The Story of a Great Court

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

BY

JOHN BRADLEY WINSLOW, LL.D. (U. W.)

CHICAGO
T. H. FLOOD & COMPANY
1912

by

T. H. FLOOD & COMPANY

STATE JOURNAL PRINTING COMPANY,
Printers and Stereotypers
Madison, Wis.

To Agnes, my wife

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 pamphlet 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 surpassing 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 laymen. 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 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 considered 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 Constitution 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 independent 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.

CHAPTER V

Contemporaneous comments on Madison, the Capitol building 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 Bashford—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—Biographical sketch of Cothren—Re-election of Whiton.

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 entirely 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 Republicans —Nomination of A. Scott Sloan by Republicans—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 mortgages—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.

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 legislation—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—Democratic Convention in September—Issuance of the "Ryan address"—Disgust of the War Democrats—Congressional elections resulting in Democratic victories—Calling of Democratic Convention in February, 1863—Decision in the Kemp habeas corpus case—Nomination by Democrats of M. M. Cothren for Chief Justice—Resolutions adopted by the Convention—Independent candidacy 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 action—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 declaring 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 mortgagors 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 Supreme 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 Supreme Court in the Tarble case.

CHAPTER XXII

Sudden death of Judge Paine January 13, 1871—The outburst of public grief—Appointment of William Penn Lyon in his place—Biographical sketch of Judge Lyon—His legislative, legal and military career—His election as Circuit Judge while still in the service—The increase 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 Homestead Exemption case—The question of how far the legislature may change contract remedies—The question of obedience to the mandate of the Federal Supreme Court in the Booth case—The question of legislative power to expend the funds of cities—The question 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 temper, reverence for justice and high code of professional 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. Rindskopf—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 nonpartisan 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, 1880.

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 proceedings and addresses at the dedication of the monuments.

This work was published before January 1, 1927, and is in the public domain worldwide because the author died at least 100 years ago.

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