A PAPER O.V THE JUDICIAL AND LEGAL CONDITION TEMITORY OF WISCONSIN, AT AND AFTER ITS ORGANIZATION, ANDREW G. MILLER, 1). A. J. UPH4M AND W. A. PRENTISS, A CO.'\fMITTEE OF THE OLD SETTLERS' CLUR OF MILWAUKEE COUNTV. READ BEFORE THE CLUB BY JUDG^E M:iLLEIt, July 4, 1870. PUBLISHED BY ORDER OF THE CLUB. M I L W A U K K K : Starr & Sos, Book anp Job Printbrs, 412 and 414 East Water Street. 1870. * Qass. Book. A PAPER .Il'DlCIAL AND LEGAL CONDITION TEMITOPiY OF WISCONSIN, AT AND AFTER ITS ORGANIZATIOX, ANDREW G. MILLER, D. A. J. UPHAM AND W, A. PRENTISS, w > > A Committee of the old Settlers' Club op Milwaukee Countv. » READ BEFORE *IIH CLUB BY JUDGE m:illek, July 4, ISrO. PUBLISHED BY ORDER OF THE CLUB M I T. W A IT K K E : STARE & Sos, Book and Job PrintbiIs, 412 and 414 East Water Street. 1870. iff SXCHAIV^I NiV^ St«t* Library. JeirOT A PAPER, &c. The fceiTitovy North-west of the Ohio river, extending from the State of Pennsylvania on the East, to the Mississijipi river on the West, and to the British Possessions on the North, Avas organized as a temporary government, pursuant to an or- dinance of the Confederate Congress, passed July 13, 1787. An Act of Congress was passed on the 7th oi August, 1780, to give the ordinance full effect, and to adapt it to the Constitu- tion of the United States. The ordinance provided for the organization of a government, consisting of executive, legis- lative and judicial departments. But the governor and judges were empowered to select statute laws of different States, as laws for the territory, until the population would number five thousand, when a legislature should be elected and organized. By an Act of Congress, approved May 7, 1800, " all that part of the territory of the United States, North-west of the Ohio river, which lies to the westward of a line, beginning at the Ohio, opposite to the mouth of the Kentucky river, and running thence to Fort Recovery, and thence North until it intersects the territorial line betw^een the United States and Canada, for the purposes of a temporary government, constituted a separate territory, called the Indiana territory." The general provisions of the ordinance were extended to this territory. The judges of the Courts were appointed for good behaviour, l)y the President of the United States. April 30, 1802, the State of Ohio was admitted into the Union. The Territory of Indiana was divided, and the Territory of Michi- gan organized, pursuant to an Act of Congress, passed Jan- uary 11, 1805. By this act the same provisions were made respecting the tenure of office of the judges as in the ordi- nance. The prescribed boundaries of Michigan Territory, were North of a line drawn East from the Southern bend or extremity of lake Michigan, until it intersected lake Erie, and East of a line drawn from said southerly bend through the middle of said lake Michigan to its northern extremity, and thence due North to the Northern boundary of the United States. By an Act of Congress, approved February od, 1809, all that part of the Indiana Territory, which lies West of the Wabash river, and a direct line drawn from the Wabash river and post Vincennes due North to the Teri-itorial line between the United States and Canada, was for the purpose of tem- porary government constituted a separate Territory, and cal- led Illinois. The same provision was made for the appoint- ment of the governor and judges and other officers, as in the original ordinance. The official tenure of the judges was du- ring good behaviour. An Act to enable the people of Indi- ana to form a constitution and state government, and for the admission of such State into the Union, was passed April 19, 1816. An Act providing for the admission of Illinois into the Union as a State, passed April 18, 1818, established the North boundary line of said State at forty-two degrees and thirty minutes ; and provided that all the remaining part of the north-west territory, lying north of said northern bound- ary, should be attached to and made part of Michigan Terri- tory. The Act passed June 15, 1836, to provide for the ad- mission of the State of Michigan into the Union, established the western boundary of said State, from the Montreal river to the middle of the Lake of the desert, thence in a direct line to the nearest head water of the Menominee river, thence through the middle of the fork of the said river first touched by the said line to the main channel of the said Menominee river, thence down the centre of the main channel of the same to the centre of the most usual ship channel of the Green Bay of Lake Michigan ; thence through the centre of the most usual channel of said bay to the middle of Lake Michigan, 5 thence through Lake Michigan to the northern boundary of the State of Indiana. April 20, 1836, the Act was passed establishing the territorial government of Wisconsin. The Territory of Wisconsin embraced Avithin the boundaries pre- scribed in the organic act, all the remaining portion of the territory north-west of the Ohio river, and also those parts of the province or colony of Louisiana ceded to the Cnited States by France, by treaty of April 30, 1803, composing the State of Iowa, and that portion of the State of Minnesota, West of the Mississippi river. The Act provided for the ap- pointment by the President, by and with the advice and con- sent of the senate, of a governor, a secretary, an attorney, and three judges of the Territorial Supreme Court. The governor to hold his office for three years, unless sooner re- moved, and the judges to hold for good behaviour, T he legis- lative power was vested in a governor, and a legislative as- sembly, consisting of a council of thirteen members, elected every four years, and a house of representatives, of tAvcnty-six members, elected every two years. The organic Act further directed, that the judicial power of the territory be vested in a Supreme Court, District Courts, Probate Courts, and in Jus- tices of the Peace. The Supreme Court to consist of a chief justice and two associate justices, any two of Avliom to consti- tute a quorum, and to hold a term at the seat of government of the territory annually. The Act also directed that the terri- tory be divided into three judicial districts, and that a Dis- trict Court or Courts be held in each of the three districts by one of the judges of the Supreme Court, at such times and places as may be prescribed by law. The jurisdiction of the several Courts, both appellate and original, and that of the Probate Courts, and of the justices of the Peace, to be as limited by law. The Supreme and District Courts respective- ly, to possess chancery as well as common law jurisdiction. The Supreme Court was empoAvered to appoint its own clerk, and each District Court to appoint its clerk. Writs of 6 error and appeals from the final decision ot" the Supreme Court were to be allo.wed, and taken to the Supreme Court of the United States in the same manner, and under the same regulations as from the Circuit Courts of the United States, where the amount in controversy exceeded the sum of one thousand dollars. And each of the District Courts shall have and exercise the same jurisdiction as is vested in the Circuit and District Courts of the United States. The oro-anic Act o also provided for the appointment of a Marshal, by the Tresi- dent, by ^nd with the advice and consent of the senate. The Act establishing the territorial 2:overnment went into force on the 4th of July, 1836, when all the power and authority of the government of Michigan in and over the Territory of Wis- consin ceased. It is further provided in the organic Act, "that the inhabitants of the territory shall be entitled to and enjoy all and singular, the rights privileges and advantages as secured to the people of the territory of the United States, north-west of the river Ohio, by the articles of the compact contained in the ordinance for the government of the said ter- ritory, passed on the thirteenth day of July, one thousand seven hundred and eighty-seven ; and shall be subject to all the conditions, restrictions and prohibitions in said articles of compact imposed upon the people of the said Territory, The said inhabitants shall also be entitled to all the rights, privi- leges, and immunities heretofore granted and secured to the Territory of Michigan, and to its inhabitants ; and the exist- ing laws of the Territory of Michigan shall be extended over said Territory, so far as the same shall not be incompatible with the provisions of this Act, subject, nevertheless, to be altered, modified or repealed by the governor and legislative assembly 'of the said Territory of Wisconsin ; and further, the laws of the United States are extended over, and shall be in force in said Territory, so far as the same or any provisions thereof may be applicable. Under this section of the Act, the Courts of the Territory administered the laws of Michigan until those laws Avcre superceded by the Territorial legisla- ture ; ajid sitting as Circuit and District Courts of the United States, they administered tlie statute laws of Congress, civil and criminal. The general principles of the ordinance of August, 1787, were embraced in the several Acts above mentioned ; and were continued in the constitutions and laws of the States embracing the north-west territory. Pursuant to an Act of Congress, approved January 30, 1823, providing for the appointment of an additional judge for the Michigan Territory, to possess and exercise judicial authority, in the counties of Mackinaw, Brown and Crawford, James Duane Doty, of the State of New York, was appointed the judge. Henry S. Baird, then a resident of Mackinaw, was admitted to the Bar, by judge Doty, at that place, in July, 1823. In 1824, Mr. Baird, having removed to Green Bay, Avas appointed by the Court, the District Attorney. The first grand jury for Brown County, was empannelled at that term, and found one indictment for murder, and forty- four indictments for lesser offences. During the years 1825, 1820, 1827 and 1828, the Judge and District Attorney, travel- led to Prairie du Chien from Green Bay and back, in bark canoes, byway of the Fox and Wisconsin rivers, with a crew* of six or seven Canadians and Indians. The time of making a trip each way was seven days. The country was then an en- tire wilderness, there being no white settlements except at those two places of holding the Court. They were military posts, surrounded by French settlers from Canada. In May, 1829, Judge Doty, Mr. Baird and Morgan L. Martin, who had been admitted to the Bar, travelled on horse back from Green Bay to Prairie du Chien, and back, accompanied b}^ a Me- nominee Indian, as guide. Their route was by Avay of Fond du Lac, Green Lake, the Four Lakes — passing the outlet be^ tween second and third lakes, tlie Blue Mounds, the place where Dodo-eville is situate, and crossing the Wisconsin river about six miles above its confluence witli the Mississippi. Tliey were about seven days making the journey, and saw no white people between Green Bay and Prairie du Chien. They were the first white men who madp a land journey between those places. The Indian trail Avas the only lake shore route between Milwaukee and Green Bay, as late as the year 1840. In every direction over the territory, well defined trails existed until obliterated by the settlers' plough. In May, 1826, Prairie du Chien was inundated ; the troops had abandoned Fort Crawford, and the inhabitants had fled to the high ground near the bluffs. In the territory the accommodations for the Court were neither commodious nor elegant. Where there were no Court houses, the Courts were held in log school houses, or in rooms provided for the occasion. The discovery of mineral induced a settlement, which was called Mineral Point, and the Court was removed to that place from Prairie du Chien in the year 1830. Judge Doty was succeeded by David Irvin of Virginia, in 1832, who held the oSice until the organization of Wisconsin Territory. Charles Dunn, of Illinois, was appointed Chief Justice of the Supreme Court of the Territory of Wisconsin, and William C. Frazer, of Pennsylvania, and David Irvin, were appointed the Associate Judges. On the fourth day of July, 1836, these judges took the official oath at Mineral Point. At the first session of the territorial legislative assembly, which was held at Belmont, in October, 1886, pursuant to the organic law, an Act was passed, assigning the Chief Justice to the district East of the Mississippi river, Judge Irvin to the district West of that river, and Judge Frazer to the lake 'shore district; and prescribing the places and times of holding district Courts. The second session of the legislative assembly convened at 1) Burlington, in November, 1837. Another session was lielrl at the same place in June 1888. The first term of the Supreme Court was held at Belmont in December, 1836, by the Chief Justice and Judge Irvin. John Catlin was appointed Clerk of the Court — Henry S. Baird, the pioneer attorney, having been appointed by Gov- ernor Dodge, to the office of Attorney-General — was sworn into office, and was also admitted to the Bar with Peter Hill Ensjle, Daniel G. Fenton, James D. Doty, James B. Ballou, Thomas P. Burnett, William W. Chapman, Lyman J. Daniels, Bar- low Shackelford, William N. Gardner, Hans Crocker, James A. Lockwood and John S. Horner. The organization of the Court was the object of that term. The next annual term, appointed to be holden at Madison in July, 1837, was not held, no business for the Court having matured. On the third Monday in July, 1838, a term of the Supreme Court was held by the Chief Justice and Judge Frazier, at Madison. William H. Banks, F. S. Lovell, H. N. Wells, Jonathan E. Arnold, and Francis J. Dunn, were admitted as attorneys and counsellors. Several motions were made, and rules granted, when the Court adjourned for the term. An Act of Congress, to divide the Territory of Wisconsin, and to establish the territorial government of Iowa, was ap- proved June 12th, 1838. On the 8th November, 1838, Andrew G. Miller, of Penn- sylvania, was appointed Associate Judge of the Supreme Court, the successor of Judge Frazier, deceased; and on the 10th December, following, the official oath was administered to him, in Milwaukee, by John S. Rockwell, Esq. The legislative assembly of Wisconsin commenced a session at Madison, November 26, 1838, which continued until De- cember 22d, and then adjourned to January 21, 1839. At that session a new assignment of the judges for holding dis- trict Courts was made. Judge Dunn was assig-ned to the first district, composed of the counties of Iowa, Grant and 10 Crawford ; Judge Irvin, to tlie second district, composed of the counties of Dane, Jefferson, Rock, Walworth, and Green ; Judge Miller, to the third district, composed of the counties of Milwaukee, Brown and Racine. Unorganized counties were* annexed to the several districts for judicial purposes. At that session of the legislative assembly, a revision of the statutes was made. The laws then enacted were published in one vol- ume, and took effect on the fourth day of July, 1839. The duty of preparation of the marginal notes, and the in- dex, and of superintending the printing and publication of the volume, was conferred by the legislative ^assembly upon Edward V. Whiton, of Janesville, one of the most able practi- cing attorneys in the Territory; and after the admission of the State, one of the Circuit Judges ; and for some time prior to his decease, the able and upright Chief Justice of the State Supreme Court. This volume of statute laws, superseded the laws of the Territory of Michigan, condensed and arrang- ed in one volume, and published in Detroit in the year 1838. •At the opening of the summer term of the district Court of Racine County, in 1839, the revised statutes of Michigan were administered, and before the close of the terra they were superseded by the revised statutes of Wisconsin. The vol- ume was acceptable to the legal profession, and people gen- erally. The laws being in a great measure copied from the statute laws of the State of New York, the reports of cases decided in the Courts of that State, construing them, materially aided the Courts of the Territory in the discharge of their judicial duties. A small portion of the volume was taken from statutes of Massachusetts and Ohio. The volume, with amendments made from time to time by the legislative assembly, comprised the statute law of Wisconsin, until the first of January, 1849, when the revised statutes, under the State goverment, went into force. The territorial revised statutes superseded, in a 11 great measure, the claim laws of the early settlers, and the miners' rules in the mineral country. Squatters' rights were superseded by a code of laws, adequate to the protection of the interests of an enterprising and rapidly growing popula- tion. Before lands Avere brought into market by the President's proclamation, the settlers had adopted a system for their mu- tual pit)tection. The settler who first entered on a quarter section of land, or a fraction of a section, was protected in his possession, against jumpers of his claim. By the settlers' code, the jumper was summoned before their conmiittee, who summarily disposed of the case. If the complainant was found to be an actual settler, and entitled to his claim, the jumper had to surrender without delay. There was no resist- ing the judgment of the committee, for the Avhole town formed Si posse to enforce the execution. This was, under the cir- cumstances, a wise and humane provision for the early settle- ment and improvement of the country ; and in many instances personal quarrels were thereby prevented. In the early days of the Territory, immigrants from Eastern States purchased of the settlers, claims on government lands, and for a portion of the consideration, gave their obligations. A great number of actions were brought on those contracts, which were defended against, on the ground that the settler being a trespasser on the lands, the contract was void. The Courts held such contracts valid, notwithstanding the settler may be considered strictly in the light of a trespasser on gov- ernment lands. Where the government had not dispossessed either the original settler or the purchaser, and the settler had made some improvements, or done some work on the land, pos- session was secured to the occupant, by the settlers' rules, until the land was sold by the government. The miner, who prospected and discovered mineral, claimed a right to work the mine subject to a certain royalty. The action of eject- 12 ment and of trespass, under the revised statutes, superseded those primitive systems. Acts of Congress, for organizing territorial governments, are passed pursuant to section three of article four of the Constitution of the United States, that " Tlie Congress shall have power to dispose of and make all needful rules and regu- lations respecting the territory or other property belonging to the United States." Territorial Courts being created by law- ful authority, were bound to administer laws of the United States, within their jurisdiction, subject to the requirements of the constitution. By article seven, of amendments to the constitution, " In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." And by article five of the amend- ments, " No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indict- ment of a grand jury, excepting in cases arising in the land or naval forces, or in the militias when in actual service in time of war or public danger." And by article six, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have com- pulsory process for obtaining witnesses in his favor ; and to have the assistance of counsel for his defense." Under those requirements of the constitution and legislative acts, grand and petit jurors were summoned for every term of the terri- torial district Courts. The jurors were paid from the judi- ciary fund of tli^ general government, by the Marshal, for their travel and attendance at Court for the first week of the term ; for the remainder of the term they were paid by the county. United States cases took precedence of other busi- ness, and were expected to be disposed of the first week of the term. The trial by jury, and the humane principle of the criminal law, that no person shall be convicted of a crime and sentenced to punishment, without the indictment or presentment of twelve grand jurors, and verdict of guilty of twelve petit jurors, being held sacred as the birthright of every freeman, those constitu- tional amendments were adopted immediately after the organi- zation of the general government. The grand jury system has existed in England for twelve hundred years, and it was incorporated into the criminal jurisprudence of this country by our ancestors, who valued it as their birthright. The ter- ritorial judges faithfully adhered to the system, as prescribed by the constitution and laAvs of our country. They uniformly instructed grand juries to be thoroughly persuaded of the truth of an indictment by legal evidence, and not to find bills of indictment without prima facie evidence of guilt. The oath of grand jurors, " diligently to enquire, and true pre- sentment make of all things given them in charge ; to present no man for envy, hatred or malice, nor to leave any one un- presented through fear, favor, affection or hope of reward," with instructions from the Court, was considered a neces- sary safeguard against oppressive purposes. The judges of those Courts, in common with men of judicial experience, would have considered an effort to abolish the grand jury sys- tem, a bold strike at the rights and liberties of the people. At the term of .the territorial Supreme Court, for 1840, common law rule of practice, for all the District Courts were adopted. These rules were uniform throughout the territory, and were acceptable to the profession. They simplified plead- ings, and relieved the practicing attorney of preparing volu- minous papers in the ordinary routine of business in the Courts. The same rules, but more in detail, were adopted as the rules of the Federal Court in this district. The constitution of the United States having recognized the distinction between law and equity, the territorial Courts would have enforced it, independently of the provision of 14 the organic law. These Courts pursued equity and common law practice with technicality, but with liberality as to amend- ments. Many valuable precedents and principles of law, were established by the Territorial Supreme Court. The second Act of Congress, to establish a uniform system of Bankruptcy throughout the United States, was approved August 19th, 1841, and took effect from and after the first day of February, 1842. Jurisdiction of cases in bankruptcy being by the Act, conferred upon the Supreme or Superior Courts of the Territories, the Supreme Court of this Terri- tory discharged three hundred petitioners out of three hundred and fifteen. A majority of those petitioners had failed in business in the Eastern States, in consequence of inflation of the currency and of speculations, in the year 1836. It was estimated that the debts of those three hundred bankrupts exceeded two millions of dollars. The Act largely increased the miles of travel and the judicial duties of the judges, who held their Court in Madison. The judges were empowered by the Act to form the, rules of their Court in Bankruptcy, and to establish the fee bill. Under the fee bill of the Supreme Court in bankruptcy, the fees in cases did not average twenty dollars. The Act was repealed on the 3d March, 1843, hav- ing been in operation thirteen months. The same Congress that passed the Act repealed it. The first settlers of the territory, were' men trained to in- dustry and economy. They were honest and enterprizing. They laid their hands to the plough and looked not back. They formed a substantial basis for the building up of this great State. The settlements commenced on the shores of Lake Michigan and the Mississippi river, and extended with unprecedented rapidity towards the interior. Contracts necessarily made in opening up and improving the country, gave rise to a great amount of litigation. The dis- trict Courts, particularly of the first and third districts, were open a great portion of each year, after 1842. We have not 15 been able to ascertain the number of causes disposed of in any of the districts, except the third, in which there were about eight thousand. Before the termination of the Territorial government, the counties of Waukesha, Sheboygan, Dodge, Fond du Lac, Washington, Winnebago, and Manitowoc, had been organized for judicial purposes, and annexed to the third district ; and several counties were added to the first and second districts. Grand juries were summoned for every term of the Courts ; but to the great credit of the population, criminal indictments were not numerous. There were several trials for crimes, punishable capitally. In 1824, Oshkosh, the Menominee chief, was convicted of murder, at Green Bay, and was sub- » sequently discharged on the ground, that the murder having been committed in the Indian country, the Court had not ju- risdiction. In 1839, a Frenchman was tried in Brown County for the murder of his Indian wife, of the Stockbridge tribe, and acquitted on the ground of insanity. In 1844, in the same county, an Indian, of the Menominee tribe, was tried for murder and convicted of manslaughter. At different times four Indians, of the same tribe, confined in the jail of Brown county, on complaints of murder, committed suicide by hang- ing. In 1837, two Indians, of the same tribe, were convicted of murder, in Milwaukee, and pardoned by the Governor. About the year 1845, one man was convicted of murder, in the first district, and executed. One man was tried for mur- der in the second district, and acquitted. In 1846, a man was tried in Racine for murder and convicted. He was pardoned by the Governor of the State. In the same year a man was tried at Milwaukee, for robbery of the Mail, on the route be- tween Milwaukee and Fond du Lac, by putting the life of the carrier in jeopardy, by the use of a dangerous weapon, a load- ed rifle. The jury acquited him of the capital offense, and convicted him, of the robbery of the mail. He was sentenced to ten years imprisonment. Tlic first annual term of the Territorial Supreme Oourt, after the organization of the Territory of Iowa, was held at Madison, the seat of government, in the month of July, 1839, by all the judges. John Catlin having resigned the office of Clerk, Simeon Mills, was appointed the Clerk. He held the office one year and resigned. At the term of 1840, Lafayette Kellogg, the present efficient clerk of the State Supreme Court was appointed the clerk, and he discharged the duties of the office to the entire satisfaction of the Court during the Terri- torial government. x\n annual session of the Supreme Court Avas held at Madison, pursuant to the organic act, by all the judges, in the month of July, in each of the years of 1840, 1841, 1842, 1843, 1844, 1845, 1846 and 1847. About two hundred and forty causes, brought up by writs of error or appeals, were' disposed of. It is to be regretted that the records do not contain a full list of attorneys and counsellors admitted at the several terms. No doubt many gentlemen were admitted whose names are not recorded. At the term of July, 1839, T. J. Hunger, William H. Sey- mour, and John Catlin were admitted. At the term of 1840, D. A. J. Upham, Wiram Knowlton, Charles T. Earned, Lorenzo Janes, Edward V. Whiton, John H. Tweedy, and Charles C. P. Arndt were admitted. At the term of 1841, Alexander Botkin and Alexander P. Field were admitted. At the term of 1842, James S. Baker, Asahel Finch, Edward P. Carr, Alexander L. Collins, Zolotus P. Mayo and A. D. Smith were admitted. At the term of 1843, William P. Lynde, Chauncy Abbott, and Henry Waggoner were admitted. At the term of 1844, Isaac P. Vv'alkerj Levi Hubbell, A. Hyatt Smith, and Samuel Crawford were admitted. At the term of 1845, Cyrus P. Hiller was admitted. It does not ap- pear that any attorneys were admitted at the terms of 1846 and 1847. 17 The judges usually prepared the opinions the same week or within a few days after the arguments. They made greater efforts at making correct decisions, than elaborating opinions Many of the opinions were meager, and at this day may not be very satisfactory to the profession. There was no term of the Supreme Court after that of 1847. The several district Courts continued in full operation until the spring of 1848. The Act of Congress for the admission of VVisconsin into the Union as a State, was approved May 29, 1848, whereby the Territorial government was merged into that of the State. i LIBRARY OF CONGRESS