The first period of the Wisconsin Supreme Court's history (1848-1875)
produced three justices who made a permanent mark on the state's legal
system. Two of them, Edward Ryan and Byron Paine, were colorful and
controversial men, crusaders by temperament, who made their mark by
trying to slay the dragons of social evil that they saw around them - in
Ryan's case, excessive corporate power; in Paine's case, slavery.1 Luther S. Dixon was quite different. Basically a
peaceable man, Dixon was Wisconsin's first great judicial conservative.
He spent much of his time on the court acting as a counterweight to
Paine and breasting the numerous waves of social and economic change
that rolled through Wisconsin in the mid-19th century. In order to
understand those waves of change and the unique nature of judicial
conservatism in Wisconsin, it is important to understand Dixon's
Rapid Rise and Early Challenge (1825-1859)
Dixon was born in Vermont in 1825. He received a basic classical
education, taught school as a young man to support himself, and then
studied law with Luke Poland, one of Vermont's leading lawyers and
politicians. Like Ryan, Dixon took advantage of the opportunities that
the newer western states offered to young lawyers: he migrated to
Wisconsin in 1850 and settled in Portage.2
Dixon was a moderate Democrat who slowly gravitated to the Republican
camp as the nation's party structure shifted in response to the slavery
crisis of the 1850s. One early biographer reported that Dixon "seems not
to have been strongly litigious .... He was always a pacificator, when
pacification was proper and possible."3
Dixon lacked Ryan's fire and Paine's charisma, but he had a talent
for making friends and being "one of the boys" that the other two judges
lacked. One of the leading stories about Dixon that has been preserved
is telling on this point. After he had spent a winter evening "with
friends over cards, and the bottle [had gone] merrily around," a tipsy
Dixon borrowed a friend's lantern to light his way home in a snowstorm.
The next morning, after he told his wife that he could not have found
his way home in the terrible storm without the lantern, his wife told
him: "Luther, the next time you borrow a lantern to light your way home
you had better see to it that it has a wick and some oil in it."4 It is inconceivable that Ryan and Paine would have
wanted to be remembered by such a homely, human anecdote.
Dixon's rise in the legal profession was meteoric. He was elected
Columbia County district attorney twice and in 1858 Gov. Alexander
Randall, a fellow former Democrat turned Republican, appointed him a
circuit judge. In the spring of 1859, when Chief Justice Edward Whiton
died suddenly, Randall elevated Dixon to the supreme court at the age of
Dixon's tenure as chief justice (1859-1874) coincided with what was
perhaps the most turbulent period of Wisconsin's history. Shortly before
Dixon became chief justice, the U.S. Supreme Court, speaking through
Chief Justice Roger Taney, reversed the Wisconsin court's 1854
Booth decision, in which Wisconsin had become the first and
only state court to declare the federal Fugitive Slave Act
unconstitutional. The Act required Northern state officials to assist in
the capture and return of slaves who escaped from the South.6 When Taney's decision was transmitted to Madison,
the court refused to file it.7 Dixon, who
had only been on the bench a few months, then undertook what was
unquestionably the most courageous act of his judicial career: in a
dissenting opinion, he voted to accept the decision, and in so doing he
gave new life to the federalist cause in Wisconsin.8 Dixon took pains to state that he personally
believed the Act was unconstitutional, but he warned that the position
his colleagues had taken would "place it in the power of any one state,
beyond all peaceful remedy, to arrest the execution of the laws of the
entire Union, and to break down and destroy at pleasure every barrier
created and right given by the Constitution."9 Dixon's opinion cost him renomination by the
Republican party, then the dominant political power in the state, when
his term expired in 1860; but he had persuaded enough people to his side
that he won reelection as an independent by a very narrow margin.10
Judging In a Turbulent Era (1859-1874)
Dixon continued to attract controversy after the Booth cases
came to an end. He and his colleagues incurred the wrath of many
Wisconsinites in a controversy over debtor relief laws that lasted from
1858 to 1868. In the early 1850s Wisconsin, like many other states, was
swept by a mania for railroads. Many Wisconsinites gave mortgages on
their farms or residences so that they could purchase railroad stock;
the railroads then sold the mortgages to Eastern financiers in order to
raise capital.11 Wisconsin stockholders
expected to pay the mortgage interest with stock dividends, but in 1857
a severe depression forced every railroad in the state into bankruptcy.
Dividends dried up and the Eastern creditors began foreclosing.12
The stockholders resisted. They formed antiforeclosure leagues
throughout the state and, led by Janesville attorney James Knowlton,
they persuaded the legislature to enact several relief measures during
the late 1850s and early 1860s. The leagues also put Dixon and his
colleagues on notice that their reelection might depend on their
reaction to the relief measures. One league newspaper proclaimed: "[W]e
who have the votes with which to manufacture judges intend to supply
their places one of these days with men who have the nerve to grapple
with great questions and are not to be warped from their line of duty by
the clamorous voice of railroad thieves and stock jobbers."13 Dixon and his colleagues were in a bind: should
they give priority to the Eastern investors' property rights or should
they try to alleviate Wisconsin debtors' very real suffering?
The only precedent available was a line of cases stemming from an
1843 U.S. Supreme Court decision, Bronson v. Kinzie, which held
that laws "materially" changing contract remedies were unconstitutional
impairments of contract, but that laws which did not make "material"
changes would be upheld.14 The line between
"material" and immaterial changes was largely unmarked. Under Dixon, the
court followed a path of moderate conservatism: it generally chose to
protect investors' rights under existing commercial law, but it upheld
some of the legislature's milder relief measures. The court upheld an
1858 law allowing debtors six months to respond to foreclosure
complaints and requiring creditors to wait at least six months after
judgment before conducting a foreclosure sale. Dixon explained that
where "existing remedies become so stringent ... that great and
extensive sacrifices of property will ensue, without benefit to the
creditor ... a relaxation of the remedies becomes a positive
duty."15 But soon thereafter the court
struck down a law abrogating the "holder in due course" rule that
insulated the Eastern creditors from many of the defenses Wisconsin
debtors would have had against the railroads (such as fraud and
misrepresentation in connection with the original stock purchase). Dixon
noted that the holder in due course rule was a basic "principle of
mercantile law, with which all are familiar" and refused to change
In 1862 the court also struck down a law requiring testimony in
foreclosure cases to be taken outside court;17 and in 1866 and 1868 it struck down laws
permitting jury trials in foreclosure cases.18 As a result of the court's decisions, the
antiforeclosure leagues ran candidates against Dixon and his colleagues
at every election in the early 1860s and nearly succeeded in defeating
them. Dixon was reelected in 1863 and 1868 only by very narrow
margins.19 In the late 1860s, Wisconsin's
economy and the fortunes of debtors improved, and as a result the
foreclosure crisis ended.
Legal dilemmas arising out of the Civil War also added to the court's
burden. The Lincoln administration made unprecedented use of federal
powers to prosecute the war. Among other things it detained key Northern
war protestors, suspended habeas corpus, and instituted the nation's
first military draft.20 These measures were
deeply unpopular in much of the North, including Wisconsin. The draft
law provoked a series of riots in the eastern part of the state in late
1862, the worst of which resulted in the burning of much of Port
Washington.21 Dixon and his colleagues did
not want to impede the Union war effort, but their instincts recoiled
against curtailment of civil liberties and expansion of executive power
at the expense of the judiciary. Accordingly, they had to steer a
The court upheld the constitutionality of the draft, reasoning that
it fell within the scope of the federal government's "ample powers of
preservation and self defense."22 But in
In re Kemp (1863), Dixon, speaking for the court, sustained a
challenge to Lincoln's suspension of habeas corpus and released several
alleged leaders of the Port Washington riot.23 Dixon concluded with obvious reluctance that the
arguments of Lincoln's opponents were "unanswerable": only Congress, not
the president, could suspend habeas corpus.24 But Dixon went out of his way to emphasize that
his views were given "without the slightest disrespect to the president,
who has in all his actions, been governed by the highest motives of
patriotism, public honor, and fidelity to the constitution and
laws."25 Soon thereafter, Congress ratified
Lincoln's suspension of habeas, and the next year Dixon and his
colleagues, obviously relieved, rejected a new challenge to the
suspension.26 Shortly after the war, the
court brought the cycle of Civil War cases to a close by dismissing a
wrongful arrest lawsuit brought against the state by one of the
Kemp detainees. The court recognized that "executive power [can
be] dangerous to liberty [but] it is also absolutely necessary to every
A Voice of Caution Against Legal Instrumentalism
Dixon also served as the leading voice of caution in Wisconsin
against the rise of legal instrumentalism. Many 19th century lawmakers
believed that law should be shaped to encourage economic expansion and
modernization and should favor entrepreneurs over landowners and other
groups that had dominated the pre-industrial American economy. In the
words of one scholar, instrumentalism required "the quiet citizen [to]
keep out of the way of the exuberantly active one." Instrumentalism
played an important role in shaping such diverse areas as tort and
contract law and land and water use rights.28 Dixon never formally declared himself an
opponent of instrumentalism, but during his tenure on the court he was
the driving force behind several decisions that went against the court's
generally instrumentalist tilt.
For example, beginning in the 1830s American courts molded tort law
to fit instrumentalist values primarily through the contributory
negligence and fellow servant doctrines. The contributory negligence
doctrine held that any negligence on the part of an accident
victim, no matter how minuscule, would bar recovery; this greatly
reduced the liability exposure of railroads and other businesses for
injuries to employees and customers. The fellow servant rule held that
businesses were not liable for employee injuries caused by other
employees.29 In its first tort decisions,
the Wisconsin Supreme Court adopted the contributory negligence
doctrine;30 but in 1859, shortly after
joining the court, Dixon persuaded his colleagues to make several
important modifications to the doctrine: a victim's ordinary negligence
would not bar recovery when the defendant was "recklessly" or "grossly"
negligent or when the victim's negligence was a "remote" cause and the
defendant's negligence a "proximate" cause of the accident.31
In 1860 Dixon joined Justice Paine in a 2-1 decision that made
Wisconsin the first state to abandon the fellow servant doctrine.32 However, Dixon's judicial conservatism
ultimately prevailed over his anti-instrumentalist beliefs: in 1861, he
reversed his position and, as a result, the court readopted the fellow
servant rule, again by a 2-1 vote.33 Dixon
candidly admitted, "I recede more from that deference and respect which
is always due to the enlightened and well considered opinions of others,
than from any actual change in my own views."34 Wisconsin did not completely abandon
contributory negligence and the fellow servant rule until the
In 1870 Dixon's innate conservatism came to the fore again. In two
landmark cases decided that year, Kellogg v. Chicago &
Northwestern R. Co.36 and Whiting
v. Sheboygan & Fond du Lac R. Co.,37 Dixon and Paine engaged in a wide-ranging debate
concerning the limits of instrumentalism. In Kellogg, which
involved the issue of railroads' liability for fires caused by sparks
from steam locomotives, Dixon and Justice Orsamus Cole held that
landowners who placed flammable materials on their property adjacent to
railroad tracks were not liable for contributory negligence no matter
how obvious the risk. Dixon relied heavily on the pre-industrial legal
rule that landowners had an absolute right to do with their property as
they wished.38 Dixon also held, contrary to
the rule in many industrial states, that railroads' liability was not
limited to damage to property struck by the sparks: it extended to all
damages that were reasonably foreseeable and occurred in a "direct and
continuous" chain of events.39 Paine
dissented on both points.40
In Whiting, the court addressed another economic dilemma
that railroads had created for Wisconsin. During the 1850s and 1860s
many Wisconsin municipalities had subsidized local railroad development
through stock purchases and issuance of bonds; when the railroads
failed, the consequence often was crushing local debt. In Bushnell
v. Beloit (1859) the court had rejected an attempt to limit
municipal subsidies. The mortgage foreclosure cases that came before the
court during the 1860s, together with other widespread evidence of the
human distress that railroad failures were causing, apparently wore
heavily on Dixon. In Whiting, he and Cole tried to fashion a
judicial limit on municipal subsidies: they held that corporations that
were merely "under public regulation as to tolls" were eligible for
indirect aid such as municipal stock purchases but not for direct
grants.41 "Thus far shalt thou go," Dixon
concluded, "and no further."42 Paine again
dissented. Dixon's decision was widely criticized but remained the law
in Wisconsin thereafter.43
Last Years (1874-1891)
Dixon, like Ryan, had difficulty living on a judge's salary. In 1867
the legislature increased the salary of court members to $3,500, and in
order to get around the constitutional provision prohibiting increases
in compensation to state officers during their term of office, Dixon
resigned from the court and was immediately reappointed by the governor.
His maneuver was controversial and nearly cost him reelection in
1868.44 In 1874, tempted by more lucrative
opportunities in private practice and feeling that he might be passing
his prime, Dixon again resigned from the court, this time
Joseph A. Ranney, Yale 1978, is a trial lawyer with
DeWitt Ross & Stevens S.C., Madison. He is the author of Trusting
Nothing to Providence: A History of Wisconsin's Legal System (1999) and
has taught as an adjunct professor at Marquette University Law
Dixon's experience in private practice was mixed. He quickly
attracted lucrative cases, but on several occasions he was placed in the
odd situation of having to argue against positions he had adopted as a
judge. In 1875 the federal government retained him to prosecute federal
revenue officials in Milwaukee who were accused of taking bribes. Dixon
made a bargain with the attorney for one of the defendants, Rindskopf,
to recommend a lenient sentence in exchange for Rindskopf's testimony
against other officials. When Rindskopf refused to pay his attorney,
Dixon's successor on the court, Chief Justice Ryan, refused to enforce
the fee agreement and denounced Dixon's bargain as a "compounding [of]
public offenses" and "essentially immoral." Deeply stung, Dixon wrote to
the court pointing out that his actions were authorized by Congress and
approved by senior federal officials, but Ryan was unmoved and refused
to reconsider his decision.46 In the
mid-1880s Dixon, who was plagued by asthma as he grew older, moved to
Colorado for his health. He continued to practice law in Denver, where
he died in 1891.
It is ironic that Luther Dixon's geniality and his inclination to be
a "pacificator" took him to the summit of Wisconsin's legal system in a
very unpacific era. It was with considerable reluctance that Dixon took
on the role of curbing his colleagues' most extreme manifestations of
enthusiasm for shaping Wisconsin law in order to promote industrial
growth and opposition to slavery. Dixon defended the ideal of legal
order against calls for quick legal and social change in a wide variety
of areas during his judicial career. In order to do so, he was forced to
defend several unpopular causes, including federal laws favoring
slavery; the civil rights of war protestors; the rights of Eastern
creditors against Wisconsin debtors; traditional rights of landowners,
which he viewed as threatened by instrumentalism; and limits on aid to
railroads. As a result, each of his reelection campaigns became a battle
Dixon's most enduring legacy to Wisconsin law is the example he set
as the court's first great contrarian. His geniality, which is reflected
in the tone of his opinions, probably made his contrarian views more
palatable to Wisconsinites and gained such views more serious
consideration than they would have received if they had been espoused by
a more dour judge - for example, a Ryan. Dixon's courage and persistence
in taking unpopular positions despite the risk of electoral defeat set
an example for later lawyers and judges, as did the civil tone of his
contrarian opinions. These traits also are found in the careers of later
prominent contrarians on the court such as Roujet Marshall and Edward
Fairchild, who will be profiled in future articles. Those justices
surely were influenced by Dixon's example.
1 Ryan's and
Paine's careers are described in previous articles in this series.
Joseph A. Ranney, Chief Justice Edward G. Ryan: A World in Which
Nothing is Perfect, 75 Wis. Law. 18 (Sept. 2002); Ranney,
Concepts of Freedom: The Life of Justice Byron Paine, 75 Wis.
Law. 18 (Nov. 2002) [hereinafter Ranney, Paine].
2 John B. Winslow,
The Story of a Great Court 122-23 (Chicago, 1912); 81 Wis.
xxxi, xxxii (1891) (memorial to Dixon).
3 8 Rep. Wis. State
B. Ass'n 173 (1908), quoted in Winslow, supra note 2,
Winslow, supra note 2, at 149-50.
5 Id. at
122-23; 81 Wis. at xxxii; John Berryman, ed., History of the Bench
and Bar of Wisconsin 1:121-33 (1898).
6 3 Wis. 1 (1854);
see generally Robert M. Cover, Justice Accused 8-82
(New Haven, 1975).
7 Ableman v.
Booth, 62 U.S. (21 How.) 514 (1859); Ableman v. Booth, 11
Wis. 501 (1859).
8 11 Wis. at
9 Id. at
10 Joseph A.
Ranney, Suffering the Agonies of Their Righteousness: The Rise and
Fall of the States Rights Movement in Wisconsin, 1854-1861, 75 Wis.
Mag. Hist. 83 (Winter, 1991-92); Ranney, Paine, supra
11 Robert S.
Hunt, Law and Locomotives 44-48 (Madison, 1958).
Richard N. Current, The History of Wisconsin, Vol. II: The Civil War
Era 1848-1873, at 243-50 (1976).
supra note 2, at 172 (quoting Home League newspaper,
Oct. 27, 1860).
14 42 U.S. (1
How.) 311 (1843).
15 Laws of 1858,
c. 113; Von Baumbach v. Bade, 9 Wis. 559, 583 (1859); see
also Hunt, supra note 11, at 44-47.
16 Laws of 1858,
c. 49; Cornell v. Hichens, 11 Wis. 353 (1860).
17 Laws of 1861,
c. 88; Oatman v. Bond, 15 Wis. 20 (1862).
18 Laws of 1864,
c. 169; Truman v. McCollum, 20 Wis. 360 (1866); Laws of 1867,
c. 79; Callanan v. Judd, 23 Wis. 343 (1868).
supra note 2, at 217.
generally James M. McPherson, Battle Cry of Freedom
287-90, 436, 493-94 (1988); James G. Randall, Constitutional
Problems Under Lincoln 118-85 (1951).
Druecker v. Salomon, 21 Wis. 621, 623-24 (1867).
22 In re
Griner, 16 Wis. 423, 437 (1863).
23 16 Wis. 359
supra note 20, at 131-35, 144-65; 12 U.S. Stats. at Large 755
(1863); In re Oliver, 17 Wis. 681 (1864).
27 Druecker, 21 Wis. at 631.
Horwitz, The Transformation of American Law, 1780-1860, passim;
Joseph A. Ranney, Trusting Nothing to Providence: A History of
Wisconsin's Legal System 179 (Madison, 1999).
supra note 28, at 180-82.
Richards v. Sperry, 2 Wis. 216 (1853); Chamberlain v.
Milwaukee & Mississippi R. Co., 7 Wis. 425 (1858); Dressler
v. Davis, 7 Wis. 527 (1858).
31 Stucke v.
Milwaukee & Mississippi R. Co., 9 Wis. 202 (1859).
32 Chamberlain v. Milwaukee &
Mississippi R. Co., 11 Wis. 238 (1860).
33 Moseley v.
Chamberlain, 18 Wis. 700 (1861).
Laws of 1905, c. 303; Laws of 1907, c. 254; Laws of 1913, c. 644;
Ranney, supra note 28, at 197-201.
36 26 Wis. 223
37 25 Wis. 167
38 26 Wis. at
approach to instrumentalism is described in a previous article in this
series. Ranney, Paine, supra note 1.
41 25 Wis. at
Ranney, Paine, supra note 1.
44 Laws of 1857,
c. 102; Laws of 1867, c. 33; Wis. Const. of 1848, Art. IV, § 26;
Winslow, supra note 2, at 250-51.
supra note 2, at 303-04.
46 Wight v.
Rindskopf, 43 Wis. 344 (1877); Alfons J. Beitzinger, Edward G.
Ryan: Lion of the Law 136-39 (Madison, 1960).