This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. https://books.google.com Thestoryofagreatcourt JohnBradleyWinslow US a7Sa^.2.S r EDWARD VERNON WHITON. THE 0 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, LLD. (U. W.) CHICAGO T. H. FLOOD & COMPANY 1912 S 2,7522.. Copyr1ght 191 2 BY T. H. FLOOD & COMPANY t- STATE JOURNAL PRINT1NG COMPANY, Pr1nters and Stereotypers kab1son, v1s. Cff (Agnes, mg tatif* 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. 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 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 Perm 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.