Green County, Wisconsin - Chapter 12: The Courts of Green County, 1884 (part 1 of 2)

Chapter 12: The Courts of Green County

It lias been shown in previous chapters that the first settlers came to what is now Green county in 1827 and 1828, and that the region they located in was, at that date, a part of Crawford county, in Michigan Territory. These first settlers were under the jurisdiction, until Iowa county was organized, of the

There was a county court of Crawford county during tlie period just mentioned; but why this court lost jui-isdiction will now be explained. However, in this connection, it will be necessary, ill the first place, to give a history of the "Circuit Court of the United States for tl e County of Crawford."

No sooner had the three counties of Brown, Crawford and Michilliraackinac been organized and their county courts established, than it was felt to be a great draw-back to the prompt administration of justice that, in all civil cases of over 81, 000, and in criminal cases that were capital, as well as in actions of ejectment, in the allowance of writs of error, and mandamus, recourse must be had to the Supreme Court atDetroit;the latter place being the seat of government of Micliigan Territory. Therefore, in January, 1823, an act of Congress provided for a circuit court, and for the appointment of a judge for these counties. This court had concurrent jurisdiction, civil and criminal, with the Supi-eme Court of the Territory, in most cases, subject, however, to have its decisions taken to the hitter tribunal by a writ of error. The law provided for holding otiG term of court in each yeaf) in each of the counties named in the act; so, at last, there was to be a speedy administration of justice at home, and the people were to be relieved from all military arbitrations, which frequently had been imposed upon them. James Duane Doty was appointed judge of this court at its organization. Appeals were taken from the county court to the "circuit court of the United States for the county of Crawford," as Judge Doty's court was called. A May term was held in Prairie du Chien; a June term in Green Bay; a July term in "the borough of Michillimackinac," in each year. In ] 824 Henry S. Baird, of Brown county, was appointed district attorney. Doty leld the office of judge until May, 1832, when lie was succeeded by David Irvin. The new circuit included all of Michigan not in the peninsula, the now State of Wisconsin, and the country north of St. Croix river and east of the Mississippi to latitude 49 - now under the government of Minnesota. In the winter or spring of 1823, Doty was appointed by President Monroe the additional judge. At the session of 1823-4, Congress changed the tenure of office of the judges of Michigan for "good behavior" to the term of four years, and Judge Doty's x'e-appointment was announced in Nile's Register of Feb. 28, 1824. The first term of Judge Doty's court was held at Mackinaw, in July, 1823.

law. In 1818, he removed to Detroit, in the Territory of Michigan, where, in the following year, he was admitted to the bar. He early attracted attention, and, in 1820, accompanied Gov. Cass on one of his extensive tours, and was present when the governor hauled down the British flag displayed by the Chippewas on the American side of the straits of Mackinaw, despite their menaces. In the winter of 1821, while visiting Washington, Doty was admitted to the bar of the United States Supreme Court. A year later, upon the passage of the act forming northern Michigan into a judicial district, he was selected by President Monroe to occupy the bench. In the fall of 1823 Judge Doty, with his wife - he had recently married a daughter of Gen. Collins, of Oneida Co., N. Y., - removed to Prairie du Chien for the purpose of entering upon his duties ; but, the following spring, because the traders did not manifest a very friendly spirit, and believing that Green Bay was a healthier place, established his home there. During this year the organization of the courts was completed, and thereafter he held his terms with strict regularity until 1832, when he was succeeded by Judge David Irvin. Thus relieved of official duties, he made repeated tours over the then unsettled territory, became thoroughly acquainted with its natural resources, and contributed not a little towards obtaining the good-will of the Indian tribes toward the government. In 1831-2, he was one of the commissioners who surveyed the United States military roads from Green Bay to Chicago and Prairie du Chien. In 1834 he was elected to the Territorial council of Michigan, in which he served two years with distinction. In that body he introduced the proposition for the formation of a State government, and the separate Territorial organization of Wisconsin, which prevailed in 1836. Meanwhile, at the Green Bay land sales of 1835-6, he was intrusted with large suras of money for investment in eligible locations, and many flourii^hing tillages now st^ud on sites df his selection. He was chiefly instrumental, at the Belmont session of the Wisconsin legislature, although not a member, in securing the location of the seat of government at the Four Lakes, now Madison. In 1838, he was elected delegate in Congress from Wisconsin Territory, serving until 1841. He became governor, by appointment from President Tyler, in September, 1841, which office he held until June 1844, being the second Terriritorial governor of Wisconsin. He was a member of the first convention chosen to draft a State constitution in 1846. He was elected to Congress from the third or Green Bay district, in 1848, and re-elected in 1850. At the close of his term, 1853, he retired to ];rivate life. His last residence in Wisconsin was at Menasha, on Doty's island, of Lake W^innebago. In 1861 he was appointed superintendent of Indian affairs by President Lincoln, and subsequently governor of Utah, holding this position until his death, which occurred June 13, 1865. He was emphatically one of the most eminent pioneers of Wisconsin, and his important public services entitle him to lasting honor.

To reach Prairie du Chien from Green Bay, Judge Doty had to travel the distance in a bark canoe, by way of the Fox and W^isconsin rivers. Annual journeys were undertaken between the two points, from 1825 to 1828, by the judge a- d district attorney, Henry S. Baird, in one canoe. It was usually manned by seven Indians, and the trip each way occupied about seven days. Baird took his family along. Mrs. Baird, wlio is now (1884) still living, relates the journey was rendered very enjoyable by its sociability and novelty. It was through a wilderness, on wild waters, and no while inhabitant found along its entire course.

In 1829 Morgan L. Martin came to Green Bay, and was subsequently admitted lo the bar by the court. In May, of the same year, he and Judge Doty, and the district attorney (Baird), with a Mennmonee Indian for a guide, traveled on horsbback from Green Bay to Prairie dti

Chien and back. It took them seven days each way. During the journey, they saw no white man. Their course led through what is now Fond du Lac, Green Lake, Madison, Blue Mounds and Dodgeville ; crossing the Wisconsin river six miles above its confluence with the Mississippi.

In those early days, courts were held in rooms in log dwellings, log school houses, and barns, in an emergency, as was the case at the May term, 1826, at Prairie du Chien, when the site of the village was inundated by the Mississippi. "It would naturally be imagined that, under such circumstances [as the flood], court could not be held. But not so ; a large barn, situated on dry ground, was fitted up for the occasion. The judge [Doty] and the attorneys occupied the extensive threshing floor, and tlie jurors the mows. When the latter retired to make up a verdict, they were conducted by an officer to another barn or stable."

In a previous chapter (III), in an account of the so-called "Winnebago War," mention is made of the murder of Gagnier and Lipcap, at Prairie du Chien. It was thought advisable to try the Indians for that murder, in Judge Doty's court, that is, in the "Circuit Court of the United States, for the county of Crawford," instead of the county court of Crawford county. But, in order to give the court fir«t mentioned jurisdiction, and at the same time net to bring it in conflict with the county court, thr following acts were passed :

Be it enacted hy the Leyislative Council of the Territory of Michigan, that from and after the first day of July next ensuing, it shall not be lawful for the county courts, in the counties of Michillimackinac, Brown and Crawford, to take or to hold, or entertain jurisdiction of the trial of any civil or criminal cause ; nor shall it be lawful for the clerks thereof, as such, to issue

Sec. 2. That all its suits, indictments, recognizances, process, writs, appeals and all other matters and things whatsoever, relating to causes civil and criminal, pending in or returnable to the said county courts, are hereby transferred and made returnable to the circuit court of the United States, to be held in each of the said counties where the same are pending ; and the circuit court is hereby authorized and required to liear, try, and determine all such suits, indictments, recognizances, process, writs, appeals and other matters and things aforesaid, according to law, and in like manner as the said county courts would have been required to hear, try and determine the same, if this act had not been passed.

Be it enacted by the Legislative Qouncil of the Territory of Michigan, That " the additional judge of the Michigan Territory, in the counties of Michillimackinac, Brown and Crawford," be and he is hereby authorized to hold a special session of the circuit court for the county of Crawford, at such place in the borough of Prairie du Chien, as he may appoint, on Monday, the twenty-fifth day of August next, and so long a time thereafter as may be necessary for the trial of all such criminal cases as shall then and there be moved and prosecuted in the said court; and the clerk of said court shall issue veniries for fifteen grand, and twelve petit jurors to attend the said session.

Sec. 2. That the jurors aforesaid shall be free white males of this Territory, above the age of twenty-one years, and shall have resided therein one year previous to the said twenty-fifth of August, and, no other qualification shall be required by the court, of the said jurors; and if any juror is subpoenaed as a witness in any criminal case, to be prosecuted as aforesaid, or does not possess a full knowledge of the English language, he- shall not be discharged for such cause alone.

Sec. 3. That no person, indicted for any crime at the said session, shall be allowed by the court to challenge peremptorily, and without cause, more than twelve jurors of the said panel, anything contained in any law to the contrary notwithstanding: Provided^ That any deliciency in said panel, from any cause whatever, shall not operate to prevent the court from causing a sufficient number of jurors to complete the panel aforesaid, to be summoned from among the neighboring citizens. Approved June 3, 1828.

According to the provisions of this last act, Judge Doty convened his court on the 25th of August, 1828. On the first day of September, Chickhonsic, or the Little Boeuf, and Waniga, or the Sun, were indicted for murder, as accomplices of Red Bird, in the killing of Gagnier and Lipcap, in June of the preceding year, as related in chapter III, of this history. The two Indians (Wiiinebagoes) just mentioned were convicted and sentenced to be hung on the 26th of December following; but, before that day, they were as already related, pardoned by the President of the United Stales. Two other Indians, charged with the murder of Methode and family were at the same term discharged under a nolle prosequi.

The two acts of the Michigan Territorial council before given, remained in force until the last day of July, 1830; so that all cases, civil or criminal, in Crawford county, were triable in Judge Doty's court between the 1st of July, 1828, and that date instead of in the county court. Now, it so happened that in August, 1828, a man was killed within the limits of that county in that part now the county of Green. The slayer was, of course, properly tried in Prairie du Chien, and in Judge Doty's court. It was the ease of a trader among the Winnebagoes by the name of Mc- Nutt, who killed another trader named Boner. From a published account of this affair, in 1857, by J. W. Stewart, we have the following particulars:

"Boner and McNutt were both in the habit of partaking two freely of spirituous liquors, which they kept to sell to the Indians [at a place about one mile southwest of what was afterward Exeter, in the present Green county]. One night during the month of August, [it was earlier, probably in June] 1828, whilst no one was about their premises except the two partners and Van Sickle, their interpreter, one of them - McNutt - without having had any previous quarrel, dispute, or provocation known to any one, under the effects of intoxication, came into the house with a common ax in his hand and deliberately killed Boner and cut him into pieces, in the presence of Van Sickle. The latter, without interference, fled to Blue Mounds on foot, and gave the information. As Van Sickle left the cabin, in his fright, McNutt, the murderer, laid hold of his rifle and shot after him, the ball striking the door check. A few minutes after Van Sickle's arrival at Blue Mounds, McNutt arrived there on horseback and surrendered himself to the officers, who took him to Prairie du Chien. Mr. Blackmore, who is my informant, was away from home the day of ihe murder, but was there the next day, and assisted in burying Boner, who occupied the first grave of a white man within [what are now] the limits of the county. After eighteen months confinement in jail at Prairie du Chien, ]\[cNutt was acquitted."

An account of the killing of Boner given to Albert Salisbury, in 1871, by William Deviese, differs from the foregoing in a few particulars. It is as follows:

"After the murder of Boner, McNutt fled to Blue Mounds and was lying drunk at Moore's wlien the news reached the Mounds. He was tied by Deviese, Duncan and others, and delivered up to the officers from Dodgeville. Mc-

Niitt made no resistance, being in fact too drunk, but denied all knowledge of the murder, and said if he killed Boner he knew nothing of it, as may have been the case. He was kept in jail in Prairie du Chien for a year and a half, and then acquitted."

"Hawthorn was called to Prairie du Chien in the spring of 1827 as a juryman to the United States district court. There were twenty indictments for murder, resulting in but one conviction - that of a soldier who had killed his lieutenant. Sixteen different persons were indicted who had participated in a charivari, which resulted as so many of those things do. The two ring leaders broke jail and left for Canada. At Green Bay, they got a job of making shingles and having been supplied by their employer with provisions, blankets, etc., it need not be said that they did not stay long in their shingle camp.

"At this term of court, McNutt was tried for the murder of Boner on Sugar river. Van Sickle, the interpreter, being the only witness for the prosecution, his veracity was impeached by the defense, and McNutt was acquitted. Hawthorn laughs over a remark which he heard Van Sickle make after the trial - that 'they brought in that bloody Jake Plunter to swear against me, and he's as d - d a liar as I am myself.' "

It is proper here to mention that the jurisdiction of the county court of Crawford county was afterward restored, although in no wise affecting the settlers who then lived in what is now Green county ; as they had, by the organization of Iowa county, passed under the jurisdiction of the "circuit court of the United States for the county of Iowa." The act restoring the jurisdiction of the Crawford county court was as follows:

He it enacted by the Legislative Council of the Territory of Michigan. That it shall hereafter he lawful for the county court of the county of Crawford, to take and entertain jurisdiction of all causes, civil and criminal, that may arise in said county, and to direct the issuing of all necessary process for carrying the same into effect, in as ample a manner as was possessed by said court, previous to the passage of the act entitled "An Act to restrict the jurisdiction of the county courts of the counties of Michillimackinac, Brown and Crawford, approved June 18, one thousand eight hundred and twentyeight, or as said court would have possessed, provided the act aforesaid had not been passed.

While Judge David Irvin, the successor of- Judge Doty, was holding his office, it was thought best to better provide for the publication of all legal notices in the counties of Brown, Iowa and Crawford; so the following act was passed, applicable, however, to both circuit and county courts:

Section 1. Be it enacted by the Legislative Council of the Territory of Michigan, that when notice of any application to any court or judicial officer in any of said counties of Brown, Iowa and Crawford, of any proceeding in any court, or before any judicial officers, in either of said counties, is required to be published in any newspaper, the said notice shall be published by posting one copy of it on the door of tlie house where the circuit court was last held, in the county in which said application is made or proceeding had; and the court or judge may order a further publication, if, in their discretion, the nature of the case shall require it, by inserting a coi)y thereof in a newspaper.

Sec. 2. TIjo provisions of the foregoing section shall not effect any application made or proceeding had as aforesaid, previous to the 1st day of June next.

The Territorial ciicuit court, with IXavid Irvin as judge, continued until abrogated by the organization of the Territory of Wisconsin. iJdij'ul Trvin. David Irvin was born in Albemarle Co., Va., in 1794, and was of blended Scoth and Irish parentage. His father was a Presbyterian minister and a teacher of the ancient languages of mucli local reputation. Young Irvin was educated for a lawyer and started in life in the Shenandoah valley. As he did not meet with much success there, he applied to his old school-mate, William C. Rives, who was at that time in high favor with President Jackson, to get him an office. Mr. Rives suggested a judgeship. The to'm of office of Judge Doty, as judge of the additional district for Michigan Territory, ha\^ing expired, [1832), that position was tendered Irvin and accepted. Upon the organization of the Territory of Wisconsin, he was appointed associate justice of the Supreme Court by President Jackson.

Being a bachelor, Judge Irvin's residence was not necessarily confined to any locality. He always preferred southern society ; and as soon as his last office was ended, he went to St. Louis, where he remained some length of time. He subsequently became a citizen of Texas and a wealthy man.

Though only thirty-six years old when he first came to what was afterwards the Territory of Wisconsin, Judge Irvin seems never to have been regarded by the people as one of their number. He was free from the vices which too often, in those days, injured or even ruined some of the most promising men in the west. He was generally regarded as a fair and upright judge, of respectable ability. The peculiarities of his character, and his entire withdrawal many years ago from all connection with the State of Wisconsin, have led to numerous attempts, on the part of early settlers, to describe him. "Judge Irvin," says one who knew him well, "was about six feet in height, very erect and well proportioned. His hair was auburn, eyes blue, features narrow. He was not a laborious judge, but was attentive to duty, honest and upright in every particular. He was candid, and without intrigue or deception. For integrity and moral principle, he enjoyed general confidence. He was fond of a horse and a dog ; always esteeming his horse and dog the finest and best. Being a bachelor, these animals seemed to be the especial objects of his care and attention. He was fond of hunting, particularly for prairie chickens. Upon these excursions he would frequently take members of the bar with him. He was very economical, but scrupulously just in all his dealings. He indulged in acts of kindness to his relatives, but did not show much sympathy for others. While he treated all with urbanity and respect, he did not form particular attachments for strangers."

"He [.ludge Irvin] was a Virginia gentleman of the old school. Social, kind-hearted, aristocratic, as became a Virginian of the F. F's, he was a bachelor with his whims and peculiarities. He was a great lover of hunting, particularly of prairie hens, in the shooting of which he was an expert. On this he prided himself ; and no one must excel him, if he would keep in his good graces. He was also learned in the knowledge of horses and dogs, as well as in the law. His ^own house, Pedro, and his dog, York, to whom he was much attached, and whose superior blood often formed the theme of his conversation, were as well known to the bar as the judge himself. They were necessary appendages to the judge and the court. It was said by the wags that, if one wanted to win his case before the judge, he must praise his dog and his horse. But of truth it can be said of him that he was a lover of justice, detested meanness, was well grounded in the principles of the law, and was possessed of very respectable perceptive and reasoning powers. He seldom consulted law books, with which the bar of those days was poorly supplied ; but on the whole, for the times, was a fair and respectable judge."

Tsreitokial District Court

The act of Congress which provided for the organization of Wisconsin Territory, declared that the judicial power therein should be vested in a Supreme Court, district courts, probate courts and justices of the peace. Charles Dunn was commissioned chief justice and David Irvin and William C. Frazer, associate judges. The act of Congress before mentioned required that the Territory of the Wisconsin should be divided in three judicial districts. The three judges of the Supreme Court were district judges. The counties of Crawford and Iowa (a great part of what is now the county of Gi'een being in the latter) were constituted by the Wisconsin Territorial legislature, the first district, to which was assigned Chief Justice Dunn. He also, upon the organization of Grant county, held court therein ; so, also, upon the organization of Green county, he presided at its courts, until, in 1839, it was made a part of a new district.

At a district court of the United States begun and held in the county of Green, in the Territory of Wisconsin, at the court house in the town of New Mexico, on the second day of April (it being the first Monday in said month), in the year of our Lord eighteen hundred and thirty-eight.

Ordered by the court that Mortimer Bainbridge be and is hereby appointed clerk of this court ^^'''O tern, vice George McFadden, who declines serving further.

Tiie sheriff produced in court his bond, with Abner Van Sant, William Bowen, Hanson Ivon and Alfred G. Houton, securities, which was approved of by the court, and thereupon said Jolin W. Deniston as sheriff took the several oaths of office prescribed by law.

The sheriff returned unto court the following panel of grand jurors, to wit: Elijah Austin, Amos Harris, Mordecai Kelly, Joseph Woodle, Jarvis Rattin, Hiram Rust, Thomas Bowen, William Blunt, Peter Wells, John Blunt, Mathew Wells, Joseph Kelly, Jacob Andrix, Hanson Ivon, Julius Austin and Augustus Chilton, who, being elected, tried and sworn, retired to consider the matter given them in charge. The court appointed Hiram Rust foreman of the grand jury, who took the foreman's oath. Andrew Clarno, Bennet Noland, Joel Decamp, James Hawthorn and Peter Webb, who were returned in the panel by the sheriff as having been duly summoned, on being called c^^me not, but made default, whereupon, on the motion of the district attorney it is ordered that a summons issue against the said delinquent grand jurors, returnable to the next term of this court to shew cause why they should not be fined for a contempt of court.

Onlered that Mortimer Baiiibriclge be, and lie is hereby, appointed clerk of the district court of Green county, Wisconsin Territory, who gave bond, with Charles Dunn, Francis Gehon, John W. Deniston, Jacob LyBrand and T. S. ^Vilson, securities, in the sum of two thou, sand dollars, and took the several oaths of office.

The said bond was approved by the court. The sheriff returned unto court the following ]>anel of petit jurors, to wit: J. Whitcouib, Stei)hen Clarno, Henry Ator, James Campbell, William Brown, James Chilton, Robert Kirkendall, Calvin Hale, Joseph Smith, Daniel Sutherland, S. F. Brown, Amos Bradley, .Joseph Mc- Cracken, G. W. Reeder, Isaac Wells, William Draper and John Chadwick.

William Bryant, Daniel Harcourt and Jonathan Roberts, who were returned by the sheriff as having been duly summoned as petit jurors, on being called came not, but made default, whereupon, on the motion of the district attorney it is ordered that a summons issue against the said delinquent petit jurors, returnable to the next term of this court to shew cause why they shall not be fined for a contempt of court.

On tlie motion of tl\e district attorney it is ordered that a capias issue to the sheriff of Green county against Elizabeth Gage, returnable forthwith.

This day came the plaintiffs by T S.Wilson, Esq., their attorney, as also the defendant by James Churchman, Esq., his attorney, and the said Churchman, attorney as aforesaid, by virtue of a power of attorney for that purpose to him directed, appeared in open court, waived process, accepted a declaration and confessed a judgment in favor of the said plaintiffs and against the said defendant for the sum of ninety dollars and sixty-nine cents, the amount due upon the promissory note in said power of attorney mentioned, including interest from the time the same became due, as also for costs of suit, with stay of execution until the first day of the next term of this court. Thereupon it is considered and ordered by the court that the plaintiffs recover of the said defendant the said sum of ninety dollars and sixty-nine cents, together with their costs by them in this behalf expended, and that they have execution therefor from and after the first day of the next term of this court.

This day came the plaintiff by T. S. Wilson, Esq., his attorney as also the defendant by James Churchman, Esq., his attorney, and the said Churchman attorney as aforesaid, by virtue of a i^ower of attorney to him directed, appeared in open court, waived process, accepted a declaration and confessed a judgment in favor of the said Kimball and against the said Ream for the sum of one hundred and seventeen dollars, two dollars and forty-six cents the amount of interest on the first mentioned sum, from the 10th Nov. A. D., 1837, as by said power of attorney authorized, together with costs of suit, with stay of execution until the first day of the next term of this court, thereupon it is considered and adjudged by the court that tlie plaintiff recover of and from the said defendant, the sum of one hundred and twenty dollars and twenty-two cents, as also his costs by him in this behalf expended, and that he have execution therefor after the first day of the next term of this court.

This day came the United States by their attorney, as also defendant by T. S. Wilson, her attorney, who moved the court to quash the indictment for the following reasons, viz:

2d. The section of the law under which the defeiidaiit is indicted (sec 11 page 446 Michigan laws) does not contemplate the crime of adultery.

Ordered that T. S. Wilson, Esq., attorney jt>ro tetn for the United States, be allowed for services during the present term as follows, to wit:

For three days attendance at court at five dollars per day, fifteen dollars. Traveling to court one hundred miles at five cents per mile for going, the same for returning, ten dollars; making in all twenty-five dollars. Ordered that the above allowance be certified.

For three days attendance at court at five dollars per day, fifteen dollars; for traveling to court one hundred miles at five cents per mile for going and the same for returning, ten dollars, making in all twenty-five dollars. Ordered that the above allowance be certified.

Ordered that M. Bainbridge, clerk of the court be allowed for services during the present term of this court as follows, to wit: For three diys attendance at court at five dollars per day, fifteen dollars; traveling to court seventy miles at five cents per mile for going and the same for returning from court, seven dollars, making in all twenty-two dollars. Ordered that the above allowance be certified.

Ordered that John W. Deniston, crier to the court be allowed as follows, to wit: For three days services at two dollars per day, six dollars. Ordered that the above allowance be certified.

Ordered that James Churchman, Esq., be allowed as follows, to wit: For services as district attorney during the present term fifty dollars. Ordered that the above allowance be certified.

Ordered that John W. Deniston, sheriff be allowed for three days service during the present term; that Alfred G. Houghton, deputy sheriff be allowed for three days service during the present term, and that Charles Boyles, deputy sheriff be allowed for two days service during the present term, and that the above allowance be certified.

Ordered by the court that the defendant be admitted to bail in the sum of one hundred dollars, with two sureties in the sum of fifty dollars each, before any two justices of the peace in tins county.

August Term, 1838

At a district court of the United States begun and held in the county of Green in the Territory of Wisconsin, at the court house in the town of New Mexico, on the twenty-seventh day of August (it being the fourth Monday in said month) in the year of our Lord, one thousand eight hundred and thirty-eight.

The sheriff returned into court the following panel of the grand jury, viz: Josiah Vv'hitconib, William Draper, II. Irion, James Campbell, John Budge, Joseph McCrasken, Jesse W. Shull, G. W. Reeder, Stephen Hale, Augustus Chilton, Horace Griffin, Matthew Wells, Calvin Hale, William Woodle, Joseph Kelly, D. C. Bridge, Thomas Bo wen, Adam Starr, William Rittenhouse, Joseph- Woodle, James Hawthorn, John Chadwick, Julius Austin and Henry Minor, and the court appointed William Rittenhouse foreman, and the said jury on being sworn and charged, retired to consider of presentments and indictments.

Monday, August 27, 1838

This day came the defendant and moved to quash the indictment herein for reason filed and the said motion is continued until tomorrow morning.

This day came the defendant in the seven above entitled causes and uj^on their oaths purged themselves of the supposed Contempt, alleged against them. It is therefore ordered by the court that they be severally executed and go hence without day.

The sheriff returned unto court the following panel of the petit jury, who were severally called and appeared to-wit: Joel White, James Chilton, Jlubert Kirkendall, John Blunt, Jonathan Roberts, Isaac Wells, Joab Enos, Stephen Bone, William Wells, Mordecia Kelly, Joseph Payne, Thomas Woodle, S. F. Brown, John Christ, Peter Webb, Peter Wells, William Eastman, Jar vis Rattan, William Beard, Amos Harris, II. W. Hays, Christopher Andrick and Joseph Smith.

This day came the plaintiff by F. J.Dunn his Attorney, and on his motion the defendant was three times solemnly called came not but made default and on the further motion of said attorney ordered that this cause be continued till the next term of this court. United States )

This day came as will the district attorney as the defendant in his OAvn proper person and the motion made herein on yesterday to quash the Indictment for reasons filed was solemnly agreed, and after mature deliberation thereof it was ordered and adjudged by the court that the said motion be sustained, the indictment quashed and the defendant go hence M'ithout day. United States )

This day came the defendant .James Hawthorn and upon oath purged himself of supposed contempt herein, whereupon it was ordered and adjudged by the court that the said defendant go hence without day.

Ordered that J. D. Jenkins deputy raarshall be allowed for three days attendance on this court and for traveling forty miles. Ordered that above allowance be certified.

Charles Dunn, Chf. Jus. and Pres. in G. D. C. Wednesday, August 29th, 1838. The court met pursuant to adjournment - present the Hon. Charles Dunn Judge; M. liainbridge clerk.

Ordered that M. Bainbridge be allowed for services during the present term of this court as clerk, as follows: For three days attendance upon this court at five dollars per day, fifteen dollars. Ordered that the above allowance be certified.

Ordered that A. G: Houghton constable be allowed for three days attendance on this and on the grand jury. Ordered that the above allowance be certified.

diaries Drnin. Charles Dunn was born Dec. 28, 1799, at Bullett's Old Lick, Bullett Co., Ky., which is about sixteen miles from Louisville. He was the eldest of a family of five sons and four daughters, and at the age of nine was sent to school at Louisville, where he remained a number of years, when he was called homo and sent on a business tour to Virginia, Maryland and Washington. Upon his return l\ome lie read law a short time with Worden Pope, a distinguished lawyer of Louisville. He afterward proceeded to Frankfort and continued his law reading for about two years with the eminent John Pope, tlien secretary of State, and who was the first law professor in the Transylvania University, at Lexington.

Mr. Dunn, in May, 1819, went to Kaskaskia, at that time the capital of Illinois, where he completed his studies under the direction of Nathaniel Pope, district judge of the United States. In 1820 he was admitted to the bar, Sidney Breese being admitted at the same time. He then commenced practice at Jonesboro, Union Co., 111. In 1821, he married Mary E. Shrader, daughter of Judge Ostro Shrader, who had been a United States judge in Missouri Territory. He remained in practice at Jonesboro for several years, anjl then removed to Golconda, Pope Co., 111.

For two years Mr. Dunn was engrossing clerk, during two sessions of the House of Representatives of the Illinois legislature, and for five years its chief clerk. In 1829 he was appointed, by Gov. Ninian Edwards, acting commissioner of the Illinois and Michigan canal, and with his associates on the commission, Edward Roberts and Dr. Jane, surveyed and platted the first town lots of Chicago. The first town lots of this embryo metropolis were sold by the coruraissioners on behalf of the State in the latter part of 1S29, and the sales continued in 1830 and in 1831, during which years the survey of the canal and railway line was made and reported.

In the early part of 1832 Indian troubles commenced and a requisition was made upon the State authorities of Illinois for troops to engage in service against the Indians led by Black Hawk. Three brigades responded to the call, and .Mr. Dunn entered the service as captain of a company he had raised in Pope county, whore he then resided. His conipan}'^ was assigned to the 2d regiment, which was commanded by Col.

Soon after, in an engagement with the Indians (what engagement is unknown) Capt. Dunn became the victim of a blundering mistake on the part of a sentinel, by which he was severely, and at first it was thought mortally, wounded.* On approaching the sentinel he was severely wounded by him in the groin, of course through the mistake of the soldier. Dunn was taken back to Fort Dixon, where he was confined by his wound until after the war was ended by the battle of Bad Ax.

As soon as he was sufficiently recovered, Capt. Dunn returned home, and in the spring of 1833 acted as assistant paymaster in paying off the first brigade. During that year he resumed the practice of his profession. In 1835 he was elected a member of the House of Representatives of the State legislature, from Polk county, and was chairman of the committee on the Judiciary during the session. LTpon the recommendation of the Illinois delegation in Congress, and the delegate of the Territory of Wisconsin, George W. Jones, he was appointed by President Jackson, in the spring of 1836, chief justice of Wisconsin Territory. He arrived at Mineral Point, July 4, 1836, and was then and there sworn into oftice, which he held until the organization of the State judiciary. The last term of his court was held at Mineral Point, in October, 1848.

Judge Dunn was a momlter of the second constitutional convention of the State from Lafayette county, and was chairman of the committee on the judiciary of that body. He took a leading part in framing what afterward became and still is, the constitution of Wisconsin. Subsequently, he was elected State senator for the district composed of the county of Lafayette. He served in that capacity during the sessions of that body in 1852 and 1853, and was chair-

On the expiration of his term of office as chief justice, Judge Dunn engaged in the practice of the law in Lafayette and adjoining counties. He was regarded one of the most eminent among those who were or had been in the profession, in Wisconsin. Wiiile chief justice, his judicial studies were especially onerous, as, during the greater portion of the time he was on the bench, his district, as circuit judge, was the most populous and important in the Territory, and produced, it is believed, the greatest amount of litigation. His judicial and official duties were performed with rare ability, fidelity and integrity; and, although he had a few enemies (who has not?), he always commanded during his residence of thirty-five years in Wisconsin, both in public and private life, the confidence and esteem of a very large proportion of the people. To near the time of his death, in 1872, at the advanced age of seventy-two, he continued in the vigorous practice of his profession at Belmont, and was, at that time, the oldest lawyer in the State.

William Hull says of him: "As a lawyer, Judge Dunn ranked as one of the best. As a judge, he was as honest and impartial as a man of his temperament could possibly be. A good pleader himself, he held us all to the strict technicalities of the common law practice, which then prevailed, and, although at times prone to give way to the violence of his personal feelings, he was geneially liked and respected by the members of the bar in his district and territory. He could never forget his dignity on the bench; on the road traveling from court to court;.atthe stopping-places for the night; and during the sessions of the courts; he was, with his friends, at all times courteous and a gentleman; to those whom he did not like, he could and did occasionally i)reserve a different course. This trait in the judge's character can only be accounted for by premising that, like all other descendants from the first familiefs of Tirginia,

"In all places and at all times Judge Dunn never put off his dignity. One instance of this ruling trait will bear to relate. Game of all kinds was very plentiful in those early days and deer-hunting was a common pastime. After the fall terras of the courts had terminated, on one occasion the judge, his brother Frank, a henchman of Frank's, Abe Fields, a gentleman now prominent in an adjoining State, and Mr. Hull, of La Crosse, were in camp on the Kickapoo river, near Wayne's mill. The judge, for some cause, did not, as had been observed, take much interest iti the unnamed gentleman. The second day of the hunt, the judge, a true sportsman, had killed a magnificent buck, and it had been brought into camp. The deer was hung up for dressing. Judge Dunn, with coat off, sleeves rolled up and knife in hand, had commenced work. After a few cuts with the knife had been made, the gentleman wishing to make some remark to the judge, spoke loudly - 'Dunn!' As quick as a flash Judge Dunn stopped his work, turned facing the gentleman, and with piercing black eyes flashing lightning, responded, - 'Judge Dunn, if you please, sir!' After this explosion there was silence in the camp for awhile."

Although Judge Dunn continued chief justice of Wisconsin Territory and judge of the first district therein until the Territorial district court was abolished by the admission of Wisconsin as a State, still there was a veiy strong effort made during his incuml)ency to have him ousted from oftice by certain citizens of the first district, who circulated the following petition : To his Excellency^ James Jx. Polk, President of

The undersigned, citizens of the first judicial district, composed of the counties of Crawiord, Grant and Iowa, in the Territory of Wisconsin, would most respectfully represent to your e.\- cellency, that many persons in this jiulicial district, whose practice or business brinc^s them in contact with our court, complain that Charles Dunn, cliief justice of the Territory, and presiding judge of our district, is in the constant habit of favoring the practice and clients of his brother, Francis J. Dunn, a practicing lawyer in said district, in all rules of court, pleas, .motions and points of law, made by him, to the injury of those persons who may be so unfortunate as to have Mr. Dunn retained against them. Your petitioners are aware that charges of this nature cannot be sustained otherwise than by circumstantial evidence. Tlie circumstance, therefore, on which they would rely to convince your excellency of the truth of this charge, is, that the docket of the district court of the county of Iowa alone contains over 250 causes, set for trial at the last term of court, and the brother of Judge Dnnii, a very young lawyer, is retained in fully one-half of these causes. Notwithstanding the lucrative and successful practice of young Mr. Dimn in the circuit of his brother, the murmurs and complaints of the members of the bar and their clients, at this state of things, might pass unheeded if Francis J. Dunn possessed talents to warrant such success. 15ut with abilities not above mediocrity, there is nothing to justif)'^ so great and lucrative a practice, over older and better lawyers, but the fact of his being the brother of the judge.

Your petitioners would also represent to your excellency, that the said Charles Dunn, has, in violation of the laws of the Territory, presided in suits at law wherein his brothers have eitlier been plaintiffs or defendants, which the records of our courts will show, in numerous instances. We would particularly call the attention of your excellency to the case of Dunn vs. Marsh, in the Crawford district court. Tiie notorious Jeffries, in the corrupt reign of Charles II, could not have been guilty of a more shameful prostitution of justice to subserve his master, than

Your petitioners would further represent to 3'our excellency, that the said Charles Dunn, acting as judge of the first judicial district, did, in the year 1841, on the complaint of one John Dowling, of Oxalena, in the State of Illinois, now deceased, grant an injunction against the I^ank of Mineral Pointr, appointing his brother, John Dunn, and two others, his personal friends, receivers to close the affairs of said bank. It is a matter of some notoriety that one of the receivers, thus appointed, boasted that they would each make at least 1 10,000 out of the pickings of the bank.

About the time this injunction was granted, the cashier of the bank absconded. He was pursued and overtaken by John Dunn, one of the receivers, and Dr. William Davidson, who took from him acceptances and bills of exchange to the amount of 170,000 or $80,000. In a newspaper publication made about the time of the arrest of the cashier, to satisfy the public mind, the receivers state that the assets taken from the cashier and other officers of the bank, independent of the bonds, notes, l)anking house and other property of the bank, amounted to nearly $100,000 ! In the meantime Dowling, the complainant against the bank, dies, and Francis J. Dunn obtains the administratorship of his estate in this Territory, being at the same time agent and attorney for the receivers. Acting thus for the plaintiffs and defendants, he holds the keys of the front and back doors of the bank ; and having at the same time associated with him, in the practice of the law, D. Walter Jones, the president of the bank at the time of its failure, and having further cemented that partnership by the marriage of that person into the family, the door has been effectually cjlosed to all inquiry, and the affairs of the bank have been wrapped in mystery now for over four years.

ly required by public meetings and otherwise, and no dividend has been made, except a private one of about $3,000, which was divided among a very small number of bill-holders, at the rate of fifty cents on the dollar, to the exclusion of a large body of creditors of the bank, who were not advised of the terms and condition on which that dividend would be made.

However, before this partial and private dividend was made there was a payment made out of the assets of tlie bank to Dr. William Davidson, of Grant county, one of the persons who assisted in arresting the cashier, and who held the bills of the bank to a considerable amount. It is alleged that Hr. Davidson obtained this payment by threats that he would make an expose of certain illegal acts of the receivers or their agent. Be that as it may, it is the opinion of legal men that the payment to Davidson, and tlie partial division shared by a few of the bill-holders, is a violation of the condition of the bond given by the receivers, and that the creditors of the bank could recover from the receivers and their securities, if not the full amount of their claims, at least the same late of dividend which their agent liad paid lo others.

But to seek justice before the presiding judge of the district, when* it is known that he did not emigrate to the Territory with a character like Ciesar's wife, who is openly accused of presiding in cases wherein his brothers were parties, which is in direct violation of the laws, would be adding another act to the farce of justice which has so frequently been enacted in this district.

If the conduct of Judge Dunn, in any public capacity in which he has acted through life, was such as to place hira above the suspicion of doing a dishonoiabie act, tlie murn)urs ami complaints against him would not have the "Wciglit with us they otherwise possess.

year 1839, receive from a certain Samuel Wiggins a fee or bribe of 1200, to procure the passage of an act through the legislature, known as the "Wiggin's Loan;" a more corrupt and swindling act never having been passed by any legislative body in the Union !

This rumor considered, your excellency will not be surprised that the man against Avhom the broad charge is brought, true or false, that he sold himself as a legislator, may on slight grounds render himself obnoxious to the suspicion that he is corruptible as a judge ! But there are other and graver charges against Judge Dunn, which are not based on suspicion. The proofs to sustain them are tangible and can be produced before any competent 'ribunal.

These proofs must serve to convince your excellency that, under any circumstances, Charles Dunn, chief justice of this Territory, is unworthy and unfit to fill his present high and responsible office. They are first -

"That while hoMing court in the county of Iowa, at the spring term of said court, in the year 1838, Judge Dunn was intoxicated during the whole term of court. That during the said term a certain McCuraber was indicted and tried for the murder of George C. Willard, a nephew of Gen. Dodge. The defendant, owing to the charge of the judge to the jury, was convicted of manslaughter, and received the sentence of the law, although from the testimony it was clearly a case of self-defense. These facts can be established by the testimony of W. W. Chapman, late United State's district attorney, Iowa Territory ; John Catlin, Esq., Madison; IVIoses M. Strong, Esq., Iowa county ; Thomas P. Burnett, Esq., Grant county; J. D. Selhorst, late sheriff, Iowa county ; I. T. Lathrop, late postmaster. Mineral Point; F.Gheon,late marshal Wisconsin Territory, and Thompson Campbell, Esq., secretary of State, Springfield, 111.

"Second. - That at the October term of the Grant circuit court, held at Lancaster in 1838, Edward C. Oliver was indicted for the mr.rder of John Russell, at .Cassville. In the trial of this case, after hearing the testimony, the jury retired and remained out all night. Having disagreed as to the testimony of John Allen, the principal witness for tlie prosecution, they came into court, and at their request tliis witness was recalled. At his previous examination Allen was intoxicated ; on being recalled into court, he was still more so. During his re-examination by the jury, the prisoner was not in court, nor had lie been ordered in for that purpose ! The testimony of Allen on his re-examination, was stronger against the prisoner than it had previously been. "^I'lie juiy again retired, and immediately returned into court with a verdict of guilty, against the prisoner. The counsel for Oliver then moved the court for a new trial. One of the grounds on which this motion was based, was that a witness for the prosecution had been recalled at the request of the jury, and was re-examined in court without the prisoner being present. This motion was overruled by the court, and sentence of death was pronounced on him ! A bill of exceptions was then drawn up and tendered to the judge, who suffered the prisoner to be executed with this bill of exceptions in his pocket! During the whole term of this court the judge was intoxicated ; after its adjournment he was attacked with delirium tremens, jumped out of his chamber window, and was thereby disqualified from attending to his official duties in Crawford county, which court immediately succeeded that at Lancaster. The witnesses to this outrage on law and decency, are John S. Horner, Esq., register of the land office at Green Bay ; Hon. Thomas S. Wilson, judge of United States district court, Iowa Territory ; Mortimer Bainbridge, Esq., Dubuque ; John S. Fletcher, G. M. Price, J. Allen Barber, Nelson Dewey, Thomas P. Burnett and John II. Rountree, Esqs., Grant coutity.

"Tniun. - That at a previous term of the Grant circuit court, Judge Dunn was intoxicated during the term of the court, and was attacked with mania a potn. The witnesses rirc Dr. Wood,

John 8. Fletcher, Clovis Le Grand, Thomas P. Burnett, J. A. Barber, G. M. Price and Nelson Dewey, Grant county ; W. .W. Chapman, Parley Eaton and Moses M. Strong, Esqs., Hon, Judge Wilson and Joseph P. Hoge, member of Congress from Galena, 111.

"Fourth. - That at a special chancery term appointed by Judge Dunn to be held at Mineral Point, in January, 1840, he was so much intoxicated as to disqualify him from holding the said term of court. The witnesses are Moses M. Strong, Parley Eaton and I. T. Lathrop, Esqs., and James H. Gentry, late sheriff, and John Bracken, late under sheriff of Iowa county.

"Fifth. - That while holding a court at Prairie du Chien, in Crawford county, for the trial of Ciie-ge-wais-cum, a Chippewa Indian, indicted for the murder of Mr. Akins, an Indian trader. Judge Dunn was intoxicated during the whole term of the court. The witnesses are, the Hon. Judge Wilson, James Churchman, Esq., Galena, 111.; Thomas P. Burnett, D.*G. Fenton, clerk of the court, William Wilson, J. H. Lockwood and H. Dousman, Prairie du Chien.

"Sixth. - That on the 23d of February, 1843, Judge Dunn having become intoxicated at a ball, spent the day in Platteville, playing cards in a grocery, with James R. Vineyard, indicted for the murder of C. C. P. Arndt, a member of the legislative council, whom he had recently had before him on a writ of habeas corinis, and released from the jail of Dane county, on bail. Witnesses: Alonzo Piatt, William Davidson, Dr. Bevans, John Morrison, J. M. Gordhue and B. C. Eastman, of Grant county; and J. H. Gen try, of Iowa county.

"Seventh. - That at a late term of the circuit court, for the county of Crawford, at Prairie du Chien, Judge Dunn was again intoxicated during the term of the court. The witnesses are Moses M. Strong, B. C. Eastman, Thomas P. Burnett and D. G. Fentc»n, Esqs., and Ira Brun- 8on, Esq., postmaster, Prairie du Chien."

chief justice of our Territory, your petitioners are aware that they ought to be sustained by the accompanying depositions of the witnesses named, but as a majority of the witnesses are raerabeis of the court over wliich Judge Dunn pi'osides, many causes operate on them to prevent their giving their voluntary testimony against him. We would, therefore, most respectfully request that you cause the records of our courts to be examined and the testimony of the witnesses natned to be procured, and if they should sustain the charges herewith made against Judge Dunn, that you will, in conformity to the opinion of the late attorney-general, the Hon. Felix Grundy, remove him from office. If, however, you should not concur in that opinion, and question your power to remove a Territorial judge for an open violation of the laws, and for drunkenness on the bench; then we would further request you to lay this petition before the Congress of the United States.

How extensively this petition was circulated ajid signed is unknown ; neither has it transpired as to whether it ever reache 1 the eye of the President; one thing is certain, however, if the attention of the chief executive of the Naion was called to it, he gave it no hecnl.

In so far as Green county was concerned, the administration of justice by Judge Dunn ceased, as we have seen, Aug. 29, 1838. From July of the next year, until Wisconsin became a State, the county of Green, along with those of Walworth, Rock and Dane, formed the second district of the Territory, over the courts of which Judge David Irvin (of whom a biographical sketch has already been given) presided.

The "district court of the United States" for the county of Green, Judge David Irvin presiding, held its first session in which that judge was present, on the 1 4th of October, 1839, at the house of Joseph Payne, ("b}'^ order of the judge, there being no courthouse at the county seat,") in the town of New Mexico. Judge Irvin held his last term of court in June, 1848, the last day of the last term was June 28, of that year.

The United States Vs. James R. Vineyard

By far the most important and exciting criminal trial before .Judge Irvin while he sat as judge of the "district court of the United States" for the county of Green, was that of James R. Vineyard for the killing of Charles C. P. Arndt, brought to this court on change of venue, from Dane county, mention of which homicide has already been made in a brief biography of Vineyard, given in the previous chapter (XI). The circumstances, in a few words, were these:

On the nth of February, 1842, Arndt, a member of the legislative council from Brown county, had, in the council chamber, in the capitol, in Madison, some angry words with Vineyard, who represented Grant county. A discussion had arisen in the council on a motion to re-consider a vote by which the nomination of E. S. Baker, as sheriff of Grant county, was rejected a few days before. Arndt, conceiving himself to have been insulted, approached Vineyard, after the adjournment, for the purpose of seeking an explanation, when the latter drew a pistol from his pocket and tired. Arndt reeled for a few paces, then sank on the floor and almost instantly expired, having been shot through the heart. It was an awful termination of a long and intimate friendship. Funeral services were held at the council chamber and the remains taken to Green Bay for burial. Vineyard surrendered himself to the sheriff of Dane county, waived an examination, and was committed to jail. After a brief confinement, he was brought before the chief justice of the Territory on a writ of haheas corjms and admitted to bail. Immediately after the killing of Arndt, Vineyard sent his resngnation to the council, which refused to receive it or even have it read. He was at once expelled. He was indicted for manslnnghter and a change of

Now comes the district attorney, J. W. Stewart, Esq., who for tlie United States prosecuteth, and moves the court for assistant counsel, which motion being considered by tlie court it is ordered that said motion shall not be sustained.

Also appeared the said James R. Vineyard by his counsel, Strong, Field & Botkin, and moves the court for compulsory process for absent witnesses; the said motion having been argued by tlie counsel of the parties and the court not being sufficiently advised of and concerning said motion took time to consider.

Now at this day,comes, as well the district attorney, J. W. Stewart, who for the United States prosecuteth, as the defendant, .Tames R. Vineyard, by his attorneys. Field, Strong & Botkin, Esqs. And the court being sufficiently advised of and concerning the motion made herein for compulsory process, heretofore tiled, doth overrule the same. And the said defendant by his attorneys aforesaid, moved the court for leave to withdraw the plea of "JVot Guilty,'''' and file a demurrer to the bill of indictment, which motion having been considere<l, is overruled by the court. On motion of tiie counsel for the defendant for a continuance of this cause, for reason set forth in affidavit of defendant on file, it is ordered by the court that said motion be overntlod, (o which decision of the coui-t the

This day comes as well J. W. Stewart and A. L. Collins, Esqs., who 'for the United States prosecuteth, as the said James R. Vineyard, the defendant, by Field, Strong & Botkin. And the defendant for trial puts himself upon the county, and the prosecution doth the like. Thereupon came a jury, to-wit: Thomas B. Sturges, Lewis Morton, Thomas J. Bragg, Stephen Mackey, Christopher Minert, Thomas L. Summers, Asa Richardson, Alexes Vanormin, James Rattan, Thomas Hinton, Peter S. Rutledge and William Blunt, twelve good and lawful men elected, tried, sworn and charged well and truly to try the issue between the United States and the said defendant.

Now comes the parties to this prosecution by their respective counsel, and the jury herein impaneled having taken the box, and the evidence of the parties having been examined. The court directed the sheriff to take charge of the said jury and return them into court at eight o'clock to-morrow morning.

Now comes the parties by their repective attorneys, and the jury herein having been by the sheriff conducted to the box, and the jurors of the jury aforesaid, after having beard the t'e^ti- mony as well on the part of the United States as of the said defendant and the argument of the counsel therein, and having been instructed in the law by the court, retired to tlieir chambeito deliberate on their verdict. Thereupon the jurors of the jury aforesaid came in court, and on their oaths do say: "We, the jury, find the defendant not guilty as charged in the indictment."

It is therefore considered and adjudged by the court here, that the said James R. Vine3^ard of the charges in the indictment be discharged, and that he go hence.

"1843 is memorable, in the annals of Monroe, as the year in which James R. Vineyard, a State senator, was tried here for the niui'der of C. P. Arndt, also a senator, or councilor, as the name was then. An account of the murder reads like a telegram from Texas. An altercation arose during a session of the council, and, immediately after the adjournment. Vineyard shot his antagonist in the council chamber. The jury acquitted him, and the 'acquittal was the signal for great rejoicing. Mr. Vineyard received his friends at the new Monroe House, and entertained them so well that they rose almost to a level with those men of Shakspeare's, and when the question, were you ever intoxicated, is propounded to the most temperate of the old settlers, it is likely to elicit the reply, 'Yes, when Vineyard was acquitted.' "

The first divorce granted in Green county was one obtained by Leroy Wait from his wife, Ellen Wait. The court record as to this divorce is as follows: satisfaction of the court that notice of said petition and of the time of hearing the same has been given to the said Ellen Wait, the above named defendant, at least thirty days, and itbeing made furthei" to appear to tlie satisfaction of tlie court that tlie matt-ers alleged against the said Ellen Wait in said j)etitioii are true. Upon hearing had before the judge of said cotirt at chancerj'', there having been no issue made up to l)e tried by a jury, it is hereby ordered and decreed by the court that the prayer of said petition be granted, and by virtue of the power vested in the said court, said court does hereby decree that the bonds of matrimony heretofore existing between them, the said Leroy Wait and the said Ellen Wait, be, and the same hereby are, dissolved to every intent and purpose.

The constitution of the State of Wisconsin vested the judicial power of the State in a Supreme Court, circuit courts, courts of probate and in justices of the peace. Circuit courts were to have general original jurisdiction in all matters civil and criminal, not exclusively cognizable by a justice of the peace or some other inferior court. They were to have all the powers according to the usages of courts of kiw and equity necessary to the full and complete jurisdiction of the causes and parties, and the full and complete administration of justice. Their acts and proceedings were made subject to a re-examination by tlie Supreme Court, as provided by law.

The constitution divided the State into five judicial circuits, and provided for the election of a judge in eacli. The first circuit comprised the counties of Racine, Walworth, Rock and Green; the second circuit, the counties of Milwaukee, Waukesha, Jefi:erson and Dane; the third circuit, the couiities of Washington, Dodge, Columbia, Marquette, Sauk and Portage; the fourth circuit,the counties of Brown, Manitowoc, Sheboygan, Fond du Lac, Winnebago and Calumet; and the fifth circuit, the counties of Iowa,

Lafayette, Grant, Ci'awford and St. Croix; the county of Richland being attached to Iowa county, Chippewa to Crawford, and LaPointe to St. Croix, for judicial purpi)ses.

The first election for circuit judges was held in Wisconsin on the first Monday of August, 1848. At this election the judge elected for the first judicial circuit (which, as we have just seen, included Green coutity) was Edward V. Whiton. Green county continued in the first judicial circuit until Jan. 1, 1871, when, by an act of the legislature of 1870, Green, Rock and Jefferson counties were erected into the twelfth judicial circuit; and in that circuit it still (1884) remains. The act spoken of was as follows:

"An Act to constitute and re-organize the twelfth judicial circuit; to change the limits of the first and ninth judicial circuits; and to change the time for holding the terms of the circuit court for the county of Jefferson.

"Section 1. The counties of Rock and Green are hereby detached from the first judicial circuit, and the county of Jefferson from the ninth judicial circuit, and said counties of Rock, Green and Jefferson shall constitute a judicial circuit, which shall be known and designated as the twelfth judicial circuit.

"Section 2. The terms of the circuit court in said counties of Rock and Jefferson shall be held at the time now provided by law for holding the same, and the terms of said court for said county of Green shall commence in each year on the fourth Monday of February, the fourth Monday of September and the second Monday of July.

"Section 3. No jury shall be summoned for either of the terms of the circuit court to be held in the months of June, July and August, but said court shall have power at such terms to transact any business or do any act which may be lawfully transacted or done at a general

"Section 4. An election for judge of said twelfth judicial circuit, for the term of six years, shall be held in the several towns and wards therein, on the first Tuesday in April next, which election shall be conducted, and the votes given thereat shall be canvassed and returned in all respects in accordance with existing laws providing for the election of circuit judges, and the term of oflice of the person who shall be chosen judge of said circuit at such election, shall commence on the first day of January, A. D. 1871. No notice of such election is required, and the same shall not be held invalid for want of any notice thereof.

"Section 5. This act shall take effect on the first day of April next, but the several counties comjjosing the said twelfth judicial circuit shall for the judicial purposes, remain a part of the several judicial circuits to which they have been heretofore attached until the end of the thirtyfirst day of December next.

Judge Whiton continued to discharge the duties of circuit judge of the first circuit, until the April term, 1853, when, having been elected chief justice of the Supreme Court of the State, he resigned to accept that position. Wyraan Spooner, of Walworth county, Avas appointed to fill the vacancy until a successor could be elected. In September, 1853, James R. Doolittle, of Racine, was elected, and entered ujjon the discharge of the duties of judge of the first judicial circuit. He resigned the oflice in March, 1856, and Charles M. Baker, of Geneva, Walworth county, was appointed to fill the vacancy until a new election, which occurred in April following, when John M. Keep, of Beloit, was elected.

1861. He held the office about three years and was succeeded by David Noggle, who served first by appointment and then was elected in April, 1859, continuing as judge until January, 1866, when he was succeeded by William Peini Lyon, of Racine, now of the Supreme Court.

Judge Lyon held the office of judge of the first judicial circuit, as it was then constituted, until April 1, 1871, when, by a law of the legislature which took effect at that date, the counties of Rock and Green were detached from the first circuit and, with Jefferson, whicli was detached from the ninth circuit, constituted the twelfth judicial circuit. Harmon S. Conger, of Janesville, was elected on the first Tuesday in April, 1870, judge of the new circuit, his term of office beginning Jan. 1, 1871. This position he continued to fill until the time of his death, 1882.

John R. Bennett, of Janesville, having been elected the successor of Judge Conger, lie was appointed by the governor to fill out the few remaining month's of the official term of the latter, upon the expiration of which he entered upon the full term for which he had been elected and is now (188-1) in office.

The first term of the circuit court was held in Green county, Sept. 4, 1848, Judge E. V. Whiten, presiding, "at the court house in the town of Monroe."

The second terra was held in March, 1849, by Judge Mortimer M. Jacksoiu A special term was held by Judge Whiton, July 12th of that year. The last term held by Judge Whiton, was the March term, 1853, the last day March 11, ot that year.

Judge Wyman Spooner held his first and only court in September, 1853, in Green county. The first day of the session was the 6th of that month; the last day, Sept. 10, 1858.

Judge James R. Doolittle's first term in this county, was in March, 1854, the first day of his holding court was the 6th of that month; his last term was in March, 1856.

"Left its home in the sultr\' east With foreign blood to enrich its feast," made its appearance in Green county. This fact led to this entry in the record of the circuit court, Sept. 3, 1850: "It having been made to appear that a mortal sickness is now prevalent at Monroe, where this court is now sitting, it is therefore ordered that this court do now adjourn."

On the 19lh day of June, 1878, Frederick Ohrnz Sr., was shot and killed by his son, Frederick Ohriiz Jr., in the town of Sylvester, in this county. He was prosecuted by P. J. Clawson, district attorney of Green county ; and defended by Brooks Dunwiddie and A. S. Douglas, attorneys at law. His trial commenced October 14, 1878, before the following named jurymen : George Bray, Frank Wagner, J. Wilcox, David C. Day, L. F. Moore, S. R. Eldred, Piiilip Wackman, Nelson Bussy; John Gillett, Alonzo Edwards, Silas McCreedy and E. N. Thayer. They found the defendant guilty.

He was, after his attorneys had argued a motion for a new trial, which was overruled by the court, sentenced to the State prison for life, on the 31st of October, 1878. The judgment of the court in this case was reversed by the Supreme Court on the 11th day of May, 1880. The defendant, who had been in prison, was returned to the keeping of the sheriff of Green county.

The defendant was tried the second time at the March term, 1881, in the circuit court of Green county, and found guilty, and was again sentenced for life to the Slate prison. He is now serving out his life sentence.

On the 5th day of November, 1882, Burckhard l>ram shot and killed, in the town of New Glarus, Henry Sleussy. He was arraigned for murder in the first degree, March 7, 1883, ami plead "not guilty." He was prosecuted by District Attorney, P. J. Ciawson ; defended by A. S. Douglas, attorney at law, assigned to that duty by the court. He was tried at the March term, 1883, of the circuit court of Green county, found guilty and sentenced to the Stale prison for life, March 20, 1883. He is now serving out his sentence.

On the 7th day of March, 1883, Margaret Steussy was arraigned as accessory before the fact in the killing of her husband, Henry Steussy by Burckhard Bram, and plead not guilty. She was pi'osecuted by P. J. Ciawson, district attorney, assisted by A. S. Douglas ; and was defended by Brooks Diinwiddie, Colden W. Wright and Alexander Wilso)i, attorneys at law. She interposed a plea of insanity at the October term, 1883, but was not tried on that plea until the March term of 1884. She was adjudged sane, and was then i)ut upon trial as being accessory to the crime committed by Bram. She was found guilty and sentenced to the Stale prison for life, and is now serving Jier life sentence.

JRdvuird Vernon W/iiton was the son of Gen. Joseph Whiton, of Massachusetts, a soldier of the Revolution and of the War of 18! 2, and was born at South Lee, Berkshire Co., jNlass., on the 2d of June, 1805. During the first thirty years of his life he continued to reside in his native town, whence he at length removed to the then Territory of Wisconsin, to take part in the great and glorious battle of life in that new field of development - the great West. He settled there when the present site Janesville and its neighborhood was almost a wilderness, and lived for some time the life of a pioneer in a cabin on the broad prairie. He was elected a member of the House of Representatives for the first session of the legislative assembly at Madison. At the next session he was elected speaker of the House. During tliose sessions, he was a frequent participant in debate, and took an active part in enacting the (irst Territorial code. Up to that time, the laws of Wisconsin consisted of the Territorial statutes of Michigan, and the laws of the Wisconsin legislature, passed at the sessions at Belmont and Burlington. The Revised Statutes which became of force on the 4th of July, 1839, were jjublished under his supervision. In 1847 he was a member of the constitutional convention which framed the constitution of the State. On the organization of the State goverment in 1848 he was elected circuit judge, and under the then system, became a judge of the Supreme Court. He occupied this position until 1853, when the "separate Supreme Court" was established, when he was elected chief justice, and re-elected in 1857, and continued to hold the oflice until he was compelled to leave it it by the disease of which he died. Chief Justice Whiton was thoroughly identified with almost every prominent event in the history of Wicsonsin, both as a Territory and as a State. Throughout the whole pL'iiod of his residence in Wisconsin, his life was a public life, and he filled the political aiul judicial stations successively with such ability and integrity that the people, exalted him from place to place until lie had received the highest honors in their gift; and the positions with which he Mas honored were ennobled by the lustre of his conduct and character. Amid all tlie conflicts of party, both in the means by which he attained and the manner in which he discharged the duties of office, the purity of his character was ever unsullied by the slightest breath of reproach, or even suspicion, I)i the early part of the year 1859j his health began to fail, and it became manifest to his associates upon the bench that his system was suffering from some malady which, it was hoped, would be but temporary in its effects, and would yield to the invigorating influences of relaxation and home exercises, where the cares and anxieties of official responsibility would not intrude ; accordingly, his associates upon the bench, after much persuasion, induced him to retire, as all hoped, for a short season only, in order to recruit his energies for the approaching term, as well as to complete the unfinished business still remaining. He left the bench, as was supposed, in the confident expectation of returning to it again after a short respite at home. Insidious disease, how.evei", had obtained too strong a hold in his system, and about noon on the 12th day of April, 1859, he died at his residence in Janesville, in the house of his own construction, loved and mourned as to few men it lias been vouchsafed to be loved and mourned.

Among those officially and professionally connected with him, as well as among liis private circle, his death called forth the deepest expressions of sincere regret and sorrow, at meetings of the bar of the Supreme Court and of the Milwaukee bar, as well as those held at the county seats of the several counties of the State, resolutions were adopted indicative of the great general loss felt by the people, as well as the exalted estimation in which the deceased judge was most deservedly held by bench and bar. The president of the Milw^aukee bar, in the course of a touching tribute to his virtues and ability said of him; "Were I to name any one sphere of action in his life in which he was most eminently distinguished, and for which he had a peculiar adaptation, I should say it was as a legislator. His varied information, strict integrity, eminent conservatism and finely balanced mind all combined to make him a ready debater and a high-minded and patriotic legislator. But it is useless to name any one sphere when all the positions he ever occupied were filled so ably and perfectly," and another of his intimate associates said: "On this melancholy occasion, I can hardly trust myself to speak. For years. Judge Whiton has been to me, as it were, an elder brother. Our relations have been so harmonious, so uniformly genial, so entirely fraternal, that we have scarcely thought of official relation. During our long association in deliberation upon matters of the gravest concernment, while discussion has been most free and unrestrained, never an unkind word, nay, not even a petulant expression has been uttered. All through his official career, he preserved a strictness of propriety which can scarcely be equaled, a conscientiousness which never wavered, a depth of thought, and comprehensiveness of the subject-matter ever present, commanding without force, controlling without intrusion, clear and unassuming in his high office, great when he least thought of greatness, but great only wherein man can be truly great, because he was wise and good."

Wyman Sj^ooner was born in Hardwick, Mass., July 2, 1795. He spent many years in conducting a newspaper and was admitted to the bar in 1833. He settled in Wisconsin in 1842, and was elected judge of probate in 184(j, He was appointed judge of the first judicial circuit of Wisconsin by the governor in 1853, upon the resignation of Judge Whiton, serving until the election and qualifying of Judge Doolittle. He was member of the assembly of the State for the years 1850, 1851, 1857 and 1801, liaving been speaker in 1857. He was State senator for the )'ears 1862 and 1863, and was three times elected lieutenant-governor of Wisconsin. He was a member of the first boar^^l of trustees of the Deaf and Dumb Asylum. He died in Lyons in Walworth Co., Wis., on the ISth of November, 1877.

James Ji. DoolUtle was born in Hampton, Washington Co., N. Y., on the 3d day of Januarj^ 1815. He graduated at Geneva College in 1834. He adopted the profession of law, and was admitted to the Supreme Court of New York in 1837. Mr. Doolittle was district attorney for several years, of Wyoming Co., N. Y. He removed to Wisconsin in 1851, and was elected judge of the first judicial circuit in 1853, but resigned the office in 1856. The next year he was elected a United States senator by the legislature of Wisconsin, for the term of six years. He served as chairman of the committee on Indian Affairs, and as a member of the committees on Foreign Affairs, Commerce and Military Affairs. He was also a member of the Peace Congress of 1861. In 1863 he was re-elected to the Senate for the term ending in 1869, as will appear by reference to the chapter in this History on "Congressional Representation." During the summer recess of 1865, as a member of a special committee of the Senate, he visited the Indian tribes west of the Mississippi river. He was also a delegate to the Philadelphia "National Union Convention" of 1866, taking an active part in its proceedings and officiating as president. Mr. Doolittle is now doing business in Chicago. Charles M. Baker. At Morristown,N. J., during the exciting titnes of the Revolution, were born James Baker and Elizabeth Prince, the ))arents of Charles M. Baker. The father became a master l)uilder in New York city, where the subject of this sketch was born, Oct. 18, 18U4. In 1805 he rem(»ved to Addison Co., Vt., where, until twelve years of age, the son, Charles, enjoyed the privileges of a neighborhood school. He then devoted all his spare - time to preparation for a higher sphere, and in August, 1822, entered Middlebury College; but the severe study lo wliich his thirst for knowledge incited him produced a dyspepsia, which compelled him to abandon the course near the close of his first year. Several months were then devoted to the recovery of his health, and in the fall of 1823 he obtained the position of assistant in a school for young ladies, at Philadelphia, where he remained for two years. In 1826 he entered the law office of S. G. Huntington, at Troy, N. Y., where he studied for three years, and was then admitted to the bar. In September, 1829, he was married to Martha W. Larrabee, of Shoreham, Vt. Having formed a partnership with Henry W., a brother of the late Marshall M. Strong, of Racine, he removed, in the spring of 1830, to Seneca Falls, N. Y,, and engaged in the practice of his profession, with excellent success, until 1834,when close application brought on a relapse of dyspepsia with such force that he relinquished his practice and returned to Vermont, with little hope of surviving. Here his health so far improved that he was enabled to engage in trade, which he followed until 1838, when, selling his mercantile stock, he set out in September of that year for Wisconsin, located land about Geneva lake, Walworth county, and became a resident of Geneva village, then in its infancy. Here he was first employed in public position by appointment as district attorney of of the newly organized county, in 1839. He was a member of the Territorial council for the counties of Walworth and Rock for four years, commencing in 1842, and also of the first constitutional convention, in 1846. In 1848 he was appointed by the governor one of the three commissioners to revise and codify the statutes of Wisconsin, and in March, 1849, was elected by the legislature to superintend the printing of the volume, whicl was done at Albany, N. Y., in the fall of that year. In 1856 he was appointed by the governor to the bench of the circuit court, upon the resignation of Judge Doolittle, but, upon the expiration of the terra, could not be induced to become a candidate for election. He did not hold a term of court in Green county. During the war, he was a commissioner under Provost Marshal Bean, in the first district.

Plis wife having died, lie was married, in 1844, to Eliza Holt. His children by his first wife were two sons and a daughter. One of the sons is Hon Robert H. Baker, a well known and prominent citizen of Racine. He died of apoplexy, at his home in Geneva, Feb. 5, 1872.

Judge Baker lent earnest and faithful assistance to every work for the advancement of the public welfare. He was prominent among the able men who laid well and wisely the foundations of society in the formations of the institutions of the young commonwealth; one whose high character, personal and professional integrity, superior ability and enlarged public spirit thus employed, have left a deep and lasting impression, although he shunned the arena of public life, and preferred rather its peaceful though less conspicuous councils.

The subject of this sketch, who was the second son of Gen. Martin Keep, was born at Homer, Cortland county, in the State of New York, on the 26th of January, 1813. His parents were both from New England, and among the first settlers of Cortland county. After obtaining the rudiments of education at the district school, he, at an early age, entered the Cortland Academy at Homer, where he pursued the usual routine of academic studies, and prepared himself for college. He entered the Hamilton College in 1832, and graduated in 1836, and was one of the first members of the Alpha Delta Phi society in that institution. The same year he commenced his legal studies, with Augustus Donnelly, a distinguished counselor at law, at Homer, N. Y., and completed them with Horatio Seymour, Esq., at Buffalo. He was duly admitted to the bar, and commenced practice at Westfield, N. Y., and, in the year 1845, he removed to Beloit, in the State of Wisconsin, then a mere settlement, where he continued to reside until his death. Here he engaged not only in a large law practice, but also took a very active part in all the enterprises that promised to promote the growth of the place and enhance the welfare of society, the purchase and sale of lands, in the erection of buildings, in the promotion of institutions of learning and the construction of railroads. He took an important part, and in many of these enterprises, was the animating spirit.

His mind seemed to grasp every subject, and his enterprise embraced every occupation. Though a lawyer by profession, and otherwise engaged in a variety of pursuits, agriculture did not escape his attention, or want his fostering care, for he knew that upon it depended the wealth, independence and morality of his adopted State. Whatever was good or useful, whatever tended to elevate human nature or ameliorate the condition of mankind, was sure to find in him cordial support and efticient aid. The value of his labors is to be estimated chiefly by tlie results flowing from his great and active mind - a mind rich in the possession of every moral and intellectual quality. In the young and growing State and city, of which he was a resident, no man impressed his name on more enterprises of private munificence or public utility.

In the spring of 1856, he was elected without opposition, judge of the first judicial circuit of the State of Wisconsin, but at the end of two and a half years, he was compelled to resign this laborious oftice on account of the loss of health, and the pressure of his private business. It soon became evident that consumption had fastened itself upon him, and from this timf, the wasting of his bodily powers went on gradually, although he retained to the last moment of his life, the full vigor of his mind.

Upon the deatli of Judge Keep, meetings of the bar were held at Belolt, Janesville, and also of the first judicial circuit, and appropriate resolutions passed, and eulogies pronounced upon the life and services of the deceased. At the meeting of the bar of the circuit, the Hon. H. S. Conger, the present presiding judge, on taking the chair, said : " Ju<lge Keep, however regarded, was no ordinary man. Asa citizen, he was generous, benevolent and public spirited; of great firmness of character, untiring resolution and indomitable energy. He was bold, fearless and independent in thought and action; more resolute in the accomplishment of whatever he regarded his duty than solicitous to win praise or favor at any sacrifice of principle however small "

As a lawyer appreciating the responsibilities and duties of the profession, no man had a higher regard for its honor or reprobated more earnestly its prostitution to base purposes.

Elected circuit judge in 1856, and holding the office for two years, until impelled to resign on account of the pressure of his own private business, he carried to the discharge of the important duties of that office great ability, unwearied industry and honesty and integrity never assailed. In the language of another who knew him well: "He dignified the bench, rather than received digjiity from it." Tiie death of Judge Keep was a great loss, not only to the profession, but to the community at large. Calm, coura. geous, hopeful and trustful, he died as he lived, confiding in a faith that had never forsaken him, resigned to that Providence in whom was his trust, in the full possession of his mental faculties, vigorous even in death, and meeting the great change with the courage of a philosopher and the hope of the Christian. As much as there was in his life to emulate, there is in his death found instruction equally valuable. In religion, Mr. Keej) was a Congregationalist, having united with that denomination at the age of sixteen years, and, like it, he was liberal and tolerant respecting the tenets of other denominations. He would tolerate every class of sincere professors, and protect them in their ideas of divine Avorship. In all the relations of life and the connections which he formed with various classes of the people, he preserved unblemished his Christian character. His charities more than kept pace with his ability, and his pecuniaiy aid and legal advice were ever at the service of the poor and unfortunate. Perhaps no better perspective of his life and character can be given than is contained in the following extract from a letter of recent date, from the pen of Hon. S. J. Todd, of Beloit, a long and intimate friend of Judge Keep: "As long as liis health would permit, his life was a very busy one, and, unlike most men of active habits and whose mental processes are rapid, he had the faculty of steady, untiring perseverance. When he began to do anything, he never relinquished it until he had completed it, oi', until it became impossible. This faculty I have usually found to exist only in slow men, which John M. Keep was not. When I first knew him he had been a resident of Beloit for six years. During this time he was engaged in the practice of law and in the purchase and sale of real estate; consequently, a very large number of men in Rock county and the adjoining counties of Boone and Winnebago, 111., were living upon lands which they held under contract of purchase from him, and very many of these men, I think a majority of them, were always in arrears in the payment of principal and interest. He never declared a contract forfeited, and never brought suit against one of these purchasers so long as they stayed ui)oii the laiid and exhibited a willingness to pay; but, on the other hand, whenever they had been unfortunate from the loss of crops or sickness, they were sure of substantial sympathy, which did not consist wholly of kind words, and he had the rare faculty of being charitable without assuming the air of patronage. These charities were large and manifold, yet they were jriven with so little ostentation that no one, however proud or sensitive he might be, was ever embarrassed or humiliated by receiving aid at his hands; and, more than this, he never spoke of these things. And this reminds me of another peculiarity in his character. He was the most reticent, self-reliant, self-controlled and the bravest man I ever met, without a single element of fear or diffidence, and, at the same time he was the most truly modest man I have ever known, never exhibiting vanity or egotism, and consequently no man ever heard him exalt or speak boastingly of himself, or what he had done or intended to do. In this regard, he came fully up to Curran's description of Grattan, in his reply to Lord Erskine's question: 'What does Henry Grattan say of himself?' 'My lord,' says Curran, 'Henry Grattan never speaks of himself. You could not draw an opinion out of him on that subject with a six-horse team.' Further, as a rule, he never spoke of his enemies nor of his controversies with them. No matter what the" gravity or magnitude of their charges or accusations might be, he was too indifferent to them, or too proud, to condescend to make any reply or explanation. The consequence was that he sometimes suffered in the public's estimation, and his best friends were often embarrassed by the contemptuous silence with which he treated the ground of the accusations. It is hardly necessary to speak of him a§ a judge, a position he filled with such eminent ability. As I remember him, he nearly realized my idea of a circuit judge. There, as elsewhere, he was composed, patient and impartial, always easy of approach by every one, quick in his perception of every case presented for his decision, and never too proud to re-consider his own decisions when he found that he was in the wrong. He died with the same steady composure that characterized him through life, thoughtful and considerate of those about him, until his last moment of life, when he closed his eyes in death