SEPTEMBER 1936 VOLUME XX NUMBER 1 PUBLISHED QUARTERLY BY THE STATE HISTORICAL SOCIETY OF WISCONSIN MMHIttllin*|MIMH«IHIIMHIHIIHIHnilllllHH«MIIHIIIIMIHMIHMIIIIMIMMUMHIIMIIHMH»MHMUMMIHItllH»HHIIMMI 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. »tiiitiiinimiiiMHimiiiiii»iiMiiitiintiniiimiiiiimiii»»MmiiMm«iiMiiii timii iiiiiiiiiiiimitmimiimmimiiii 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 the office of the State Historical Society, Madison, Wisconsin. Entered as second-class matter, January l, 1927, at the post office at Evans- ville, Wisconsin, under the act of August 2*, 1912. VOL. XX, No. 1 September, 1936 THE WISCONSIN MAGAZINE OF HISTORY PUBLICATIONS OF THE STATE HISTORICAL SOCIETY OF WISCON- SIN. JOSEPH SCHAFER, Superintendent and Editor CONTENTS RESPONSE TO MEMORIAL TO HONORABLE BURR W. JONES M. B. Roseriberry 3 REMINISCENCES OF NINE DECADES .... Burr W. Jones 10 STATE-MAKING IN WISCONSIN, 1846-48 . Bayrd Still 34 THE WESTWARD TRAIL W. A. Titus 60 DOCUMENTS : Letters of Richard Emerson Ela 72 EDITORIAL COMMENT: Stormy Days in Court—The Booth Case 89 BOOK NOTES Ill THE SOCIETY AND THE STATE . Louise Phelps Kellogg 115 The Society as a body is not responsible for statements or opinions advanced in the following pages by contributors. COPYRIGHT, 1936, 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. RESPONSE TO MEMORIAL TO HONORABLE BURR W. JONES1 M. B. ROSENBEKRY inat W. Jones was an unique figure in the history of the B state of Wisconsin. He was the first born of Wisconsin's native sons to attain the rank of first citizen of his native state. Born three years before Wisconsin was admitted to the union and fifteen years before Lincoln was inaugurated, he commenced the practice of law during the first term of President Grant, served in congress under President Arthur, was appointed a justice of the state supreme court in the last year of President Wilson's administration, and died in the second year of President Franklin D, Roosevelt's admin- istration. For more than half a century he was an outstand- ing lawyer, and after serving with distinction for six years upon the supreme court, there remained to him an opportun- ity to serve his state and community for nine additional years. This is a remarkable record of achievement, not only with respect to duration but quite as unusual with respect to the character of service rendered to his generation. It is difficult to speak adequately of the life and services of a man like Burr W. Jones. We were all bound to him by ties of affection; we had great admiration for his intellect- ual and spiritual qualities; and we revered the superior excel- lence and completeness of his life. While his own approach to life was simple and direct, his was such a many-sided per- sonality that its delineation is difficult. Words fail us be- cause there is so much to say, so much that is worthy of com- 1 Read by Judge M. B. Rosenberry at the Eighty-third annual meeting of the state historical society on October 17, 1935. 4 M. B. Bosenberry [September ment that when all is said and done our best efforts seem in- adequate to the demands of the occasion. He was born on the frontier and his early experiences left a deep imprint upon his character; but he was marred by none of the crudi- ties and ugliness of that period. He had the unusual good fortune to absorb all that was best of that experience and make it a stepping stone for future advancement, leaving the dross behind. He possessed by inheritance and by early training the virtues of frugality, industry, perseverance, and a hopeful outlook upon life. His early experiences intensi- fied these qualities and made them a reality in practice as well as an ideal in theory. Nor did he ever lose the love of the great out-of-doors, which he had acquired in his early life. The absorbing tasks of his youth and early manhood left comparatively little time for recreation. He was never a sportsman, but he loved fishing and golf, and in his later years he derived great satisfaction from automobile trips into the country. His mother evidently impressed upon him the value of studious habits, and throughout his life he remained a stu- dent. Early in life he was recognized as one of the legal scholars of the country, and the habit of methodical reading and; study directed to a definite end remained with him to the last. Born in the administration of President Polk at a time when imperialistic ambitions were stirring the imagin- ations of the people of this country, he remained a firm ad- herent and supporter of the Democratic party although he was not always in accord with its platforms. He believed firmly and without reservation in the principles of a working democracy as laid down in our constitutions, national and state. He was in full accord with the Jeffersonian concept of democracy. Although he had the manners and bearing of an aristocrat, he was a thoroughgoing democrat in the 1936] Response to Memorial to Hon. Burr W. Jones 5 best sense of that term. He was never a blind partisan and, without deserting his party, he often supported men and measures sponsored by other parties when he thought such support would promote the general welfare. Not unmind- ful of the demands which society makes upon its more for- tunate citizens, he responded justly and generously to calls made upon him to relieve human suffering. While he was kindly and sympathetic, his charities, both public and pri- vate, were prompted by sound judgment rather than by emo- tional responses. His early experiences had given him a sense of reality and an appreciation of human values that remained with him to the end of his days. Beneath the pol- ished and urbane gentleman and scholar there was a charac- ter as staunch, firm and unyielding as the giant oaks under which he played as a boy. Though he readily adjusted him- self to life as it came in all the minor and inconsequential ways, in matters of principle and importance he was never found wanting in firmness and courage. It was these qualities combined with his studious habits and a retentive mind that made him a great lawyer and a sound judge. Upon his work as lawyer, law-teacher, law- writer, and judge must rest his standing and reputation in the future. While in the management and trial of cases he displayed a certain adroitness and finesse, he never allowed these to degenerate into anything approaching the arts of the crafty practitioner. While he was an eloquent and force- ful speaker on all occasions, his success at the bar was due far more to thorough, accurate, exhaustive preparation than to oratory. He achieved a great reputation as a cross-ex- aminer not by browbeating witnesses and bluffing the court but by his fairness, his ability to win the confidence of wit- nesses and the respect of the court. His briefs were models of excellence both as to arrangement of materials and a- 6 M. B. Rosenberry [September nalysis of the problems involved, and he was retained in many- hundreds of important cases. Yet the reputation of a lawyer is notoriously ephemeral and evanescent. While a few great lawyers may live for a time in story and legend, the essence of their greatness dies with them. Little that is permanent is connected in the mind of succeeding genera- tions with the work of a lawyer. While no doubt thousands of people know that Rufus Choate was a great lawyer, very few of those thousands would be able to tell why he was so considered. So Judge Jones's lasting monument will be his work as a law-teacher and writer and as a judge. His monumental work known as Jones on Evidence gave him a national reputation and remains today in its suc- cessive editions the most used work on that intricate and involved subject. Its arrangement, the clarity of statement in the text, the wealth of citation of supporting authority, make it an invaluable tool in the office of the practicing law- yer as well as in the chambers of the judge.