Grant County, Wisconsin - Chapter 2: Judicial History, 1900

Section 6 of the act of the legislature establishing Grant County provided that there should be two terms of the District Court held annually at the seat of justice of the county, one upon the first Mon¬ day in June and the other upon the fourth Monday in October, by one of the Judges of the Supreme Court. Sessions of court were to be held at Cassville until the necessary public buildings should be provided at the seat of justice. John S. Fletcher was appointed by Judge Dunn as Clerk of the Court and T. S. Wilson as District Attorney.

The justices of peace of the county were appointed by the Gov¬ ernor. As the justices gave bonds to the United States, in accordance with the Statutes of Michigan Territory in 1817, instead of to the county, as provided by the Statutes of the Territory in 1833, the legis¬ lature of 1839 passed an act to release such justices from the penal¬ ties incurred by them and to legalize their acts.

Grant County at first formed part of the First Judicial District, and Chief Justice Dunn was the District Judge. The first session of the District Court was held at Cassville, beginning June 5, 1837. The docket was exceedingly brief compared with present day courts and was written on a sheet of foolscap. It contained only seven cases, viz: James H. Johnston vs. A. R. T. Locev, action, trespass; Francis Gehon vs. J. B. Bstis, action, trespass ; A. Levi & Co. vs. Coyle & Palmer, action, trespass; Stewart McKee & Co. vs. John R. Farns¬ worth, action, trespass; Holder vs. Keller, action, debt; A. Cornell (assignee) vs. Richard Ray, action, debt; C. A. & C. L. Lagrave vs. J. B. Estes, assumpsit, discontinued with leave to withdraw de con.

The first grand jury, most of whom afterward became well known and prominent, were Jeremiah E. Dodge, John R. Farnsworth, Alex¬ ander D. Ramsey, Andrew McWilliams, Isaac Lander, Moses Hicklin; Daniel Richards, Clovis A. Lagrave, Abram Miller, James Bonham,

Thomas Stanley, ffm. P. Flaherty, Elisha T. Haywood, James R. Vineyard, Henry Hodges, and James Groshong. Upon opening the court it was found that Orris McCartney, Henry Wood, James Boice, and Aaron Boice, who should have been in attendance as grand jurors, were absent, and they were ordered to show cause, if they could, why they should not be fined for contempt of court. It seems they "showed cause." Justus Persons was granted a license by the court to keep a ferry across the Mississippi near where Specht's Ferry now is. The session appears to have been limited to three days, as the Sheriff and the deputies received pay for that time. The court was held in the house of G. M. Price, for which he put in a bill for $100 rent (short as the session was), alleging that the building was " fitted up for the ac¬ commodation of the court at a short notice and at a greater expense in consequence thereof, and of the scarcity of mechanics, and there being no other building in the town of Cassville, the place of holding said court, which could be obtained for that purpose." The house was probably the old "Council House," a frame building which long after did service as a part of the store of Gus Prior.

The grand jury at that term of court brought an indictment against John R. Miller for the murder of James McBride. The fore¬ man of the jury was James R. Vineyard, who afterward killed Arndt at a session of the State Council. On the 7th of September, 1837, the County Board ordered the District Clerk to remove his office to Lan¬ caster. It was a very quiet and informal moving of the county seat, greatly in contrast with many a "county seat war" of later days.

The second session of the court was held at Lancaster in October, 1837. The court house not being built, court was held in a little frame building on the corner opposite and south of the Wright House. At this term of court J. Allen Barber and Edward South wick were ad¬ mitted to the bar, Mr. Barber being the first person to be admitted in the new county. Louis Reynolds was appointed crier for the the court. This District Court continued to sit at Lancaster, Judge Dunn on the bench, until the June term, 1848. Wisconsin had then been admitted asa Stateand the system of circuit courts was adopted, Grant County being placed in the Fifth Circuit. Mortimer M. Jackson was the first Circuit Judge, being elected in August, 1848. The first term of this court was held in Lancaster, beginning October 2, 1848. Nelson Dewey, J. Allen Barber, Orsamus Cole. Stephen O. Paine, Joseph T. Mills, Cyrus K. Lord, Royal C. Bierce, Wm. Hull,

The first grand jury of this new court was composed of Thomas Cruson, Simpson Oldham, Warren Hannum, William Richardson, Jermiah E. Dodge, Samuel Wilson, A. W. Emery, Jonas M. Smelser, John S. Kirkpatrick, James Prideaux, Thomas J. Taylor, Robert Langley, Neely Gray, Jacob Benninger, James Barr, Abner Coates, Robert R. Young, James Bonham, James R. Short, Louis Rood. Thomas Cruson was foreman of the jury.

The new court began business on the case of the State vs. William Morris and others for riot. The case grew out of a charivari party. It was stricken from the docket, subject to reinstatement at the option of the District Attorney, J. Allen Barber.

M. M. Jackson continued as Circuit Judge until 1852, when he was succeeded by Montgomery M. Cothren, who served two terms. In 1864 Judge J. T. Mills, came upon the bench and held the place two terms, when he was succeeded by Judge Cothren again for one term, ending in 1882, when Judge Cothren was succeeded by Judge George Clementson, the present incumbent.

The bench and bar of Grant County have had on their roll the names of many men who stood very high in the profession, and the administration of justice in the district and circuit courts of the coun¬ ty has been on a high plane. In the justice courts, while there have been many incumbents who were men of considerable information, good judgment and experience, there have, of course, been examples of "dispensing with justice" which form good material for comic stories. The rude frontier conditions of the county for a long time fa¬ vored the production of these comical incidents. The late Frank Barr, an old pioneer of Beetown and a great story-teller, wrote a descrip¬ tion of a trial in a justice's court in Potosi, the article being published in the Teller of Sept. 22, 1891, as follows:

"In the latter part of May, 1844, one bright, sunny morning I went from Platteville to Potosi, arriving there before noon. Judge Colter of Lancaster stopped at the same house that I did. Soon after din¬ ner there was much excitement on the street, which was full of men with their coats off and their clothing covered with ocher and mud, some with picks and drills on their shoulders. The saloons, of which there were several, were also full of miners, playing cards and drirtk- ingbeer and whiskey. Soon I heard the cry, A fight! a fight!' and two strong men out on the street were doing their best to injure each other, whether according to QueensbUry rules or not I do not know - but probably not. 'They fought like brave men long and well,' and then clinched, and came to the ground. Biting and gouging seemed to be the order of the day. Several fingers and thumbs were badly lacer¬ ated. Presently one man's eye was out upon his cheek, and his oppo¬ nent still gouging away. Some one cried, 'Enough! take him off!' The men were soon parted, and the eye was put back into its socket. The excitement increased. Every one was dissatisfied with the result, and it looked for a time as though half a dozen encounters would re¬ sult from that one. Finally it was suggested that they would have law , - that the parties must be arrested and tried for breaking the peace. Presently C. K. Lord, afterwards Judge of Probate, came to the store where I was and invited me to attend the trials. He said if I never attended a Western court it would pay me well - that there probably would be lots of fun. In a short tithe one of the belligerents was arrested, a jury inpaneled and the trial commenced before an Irish justice, named Peter Coyle, I think. C. K. Lord acted as one of the attorneys. The others I do not recollect. Blackstone and other authorities were quoted, and the attorneys ranted and beat the air. In due time the case was submitted to the jury who soon brought in a verdict of 'not guilty' - the peace had not been broken. Then the other belligerent was arrested, another jury was impaneled, another trial had, another verdict of 'not guilty' rendered - peace not broken. Court then adjourned for supper. After supper I met C. K. Lord again, who informed me that I ought to attend the evening session which would be more interesting than that in the afternoon, for they were going to arrest and try one of the men who assisted in part¬ ing the belligerents, a man who had some property, by the name of McLaughlin. He was arrested and tried that evening. A great deal of eloquence was wasted. The jury about ten o'clock brought in a verdict of 'guilty,' and the Justice, according to my recollection, im¬ posed a fine of ten dollars and costs! The room was crowded and the excitement intense. The defendant made a short speech, stating that half an hour on the street and bite and gouge each other, and not break the peace; and yet when a man undertook to part them, to save a friend's eyes, after one had cried, enough,' he was fined ten dollars and costs because he happened to have a little property. He thought the circumstances. Justice Coyle considered the remarks insulting and a contempt of court, and I think, struck at the defendant with a chair, when the three or four tallow candles were blown out or thrown upon the floor, and the fight became general. I fled precipitately through the front door, but many others, and I was informed the Justice was one of them, jumped through the back window and ran up the bluff. At all events when I looked the place over the next morning the back window sash was nearly all broken out. McLaugh¬ lin resided "down town" as they called it, towards Van Buren in a comfortable home near a large spring. I. G. Ury, who was selling goods in Potosi at the time, informed me years afterwards, that a few weeks after the above occurrence, he met McLaughlin running rapidly towards home, occasionally looking over his shoulder. He asked,

* What's the matter?' Mac said, 'They are having a fight up town, and I am trying to get home so they will not arrest and fine me. They usually fine me every time there is a fight.'

"I did not see nor hear from McLaughlin for many years and sup¬ posed he had 'passed that bourne whence no traveler returns,' until some years after the war, an old man came into lawyer Barber's office in Lancaster to consult him in regard to some property that he said he used to own in Potosi. Said he was many years in California and Australia, and that during his absence the property had been sold and the money spent. Said he had nothing left, and that his health was poor, and he would have to go to the poor-house unless he, Barber, could help him. A few weeks after that I heard him complaining to Mr. Burr, chairman of the County Board, about the poor-house. Thought he was not properly treated there. Said that many years be¬ fore he went upon a bond for a thousand dollars for a man's appear¬ ance at court. The man ran away and he was compelled to pay the money into court; and he thought that, inasmuch as he had paid so much to the county, he ought to be kept well treated at the poor-house the balance of his days. What became of him I do not know."

Hon. J. W. Seaton, a long-time member of the Grant County bar, contributed to the Teller of January 26 and February 2, 1899, the fol¬ lowing racy sketches of the bench and bar of the county:

"An incident has been related to me as taking place in Judge Dunn's court. The date of occurrence I am unable to give, but, it was during the early fifties.

44 It was the custom as well as the duty of the presiding Judge, on assembling of the grand jury to charge it specifically to bring in in¬ dictments against every person guilty of any infraction of the laws, coming within their knowledge, and especially against those breaking the gambling laws, which were pointed and severe in their penal pro¬ visions, although they were never enforced or repealed and stand brist¬ ling upon our statute books to the present day, pointed and sharp as ever ; but they never cut or thrust these soft-handed ingenuous violaters of law. Few of the class of the early and noted gambling sharps now remain, most of them having 4 passed in their chips' and with¬ drawn from the table, leaving their innocent and trusting dupes to to seek other amusements.

44 At the term of the court to which I refer Major John R. Coons, of Potosi, was foreman of the grand jury and received this special charge from Judge Dunn, then sitting upon the bench. Accordingly he made an ample investigation and returned all persons coming to his knowledge engaged in gambling - whether faro, seven-up, keno,chucka-luck or euchre. The first name upon the list was his own, then fol¬ lowed that of Judge Dunn, every member of the bar, most of the jurors, witnesses, litigants, officers of the court and county, and in fact, the whole posse comitatus of the county and adjoining territory.

" 'Major Coons, I see you have carefully and fully complied with my instructions, but in so doing I think you have invaded the privi¬ lege of the court, which custom and the law wisely provides shall not be included in its own charges. It is a principle of law old as the books of Moses, that the King can do no wrong ; neither can a judge wearing the ermine. Gentlemen, you will please return to your room and make this correction - leave out the Court in your indictments.'

"The Judge probably never was addicted to any great extent in gambling but, with his friends, would occasionally play a game for amusement or recreation. The legal fraternity and most others, at¬ tending court in territorial days and even for years after, were more or less in the habit of playing games of chance. The regular sports and gamblers in those days, and there were many, attended court for the avowed purpose of fleecing the unwary and unskillful players out of their money, of which the miners afforded them plenty. Neither were the professional lawyers and court officials, who thought themselves skilled in the ways and tricks of the blind goddess, exempt from her wiles and fascinations and often got caught in their own trap. Tip¬ pling and gambling were universally practiced among the miners and unregenerate settlers. It was a custom and passion among them, and no man was thought less of because he indulged in a drink or game. There was no turpitude attached to the sporting fraternity and not much to the drinking class, because everybody else drank and sported.

"Judge Charles Dunn was a native of Kentucky and received his first appointment in 1836, from Andrew Jackson, President, and was the first chief justice of the territory; David Irwin and William Frazer were assistant justices and constituted the Supreme Court, holdingits sittings in various parts of the territory. They were all able, learned men and Judge Dunn not the least. He was accustomed to holding courts in the western part of the State, his home being at or near DodgCville. No worthier or more honored man has ever occupied the bench and his rulings and judgments are still referred to with great respect.

" The members comprising the Bar at this time, and those practic¬ ing in Grant County, as I now remember them, were, Frank J. Dunn, the Judge's brother; Sam Crawford, who became judge of the Supreme Court; Moses M. Strong, one of the framers of the State Constitution, and a man of great learning and native ability ; Mortimer M. Jackson, who succeeded Judge Dunn on the bench in the Fifth Circuit and became afterwards consul at Kingston, Canada; Montgomery M. Cothren, who also became an incumbent on the bench in the Fifth Circuit - one of the clearest legal minds that ever expounded the laws of our State - and James H. Knowlton. These men were residents of Mineral Point, but were known and recognized as able lawyers throughout the State, especially the western part of it.

" The onl) lawyers now called to memory as living in the south part of the county, were Hon. H. D. York, still a member of the Bar, a most refined and genial gentleman, who devotes much attention to the settlement of estates in the probate court, and N. Hemmiup, of Hazel Green. The last mentioned gentlemen removed to Minnesota on the organization of that territory and disappeared from my knowledge.

former were mining villages and were fruitful of much litigation, both civil and criminal, which, for the most part, was settled by juries be¬ fore justices of the peace. All this has been changed in the last two decades and we seldom hear of a jury trial in justice's court. It is us¬ ually settled at once by the justice or taken to Lancaster before the circuit court for final adjudication. Cases rarely go beyond this now, though some few, where the lawyers are opinionated and ambitious of distinction, are appealed to the Supreme Court. But, woe to the litigants in these cases! It takes long, well-filled purses to sustain them at any great length of time. They remind me of the great suit of Peter Peables vs. Plainstanes given by Sir Waiter Scott in Red Gauntlet, one of his celebrated romances ; grinding both parties to shame, poverty, degradation and drink. The writer could instance several of the kind occurring in this circuit, in early times, where the litigants spent all their money, incumbered their farms and reduced themselves and families to the brink of destitution and mendicancy, all through the stubborn willfulness and love of law and litigation. But such suits have passed away with the generation that begot and encouraged them. Names of parties might be given, but they are sup¬ pressed out of respect for the feelings of their descendants who have survived the disgrace and impoverishment which they entailed. Among the noted lawyers of this date I find the names of George W. Lakin, Ben C. Eastman, Stephen 0. Paine, Willis H. Chapman, Tom Robinson, who was not so early as the others, and perhaps one or two others who have escaped my memory, at Platteville. S. 0. Paine was a rough-and-tumble lawyer - quite popular in his day. He suc¬ ceeded Judge C. K. Lord in the county judgeship. He was an upright, conscientious, considerate judge, but rather profane, on occasion, in administering oaths to witnesses. I remember on one occasion his using this formula: 'You do solemnly swear the evidence you shall give in this action between John Doe and the estate of James Roe, de¬ ceased, shall be the truth, the whole truth, and nothing but the truth.

was sometimes manifest in the old-time courts and placed the judge on an equality with the witness, who often used the same familiar language.

" Ben C. Eastman was the most eminent and well-known lawyer in Platteville of his day. His counsel and advice were sought far and near, and his practice was beedming quite lucrative when he went into politics and was elected to Congress over Judge Cole. He was a man of pleasant address and of impressive manners, and his pleas to the jury were always attentively received. His tall, well-built form and and gentlemanly bearing distinguished him as a man of culture and good breeding in any crowd.

"On one occrsion, however, he made a marked mistake in his com¬ pany. He was taking dinner at the Banfill Hotel, the most popular hotel in the county. As a matter of courtesy he was placed at the head of the table where the roast beef stood and the carving knife was laid. Ranging down the long table came other well-known guests of marked consequence, till it tailed out near the dining-room door where the * hungry crowd ' were seated which usually rushed in pell mell to get any place they could. There were great gormands in those days as well as giants, but 'Old Ban' spread a good table and Mrs. Banfill and her pretty daughters knew how to cook and cater to their tastes, and the latter were attractions for young men and lawyers.

"On this particular day it so happened that Sam Morris, from Cassville, a noted character unknown to Ben, came in as his righthand bower and took a seat near him. Ben was fresh from the East and unused to waiting on the table and unacquainted with the cus¬ toms of the West. Sam, with a patient eye and watery mouth, watched the tall, well-dressed Yankee cut off a liberal slice of the juicy beef and place it upon his own plate and then quietly lay the fork and knife down. This was manners that Morris had not yet learned in the * woolly West,' and he quickly resented it, thrust his empty plate forward, sententiously saying: 'See here, young man, if you don't want all that beef for your own use I would thank you for a slice.' Ben sniffed trouble in case of refusal and knuckled to the demand. He cut the meat and phssed the potatoes to every man within reach of his long arms. Ever after this introduction Ben C. Eastman and Sam Morris were fast friends - slept together in the same room - played cards at the same round table and mutually admired each other's keen wit and wonderful story gifts, which were not unfrequently bandied till long past midnight. Both are now where the 'wicked cease from troubling and the weary are at rest/ and most of those who listened to their quaint, pungent, laughable stories.

& Biddlecome. J. W. Seaton, a young man from New York, was amusing himself over Blackstone and reading Charles Dickens's treatise on ' Barnaby Rudge' in Cole & Biddlecome's office. He never rose to distinction in the profession, neither will any young man who mixes literature with law and politics.

"Cyrus K. Lord, in 1850, became judge in the Probate Court, suc¬ ceeding the venerable Hugh R. Colter, who held the position in terri¬ torial days and was accustomed to visit the widows and orphans to settle up the estate immediately after the death of the departed. He held a sort of itinerant court. Everybody knew when a death oc¬ curred in the neighborhood Judge Colter would soon be around. He appeared to be an intelligent, kind-hearted man ; was lame from some cause and hobbled around on a crutch and cane. He was the fourth probate judge in the county, John H. Rountree being the first.

"One of the best known lawyers of his time was William Hull. He was a Southerner, coming from New Orleans, lazy, impecunious and high-toned in feeling. He was a first-class jury-trial lawyer in a justice's court - full of resources, ready wit and prepared to take advan¬ tage of technicalities and errors; make black white in the most reason¬ able and plausible way. He rose rapidly from his low estate and de¬ scended again with accelerated speed. In 1851 he was elected District Attorney of the county, holding one term, promoted to the legislature in 1854 and became Speaker of the Assembly of 1854, during the Reform administration of Coles Bashford, when the railroad land subsidy was divided among the incorruptible (?) lawmakers. Hull was said to have received $20,000 in scrip upon which he realized about fifty per cent, in current funds. After making way with this in high-toned liv¬ ing at Madison, he removed to LaCrosse, where he again entered the law practice with variable success, dying a poor man. He never re¬ turned to Potosi. He was a man of remarkable gifts, possessed Qf bright, quick intellect, a reasonable amount of learning; was off-hand and happy, and often eloquent in public speech; and with better habits and principles might have been a useful man. But he is gone and we will not cast a shadow over his grass-grown grave.

"Cole and Biddlecome were men of high-grade principle and wider practice. Hon. Orsamus Cole, as most are aware, rose to the highest distinction of his profession - that of Chief Justice of the Supreme Court of the State. He was first chosen as a member of the second administration of Zachary Taylor - 'Old Rough and Ready' - and finally chosen Supreme Court Judge, which position he held for nearly a third of a century , growing gray and venerable in its arduous duties. He was a college graduate and classical scholar; studious in habits, of a retentive mind, which he stored with useful knowledge as well as law; conscientious and upright in the discharge of his onerous duties. In his younger days, he was fond of anecdotes and never failed to tell a good one himself when in the laughter-loving mood and surrounded by congenial spirits.

Who makes by force his merits known And lives to touch the golden keys That mould a mighty state's decrees And speak the whisper of a throne.*

"Having faithfully and fearlessly performed the high task set before him, he now enjoys his honors and emoluments of his labor in the retirement of private life - respected and cared for in his age and infirmities by his only son, Sidney Cole, of Milwaukee.

"William Rosselle Biddlecome, his law partner, was a man of different mould and character, though less honored not less meritor¬ ious. He was regarded as a young lawyer of great promise by all who knew him. Eastern born and educated (a native of New York), he had spent several years in Virginia teaching among the-'F. F. V's.' While there engaged in teaching, he gained the affection of a young lady whom he afterward married and brought north. They spent several years in Potosi, afterward removing to St. Louis, where he engaged in marine law practice, dying in early life just as he was entering upon a successful and brilliant career. While residing in Wisconsin he served one term in the lower house of the legislature and showed marked ability; was chosen District Attorney of Grant County and served one term; afterward was nominated on the Demo¬ cratic ticket for District Attome}', but failed of an election.

44 Undoubtedly he was endowed with the finest intellect and rarest qualifications for professional success of any young man who entered the territory in an early day. Unfortunately, however, for his young ambition, he was connected with a political party whose sun was going down and that of the Republican party rising above the horizon. It was in the days of the ' Glover Rescue' when the noted S. M. Booth was repining in jail for resisting the Fugitive Slave Law. State's-right laws were then rampant in Wisconsin and defeat to every man opposed to equal rights and free soil was inevitable and certain. So Democracy, at this early day, went under the war-cloud, then rising in the South, which heralded the great storm that later was to drench the land in 'fraternal blood ' and drive slavery and its votaries forever from our country. Temple and tower went down, nor left a site where once lived, ruled, and reveled the arrogant, unscrupulous, and dominating slavocracy."