Court had met the question whether the
"Graham" liquor law 2 was constitutional and unanimously
sustained the law, Chief Justice Dixon writing the opinion.3
This law was a law regulating the licensing of saloons and
sale of liquors with uniformity over the whole state, and
was a great step in advance from the point of view of tem-
perance men.

In its issue of March 2nd the News very adroitly at-
tempted to turn this decision to the advantage of Judge
Cothren. It said in substance that Judge Cole's friends
were urging his election among temperance men for the rea-
son that he was sound on the temperance question, because
he was on the bench and participated in the decision sustain-
ing the "Graham" liquor law ; that it did not believe in
criticizing the opinions of courts, but when a candidates's
friends make political capital out of them and assure voters
that the judge can be relied on in the same direction in the
future, then such opinions are proper subjects of criticism,
and persons holding opposite views are justified in opposing
the candidate on account of their belief that his views are
erroneous.

This covert attack not apparently bringing very encourag-
ing results, the News on March 12th denounced Judge Cole
as the lawyers' candidate, and said that the fact that he was
supported by the lawyers was a weighty argument for his

2 Chap. 127, Laws Wis. 1872.

8 State v. Ludington, 33 Wis. 107.

374 The Story of a Great Court

defeat, for lawyers always desired a slow and easy-going
judge so as to protract litigation, while clients desired a
judge who dispatched business and brought the lawyers to
time, hence the people should vote for Cothren.

This appeal to popular prejudices against lawyers is al-
ways contemptible ; sometimes, however, it works, but it
conspicuously failed in the present instance.

On the 23rd of March the News took another tack and
made an attempt to alienate Judge Cole's Republican sup-
port. It published what purported to be special correspond-
ence from Madison, detailing the reasons why Judge Cole
was not acceptable to true Republicans. The meat of the
article was contained in a story circumstantially told con-
cerning the Carpenter senatorial deadlock in 1875, when
fifteen or more insurgent Republicans united with the Demo-
crats and elected Angus Cameron as senator. It was as-
serted that the insurgents and Democrats had practically
agreed on Cole as the compromise candidate on the same
evening in which they finally agreed on Cameron ; that Cole
was informed of the fact and prepared a speech of accept-
ance to be made before the joint caucus ; that he was sent
for to come to the capitol in a blinding snowstorm on the
night in question and came with his speech in his pocket,
explaining away the Graham law decision ; that he waited
for two hours in the Attorney General's office ; that a hitch
occurred in the caucus negotiations and that several Mil-
waukee German members, under the lead of Senator Cotz-
hausen of Milwaukee, at the last moment refused to vote
for Cole on account of his temperance views, and so the
Judge was finally compelled to go 'home with his speech un-
delivered, and Angus Cameron was selected. This story
was denied bv the Wisconsin.

Cole's Last Contest 375

The Republican papers had much to say about the ad-
vantages of non-partisanship in judicial elections, and to
these suggestions the News replied by asking how many
Democrats had been appointed to judicial offices since 1861
by the United States Government, and urged every Demo-
crat to stand with his fellow Democrats and cast a solid vote
for Cothren, a true Democrat, and a worthy man. On the
28th of March, it said, "Judge Cothren is the Democratic
candidate. Let every Democrat vote and work for his elec-
tion."

The appeals of the News, however, fell on deaf ears ; the
Democrats refused to consider it a party matter ; in a total
vote of 168,605, Judge Cole's majority was 33,133.

One of the results of this election was that the legislative
caucus as a judicial nominating body followed the party
convention to the political graveyard. Henceforth nomina-
tions for justices of the Supreme Court were to be made by
non-partisan calls.

376 The Story of a Great Court

CHAPTER XXIX
ryan's later days

The enlargement of the bench to five members greatly
lessened the heavy burden which had rested upon the shoul-
ders of the members of the bench, but it neither improved
Judge Ryan's temper nor his health. Though he was
doubtless of strong constitution originally, his health had
not been good for some years before his elevation to the
bench. The strenuousity of his life and the vehemence of
his emotions had made serious inroads on his strength be-
fore he reached the bench, and after that time he was fre-
quently obliged to cease work for a time on account of tem-
porary illness.

Notwithstanding their radical political differences, he was
personally very friendly with Elisha W. Keyes, familiarly
known at that time as "Boss" Keyes, then Postmaster at
Madison, Chairman of the Republican State Central Com-
mittee, and unquestioned ruler of the party in the state.

During the winter of 1876 and 1877 Judge Ryan was fre-
quently ill, and in January was confined to his house. Mr.
Keyes called on him from time to time, and on January 16,
1877, found him more than usually depressed ; he complained
that the work was killing him, and said that if he could only
have a vacation of a few months he might throw off his
physical difficulties, but that as it was he felt that he should
soon die or be compelled to resign. Mr. Keyes tried to
cheer him up as best he could, and finally told him that the
legislature (which was then in session) would willingly
grant him a vacation, if informed of the situation. Judge

Ryan's Later Days 377

Ryan scouted the idea, but Mr. Keyes insisted that it could
be done, and leaving Judge Ryan's residence he went imme-
diately to the capitol and set his friends at work. The result
was that the following joint resolution was immediately
drawn by William E. Carter, and at once adopted without

opposition in the assembly : x

"Whereas, His Honor, the Chief Justice of the Supreme Court
of Wisconsin, Edward G. Ryan, is suffering from illness and de-
bility resulting from confinement and overwork in discharge
of the arduous and responsible duties of his position, and

"Whereas, rest and recreation are absolutely necessary to his
speedy restoration to health and strength, to enable him to re-
sume his labors upon the bench, therefore

"Resolved by the Assembly, the Senate concurring, that leave
of absence be and hereby is granted him during the present term
of said Court."

The resolution was sent to the senate on the following day
(January 17th), and concurred in without debate or opposi-
tion.2

At once upon the passage of the resolution by the senate,
Mr. Keyes took a copy of it to Judge Ryan's residence. The
Judge was incredulous at first, but upon being convinced
that the resolution had in fact been passed, was greatly
pleased, as indeed he well might be. So far as I have been
able to ascertain, Judge Ryan made no extended trip during
his vacation, but took his rest principally at his home in
Madison.

This vacation, of course, resulted in putting more work
upon the shoulders of his colleagues, Cole and Lyon. These
two men carried the whole burden of the work from Janu-
ary 1 st to the adjournment of Court for the summer vaca-
tion, the work during that time filling practically the whole

1 Assembly Journal, 1877, p. 19.

2 Senate Journal, 1877, p. 23.

378 The Story of a Great Court

of volume forty-one and the first two hundred pages of
volume forty-two of the Wisconsin reports.

The Chief Justice returned to work at the opening of
Court in the fall of 1877, with somewhat improved health,
but it will be seen by examination of the Wisconsin reports
from this time on that, either on account of illness or be-
cause he felt that too much work was being undertaken, he
took no part in a large number of cases. He was absent
from the Court, evidently because of physical incapacity,
after December 19, 1879, and during the entire January
term, 1880. He went to work again at the opening of the
August term, 1880, but with difficulty. His last day upon
the bench was the 13th day of October, 1880. The first case
argued on this day was the case of Kalk v. Fielding? in the
argument of which I participated. I think the Chief Justice
also heard the following case of J affray v. Crane* but left
the bench when the case of Hill v. Durand 5 was called, be-
cause he had formerly been counsel for one of the parties.

The next day he sent word to his colleagues that he was
ill, and on the 19th of October he died. He had wished to
die "with his harness on," and Heaven granted his desire.
There was no dreary waiting for release, no slow decay of
mind and brain. His wonderful intellectual powers were
unimpaired, the matchless eloquence of tongue and pen were
still his in all their perfection; but the body was weary,
disease had racked it sorely, and storms of passion had en-
feebled it ; the mysterious veil which separates us from the
other world was drawn aside for a moment and the great,
but storm-tossed, spirit of Edward George Ryan passed into
the presence chamber of its Creator.

350 Wis. 339.
4 Id. 349.
6 Id. 354.

EDWARD GEORGE RYAN.
At the age of 65 years,

Changes Since 1880 379

CHAPTER XXX

CHANGES SINCE l88o

The death of Chief Justice Ryan has seemed to me to be
the natural and fitting stopping place for this work. That
event may be said in a general way to mark the close of the
great formative period of Wisconsin jurisprudence. Not
that the law had then been entirely settled, but that basic
principles had been determined on, and the foundation
broadly laid for Wisconsin's temple of justice. Hereafter the
work was to consist very largely of the working out of details,
and the adoption of the great general principles already es-
tablished to new and varying conditions. That event marks
also the end of a generation since the admission of the state
to the Union, and the men who occupied the stage during
the activity of that generation have nearly all passed away.
Impartial judgment may now be passed upon their work and
their motives with little danger of bias, political or personal.
This can hardly be said of the events of the following thirty
year period. The time has not yet come when a strictly im-
partial view can be taken of these latter events. I trust that
at some time in the future another thirty year period may
be taken up and reviewed impartially and sympathetically by
some one who feels interest in the subject. It is quite cer-
tain that this latter period cannot approach in dramatic in-
terest the period covered by this work, yet there will be
found in it many events well worth the consideration of the
historian. But, although no attempt will now be made to
write the history of the Court after November, 1880, it will
be interesting to briefly note in this chapter the changes in-

380 The Story of a Great Court

the bench from that time until the present, in order to ob-
serve how completely the idea has prevailed that neither
party conventions should nominate, nor party organizations
should be used to support candidates for the Supreme Bench.

Upon the death of Chief Justice Ryan, Governor Smith
advanced Associate Justice Cole to the vacant chair of Chief
Justice, a compliment as well deserved as it was popular,
and appointed as Associate Justice, John B. Cassoday of
Janesville, an eminent lawyer, who remained upon the
bench for twenty-seven years, rendering very valuable serv-
ice to the state.

It was felt by many Democrats that the Governor ought,
in the interest of the non-partisan idea, to have preserved
the equilibrium of the bench by appointing some eminent
Democrat in Judge Cole's place ; however, the appointment
made was a most excellent one and the feeling was not
strong enough to overcome the repugnance to partisan con-
tests which had now become well established, and thus in
the spring of 1881, both Chief Justice Cole and Justice
Cassoday were re-elected without opposition. The terms of
the Justices had been increased to ten years by the constitu-
tional amendment of November, 1877, and by a further
amendment, adopted in April, 1889, the office of Chief Jus-
tice as distinguished from Justice was abolished, and all per-
sons thereafter elected were denominated Justices of the
Supreme Court, the one longest in continuous service to be
ex officio Chief Justice. Orsamus Cole was therefore the
last elected Chief Justice of the Court.

In 1883 William P. Lyon was re-elected, in 1885 David
Taylor, in 1887 Harlow S. Orton, and in 1889 John B. Cas-
soday, all these elections being unopposed.

In 1 89 1 it was generally understood that Chief Justice
Cole did not desire a re-election, and as the state had elected

Changes Since 1880 381

a Democratic state ticket in the fall of 1890 by a large ma-
jority it was universally recognized that a Democrat should
be elected in his place. Two Democrats were placed in the
field as independent candidates by non-partisan calls, viz.,
Silas U. Pinney of Madison, and Eleazar H. Ellis of Green
Bay. In a vote of about 174,000, Mr. Pinney received a
majority of 19,000.

Judge Taylor died very suddenly April 3, 1891, and Gov-
ernor Peck appointed the writer to the vacant place on the
fourth day of the following May.

Thus when, in January, 1892, Judge Pinney succeeded
Chief Justice Cole, there were a majority of men upon the
bench considered to be Democrats, namely, Justices Orton,
Pinney and the writer. This had not happened before since
1855, when Judge Cole defeated Judge Crawford.

In April, 1892, the writer was elected to fill out Judge
Taylor's unexpired term, without opposition.

Some time prior to April, 1893, Judge Lyon (who had
become Chief Justice on the retirement of Judge Cole in
January, 1892) announced that he would not run again and,
though strongly urged to reconsider his determination, re-
fused to do so. He would have been unanimously re-elected,
had he consented that his name be used. It was now con-
ceded all around that his successor should be a Republican
and two Republican circuit judges, both men of high ability,
were placed in the field by non-partisan calls, viz : Judge
Alfred W. Newman of the Sixth Circuit and Judge Charles
M. Webb, of the Seventh. The election resulted in the
choice of Judge Newman by a majority of nearly 50,000, in
a total vote of 197,000.

In the fall of 1894 the state went back to the Republican
column by a very large majority, and party spirit ran high.
There were many republicans who thought that a Republican-

382 The Story of a Great Court

should be placed on the bench in the place of the writer, and
though no party convention or legislative caucus was held,
the able and popular circuit judge of the Fifth Circuit,
George Clementson, was placed in the field by a non-partisan
call or petition as a candidate against the writer. It was
well understood that Judge Clementson was a Republican
and that the writer was a Democrat. The voters of the
state, however, adhered to the principle that a sitting judge
should not be defeated simply because of his politics, and
the writer was elected by a majority of 9,000 in a vote of
222,000. The canvass did not disturb in the least the
friendly personal relations of the candidates.

On the 4th day of July, 1895, Judge Harlow S. Orton,
who had become Chief Justice on the retirement of Judge
Lyon in January, 1893, died after a long illness. On the
5th day of August following, Governor William H. Upham
appointed Hon. Roujet De Lisle Marshall, Circuit Judge of
the Eleventh Circuit, to fill the vacancy. Judge Marshall
was known to be a Republican in politics, and it was uni-
versally recognized that his appointment to succeed Judge
Orton, who was rated as a Democrat, was the most appro-
priate thing which could be done in order that the majority
of the bench should be in political sympathy with the dom-
inant party. Judge Marshall was elected in April, 1896, to
fill the unexpired term of Judge Orton, and in April, 1897,
for a full term, both times without opposition.

Judge Newman died suddenly January 12, 1898, as the
result of a fall upon an icy sidewalk, and Charles Valdo
Bardeen, Circuit Judge of the Sixteenth Circuit, was ap-
pointed to fill the vacancy eight days later. Judge Bardeen
was elected to fill out Judge Newman's unexpired term in
April following, without opposition.

Changes Since 1 880 383

Judge Pinney resigned November 8, 1898, on account of
failing health, and on the nineteenth day of the same month
Governor Edward Scofield appointed Joshua Eric Dodge, a
Democrat, of Milwaukee, to fill the vacancy. Thus the
principle of non-partisanship was at last fully recognized
by the executive branch of the government. The bench
prior to Judge Pinney's resignation had been composed of
three Republicans and two Democrats, and Governor Sco-
field, although a Republican, deemed it his duty on Judge
Pinney's resignation to appoint a Democrat in his place, and
thus preserve the political equilibrium of the bench. The
choice was unanimously ratified by the people by the re-
election of Judge Dodge for the unexpired term in April,
1899, and in April, 1901, for a full term.

Judge Bardeen died March 20, 1903, after an illness of
several months. Had he lived his re-election would have
taken place on the first Tuesday of April following, without
opposition, as his nomination papers had been filed, there
was no candidate against him, and his would have been the
only name on the ticket. This death, occurring so near
election and after the time when nomination papers could
regularly be filed, produced some confusion, but the legisla-
ture being in session, an emergency act was passed (Chap.
27, Laws 1903), enabling nominations to be made and filed
within a brief time. Under this act three candidates were
placed in the field : Robert G. Siebecker, Circuit Judge of
the Ninth District, William Ruger, Esq., an eminent lawyer
of Janesville, and J. G. M. Wittig, Esq., of Milwaukee.
Judge Siebecker, a Republican, was elected, receiving nearly
69,000 votes as against about 45,000 for the other two can-
didates Combined.

At this election a constitutional amendment was adopted,
creasing the number of Justices to seven, and the first of the

384 The Story of a Great Court

additional Justices was elected in April, 1904, in the person
of James C. Kerwin of Neenah, who received 123,828 votes
as against 1 12,428 cast for Louis K. Luse of Superior. Both
were Republicans and were put in the field as non-partisans.

In April, 1905, the writer was re-elected without opposi-
tion for a full term.

In April, 1906, the second of the additional Justices au-
thorized by the constitutional amendment; of 1903 was
elected. There were four candidates placed in the field by
nomination papers, all as non-partisans, viz : William H.
Timlin of Milwaukee, James O'Neill of Neillsville, Circuit
Judge of the Seventeenth Circuit, Allen R. Bushnell of Lan-
caster, and H. H. Grace of Superior. Messrs. Timlin and
Bushnell were known to be Democrats, and Messrs. O'Neill
and Grace to be Republicans. Mr. Timlin received 90,528
votes, Judge O'Neill, 51,848, Mr. Bushnell, 39,818, and Mr.
Grace, 16,419. Thus the voters apparently again recognized
the principle of non-partisanship, for the state was over-
whelmingly Republican in its political complexion, as is
abundantly shown by the fact that in the November election
of the same year the Republican candidate for Governor
received a plurality of 80,000 votes over the Democratic
candidate. In April, 1907, Judge Marshall received 116,951
votes as against 55.097 for Henry T. Scudder. Both can-
didates ran as non-partisan.

Judge Cassoday, who had become Chief Justice on the
death of Chief Justice Orton, died December 30, 1907, and
on January 4, 1908, Governor James O. Davidson appointed
Robert M. Bashford, Esq., of Madison, to fill the vacancy.
Judge Bashford was a candidate at the April election, 1908,
and was opposed by John Barnes of Rhinelander who had
recently been chairman of the Railway Commission of the
state.

Changes Since 1 880 385

Both candidates were placed in the field as non-partisans,
though it was well understood that Judge Bashford was a
Republican, and Mr. Barnes was a Democrat. The result
was that Mr. Barnes received 134,612, Judge Bashford,
84,656, and William Ruger, 15,168. The question of geo-
graphical location of the candidates cut considerable figure
in the result, as the north central portion of the state had
had no representative on the bench since the death of Judge
Bardeen in 1903, but the absolute disappearance of partisan
considerations is shown by the fact that though the election
of Mr. Barnes placed on the bench a majority of Democrats
in a state overwhelmingly Republican, no attention was ap-
parently paid to that fact. Judge Barnes was elected for a
full term in April, 1909, without opposition.

September 1, 1910, Judge Dodge resigned, and on the
tenth day of the same month Governor Davidson appointed
Aad J. Vinje, Circuit Judge of the Eleventh Circuit, to fill
the vacancy. Judge Vinje was known to be a Republican,
and his election for a full term in April, 191 1, was unop-
posed. Thus the political equilibrium of the bench was
again restored.

If any further proof were needed of the strength of the
non-partisan idea as applied to judicial elections, it would
be found in the fact that such elections were expressly ex-
empted from the operation of the primary election laws,
owing to the fact that it was universally recognized that
candidates for the bench should not be nominated through
party primaries or conventions.

I know of no state which has been so successful in eli-
minating political considerations from judicial contests as
Wisconsin ; indeed, the sentiment has gone so far that any
political activity on the part of an occupant of the bench or
a candidate for the bench is universally considered as a

386 The Story of a Great Court

breach of judicial etiquette. The sentiment prevails also
with reference to the circuit bench. While, in most of the
circuits, the politics of the judge agrees with the prevailing
political view in his circuit, still this is by no means univer-
sal, nor are party conventions called to nominated candi-
dates. An attempt to place a party candidate in the field
would almost certainly meet defeat. That this condition of
public opinion makes for the independence and efficiency of
the judiciary there can be no doubt. In this respect, as in
many others, Wisconsin is in the best sense a progressive
commonwealth.

Recent Honors to Dixon and Ryan 387

CHAPTER XXXI

RECENT HONORS TO DIXON AND RYAN

I fully thought when I wrote the concluding words of the
last preceding chapter that I had finished this book, but
since those words were written some very interesting events
have taken place which seem to me to demand a place in
the book. The improvidence of both Dixon and Ryan in
pecuniary matters was almost proverbial, and the natural
result of that improvidence was that neither left any con-
siderable amount of property at his decease. Thus it came
about that Judge Dixon's remains rested at Madison and
Judge Ryan's at Milwaukee with no fitting stone to mark
either grave. Thus the situation remained until late in the
year 1909 when the fact that both graves were unmarked
was brought to the attention of Mr. Justice Marshall, and
he determined that suitable memorials should be placed
over the graves of these great jurists. He brought the mat-
ter to the attention of Hon. James G. Flanders, president
of the State Bar Association, in the year 1910, and the fol-
lowing gentlemen were appointed a committee to undertake
the task of raising the necessary funds and erecting a suit-
able monuments over each grave: Justice R. D. Marshall,
Col. E. W. Keyes, Gen. Fred C. Winkler, Hon. George G.
Greene, Hon. A. W. Sanborn and Hon. J. E. McConnell.
It is but justice to say that the successful accomplishment
of this task was due to the indefatigable energy and per-
sonal efforts of Mr. Justice Marshall, who took up the task
of raising the necessary money and pursued it systematically

388 The Story of a Great Court

and relentlessly until the sum of $7,610.52 was raised, largely
from the bar and business men of the state, but aided by
substantial sums contributed by former residents of the state
who now reside in other states.

With this sum two handsome white granite monuments
were procured and placed in position, the Dixon monument
at Forest Hill cemetery, Madison, and the Ryan monument
at Forest Home cemetery, Milwaukee, the former being
forty feet and the latter thirty-six feet in height.

The Dixon monument bears on the front face of the die
the single word "Dixon," and on the reverse face thereof
the words :

"LUTHER SWIFT DIXON,

CHIEF JUSTICE OF WISCONSIN,

1859-1874."

On the right face of the die, this :

"The State Bar Association of Wisconsin on behalf of
its members and others at home and abroad, A. D. 191 1,
dedicate this memorial structure to the memory of Luther
Swift Dixon and to that conception by law personified by
his distinguished services as Chief Justice of the State in
upbuilding its system of jurisprudence."

On the left face of the die, the following excerpt from
the address by Hon. Charles E. Dyer at the memorial pro-
ceedings before the Supreme Court of the State December
29th, 1891, and found in Volume 81 of the Wisconsin Re-
ports :

"It is a serious thing to be the arbiter between one's fel-
low men. No functions are more exalted, no duties more
grave. He who in the slightest degree by partisanship or

Recent Honors to Dixon and Ryan 389

otherwise dishonors its dignity, he who does not keep the
ermine as white and spotless as virgin purity, is unworthy
of the trust. This was the sentiment of

LUTHER SWIFT DIXON.
His name is the synonym of Justice, Integrity, Truth and
Honor. These were the virtues which illumined his char-
acter, radiant as the sunlight, shining as the stars."

The Ryan monument bears on the front face of the die
the single word "Ryan," and on the reverse face thereof the
words :

"EDWARD GEORGE RYAN,
CHIEF JUSTICE OF WISCONSIN,
1874-1880."

On the right face of the die, the words :

"To the memory of Edward George Ryan, who, as Chief
Justice of Wisconsin, wrought with master hand in up-
building its system of jurisprudence, and added dignity to
government by law, this memorial structure is erected by
the State Bar Association on behalf of its members and
others at home and abroad, A. D. 191 1."

On the left face of the die, this excerpt from the famous
Ryan address to the graduating class of the Wisconsin Col-
lege of Law, delivered in 1873, being the distinguished Chief
Justice's conception of the ideal judge.

"In other places in life, the light of intelligence, purity of
truth, love of right, firmness of integrity, singleness of pur-
pose, candor of judgment, are relatively essential to high
beauty of character; on the Bench they are the absolute
condition of duty. The Judge who palters with justice, who
is swayed by fear, favor, affection or the hope of reward,

390 The Story of a Great Court

by personal influence or public opinion, prostitutes the at-
tributes of God, and sells the favor of his Maker. But the
light of God's eternal truth and justice shines on the head
of the just Judge, and makes it visibly glorious. — Ryan,
1873."

The Dixon monument was unveiled June 1, 191 1, the
following named persons by invitation of Hon. M. A. Hur-
ley, the president of the Association, acting in behalf thereof
and of the donors as an acceptance committee, viz. : Governor
Francis E. McGovern, Chief Justice J. B. Winslow, Hon.
Geo. H. Noyes, Mrs. Anna M. Vilas, Hon. John M. Olin,
Mr. A. E. Proudfit, Mrs. Eliza M. Keyes, Hon. Burr W.
Jones, Mr. William R. Bagley, Judge A. L. Sanborn and
Mr. L. S. Hanks.

Mr. Justice Marshall delivered the presentation address
as follows :

Mr. President and Members of the Dedication Committee:
The mortal of Dixon — Luther Swift Dixon — he who gave
so much lustre to Wisconsin jurisprudence, inspiring this
conclusion of the eloquent word picture of him, his ideals
and fidelity to them, inscribed on the granite before us ;
"His name is the synonym of justice, integrity, truth and
honor" — "These were the virtues which illumined his char-
acter, shining as the sunlight, radiant as the stars," long
ago was returned to earth here for that sleep which must
come to us all ; the long repose to be broken when, if at all,
we can but hope. The event was near the close of a beauti-
ful springlike afternoon, a time for winter's blasts and garb
of white, but there was no winter yet. The season, seem-
ingly, had paused, turned backward as it were, nature thus
furnishing a fitting accompaniment for the closing scenes

Recent Honors to Dixon and Ryan 391

of a most praiseworthy earthly career. As the eloquent
memorialist of the occasion thus beautifully discoursed :
"that afternoon so calm and bright, with an air of vernal
mildness rather than the chill of winter, and as the setting
sun, rapidly sinking in the west, threw a flood of light and
glory above and around the spot where we stood, with not a
cloud to be seen in the sky, the whole scene in nature seemed
to be a fitting emblem of his life," and its close : "Every-
thing which the eye rested upon was serene, pure, beautiful
and glorious ; and so was his life, and so it closed, leaving a
name illustrious with professional fame and honor."

Reflect upon that picture. An occasion, an environment,
a subject, a concurrence of all things to emphasize a career,
eminent, beneficial and lovable, suggesting some physical
indication here of a state-wide appreciation thereof, speak-
ing day by day a people's admiration and love to future
generations.

The seasons and the years rolled on, the absorbing ac-
tivities of busy life, seemingly, obscuring or displacing the
sentiment ordinarily expressed in physical monuments.
Springtime came, and summertime, autumn and winter
again, around and again and oft repeated till more than
twenty years had passed, and yet nothing here to signify
that here was the resting place of the illustrious Dixon.
Time so long had intervened that the fact itself had nearly
faded from human memory. Strang sequel ! all mentally
exclaim. And again exclaim, what a lamentable reflection
it would have been upon the people of Wisconsin, particu-
larly upon the members of the legal profession, if the situa-
tion found to exist after the lapse of so much time had been
allowed to permanently remain. There seemed to exist
danger of it.

392 The Story of a Great Court

Mr. President, on behalf of the committee appointed by
your predecessor to cope with that danger, I have the honor
and pleasure to announce that — through the generosity of
many persons, members of the bar and others within and
without the state — the task has been fully accomplished.
We now present, in this dignified beautiful memorial, the
evidence thereof, trusting it will meet with approbation of
the donors. I assure you, Mr. President, and you, members
of the dedication committee, whom the president has been
pleased to appoint for the ceremonial acceptance of the work,
and assure all that its substructure is laid so deep and so
broad and is so generously reinforced with ribs of steel, as
to successfully withstand the hand of time, preserving the
stately appreciation of the life it commemorates and in-
culcating the moral lesson it proclaims through ages to
come. The character of the memorial was decided upon as
best responding to the subject and the sentiment for which
it stands. Nothing short of something really monumental
would do for so monumental a character as that of Luther
Swift Dixon.

The committee, in parting with the evidence of its com-
pleted task, constructively, now delivers the result to the
Bar Association of Wisconsin to be by it left in trust to the
authorities of this beautiful silent city. The committee also
now conveys, by duplicate writings, to be likewise left in
trust, an ample fund to bear the expense of caring for this
place and memorial in perpetuity. One duplicate convey-
ance is for the records of our Association, and the other for
the trustee of the fund.

Mr. President, all is finished and we now submit the
memorial to the dedication committee and for the address
by Chief Justice John B. Winslow.

Recent Honors to Dixon and Ryan 393

The dedicatory address was delivered by the author of
this book as follows :

Mr. Justice Marshall and Gentlemen of the Committee:

On behalf of the Bar Association of the state, the donors
of the monument fund and the people of Wisconsin at
large, I accept at your hands this beautiful memorial to the
memory of a great jurist, and I beg to assure you that the
long labor of love of yourself and the committee which has
culminated so successfully is most gratefully appreciated.

To those who believe in government by law under con-
stitutional limitations and safeguards the present occasion
is of great significance.

He in whose memory this granite colmun has been
erected, great and many-sided though he was, may truth-
fully be said to represent one great idea above all others,
namely, the supremacy of the constitution and the law as
administered by fearless and incorruptible courts.

For nearly twenty years the snows of winter and the
dews of summer have descended upon his unmarked grave ;
the great majority of his contemporaries and friends have
passed away ; vast social and economic changes have taken
place in the state and in the nation ; to all apparent seeming
the memory of his life and work was dying out as die the
ripples on the lake at eventide.

But this noble shaft reared by the loving and spontaneous
contributions of hundreds of citizens at home and abroad,
most of whom never knew the great man personally, dem-
onstrates that this was mere seeming and nothing more.

The career of Luther Swift Dixon was not spectacular
in the ordinary sense ; he was no warrior leading triumph-
ant hosts to victory, no orator moving multitudes with his
eloquence; his life here was the tedious and laborious life

394 The Story of a Great Court

of the study, the library and the court room, where there
was no applause to cheer the spirit, nor adequate pecuniary
reward to compensate the toil of the weary brain.

During the fifteen years which he served the people of the
state upon the supreme bench, though he was frequently at-
tacked and often misjudged, there was ever present to his
calm, clear gaze one great conception — the conception of
government by law, so administered as to give equal and
exact justice to every citizen. Equal and exact justice has
been the passionate demand of the human soul since man
first wronged his fellowman ; it has been the dream of the
philosopher, the aim of the law-giver, the supreme endeavor
of the judge, the ultimate test of every government and
every civilization.

True, man has never attained and doubtless never will
attain perfect justice; this must every remain exclusively
the prerogative of an omniscient and omnipotent God, but
it has been well said that to attain as near as possible to
perfect justice is the great interest of man on earth.

Pain and suffering may be bravely met, poverty and want
endured without complaint, the daily round of exacting toil
taken up with cheerful heart, but the soul of man in all ages
has bitterly cried out against injustice and insistently de-
manded that it must not be. Every government, past and
present, may be known and properly judged by the quality
of the justice administered by its courts. The nearer the
approach to ideal and perfect justice in the courts, the
nearer the approach to Utopia in the government.

And so it is and ever must be that he who aids in estab-
lishing an enlightened, impartial and righteous system of
administering justice in his state deserves well of his fellow-

Recent Honors to Dixon and Ryan 395

men, and he who acts as master builder upon the temple of
justice deserves to have his name and deeds written thereon
in letters imperishable.

A master builder upon Wisconsin's temple of justice was
Luther Swift Dixon ; a man of comprehensive and compel-
ling intellect, of remorseless accuracy of thought and abso-
lute integrity of heart and mind ; a man pre-eminently fit
"to mold a mighty state's decrees." He came to the high-
est judicial office in the state in 1859 in succession to the
much loved Whiton at the age of thirty-three years. With
his great qualities of mind and heart he brought also phys-
ical strength, abounding manhood and a great capacity for
labor. There was need of all of them ; the basic law of the
state had indeed been written and its construction well be-
gun, but the effective molding of that basic law, the building
of the great superstructure upon the foundation already
laid, remained yet to be done, and to this work he devoted
himself for the fifteen years which formed the great con-
structive years of his life.

Happily fitted indeed he was for the task and happily was
he mated with his co-laborers, Orsamus Cole and Byron
Paine. All were young, all had their faces turned to the
light, all were strong men, but it is no disparagement to his
colleagues to say that Dixon was as truly the Chief Justice
by inherent fitness and strength as he was by official title.
His mind was in the highest sense judicial ; no mists of pas-
sion could dim its vision, no temporary tumult could affect
its serenity, no thought of consequences could swerve it
from its course.

How well he builded the fair structure of Wisconsin's
jurisprudence is known to all who have given the subject

396 The Story of a Great Court

any thought. The record is forever written in twenty-seven
volumes of Wisconsin reports : that record went very far to
place Wisconsin in the front rank of American states so far
as quality of its jurisprudence is concerned; on every page
there is convincing evidence of the moral and intellectual
greatness of the author and every volume bears witness to
his constant struggle to realize the ideal of equal and exact
justice. This is what has caused this noble shaft to rise;
this is what causes the name of Dixon to live today, and
this is what shall cause his name to live as long as the state
itself shall live.

To his memory, therefore, we now dedicate this monu-
ment, confidently believing that it shall ever stand proclaim-
ing his name and deeds to the people of a grateful state ;
but not alone do we dedicate it to the memory of Dixon ;
this were far too narrow a view of its significance ; we rev-
erently dedicate it also to the imperishable vision of perfect
justice under the constitution, and the law, the vision under
whose inspiration he wrought, praying that the vision may
continue to inspire the statesman, the judge, and the Amer-
ican patriot of every degee until time shall cease, "the sun
grow cold" "and the leaves of the judgment book unfold."

On the following day the monument to the memory of the
late Chief Justice Ryan was unveiled, presented for accept-
ance and formally dedicated ; by invitation of the president
of the Association, the following named persons acting as
an acceptance committee : Hon James G. Flanders, Hon.
Thos. W. Spence, Mr. W. A. Hayes, Mr. Geo. D. Van Dyke,
Mr. Fred Vogel, Mr. Geo. P. Miller, Judge L. W. Halsey,
Mr. C. C. Markham, Hon. Gerrv W. Hazleton and Mr.

Recent Honors to Dixon and Ryan 397

H. A. J. Upham. The presentation address was by Gen.
F. C. Winkler as follows :

Mr. President and Members of the Dedication Committee:
Among the prominent and efficient men who made and
marked the early history of Wisconsin none looms up more
conspicuously than Edward G. Ryan. The light of his
genius gleamed from his eye, expressed itself in his attitude
and riveted the attention of all whom he met. His great
qualities are familiarly known and common topics of con-
versation in the legal profession. When obituary services
were had after his decease an eloquent member of the Mil-
waukee Bar truthfully said of him :

"He died as he long wished to die, in the exercise of judi-
cial functions, with mental power unabated, with his pro-
fessional harness upon him. A mind comprehensive and
powerful in its grasp, quick of perception ; profound learn-
ing of the law ; close familiarity with the writers of the past ;
thorough mastery and precision of language ; classical beauty
of diction ; wonderful power of imagery ; great nervous
force and energy — were the marked characteristics of him
who towered above all others at our bar — the lawyer among
lawyers."

He was laid to rest with remarks like these. But his rest-
ing place in this city of the departed remained without mark.
The same was true of another Chief Justice who had ren-
dered invaluable services to the state.

After a lapse of many years a valued member of the court
over which they once presided gave voice to the thought
that this ought not to be, that the bar of the state owed it to
itself to see that proper monuments be placed where these
great jurists lie buried. Pursuant to his call a committee
was organized of which he was made chairman. Through

398 The Story of a Great Court

his zeal and care, aided by generous contributions from
members of the bar and friends, a stately and noble monu-
ment has been erected in commemoration of each of these
men.

The chairman himself yesterday made formal presentation
to representatives of the State Bar Association of the shaft
erected to the memory of Chief Justice Dixon in the city of
Madison, and I now, at his request, on behalf of the com-
mittee and the donors, make presentation through you, the
members of the dedication committee, to the State Bar As-
sociation of the tasteful granite memorial which stands be-
fore you and which will through all time bear testimony to
the greatness and distinguished public services of Chief Jus-
tice Edward G. Ryan.

The committee has also been able to provide for an ample
fund, in trust, permanently to care for this place of burial,
of which evidence is placed in the hands of your Association.

The work of the construction committee is done, and it
herewith transfers the monument, together with the fund
deposited for its support, to the dedication committee ap-
pointed to receive them.

The dedicatory address was by Hon. James G. Flanders
in these words :

Thirty years ago Edward George Ryan, then and for
six years prior thereto Chief Justice of the Supreme Court
of Wisconsin, laid down the duties and responsibilities of
his life.

In 1842 he came to the sparsely settled territory of Wis-
consin. Its inhabitants scarcely exceeded in number one-
tenth of the present population of the metropolis of the state.
For more than thirty years he followed the duties of his
profession and was an active participant in most of the im-

Recent Honors to Dixon and Ryan 399

portant trials in the state. He was endowed with great
ability and possessed great learning and unsurpassed elo-
quence. The logical and analytical powers of his mind en-
abled him to at once grasp and apply legal principles. His
devotion to the profession was without reserve. His re-
spect for the law as administered for centuries in English-
speaking communities was unbounded. Some of the ec-
centricities and weaknesses of genuis inhered in his char-
acter and his life was at periods stormy, but his adherence
to the highest principles of the law and the best standards
■of the profession never varied, notwithstanding some in-
firmities of temper. Chief Justice Cole in his response to
the resolutions presented in the Supreme Court not long
after his death said of him :

"In order to correct a popular misapprehension upon this
point, I will say that in consultation, while engaged in the
labor of considering and deciding causes, the deportment of
the Chief Justice towards his associates was uniformly kind,
respectful and courteous. No irritating word, no offensive
language, fell from his lips while thus employed. He often
made up his mind quickly how a cause should be ruled, but
"he was not impatient of hesitation or opposition on the part
of others. On the contrary, he listened with attention to
whatever any one had to say adverse to his views, and often
readily came to their conclusion when it seemed supported
by the better reason or authority."

His standard of professional honor and of professional
duties was the highest and his sentiments in reference to the
responsibilities of a lawyer were lofty. His memorable ad-
dress before the law class of the university in 1873 at once
became a classic. It has been the treasury from which has
been selected one of the inscriptions upon this monument

400 The Story of a Great Court

and in widely separated communities from that address por-
tions have been drawn as precepts to which all members of
our profession can look as rules of conduct.

It has been said that the triumphs of the advocate are
written in the sand and quickly pass from the memory of
man. It is the fact, nevertheless, that his forensic efforts
still live in the recollection of many now living and that
tradition has handed them on to the coming generation.
Nearly sixty years ago his powers of satire and invective
and his eloquence placed a trial before the Senate of Wis-
consin in the front rank of the great trials of history. The
opinions filed by him while Chief Justice are examples of the
purest English. His command of language selected without
failure the precise words to express the principles he was
expounding and those opinions have helped to create the
high position maintained among lawyers of the country by
the Supreme Court of Wisconsin.

At the time of his death the thinly populated territory
had become an empire with boundless resources and a popu-
lation of a million and a half. At the time we assemble here
to do honor to his memory the state he served so well is in
the front rank. Its bar, always a strong one, has increased
in number and in strength. It has contributed members to
the profession in different states. Not a few of them have
attained positions of honor and distinction.

When, something more than a year ago, the movement
was inaugurated to erect the monuments to Chief Justice
Ryan and Chief Justice Dixon, contributions came to the
committee from Wisconsin men in many different cities.
Nor were these contributions confined to the members of
our profession. Sons of Wisconsin pursuing other occupa-

Recent Honors to Dixon and Ryan 401

tions in this and other states gave liberally. Some con-
tributions came without solicitation.

It is well that such a memorial should be erected. It is
well that, towering toward the sky, it should serve to remind
those who visit this silent city of the dead of the man whose
name is graven on it, but the deathless fame of this great
lawyer may well endure after the ravages of time have
caused the granite to crumble. It is said that through every
rope manufactured for the British navy there runs a single
scarlet strand. The cumbersome cable which moors the
man-of-war and the small halyard which raises the pennant
to the masthead alike disclose in every section this insepar-
able proof of ownership. So the triumphs and achievements
of the great Chief Justice are interwoven in the history of
Wisconsin, and so long as there is a state its citizens will
honor and remember his great ability.

INDEX.

ACKER, CHARLES, 12.

ALLEN, WILLIAM C, 207.

ANDERSON, MATT, 370.

ARNOLD, JONATHAN E., counsel for Governor Barstow, 102.
at convention of 1863, 207.

B.
BAGLEY, WILLIAM R., 390.

BARBER, J. ALLEN, 337.

BARDEEN, CHARLES VALDO, appointment of, 382.
death of, 383.

BARNES, A. H., 254.

BARNES, JOHN, candidate for justice of the supreme court, 384.
election, 385.
election for full term, 385.

BARSTOW, WILLIAM A., elected Governor in 1853, 97.

contest for the office with Coles Bashford in 1856, 97-107.
resignation, 106.

BASCOM, JOHN, 355.

BASHFORD, COLES, republican candidate for Governor, 97.
contest for the office with William A. Barstow, 97-107.
assumption of the office, 107.

BASHFORD, ROBERT M., appointment of, 384.

BENNETT, JOHN R., 212, 274.

BEYLER, CHRISTIAN HENRY, court crier, 302.

BLACK, JEREMIAH S., Attorney General of the United States, 80.

BOOTH CASE, THE, arrest of Glover near Racine, 70.
public action in Racine and Milwaukee, 71, 72.
arrest of Sherman M. Booth, 74.

404 Index

BOOTH CASE— Continued,
discharge of Booth, 75, 76.
the Racine resolutions, 75.
hearing before Supreme Court, 76.
trial of Booth and Rycraft in United States Court, 78.
clash of Supreme Court with Federal Courts, 79, 80.
opinion by Chief Justice Taney of the United States Supreme

Court, 81.
decision of Supreme Court of Wisconsin reversed by United
States Supreme Court, 118.

BOOTH, SHERMAN M., as editor of the "American Freeman," 69.
description of his share in the rescue of Glover, 73.
arrest for assisting in rescue, 74.
discharge, 75.

trial in United States Court, 78.
conviction, 78.

decision of Supreme Court of Wisconsin reversed by United
States Supreme Court, 118.

BOUNTIES for substitute enlistments, act providing for, 244, 245.

BRAGG, Edward S., at convention of 1863, 207.

BROWN, BERIAH, 39.

BROWN, JAMES S., 52.

BRUNSON, ALFRED, 12.

BUSHNELL, A. R., speech favoring Judge Cothren's candidacy,
370.
candidate for justice of the supreme court, 384.

BUTTERFIELD, MOSES BRADFORD, biographical sketch, 45.
letters of, 46-58.

CARPENTER, MATT H., counsel for Governor Barstow, 102.
at convention of 1863, 207.
possible candidate for Chief Justice, 212.
partner with Edward G. Ryan, 309.

CARPENTER, S. D., 39.

CARY, JOHN W., votes for, as nominee for Chief Justice, 209.
address upon death of Judge Paine, 269.

Index 405

CASES CITED.

Ableman v. Booth, 11 Wis. *498: 129, 294.

Ableman v. Booth and United States v. Booth, 12 How. (62

U. S.) 506: 80, 118.
Attorney General v. Blossom, 1 Wis. *317: 30, 82.
Attorney General v. Brown, 1 Wis. *513: 83.
Attorney General v. Brunst, 3 Wis. *787: 84.
Attorney General v. Eau Claire, 37 Wis. 400: 345.
Attorney General v. Railway Companies, 35 Wis. 425: 30, 82,

133, 342.
Ex parte Ballman, 4 Cranch, 95: 188.
Blunt v. Walker, 11 Wis. *334: 140, 166.
Ex parte Sherman M. Booth, 3 Wis. *145: 78.
In Re Sherman M. Booth, 3 Wis. *1: 75.
In Re Booth and Rycraft, 3 Wis. *157: 79.
Breitenbach v. Turner, 18 Wis. *139: 241.
Brodhead v. Milwaukee, 19 Wis. *624: 244.
Brown v. Peck, 2 Wis. *261: 83.
Callanan v. Judd, 23 Wis. 343: 181.
Campbell v. Campbell, 37 Wis. 206: 351.
State ex rel. Chandler v. Main, 16 Wis. *398: 215.
Chicago & N. W. Ry. Co. v. State, 128 Wis. 553: 226.
Chicago & N. W. Ry. Co. v. Whiton, 13 Wallace, 270: 263.
Clark v. Drake, 3 Pinney, 228: 31.
Clark v. Farrington, 11 Wis. *306: 140, 166.
Cohens v. Virginia, 6 Wbeaton, 264: 295.
Cornell v. Hichens, 11 Wis. *353: 140, 166, 256.
Craker v. C. & N. W. Ry. Co., 36 Wis. 657: 349.
Croft v. Bunster, 9 Wis. *503: 139.
Crosby v. Roub, 16 Wis. *616: 256.
State ex rel. Drake v. Doyle, 40 Wis. 175: 347.
Druecker v. Salomon, 21 Wis. *621: 245.
Fisher v. Horicon I. & M. Co., 10 Wis. *351: 29.
Fisher v. Otis, 3 Pinney, 78: 139.
Getty v. Rountree, 3 Pinney, 379: 30.
Gillespie v. Palmer, 20 Wis. *544: 246.
In Re Gregg, 15 Wis. *479: 240.
In Re Griner, 16 Wis. *423: 197.
Hasbrouck v. City of Milwaukee, 13 Wis. *37: 297.
Hasbrouck v. Shipman, 16 Wis. *296: 201.
Hazleton v. Putnam, 3 Pinney, 107: 31.
Hepburn v. Griswold, 8 Wall. 603: 241.
In Re Higgins, 16 Wis. *351: 195, 240, 260.
Hill v. Durand, 50 Wis. 354: 378.

406 Index

CASES CITED— Continued.

Insurance Co. v. Morse, 20 Wall. 445: 348.

Jaffray v. Crane, 50 Wis. 349: 378.

In Re Janitor, 35 Wis. 410: 302.

Jones v. Estate of Keep, 19 Wis. *369: 243.

Jones v. Pettibone, 2 Wis. *308: 83.

Kalk v. Fielding, 50 Wis. 339: 378.

Kellogg v. C. & N. W. Ry. Co., 26 Wis. 233: 298.

Kellogg v. Larkin, 3 Pinney, 123: 31.

In Re Kemp, 16 Wis. *359: 192, 209.

Kneeland v. Milwaukee, 15 Wis. 454: 228.

Knorr v. Home Ins. Co., 25 Wis. 143: 233, 260.

Knowlton v. Supervisors, 9 Wis. *410: 221.

Knox v. Lee, 12 Wall. 457: 242.

Martin v. Hunter, 1 Wheaton, 304: 295.

Martin v. Mott, 12 Wheaton, 19: 197.

Martineau v. McCollum, 3 Pinney, 455: 31, 139.

Mc Williams v. Bragg, 3 Wis. *424: 84.

Ex parte Merryman, 9 Am. Law Reg. 524: 189.

Metropolitan Bank v. Van Dyck, 27 N. Y. 400: 241.

Milwaukee & M. R. R. v. Eble, 3 Pinney, 334: 31.

Town of Milwaukee v. City of Milwaukee, 12 Wis. *93: 297.

Moseley v. Chamberlain, 18 Wis. *700: 261.

Morse v. Insurance Co., 30 Wis. 496: 347.

Newcomb v. Smith, 2 Pinney, 131: 28.

Newell v. Smith, 15 Wis. *101: 29.

Norton v. Peck, 3 Wis. *714: 84.

Norval v. Rice, 2 Wis. *22: 83.

Nunnemacher v. State, 129 Wis. 190: 15, 219, 226.

Oatman v. Bond, 15 Wis. *20: 179, 212.

In Re Oliver, 17 Wis. *681: 194.

Phelps v. Rooney, 9 Wis. *70: 289.

Prigg v. Pennsylvania, 16 Peters, 640: 76.

State ex rel. Resley v. Farwell, 3 Pinney, 393: 30.

Rogan v. Walker, 1 Wis. *527: 83.

Sayles v. Davis, 22 Wis. *225: 244.

Speer v. Blairsville, 50 Pa. St. 150: 245.

Sprague v. Birchard, 1 Wis. *457: 83.

State v. Frear, 138 Wis. 536: 251.'

State v. Hastings, 10 Wis. *525: 92.

State v. Ludington, 33 Wis. 107: 373.

State v. Railway Companies, 128 Wis. 553: 226.

State v. W. L. & F. R. P. Co., 11 Wis. *35: 226.

Sutton v. Wauwatosa, 29 Wis. 21: 300.

Index 407

CASES CITED— Continued.

In Re Tarble, 25 Wis. 390: 260.

Taylor v. Pratt, 3 Wis. *674: 84.

Truman v. McCollum, 20 Wis. *360: 181.

United States v. Tarble, 13 Wallace, 397: 268.

Vassau v. Thompson, 46 Wis. 345: 352.

Von Baumbach v. Bade, 9 Wis. *559: 292.

Walker v. Shepardson, 2 Wis. *384: 83.

Weeks v. Milwaukee, 10 Wis. *243: 221:

In Re Weblitz, 16 Wis. *443: 198.

Whiting v. Gould, 1 Wis. *195: 58.

Whiton v. C. & N. W. Ry. Co., 25 Wis. 424: 263.

Wight v. Rindskopf, 43 Wis. 344: 350.

Wisconsin Central R. Co. v. Taylor Co., 52 Wis. 37: 229.

CAS SODA Y, JOHN B., appointed as associate justice, 380.
re-election, 380.
second re-election, 380.
became Chief Justice, 384.
death, 384.

CATE, G. W., 337.

CIRCUITS.

composition of, 11.

CIRCUIT JUDGES,
election of, 11.

ex-officio justices of the Supreme Court, 11.
first election of, 11.
nominations of, 11, 12.

CLARK, JAMES G., 173.

CLARK, JAMES M., 12.

CLARK, SATTERLEE, 209.

CLEMENTSON, GEORGE, candidate for associate justice of the
Supreme Court, 382.

CODE OF PROCEDURE, passed by legislature, 108, 109.

COLE, ORSAMUS, election in 1855, 87.
biographical sketches, 88-92.

acceptance of call to be candidate for re-election, 178.
election, 179.
re-election, 252.
re-election, 375.

408 Index

COLE, ORSAMUS— - Continued,
made Chief Justice, 380.
re-election, 380.
declination to run again, 380.

CONSTITUTION.

clause granting governor power to appoint judges, 8.

clause prohibiting the holding of a judicial election at time

of general election, 9.
judicial circuits, 11.

circuit judges also judges of the Supreme Court, 11.
section as to rule of taxation, 15.

amendment increasing number of judges and terms, 356.
amendment of 1877, increasing terms, 380.
amendment of 1889, abolishing office of Chief Justice, 380.
amendment of 1903, increasing number of justices to seven,

383.

CONSTITUTIONAL CONVENTIONS.

first, Oct. 5th— Dec. 16, 1846, 2.

second, Dec. 15, 1847— Feb. 1, 1848, 3.

provisions for the election of all judges by popular vote a
pioneer step, 3.

convention of 1846, sentiment in favor of appointive judi-
ciary, 5.

convention of 1846, committee's report on judicial article, 8.

convention of 1848, terms of judges, 8.

clauses giving governor appointive power, 8.

CONVENTION, independent, for nomination of candidates for
Supreme Court judges, 39.

COOLEY, JUDGE, Michigan Supreme Court, 7.

COON, S P., 37.

COTHREN, M. M., speech Democratic convention, 1852, 37.
candidate for chief justice of Supreme Court 110.
biographical sketch, 113-115.
defeat, 115.
votes for, in convention of 1863 for nomination for chief

justice, 209, 210.
second nomination, 210.
third nomination, 370.

CRAWFORD, SAMUEL, candidate for associate justice, 38.
election, 40.

Index 409

CRAWFORD, SAMUEL— Continued,
biographical sketch, 43.
defeat by Judge Cole 87.
salary controversy, 92, 95.

CURTIS, J. S., 269.

DELANY, MR., of Columbia County 37.

DEMOCRATIC CONVENTIONS, 1852, 33.

resolution as to resignation of circuit judges who were can-
didates for justice of the Supreme Court 38.

adjournment of the convention, 39.

convention of 1857, 109.

convention of 1859 and nomination of W. P. Lynde, 117.

convention of 1862, 204-207.

The "Ryan address" 205-207.

convention of 1863 to nominate candidate for Chief Justice,
208-212.

convention of 1868, 253.

DEWEY, NELSON, 209.

DIXON, LUTHER S., appointment of, to fill vacancy created by
death of Chief Justice Whiton, 122.
biographical sketches, 122-128.
nomination by non-partisan call, 132.
election, 141.

biographical sketches, 144-153.
votes for, Democratic convention of 1863, 209-210.
election, 217.
resignation, 251.
reappointment, 251.
renomination in 1868, 254.
attack upon, 256-259.
election, 259.

notable opinions, 289-304.
resignation, 304.

description of memorial to, 388, 389.
unveiling of memorial, 390-396.

DODGE, JOSHUA ERIC, appointment of, 383.
resignation, 385.

DOOLITTLE, JAMES R., first United States Senator from Wis-
consin, 109.

410 Index

DOTY, JAMES D., first judge appointed under act of January,
1823, 2.

DOWNER, JASON, appointment, 234.
biographical sketch, 235-238.
resignation, 238.

excerpt from dissent in Brodhead v. Milwaukee, 19 Wis.
*624, 224.

DRAFT LAWS, 196-201, 245-246.

DRURY, E. W., 12.

DUNN, CHARLES, Chief Justice territorial Supreme Court, 2.
chairman Democratic convention, 1852, 33.
biographical sketch, 33-36.
speech Democratic convention, 1852, 37.
nominated for Chief Justice at convention of 1868, 254.
attack upon, 254-255.

DYER, CHARLES E., tribute to Judge Paine, 269.

speech upon presentation of bar memorials after death of

Judge Paine, 279.
excerpt from speech of, on Dixon monument, 388.

E.
EARNEST, J. H., 370.

EASTMAN, B. C, 12.

EATON, PARLEY, 12.

EDWARDS, M. A., 209.

ELDRIDGE, CHARLES A., named as candidate for justice of the
Supreme Court, 178.
chairman Democratic state central committee, 205, 208.

ELLIS, ELEAZAR HOLMES, candidate for Associate Justice,
254, 381.

ENLISTMENT CASES, 240.

ESTABROOK, HON. EXPERIENCE, Attorney General, 320.

F.
FARM MORTGAGORS, THE,

the question In the judicial contest of 1860, 137-140.

how the problem arose, 165-167.

the "Home League," 167-169, 170, 172, 212, 213.

Index 41 I

FARM MORTGAGORS, THE— Continued,
first convention, 167.
second convention, 171.

chapter 88, laws 1861, to render railroad mortgages value-
less, 173-176.
declared unconstitutional, 179.

chapter 330, laws 1862, another farm mortgage relief meas-
ure, 180.
chapter 305, laws 1863, 180.
chapter 169, laws 1864, 181.
chapter 79, laws 1867, 181.
attitude toward re-election of Chief Justice Dixon, 212.

FINCH, ASAHEL, 52.

FLANDERS, JAMES G., President of the State Bar association,
387.
member of acceptance committee, Ryan memorial, 396.
dedicatory address Ryan monument, 398-401.

FRAZER, WILLIAM C, justice territorial Supreme Court, 2.

FUGITIVE SLAVE LAW, 67-69.

G.

GOODELL, MISS LAVINIA, motion of for admission to prac-
tice, 317.

GRACE, H. H., candidate for justice of the Supreme Court, 384.

GREENE, GEO. G., 387.

GREGORY, J. C, 132.

H.

HABEAS CORPUS, suspension of writ of, 184-196.

decision holding that President had no power to suspend writ

where war did not exist, 192, 193.
question of, in Tarble case, 260-268.

HALL, DANIEL, 270.

HALSEY, JUDGE L. W., 396.

HANKS, L. S., 390.

HAYES, W. A., 396.

HAZLETON, GERRY W., 396.

412 Index

HEAD, O. S., 254.

HOBART, MR., of Sheboygan, 37.

HOWE, JAMES H., Attorney General, 131.

HOWE, TIMOTHY O., elected to succeed Judge Stow in fourth
circuit and as judge of Supreme Court, 12.
biographical sketch, 23, 24.
counsel for Coles Bashford, 99.

HUBBELL, LEVI, independent candidate circuit judge, second
judicial circuit, 12.
election of, 12.
biographical sketch, 16, 17.
candidate for nomination for chief justice, 37.
impeachment of, as referred to in letters of Moses B. Butter-
field, 53-57.
impeachment of as referred to in biographical sketch of
Ryan, 336-338.

HUDD, THOMAS R., 370.

HURLEY, M. A., 390.

I.

INSURANCE CASES, the effect of removal to United States
Courts, 347-349.

IRVIN DAVID, early federal judge, 2.
justice territorial Supreme Court, 2.

JACKSON, MORTIMER M.,

independent candidate for circuit judge, fifth circuit, 12.
election of, 12.
biographical sketch, 24, 25.

JENKINS, JAMES G., partner with Edward G. Ryan, 309.
tribute to Ryan, 311, 312, 315.
anecdotes of Ryan, 321, 322.

JOHNSON, D. H., 234.

JONES, BURR W., 390.

JUDD, STODDARD, 254.

Index 413

JUDICIARY, appointive system, the general method up to 1846, 3.
elective system, 3.

development of sentiment in favor of, 4, 6.
first trials of, 4.
the question of elective or appointive judiciary in Wisconsin

constitutional conventions, 5.
the question in Iowa, 5.
argument against elective system, 6.
illustrations of such argument, 7.
freedom from frequent changes in Wisconsin, 7.
governor's appointive power in Wisconsin, 8.
frequent use of such power, 8.
effect of holding judicial elections at different time from that

of general elections, 9.
Judge Stow's opposition to elective principle, 12.
decisions of the court and popular ideas, 179.
successful elimination of political considerations, 385, 386.

K.
KERWIN, JAMES C, election of, 384.

KEYES, ELISHA W., signer of non-partisan call putting Judge

Dixon in the field, 132.
review of Judge Dixon's campaign, 141, 142.
friend of Judge Ryan, 376.
member of committee to erect Dixon and Ryan memorials,

387.

KEYES, MRS. ELIZA M., 390.

KNOWLTOX, JAMES H., candidate for associate justice, 39.
counsel for Coles Bashford, 99.
article in the "Home League," 170, 171.
as possible candidate to succeed Judge Cole, 177.

KNOWLTON, WIRAM, elected judge of sixth circuit, 13.
biographical sketch of, 25.

LA DUE, JOSHUA, 209.
LAMB, F. J., 132.

LARRABEE, CHAS. H,

Democratic candidate for circuit judge, third circuit, 12.
election of, 12.

414 Index

LARRABEE, CHAS. H.— Continued,
biographical sketch, 18, 19.
candidate for nomination for chief justice, 37.
nomination for chief justice, 38.
how received by the Democrats, 39.
resignation as circuit judge, 40.
LAWRENCE, JUDGE, Illinois Supreme Court, 7.
LEGAL TENDER CASES, 242, 243.

LEGISLATURE, resolutions of, concerning reversal of Wiscon-
sin Supreme Court's decision in the Booth case by United
States Supreme Court, 119.
chapter 88, laws 1861, to render railroad mortgages value-
less, 173-176.
law enabling soldiers to vote while in the field, 207.

LEWIS, HENRY M., personal recollections of Judge Whiton,
59-66.

signer of non-partisan call putting Judge Dixon in the field,
132.
LIQUOR LAW, THE "GRAHAM," 373.

LUSE, LOUIS K., candidate for justice of the Supreme Court, 384.
LYNDE, WILLIAM PITT, candidate for Justice of the Supreme

Court, 117.
LYON, WILLIAM P., possible candidate to succeed Chief Justice
Dixon, 130.

candidate for Chief Justice in 1868, 254.

appointment after Judge Paine's death, 270.

biographical sketch, 271-273.

campaign against David Noggle, 273-276.

speech upon presentation of battle flags, 278, 279.

his work upon the Supreme bench, 280-283.

election, 287.

re-election, 369.

re-election, 380.

became Chief Justice, 381.

declination to run again, 381.

M.
MARKHAM, C. C, 396.
MARSHALL, ROUJET DE LISLE, appointment of, 382.

election for unexpired term, and for full term, 382.

re-election 384.

Index 415

MARSHALL, ROUJET DE LISLE— Continued.

chairman of committee to erect Dixon and Ryan memorials,

387.
Dixon monument presentation address, 390-392.

McARTHUR, ARTHUR, Lieutenant Governor, 107.
at convention of 1863, 207.

McCONNELL, J. E., 387.

McGOVERN GOVERNOR FRANCIS E., 390.

MILLDAM LAW, attack on, 28-30.

MILLER, ANDREW G., justice territorial Supreme Court, 2.

MILLER, GEORGE P., 396.

MILLS, JOSEPH T., biographical notice of, 47.

comments upon argument of, by Mr. Butterfield, 47, 48.
candidate for Chief Justice, 254.

MORRIS, W. A. P., 132.

N.

NEGROES, right of, to vote, 246-249.

NEWMAN, ALFRED W., election as justice of the Supreme
Court, 381.
death, 382.

NOGGLE, DAVID, candidate for justice of first Supreme Court, 12.
possible candidate in 1863, 212.

attack upon in 1865 in campaign for circuit judge, 273-277.
resignation, 277.

NOYES, GEO. H., 390.

O.
OLIN, JOHN M., 390.

O'NEILL, JAMES, candidate for justice of Supreme Court, 384.

ORTON, HARLOW S., counsel for Governor Barstow, 102.
speech upon death of Judge Paine, 269.
nomination for justice of the Supreme Court, 284.
election, 356.

biographical sketch, 357-364.
re-election, 380.
death, 382.

416 Ind

ex

P.

PAINE, BYRON, consultation with Sherman M. Booth concern-
ing arrest of Glover, 71.
attitude towards slavery, 74.
argument against fugitive slave law, 76.
letter from Charles Sumner, 77.
letter from Wendell Phillips, 77.
possible candidate to succeed Justice Smith, 116.
nomination, 117.
election, 121.

biographical sketches, 154-163.
resignation, 231.
reappointment, 238.
counsel for Gillespie, 248.
renomination in 1868, 254.
election, 259.
death, 269.

PAINE, GEN. JAMES H., 71, 74.

PALMER, HENRY L., nomination of, for Governor, 206.

PHILLIPS, WENDELL, letter to Byron Paine, 77.

PINNEY, S. U., signer of non-partisan call putting Judge Dixon
in the field, 132.
in case of In Re Oliver, 17 Wis. *681, 194.
in Democratic convention of 1862, 206.
address upon death of Judge Paine, 270.
candidate for justice of the Supreme Court, 381.
election, 381.
resignation, 383.

POLITICAL SITUATION IN 1855, THE, 85-87.
in 1860, 164-165.
in 1862-1863, 202-217.
in 1871, 284.

POTTER, ROBERT L. D., 340.

PROUDFIT, A. E., 390.

PULLING, JUDGE DAVID J., campaign for justice of the Su-
preme court, 285-288.

Index 4 1 7

R.
RAILROAD CASES, THE, 340-347.

RANDALL, ALEXANDER W., counsel for Coles Bashford, 99.
message to the legislature, when Governor, suggesting help
for farm mortgagors, 173.

RANDALL, FRANCIS, 12.

RANKIN, JOSEPH, 370.

REPUBLICAN CONVENTION, Feb. 29, 1860, 130-132.

nomination of A. Scott Sloan, 132.

resolutions concerning candidacy of Judge .Lyon, 285.
REPUBLICAN UNION CONVENTION, 1868, 254.
ROBINSON, C. D., at convention of 1863, 207.
RUGER, WILLIAM, candidate for justice of the Supreme Court,

383, 385.
RYAN, EDWARD GEORGE,

in favor of appointive judiciary, 5.

appearance in Booth case, 76.

counsel for Coles Bashford, 99.

speech Democratic convention 1859, 117.

the "Ryan address," 205-207.

address upon death of Judge Paine, 269.

appointed to succeed Chief Justice Dixon, 305.

biographical sketch and anecdotes, 305-338.

notable opinions, 339-353.

attitude towards colleagues, 353-354.

re-election, 369.

resolution of legislature, granting leave of absence, 377.

death, 378.

description of memorial to, 389, 390.

unveiling of memorial, 396-397.

RYAN, HUGH, 306.

RYCRAFT, JOHN, trial in United States Court for violation of
fugitive slave law, 78.

S.
SANBORN, JUDGE A. L., 390.
SANBORN, A. W., 387.
SANDERS, H. T., 337.

SCHURZ, CARL, support of Judge Paine, 120.
speech in Milwaukee, March 23, 18r»9, 120.

418 Index

SCUDDER, HENRY T., candidate for justice of the Supreme
Court, 384.

SHARPSTEIN, J. R., 75.

SIEBECKER, ROBERT G., elected justice of the Supreme
Court, 383.

SIMPSON, P. B., 337.

SLOAN, A. SCOTT, possible candidate to succeed Chief Justice
Dixon, 130.
nomination, 132.
biographical sketch, 132, 134.

SLOAN, I. C, 132.

SMITH, A. HYATT, at convention of 1863, 207.

SMITH, ABRAM D., 12.

candidate for associate justice of Supreme Court, 38.

election, 40.

biographical sketch, 40-43.

attitude as to state rights, 116.

declination to again be a candidate, 118.

possible candidate against Judge Dixon, 130.

SMITH, GEO. B., speech Democratic convention, 1852, 37.

signer of non-partisan call putting Judge Dixon in the field,

132.
speech at Democratic convention, 1862, 206.

SMITH, WILLIAM RUDOLPH, Attorney General, biographical
sketch, 99-101.

SMITH, WINFIELD, United States court commissioner, 70.
address upon death of Judge Paine, 269.

SOLDIERS' VOTE, law allowing, 207.

SPENCE, THOMAS W., 396.

SPOONER, WYMAN, 173.

STAMP ACT OF 1862, 243, 244.

STEVENS, B. J., 132.

STOW, ALEXANDER, independent candidate circuit judge,
fourth circuit, 12.
election of, 12.

Index 419

STOW, ALEXANDER— Continued.

opposition to principle of elective judiciary, 12.
biographical sketch, 19-23.

STRONG, MARSHALL M., candidate for associate justice, 39.

STRONG, MOSES M., independent candidate circuit judge, fifth
circuit, 12.
in Democratic judicial convention, 209.

SUMNER, CHARLES, letter to Byron Paine, 77.

SUPREME COURT OF WISCONSIN,

the first, 12.

litigation in 1850, 27.

test of milldam law, 28-30.

other important early cases, 30, 31.

creation of separate Supreme Court, 32.

struggle for control of new tribunal, 32.

terms of justices, 40.

clash with Federal Courts on fugitive slave law, 79, 80.

important cases during Judge Crawford's term, 82-84.

ignoring of United States Supreme Court's decision, revers-
ing decision in Booth case, 128, 129.

justices' salaries, 250, 251.

constitutional amendment, increasing number of judges and
terms, 356.

constitutional amendment, increasing terms, 380.

constitutional amendment, abolishing office of Chief Justice,
380.

constitutional amendment, increasing number of judges to
seven, 383.

TALLMADGE, J. J., at convention of 1863, 207.

TANEY, ROGER B., Chief Justice United States Supreme Court,
excerpt from opinion in Booth case, 81.

TARBLE CASE, THE (In re Tarble, 25 Wis. 390), 260-268.
TAXATION OF RAILROADS, 218, 230.

TAYLOR, DAVID,

possible candidate for justice of the Supreme Court, ISO, 212.

election, 356.

biographical sketch, 3C4-368.

420 Index

TAYLOR, DAVID— Continued,
re-election, 380.
death, 381.

TENNEY, D. K., 132.

THOMSON, A. M., chairman second convention of Farm Mort-
gagors, 171.

TIMLIN, WILLIAM H., election of, 384.

TRIPP, WILLIAM H., 274.

U.

UPHAM, D. A. J., speech Democratic convention, 1852, 37.
on stage trip, 52.

UPHAM, H. A. J., 397.

V.
VAN DYKE, GEORGE D., 396.

VILAS, MRS. ANNA M., 390.

VILAS, COLONEL WILLIAM F., 305.

VINJE, AAD J., appointment of, 385.

VOGEL, FRED, 396.

W.

WAKELY, E., 209.

WALDO, O. H., 212.

WALKER, GEO. H., at convention of 1863, 207.

WATKINS, CHAS. K., 52.

WATROUS, COL. J. A., 362.

WEBB, CHARLES M., candidate for justice of the Supreme
Court, 381.

WETHERBY, LUCIEN P., 252.

WHEELER, E., 337.

WHITON, EDWARD V., Whig nominee for circuit judge, 12.
election of, 12.
biographical sketch, 13-16.

Index 42 1

WHITON, EDWARD V.— Continued,
nomination for chief justice, 39.
election, 40.
re-election, 115.
death, 122.

WINANS, JOHN, 274.

WINKLER, GEN. FRED C, member of committee to erect Dixon
and Ryan memorials, 387.
Ryan monument presentation address, 397-398.

WINSLOW, HORATIO GATES, 203.

WINSLOW, JOHN B., appointment of, 381.
first election, 382.
re-election, 382.
Dixon memorial dedicatory address, 393-396.

WISCONSIN TERRITORY,
formation of, 1.

as part of Northwest territory, 1.

territorial Supreme Court and other very early courts, 1.
appointment of additional federal judge, 1.
separate territorial Supreme Court, 2.

WITTIG, J. G. M., candidate for justice of the Supreme Court,
383.