History of the courts
Articles on Wisconsin legal history
The war of the governors: Bashford vs. Barstow
Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612
William Barstow, a Democrat, was elected governor of Wisconsin governor in 1853. Barstow was elected largely because there was no effective opposition party in Wisconsin. But during the next two years there was a wide outcry in the north over the national Democratic party's efforts to enforce fugitive slave laws and allow slavery to be extended into new territories west of the Mississippi River. As a result, the Republican party was formed in 1854 and delivered a sharp blow to the Democrats in elections later that year.
In 1855, Barstow found himself in a tight race for re-election against the Republican candidate, Coles Bashford. On election night the vote was so close the result remained in doubt for weeks. In December the state board of canvassers certified that Barstow had won by the narrowest of margins, 36,355 to 36,198.
The Republicans charged Barstow had won on the strength of false returns from non-existent precincts in Wisconsin's sparsely settled northern counties. Tensions ran high after Bashford announced he would challenge the result in court. Militia units from areas supporting Barstow came to Madison for his inauguration and stayed on, prepared to fight for him if necessary. In January 1856 Bashford demanded possession of the governor's office and was refused. He then conducted his own swearing-in ceremony and began his fight before the Wisconsin Supreme Court.
The Bashford-Barstow case was one of the most important cases ever decided by the Wisconsin Supreme Court. Not only the election but the very authority of the court itself was at stake. Wisconsin's courts had just gone through a scandal resulting in the impeachment of a prominent judge, Levi Hubbell, and many Wisconsinites wondered if the state's judges -- particularly the justices hearing Bashford's case -- could stand up to Barstow and his army.
The Supreme Court met the challenge. Barstow first challenged the court's right to judge him. He claimed that as governor, he was the head of a branch of government equal in power to the courts and as such he did not have to answer to the courts. The Supreme Court rejected his challenge. Chief Justice Edward Whiton pointed out that "the court is the mere instrument provided by the Constitution to ascertain and enforce [Bashford's and Barstow's] rights as fixed by that instrument." Whiton would not allow might to make right in Wisconsin; even the governor had to abide by the laws.
As the Court met Barstow's challenge, the governor's popular support began to ebb. Even some Democrats, led by Edward Ryan (a lawyer who practiced in Racine and Milwaukee and later became chief justice of the Wisconsin Supreme Court), felt there might be something in the fraud charges and disliked Barstow's efforts to prevent a fair hearing.
Barstow then argued that the court had no right to examine the board of canvassers' work and that its decision he had been elected was final. The justices rejected this argument also, and an increasingly desperate Barstow played his last card. In late February 1856, he sent a message of defiance to the court:
"I decline submitting my officials rights and powers to the determination of a coordinate department, usurping a jurisdiction unprecedented in the history of our country, and fraught with the greatest danger to our institutions," said Barstow. "I shall deem it my imperative duty to repel, with all of the force vested in this department, any infringement upon my rights and powers."
Barstow gambled that President Franklin Pierce, his political ally, would send federal troops to keep him in power if the Supreme Court did not. But Pierce did not dare do this. A few weeks later, as Barstow's hopes for support from Washington disappeared, he gave up and walked out of court. The Supreme Court then conducted a hearing and found that Barstow's vote was indeed irregular. It awarded the governorship to Bashford, who then took over the office without incident.
In a final rejection of Barstow's threats, the Supreme Court established for all time that under Wisconsin's Constitution it has the final say as to what the law is in Wisconsin. Justice Orsamus Cole of Potosi pointed out that that law and order in the state could not be maintained without such power. Barstow's position, said Cole, "is to be found in a revolution; it is one above the constitution. If the constitution does not give the court means equal to the political emergency of such cases, it is hardly worth spending any breath upon." This rule has been at the heart of Wisconsin's justice system ever since.
Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.