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September 1931 Volume Xv Published Quarterly Bythe SEPTEMBER 1931 VOLUME XV NUMBER 1 PUBLISHED QUARTERLY BYTHE STATE HISTORICAL SOCIETY OF WISCONSIN limilMMlllflllttlMIMMIflilM THE STATE HISTORICAL SOCIETY OF WISCONSIN THE STATE HISTORICAL SOCIETY OF WISCONSIN is a state- aided corporation whose function is the cultivation and en- couragement of the historical interests of the State. To this end it invites your cooperation; membership is open to all, whether residents of Wisconsin or elsewhere. The dues of annual mem- bers are three dollars, payable in advance; of life members, thirty dollars, payable once only. Subject to certain exceptions, mem- bers receive the publications of the Society, the cost of producing which far exceeds the membership fee. This is rendered possible by reason of the aid accorded the Society by the State. Of the work and ideals of the Society this magazine affords, it is be- lieved, a fair example. With limited means, much has already been accomplished; with ampler funds more might be achieved. So far as is known, not a penny entrusted to the Society has ever been lost or misapplied. Property may be willed to the Society in entire confidence that any trust it assumes will be scrupulously executed. THE WISCONSIN MAGAZINE OF HISTORY is published quarterly by the Society, at 116 E. Main St., Evansville, Wisconsin, in September, Decem- ber, March, and June, and is distributed to its members and exchanges; others who so desire may receive it for the annual subscription of three dollars, payable in advance; single numbers may be had for seventy-five cents. All correspondence concerning the magazine should be addressed to 116 E. Main St., Evansville, Wisconsin, or the office of the State His- torical Society, Madison, Wisconsin. Entered as second-class matter, January 1, 1927, at the post office at Evans- vllle, Wisconsin, under the act of August 24, 1912. VOL. XV, No. 1 September, 1931 THE WISCONSIN MAGAZINE OF HISTORY PUBLICATIONS OF THE STATE HISTORICAL SOCIETY OF WISCON- SIN. JOSEPH SCHAFER, Superintendent and Editor CONTENTS THE SUPREME COURT OF WISCONSIN IN THE EIGHTIES John B. Sanborn 3 ROLLIN D. SALISBURY, M.A., LL.D., A BIOGRAPHICAL SKETCH . .Hiram D. Densmore 22 MEMOIRS OF MARY D. BRADFORD 47 DOCUMENTS: California Diary of Charles M. Tuttle, 1859 69 EDITORIAL COMMENT : The Author of the "Frontier Hypothesis" 86 THE SOCIETY AND THE STATE . .Louise Phelps Kellogg 104 The Society as a body is not responsible for statements or opinions advanced in the following pages by contributors. COPYRIGHT^ 1931^ BY THE STATE HISTORICAL SOCIETY OF WISCONSIN Paid for out of the Maria L. and Simeon Mills Editorial Fund Income Previous numbers of the Wisconsin Magazine of History are indexed in the International Index to Periodical Literature to be found in many public libraries. 9fartour §. Orion. THE SUPREME COURT OF WISCONSIN IN THE EIGHTIES1 JOHN B. SANBORN N 1912 John B. Winslow, then Chief Justice of the Su- I preme Court of Wisconsin, published a work entitled: 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. In connection with the title Mr. Justice Winslow said: I ... 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. In explaining the termination of his history of the court with the year 1880 he said: The death of Chief Justice Ryan has seemed to me to be the natural and fitting stopping place for this work. ... I trust that at some time in the future another thirty year period may be taken up and reviewed impartially by someone who feels interest in the subject. It is quite cer- tain that the latter period cannot approach in dramatic interest the pe- riod covered by this work, yet there will be found in it many events well worth the consideration of the historian. Thirty years from 1880 takes us to 1910, the year that Mr. Justice Vinje, our last Chief Justice, went on the Su- preme Court. Apparently the time suggested by Mr. Justice xThis paper was presented originally in the form of an address before the Madison Literary Club. 4 John B. Sanborn [September Winslow for a continuation of his work has arrived. Whether I will ever venture upon such a task, I cannot say. I have, however, made some study of the Supreme Court of Wis- consin in the years following 1880 and I give some of the results of that study in this article. I have taken the period from the appointment of a suc- cessor to Chief Justice Ryan on November 11, 1880, to the death of Mr. Justice Taylor, April 3,1891, or approximately the decade of the eighties, for the present study. Taylor's death made the first break in the new court. It therefore seems appropriate to survey at one time the period, probably unknown to any other similar court, of an unbroken mem- bership for over ten years. In responding for the court to the memorial to Chief Justice Orton, Mr. Justice Cas- soday said: From November 11, 1880, to April 3, 1891, a period of ten years and five months, there was no change in the personality of this court and no contest over the election of any of its members. This very remarkable fact is due to the conservative judgment of the bar, the press and the people.2 In 1880 the office of Chief Justice of the Supreme Court of Wisconsin, like that of the Chief Justice of the United States, was a separate office and the Senior Associate Justice did not succeed. Governor Smith, however, ap- pointed Mr. Justice Cole, the senior in service of the As- sociate justices, to the office of Chief Justice. He appointed John B. Cassoday, of Janesville, to the position of Associate Justice. The court then consisted of Orsamus Cole, Chief Justice, William Penn Lyon, David Taylor, Harlow S. Orton and John B. Cassoday, Associate justices. What manner of men were these five who were to sit together for the next ten years in the highest judgment seats created by the state of Wisconsin? *90Wis. xlvi. 1931] The Supreme Court in the Eighties 5 Orsamus Cole, the new Chief Justice, was born in Caz- enovia, Madison County, New York, August 23, 1819. He was of English descent. He was graduated from Union Col- lege in 1843, and was admitted to the bar two years later. He then came West, stopping at Chicago for a short time but, apparently thinking that greater opportunities awaited him in Potosi, Wisconsin, he located at that place. Probably most of us will agree with the observation of Judge Clement- son, addressing the Supreme Court at a memorial to Chief Justice Cole, that one ignorant of the history of Potosi, "would wonder why an ambitious young man, as was Or- samus Cole, a college graduate and a member of the bar, should journey from the East to engage there in the practice of his profession."3 In 1847, however, the lead region of southwestern Wisconsin gave promise for the future, and many others of ability besides Cole were attracted to it in those early days. jThe year after his arrival in Wisconsin he was elected to the Thirty-first Congress as a Whig. It is interesting to note that he voted against the Fugitive Slave Law, which was de- clared unconstitutional by the Supreme Court of Wisconsin just before he went on the bench. After one term in Congress (1849-51) he resumed the practice of law at Potosi. In April, 1855, he was elected to the Supreme Court to succeed Samuel Crawford, who was defeated largely because of his dissent in the Booth Case, where a majority of the court had held against the validity of the Fugitive Slave Law. Fifty-two years were to elapse before the state would again see a member of its highest court defeated for reelection. William Penn Lyon was born in Chatham, Columbia County, New York, October 28, 1822. His parents were Quakers and he is said to have remained in that faith through- 3119 Wis. xxxiii. 6 John B. Sanborn [September out his life.4 His family moved to Walworth County, Wis- consin, when he was eighteen. He worked on his father's farm for a time, then entered a law office at Lake Geneva, and was admitted to practice in 1846. After practicing in WalWorth County for a few years, he moved to Racine County where he was district attorney for three years. He was also a member of the assembly for two terms (1859, 1860) during both of which he served as speaker. With the outbreak of the war in 1861 he enlisted and, although without previous military experience, became at once a captain. His company was a unit of the Eighth Wis- consin of which the famous eagle, "Old Abe," was a mascot. He served with the army of the Cumberland in the campaign against Forts Henry and Donelson, and soon rose to be a colonel, commanding the Thirteenth Wisconsin to the close of the war. He was brevetted brigadier general after he was mustered out. While still in the military service he was elected circuit judge. He was defeated for election to Con- gress in 1870 but shortly thereafter was appointed to the Supreme Court to succeed Mr.
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