"History of Brown County Wisconsin; Past and Present, Volume 1";
By Deborah Beaumont Martin, S.J. Clarke Publishing Company;
Transcribed by Andrea Stawski Pack
CHAPTER X
BROWN COUNTY CIVIL GOVERNMENT AND COURTS
No fixed boundary lines defined the country west of the great lakes until the county of Brown was organized by an act of congress on October 26, 1818.
Heretofore under its successive owners the territory known as La Baye was included under the general name of the "upper country" and specialized as "Baye des Puans," the military post being usually designated as La Baye, rather than by the name of Fort St. Francis. The mission of St. Francois Xavier also recognized no clearly defined boundaries, and the priests wandered in their work of evangelization from Lake Huron to the Sioux country. The new county received its name in honor of Major General Jacob Brown, at that time commander-in-chief of the United States army.
Lewis Cass, the governor of Michigan, was a man thoroughly qualified for the many and diverse positions he was called upon to fill, from arbitrator and lawgiver in a section of country controlled by a mixed population of Indians, French fur traders, United States troops and a small contingent of American colonists whose avowed object was to develop the resources of the country, to that of English ambassador. It was a difficult matter to place upon a sound system of government this section of western territory, which from its very length of settlement and its importance commercially, had become a law unto itself and independent of the whole outside world. The Indians too, in this vicinity were looked upon as unruly and dangerous, liable to rise and tomahawk the unwary settler at any moment when it might suit the English colonial government to give the decisive word; to Cass belonged the prerogative of issuing fur trading licenses to the Indian country adjoining Green Bay and much finesse was required to keep peace between the American newcomers and the established peltry merchants.
The first civil appointments bear date of October 27, 1818, the day following Brown County's organization and included:
Matthew Irwin, chief justice, commissioner and judge of probate.
Charles Reaume, associate justice and justice of the peace.
John Bowyer, commissioner.
Robert Irwin, junior, clerk.
George Johnson, sheriff.
The form of oath as taken by the first sheriff of Brown county was as follows: "I do solemnly swear and declare that I will favor from this time forward and support the Constitution of the United States of America, and that I do absolutely and entirely renounce and abjure all fidelity to every foreign power, state or sovereignty, particularly to the king of the United Kingdom of Great Britain.
"25 July, year of our Lord, 1821." "George Johnson.
This first organized court in Brown County was run in haphazard fashion. No records seem to have been kept, and the chief justice, Matthew Irwin, with no knowledge whatever of law was no more of a success in judicial administration than in dispensing articles of apparel to the Indians as government storekeeper. He had, moreover, made himself very unpopular with the powerful class of fur traders, and Charles Reaume, the associate justice, lived only a short time after his appointment in the autumn of 1818. The latter's methods of procedure were much ridiculed by the first American settlers, who had endless stories to tell of Judge Reaume's quaint ways, his irascible questioning of culprits and clients, his seemingly absurd though often sound decisions, above all the use of his old, clumsy jackknife, as a warrant of arrest.
It is possible that on the occasion of Governor Cass' visit to the fort and hamlet on Fox river in August, 1820, complaint was made to him by the American inhabitants of the irregularity and lack of dignity displayed in their county court, although Schoolcraft notes at the time, "this settlement is now the seat of justice for Brown county in the territory of Michigan, and the ordinary courts of law are established." This was simply a justice court, for there is no record of an estate coming to probate prior to July 22, 1821. That no business came before the court previous to the above date may account for the lack of evidence that a Brown county court of probate existed in 1818, the date of Matthew Irwin's commission. The French settlers were not given to making wills, which of Domitelle Langlade (Madame Langevin), admitted to probate on July 9, 1824, being the earliest recorded.
The first entry in the record book of the Brown county court is the appointment of Robert Irwin, Isaac L. Welch and Thomas C. Sheldon, to take inventory "according to your skill and judgment," of the estate of Colonel John Bowyer, deceased. The appointment is made by order of John Biddle, judge of probate, on the 22d of July, 1822. Judge Biddle, who held office up to 1822, was a leading citizen not only of Brown county, where he was as far as known first acting judge of probate, but also as a member of congress from Michigan in 1830 and for many years prominent in the life of Detroit. On the death of Colonel Bowyer, Biddle succeeded him as agent of Indian affairs.
The estate of John Bowyer, the first and popular Indian agent for this section of territory, which came to probate in the summer of 1821, entailed many years of litigation before it was squared, for as late as the summer of 1829, the attempt at a settlement was still going on. The old man left no family, his youthful nephew, Henry Bowyer, who lived with him, having been drowned in Fox River previous to that time. The inventory and appraisement of household effects left by the government official seem hardly to justify so long a period of settlement, but the adjustment of creditors' claims was a lengthy operation.
The commissioners to receive such claims were Robert Irwin, Sr., Albert G. Ellis and Ezekiel Solomon. The estate was represented to be insolvent and the property sold must be applied to the satisfying of all claims. The reports of appraisement and demands of creditors show pretty clearly the furnishings of Colonel Bowyer's bachelor establishment, the servants he employed, the service of the table, his daily life in short. We learn from these lists what his clothes and those of Henry cost him, "$2.00 apiece for pantaloons," etc., that he had "a roane horse called Gordon," a fowling piece manufactured by the Northwest company, a pair of spectacles valued at $6.50. It appears that he ploughed his land on Dutchman's creek with oxen and raised on it oats, peas and barley, but not in sufficient quantities to supply the agency, with its thousands of dependent Indians, for he purchased all sorts of supplies from the French inhabitants and the government factory. We learn that his library consisted of two volumes of Morse's geography, probably purchased after the visit of Jedediah Morse to Green Bay in 1820, that he used wrought iron in his fireplace, and that Peter Ulrick "the Dutchman," looked after his hogs, while fowls were charged up to him by the French habitants at 50 cents a bird. Louis Grignon and the other high-bloods of the settlement came often by canoe to visit the colonel and a significant memorandum of the time records, "lost at play at Colonel Bowyer's."
According to an act adopted by the "Governor and Judges of Michigan Territory" on the 27th of October, 1818, it was provided that the county court for the county of Brown should be held on the second Monday of July, in each year, but this was later amended or overruled, the judge in office apparently holding court whenever he so ordained. The Coutume de Paris or old laws of France, was the code in use throughout the entire "Province of Upper Canada," but had been formally annulled in that portion now comprised within Wisconsin on September 16, 1810. Under Judge Reaume's administration, however, this enactment was absolutely ignored and the old French law was still the one in force when the American court was organized in 1818.
In October of that year the following resolution was adopted by the governor and those in authority: "Whereas the good people of the Territory of Michigan may be ensnared by ignorance of acts of Parliament of England, and of the acts of the Parliament of Great Britain, which are not published among the laws of the territory, it has been thought advisable by the Governor and Judges of the Territory of Michigan hereafter specially to enact such of the said acts as shall appear worthy of adoption; Be it therefore enacted by the Governor and Judges of the Territory of Michigan; That no act of Parliament of England, and no act of the Parliament of Great Britain shall have any force in the Territory of Michigan. . . . Be it enacted by the Governor and Judges of the Territory of Michigan; that the Coutume de Paris, or ancient French Common Law existing in this country, the laws, acts, ordinances, arrests and decrees of the governors or other authorities of the Province of Canada, and the Province of Louisiana under the ancient French crown, and of the governors, parliaments or other authorities of the Province of Canada generally, and of the Province of Upper Canada particularly under the British crown are hereby formally annulled, and the same shall be of no force within the Territory of Michigan; Provided, that all rights accruing under them or any of them shall remain valid."
The inhabitants of La Baye settlement knew no other government or code of laws except that in force in Canada, but in 1821 a compilation of the laws in force in the territory of Michigan was published, which was called the code of 1820, and comprehended all such statutes as were essential to the successful administration of civil government within the territory.
Jacques Porlier, the well known fur trader, when appointed to succeed Judge Biddle as chief justice and judge of probate in December, 1822, carefully translated into French for his own use and at his death left in manuscript the new and unfamiliar code. Porlier, well educated, and a most courteous gentleman, also held office as justice of the peace, not only under commission of the United States, but also prior to this under English government and was, according to contemporary testimony, "the most useful man in the settlement."
Brown County seems to have had at this time (1822) no less than three justices and a county judge to adjust legal differences in its newly organized government. None of them were lawyers, and their jurisdiction both civil and criminal was limited; they were obliged to enter upon the duties of their several offices without formulas to refer to, or precedents of proceedings, and it is not surprising that the legal documents of that day are without much form, and the court records entirely missing.
Important cases which were beyond the jurisdiction of a justice court were adjudicated by the supreme court of Michigan, consisting of three judges, which held its sessions semi-annually at Detroit. Thither criminals were conveyed for trial, a mode of procedure causing much delay and confusion, for the journey to Detroit must be made by bateau or bark canoe, as transportation by schooner was still rare and the long trip by land exceedingly wearisome.
It was therefore cause for sincere congratulation among the inhabitants of Brown county and those of Michilimackinac, when, in the early part of the year 1823, congress passed an act establishing what was known as the additional judicial district, "comprising the counties of Brown, Michilimackinac and Crawford."
On February 1, 1823, James Duane Doty was appointed judge of the newly organized circuit, but does not appear to have taken the oath of office until June of the succeeding year. Meantime in preparation for Judge Doty's arrival on the scene of action the deputy clerk of the court, Alexander J. Irwin, a young fellow of twenty-three and something of a wag conformed with the written statute by convening court daily for two weeks at the appointed place in Menomineeville. The first records of the circuit court of Brown county begin thus, written in a beautiful clear hand: "At a session of the Circuit Court of the United States for the County of Brown in the Territory of Michigan on the 13th day of June, 1823, the Deputy Clerk attended at the Court House at the time designated by the statute, but no judge appearing the court adjourned to meet again at ten o'clock a. m., June 14th, 1823.
Alexander J. Irw1n, Deputy Clerk." Up to June twenty-fourth, when the court adjourned sine die, the deputy clerk daily, Sundays excepted, was on hand and noted down each day that "the judge not appearing the court adjourned," but not until October of the following year did Judge Doty formally convene the circuit court "in conformity with the statute." On June 30, 1824, Governor Lewis Cass certified that he had administered the oath of office to James D. Doty, as additional judge for the counties of Brown, Michilimackinac and Crawford. In August, James H. Lockwood applied for admission to practice in the court and was admitted, and on October 4, 1824, the first regular term of the United States circuit court for Brown County was held at Menomineeville.
Judge Doty's circuit included all of Michigan's upper peninsula the entire tract afterward comprised in the state of Wisconsin, and the country north of the St. Croix river and east of the Mississippi to latitude forty degrees, now under the government of Minnesota. The terms of court for this extended territory were to be held at Mackinac, Green Bay and Prairie du Chien, the judge making the journey on horseback or by means of a birch bark canoe paddled by chanting voyageurs. Doty was at this time just twenty-three years of age but was already regarded as a man of experience and authority, well suited to the important position he was called upon to fill. The first session of the newly created court was held at Mackinac in July, 1824, the judge presiding with much tact and dignity.
The legal mode of procedure heretofore in use throughout Judge Doty's district made his position a difficult one. The French and English languages were used indiscriminately, and the traders had long been independent of any law, regulated by a settled code. Under Doty's administration the Brown county federal court promptly rose to the first dignity and assumed an orderly and well grounded character; decisions were based on the rules and practice of other states, and were made according to the common law.
This first term of court in the county of Brown was held in a small log cabin on the east shore of Fox river in the town of Allouez, the grand jury holding its deliberations in the court room. The prosecuting attorney was Henry S. Baird, a young Irishman, later a prominent figure in Wisconsin history, who was admitted to the bar at this term of court and was the first lawyer to practice west of Lake Michigan.
The first case on the docket was the trial of Aruba J. Joice, a soldier belonging to the third regiment of United States infantry, stationed at Fort Howard, who "not having the fear of God before his eyes but being moved and seduced by the instigation of the devil, on the 1st day of January, 1824, etc., did kill No-No-So-bi-Ma an Ottawa Indian, with a certain large stick of no value," of which deed Joice was found guilty and sentenced to hard labor in the "county goal" for two years.
At this initial session of the United States court, Judge Doty caused much stir and decided ill feeling by charging the grand jury to make special inquiry in relation to persons living with Indian wives to whom they had not been married according to church or civil law. Thirty-six bills of indictment were brought in, and the offenders notified that they must be married in proper form and produce a certificate of the fact, or stand a trial. This drastic decision, although in the end salutary, caused much confusion among the inhabitants, many of whom had been married according to the Indian custom, there having been in the settlement no magistrate prior to the appointment of Judge Reaume and no resident priest. The people of the Green Bay country came at Judge Doty's summons, bringing him their marriage certificates, or were married before the court according to civil code.
Endless litigation grew out of this decree in later years, and many of the common-law marriages were pronounced legal by decisions of the courts. There remains a curious court record in manuscript of 1839, which bears upon this period of Brown County's legal history. It is a suit brought by the children of an early French resident to prove their title to property in the town of Astor, and shows the confusion which ensued because of these common-law marriages and the difficulty of obtaining proof sufficient to make good the claim of the children as rightful heirs to their parents' property. The witnesses in this legal proceeding are from families who occupied the land in 1804, as many of the original owners were at that time (1839) still surviving.
Question: "When did the laws of the whites come in force here?"
Answer": "When Judge Doty came here, this was in the spring of 1824. There were some white people here (De Pere), in 1802. When a white man took a white woman to wife they were married before witnesses-when a white person took a squaw for a wife they were married according to the Indian custom, which was by asking the consent of the Indian parents-the son-in-law would make presents to the girl's parents, who would send the girl to the son-in-law's house and he would afterward assist in supporting the parents.
"The Indians and whites were living mixed. There was a settlement here it was among the Indians on each side of the river. I mean from the place on the river from Captain (Judge) Arndt's up here to Depere. The Indians lived in that place, they had their villages here and planted corn-they left in the fall to hunt and returned in the spring. The white settlement extended from here (De Pere) to Judge Arndt's and the Indian residents intermingled with those of the whites."
In the county court Judge Porlier held the office of chief justice and judge of probate until succeeded by John Lawe, whose signature first appears in a record of June 24, 1824. Both Porlier and Lawe were fur traders, devoting their time and interests to the furtherance of this traffic, still the most important industry of the county. Beaver pelts were becoming rather scarce but other fur-bearing animals were to be taken in abundance, and agents of the American Fur Company were the top of the heap socially in the Fox River settlement. Lawe's home was situated on Lawe's Point, a sandy spit of land that jutted out in the river at the western extremity of Porlier street, in the present city of Green Bay, while Porlier lived in a little low house built by a voyageur, Joseph Roy, on the west side of the river and so nearly opposite to Lawe's trading house that each could watch the other when the season for gathering in the peltries was on, and the river was dotted with loaded canoes. While in league against outside interference Lawe, Porlier and Grignon were intensely jealous of any possible advantage one might gain over the other, and the ethics of the fur trade were sternly enforced in their intercourse.
There is a letter of John Lawe's preserved in the Historical Library at Madison, written in 1824, which absolutely, without intention, gives a vivid picture of the trader's trials at this time. It is a dark and gloomy day in November, the river running rough outside, his trading house, which stood close to the water's edge, filled with drunken Indians haggling over the price to be charged them for guns and trinkets. Lawe thoroughly sick of the whole outfit, writes that no more Indians must be allowed to come down to the settlement. "Tell them that the smallpox is raging. Amable Grignon has it, and the fort has gone into quarantine. No boats can cross the river."
In the corner of the large room stood the scales on which peltry packs were weighed, and there was little other furniture in the room except the high desk where the clerks stood to make out the accounts and the inventories. There is, however quite another side to the picture, for Lawe's house was a rendezvous for officers and civilians, and many were the gay gatherings that took place there.
In "Life in Territorial Wisconsin," Mrs. Henry S. Baird describes Judge Lawe's log house in 1824; this house was later replaced by a commodious and handsomely built frame dwelling erected about 1836:
"Judge Lawe's home, a large one-story building with many additions stood near the river, and a path led from it through the grass to the beach. The ceilings were very low and the windows small, so small that when the Indians came peering in, the room was almost darkened. An indescribable air of mystery hung over the place, there was a dreamy appearance about the whole. Then all around the house and store stood Indians waiting to trade off their peltries. One might sit in that house and imagine all sorts of things not likely to happen."
The minute book of the Brown county court during Judge Lawe's incumbency does not show a crowded docket. One entry after another reads "The court met this day, Present, Hon. John Lawe, Judge of Probate. Therefore the court adjourned." The "indisposition of the Judge," or "the inclemency of the weather," this entry being on the second of May or "the Judge not appearing" were all sufficient causes for adjournment. The French inhabitants seemed to have died intestate, and their estates were not settled in probate court, that of Domitelle Langevin's being the most complicated which appeared before Judge Lawe.
Robert Irwin, junior, who first began his political career as register of probate, in 1824, was sent to the first legislative council of Michigan territory, serving for three years. He also held the office of first postmaster of Brown County. All offices were situated in Shantytown, "Menomonee, Green Bay Township," as Judge Doty heads his letters at this date. As a matter of fact, however, the Green Bay township was not founded until on the 12th of April, 1827, an act was passed "to divide the several counties in this territory into townships.'' In that portion of the territory which is now Wisconsin but two townships were formed, of which one was in Crawford County and called "St. Anthony." The other was in Brown County, and was called "Green Bay." The southwestern boundary of the latter was a line running southeast and northwest through the head of the rapids of the grand Kaukaulin and extending ten miles on such line each way therefrom. The northeastern boundary was a line drawn northwest and southeast through Point au Sable of Green Bay and extending ten miles on such a line each way therefrom. The southeast and northwest boundaries were parallel lines, twenty miles apart, connecting the other boundaries. Fox River consequently ran nearly through the center of the township.
When the question of a county seat for Brown was brought into prominence Lewis Cass, spokesman and lawgiver for all the territory west of Lake Michigan, authorized the justices of the county court to locate the seat within six miles of the mouth of the Fox River. They neglected to act, and in 1824 the Territorial Council of Michigan passed the responsibility over to the county commissioners. Neither would they decide, and the next year, 1825, the committee on decisions was formed to consist of the justices of the peace, the county commissioners and the United States judge; whereupon the seat of justice was fixed at Menomineeville, in a log house, erected for the reception of the county officials, until the year 1828. On the seventeenth of March of that year Doty wrote in regard to the trial of Red Bird, the celebrated W Winnebago chief, then imprisoned at Fort Winnebago.
"It is expected the Winnebago prisoners will be tried at G. Bay or St. Louis. Col. McKenny prefers the latter place-and to this I certainly shall not object. I expect the territorial committee will report a bill making several amendments to the act creating the circuit court. * * * I beg you to urge the supervisors to take measures to erect a building of some sort to hold the court in-if it is only a Winnebago wigwam."
The town of Menomineeville grew apace and the slope and plain below was dotted with the log cabins of settlers. Judge Doty, always an ambitious spirit in pioneer house building, had erected for his use, a large frame house which stood on the river shore just across from Ashwaubenon creek on private claim 21. It was a two-story structure and was afterwards purchased by the government (1827) for an Indian agency house. By the following year the judge had put up another homestead. This was a one-story brick dwelling, the material for which was brought by sailing vessel from the east and was stuccoed and whitewashed. The house was still in process of building in March, 1828, and of it Doty writes: "I wish you or Mr. Whitney would make a bargain for me with any mechanic at the bay to paint and pencil the outside of my brick house. * * * Please say to my friend, Major Brevoort, that I have sold my frame house to the Govt., but as I have not yet received the money I can not transfer it to him until my return. There has been a great and unnecessary delay about this which I can explain when I see you."
In 1830 when a treaty was in progress between the New York Indians and the western tribes, the Menominees indicated their choice of the person they wished as counsel as "one who lived in a brick house and was judge of the high court," and this identification of the well-known jurist (Doty) is significant of the wide impression made on the Indians as well as white men by the construction of a brick house in these western wilds. Meantime in the probate court Judge Lawe had resigned in favor of N. G. Bean and on June 14, 1832, wrote: "I recommended N. G. Bean for the appointment of judge of probate at the same time I sent in my resignation. I see you write to Bernard Grignon to enquire of me who I wish to recommend but if they will not consent to appoint him, though I wish very much he would be appointed, I wish to be exonerated immediately, and you will please recommend any person that you know will do honor & justice & not let it fall into the hands you know of some persons that will or may make bad use or take advantage of the power."
The appointment of Nicolas G. Bean, Lawe's protégée, to the county judgeship was received within the following year, Bean assuming his duties on June 22, 1833. He was in many ways a man of ability, a former lieutenant in the regular army but who had retired from the service in 1815. Without relatives or friends; Bean was taken under the patronage of John Lawe, then one of the wealthiest and most powerful of the residents on the shores of Fox River. Lawe proved a good friend of the morose, disappointed man, and in his hospitable home. Bean was given comfortable quarters and the freedom of the house. Barring out his one great fault of intemperance, Judge Bean was acknowledged to be remarkably correct in his decisions and unswerving in his integrity. "It is often said that Bean, drunk or sober, would do justice though the heavens should fall. Some fault was found with the locale of his docket, which it was feared would be lost, and the rights of parties go with it-it was kept in his hat crown. After all no one ever sought in vain for a paper; it was always speedily produced from the safe receptacle-his hat."
At the second session of the third legislative council of the territory of Michigan, 1829, it was provided that the county courts of the territory including those of Michilimackinac, Brown and Crawford should not from that time on have jurisdiction in any civil matter in law or equity. This was during Judge Lawe's incumbency and the act remained in force until 1875, when the law creating a new county court in Brown was passed, and civil jurisdiction restored. This act, however, was later repealed and jurisdiction in probate matters only was given to the county court.
Nicolas Bean held the office of judge of probate for four years, up to the time of his death. He was succeeded by Joel S. Fisk, a practical, astute business man who had studied law but was not practicing. Judge Fisk held the office from March, 1827, until the following December when he resigned and moved to De Pere. George Meredith, of whom no particulars can be gleaned, kept the minute book and apparently presided over the court until February 26, 1838, when Charles C. P. Arndt was appointed to the position.
Green Bay was in this year regularly incorporated as a borough and the office of judge of probate was an important one. Young Arndt gave very good satisfaction and was still holding the office when he was elected as one of the members of the state legislative council from Brown County. The last entry made by him as judge is on July 29, 1841. In February, 1842, he was shot in the legislative hall at Madison by James R. Vineyard, the most tragic event that ever occurred in the political life of Wisconsin.
Arndt's father, John P. Arndt, succeeded him in the office of probate judge, and began his duties on April 30, 1842, only retaining the position, however, until August 7, 1843.
The next incumbent, Charles Chapman, was a well known and well-liked resident of Green Bay, who although not a lawyer, discharged the duties of his office satisfactorily. The county seat was now established at De Pere and there was constant grumbling among the residents of the older borough over the inconvenience caused in the transaction of business. The term of office by succeeding judges of probate up to 1849 is uniformly very short, not exceeding a year and a half at the longest.
David Agry seems to have occupied the bench from February 3, 1845, to October 4th of the same year when John Last came into office, holding the position until June 5, 1847. Judge Last was a highly educated Englishman and well read in the law, who came to America in 1832 and held during ensuing years many offices of trust and importance in Green Bay. From September, 1848, for one year John P. Arndt again occupied the Brown county bench, but in September of 1849 David Agry, the stalwart and highly-respected incumbent for the ensuing twenty-eight years, entered into the duties of his office.
In 1875, the organization of a new county court in Brown County necessitated the election of an additional judge and Morgan L. Martin was elected to the office. On the death of Judge Agry in February, 1877, Judge Martin assumed the duties of the probate court, civil jurisdiction having been largely curtailed in the county court.
On the death of Judge Martin on December 10, 1887, Howard J. Huntington was appointed by the governor to fill the unexpired term. Judge Huntington proved a very popular jurist during the fifteen years in which he occupied the Brown county bench, his death occurring in the spring of 1902.
The present incumbent, Carlton Merrill, after serving by appointment Judge Huntington's unexpired term of office was elected without opposition and has filled the Brown county judgeship most acceptably and honorably. Judge Merrill is a son of Curtis R. Merrill, who during the war of the rebellion was provost marshal and in charge of the recruiting station at Green Bay.
In the early circuit court, which included the counties of Brown, Crawford and Michilimackinac, James Duane Doty was succeeded, in 1832, by David Irvin of Virginia, who when not holding court made his home in that state or in Ohio. This indifference to his political supporters naturally nettled the people of Brown county, and it was questioned whether a non-resident could legally retain so responsible a position in the territory.
A petition was sent to President Jackson, urging him to make another appointment, but "Old Hickory" seems to have regarded "the voice of an injured territory," as unworthy of serious attention, the appeal was ignored, and the stately dignified Irvin retained his judicial circuit until the formation of Wisconsin territory in 1836, when he was transferred to another district and became an associate justice of the territorial supreme court.
Justice Pinney's estimate of Judge Irvin was as follows: "He was not considered a profound lawyer, but with a strong vein of practical common sense and a natural love of justice; after hearing the arguments and examining the authorities he was generally enabled to give correct and satisfactory decisions."
The Virginian is thus described by a contemporary: "Judge Irvin was spare of form, thin and pallid of face, and had a sparse covering on his head of dull yellow hair, brushed straight back from his forehead, which set off his peculiar facial development in somewhat cadaverous fashion. He came to Wisconsin fully imbued with the dignity of his office and with absorbing devotion to his native state. Aristocratic in lineage, full of almost childish whims and crochets, yet with a keen sense of humor which gave him a happy vein in story telling. The judge's passion for horses and dogs was excessive, and it became a kind of local proverb that in order to win a case in his court one must praise his horse, 'Pedro,' and his dog, 'York.'"
Wisconsin during Judge Irwins' term of office still formed a part of Michigan territory and the circuit was practically the same as when Judge Doty first came into office in 1824. With the organization of Wisconsin territory the judiciary followed the precedent established in other states and power was vested in a Supreme Court, district courts, probate courts and justices of the peace. Wisconsin was divided into three judicial districts, in each of which at a stated time and place regular sessions of court were to be held, presided over by a judge, who served by presidential appointment and held his office "during good behavior." The Supreme Court was made up of these district judges who were empowered to elect one of their number as chief justice.
On the twenty-second of May, 1837, Judge William C. Frazer held his first term of court in De Pere, succeeding Judge Irvin. No civil cases were tried in consequence of the disarrangement of records and papers, the county seat having been moved to that place from Menomineeville only the year previous. The criminal calendar was, however, disposed of during the week's term. Mawzaw-mon-nee-hah, a Winnebago Indian, was indicted for the murder of Pierre Pauquette, a well known Creole fur trader at Fort Winnebago, and was sentenced to be hung on the first of September following. For burglary a prisoner was sentenced to seven years' solitary confinement in the county jail at hard labor and in addition a fine of $100 was imposed.
Judging by newspaper comments of that day Judge Frazer's first appearance on the Brown county bench was highly creditable. His decisions were prompt and drastic and his dignified mode of conducting proceedings was in marked contrast to his later and less approved judicial methods.
"He had fallen into intemperate habits and his health, both physical and mental, had become seriously impaired. He was sixty years old and nervous, impatient, arbitrary and often harsh, overbearing and offensive in. his judicial conduct and in his treatment of the members of the bar." (Bench & Bar of Wisconsin.)
Judge Frazer's death occurred in October, 1838, and in November of the same year Andrew Galbraith Miller was appointed as his successor. The first term of court held in the new court house at De Pere was presided over by Judge Miller, who proved himself to be a jurist of exceptional acumen and ability. It was fifteen years and more after his first appearance on the Brown county bench that Judge Miller, as federal judge, handed in his famous decision upholding the fugitive slave law.
The proceedings in the Wisconsin federal court during the fifties assumed national importance and contributed not a little toward preparing the way for the conflict of arms between the free and slave states in 1861. Feeling throughout Wisconsin against the law was very strong, and most of those who thronged the courtroom in Milwaukee daily, when the trial of Sherman Booth, who aided the escape of the slave, Joshua Glover, was in progress, were in warm sympathy with the accused. Judge Miller presided with calm dignity and unflinching firmness and courage. He believed the law to be valid and his duty to enforce it plain under the official oath, whatever he might think of its wisdom or abstract justice. For a time Judge Miller was decidedly unpopular throughout Wisconsin and feeling ran high against him, until later when it was proved that although upholding the federal law in regard to the return of the escaped slave to his master, he in other ways aided the slave and approved the action of his rescuers.
Judge Miller was the last of the territorial judges to preside in the little De Pere courthouse. Wisconsin was admitted into the union as a state in June, 1848, and the judicial organization of Brown County changed in common with the rest of the newly created commonwealth. It became a portion of the fourth judicial circuit which comprised the counties of Brown, Sheboygan, Manitowoc, Winnebago, Calumet and Fond du Lac.
Alexander W. Stowe, a native of Lowville, New York, was elected judge of the fourth circuit and later chosen by his associates in the Wisconsin judiciary, chief justice of the state supreme court. Of Judge Stowe's ability Judge Morgan L. Martin, his lifelong friend, wrote: "As presiding officer of the Supreme Court his highest eulogium may be found in the opinions he pronounced during his short official term. They exhibit great comprehensiveness of thought; are terse, excisive and pungent in diction and furnish models of judicial composition."
At the fall elections of 1850, Timothy Otis Howe was elected judge of the fourth circuit and in January, 1851, took his seat as an associate justice of the Supreme Court. Judge Howe was a native of Maine, who had been a resident of Green Bay since 1845 and had become prominent as a practicing lawyer and in the social life of the town. During the winter of 1852, a separate supreme court was created in Wisconsin, the judges of the circuit court thus losing their functions as associate judges.
Judge Howe resigned from the circuit bench in 1855, and resumed the practice of law in Green Bay. He had at this time gained reputation as an able lawyer, and had come to the front politically as a speaker for the newly organized Republican Party. It is said that Howe would have received the Wisconsin senatorship in 1857, had he not strenuously opposed the states rights issue, for the country was already in a disturbed and expectant condition and the feeling between the parties was bitter. In 1861 Judge Howe took his seat in the United States senate, an office which he held for eighteen years. In 1880, by appointment of President Garfield, he became postmaster general, serving in the cabinet of President Arthur. His death occurred in March 25, 1883.
Judge Howe's other public services included a commissionership for the purchase of the Black Hills territory from the Indians and membership in the international monetary conference held in Paris in 1881.
After July 1, 1855, the eastern district including the counties of Brown, Kewaunee, Door,
Outagamie, Oconto and Shawano were formed into a new circuit to be called the tenth judicial circuit, Stephen Rossiter Cotton of Green Bay being elected as presiding judge to succeed Judge Howe. A native of Plymouth, Massachusetts, Judge Cotton was a direct descendant of John Cotton, the famous New England divine. In the spring of 1842, he removed to Green Bay and entered upon the practice of his profession. Of Judge Cotton's record on the bench Moses M. Strong, the well-known Mineral Point lawyer, says: "The discharge of his duties as judge was marked by superior learning and ability; great patience and endurance, a wonderful suavity of manner and the greatest consideration for the rights and feelings of all concerned."
Judge Cotton declined reelection after serving a term of six years. His successors, Edwin Wheeler and Garum W. Washburn, were neither of them Brown county men or identified with its interests. They were followed by Ezra Thompson Sprague who took his seat at the May term of 1870. Judge Sprague was a resident of De Pere, and a respected jurist. He was considered by the Brown County bar an able lawyer, and sound although slow in his decisions. In 1871, Eleazer Holmes Ellis of Green Bay was elected to the bench in the tenth judicial circuit. Judge Ellis, a son of Albert G. Ellis, one of the earliest and best known, of the first American settlers, was a native of Brown county and thoroughly familiar with conditions and people throughout his circuit. He served satisfactorily for eight years when he resigned his office to resume the practice of law.
Judge Ellis' retirement from the bench was much regretted. His satisfactory public service and high private character had won for him esteem throughout the state and county. His long and honorable career closed in December, 1906.
George Henry Meyers of Outagamie County was the successor of Judge Ellis in the tenth judicial circuit, holding office until 1883, when the legislature created the fourteenth judicial circuit out of the counties of Brown, Door, Marinette and Oconto. The election for judge was held on the first Tuesday in May, 1883, and resulted in the choice of Samuel Dexter Hastings, who by repeated reelections continues to be judge. The boundaries of Judge Hastings' circuit were changed in 1911, owing to the great increase in the amount of business coming before the court, Oconto was placed in another circuit, the fourteenth, now comprising the counties of Brown, Kewaunee and Door.
His long service on the bench, the soundness of his decisions and the fact that his services on the supreme bench in Wisconsin have been desired, are sufficient comment on his ability, both as a lawyer and jurist.
On May 1, 1904, a municipal court was established in the county of Brown, of which Nicholas J. Monahan, a member of the Brown county bar and a resident of Green Bay, was elected judge. The business of the court has increased rapidly, a juvenile court having been added to the duties assumed by Judge Monahan, and in which he has done efficient service.
Judges of Brown county court: Matthew Irwin, John Biddle, Jacques Porlier, John Lawe, Nicholas G. Bean, Joel S. Fisk, George Meredith, Charles C. P. Arndt, John P. Arndt, Charles Chapman, David Agry, John Last, John P. Arndt, David Agry, Morgan L. Martin, Howard J. Huntington, Carlton Merrill.
Judges of circuit court: James Duane Doty, David Irvin, William C. Frazer, Andrew G. Miller, Alexander W. Stowe, Timothy O. Howe, Stephen R. Cotton, Edwin Wheeler, Garum W. Washburn, Ezra T. Sprague, E. Holmes Ellis, George H. Myers, Samuel D. Hastings.
(References for Chapter X: Thompson, Political History of Wisconsin; Berryman, Bench and Bar of Wisconsin; Minute Book of Brown County Court; Circuit Court Record Book; Martin papers, MSS.)
