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Great Wisconsin judges: Edward Whiton

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

As Wisconsin's first chief justice, Edward Vernon Whiton (1805-1859) played a crucial part in creating a solid foundation for the young state's legal system. Thanks to the great respect and prestige Whiton commanded, the Supreme Court was able to weather several challenges to its authority during its early years which might have overwhelmed other judges.

Whiton was born in Massachusetts. He emigrated to Wisconsin Territory as a young man and settled near Janesville. Even though Whiton was a political opponent of Andrew Jackson in a territory dominated by Jackson's supporters, his neighbors repeatedly elected him to the territorial Legislature. Whiton's most important contribution there was to assemble the first complete collection of the territory's laws in 1839. This might sound like a purely clerical task today, but in 1839 it was a vitally important service. Law publishers in frontier Wisconsin were few, the Legislature had not bothered to keep good records of the laws it passed, and until Whiton acted Wisconsinites were uncertain as to what laws they had to obey.

Whiton was elected a judge when Wisconsin became a state, and five years later he became chief justice of the newly created Supreme Court. Whiton and the Court immediately faced a series of crises.

In 1853 the Legislature impeached -- that is, considered the removal -- of a prominent judge, Levi Hubbell of Milwaukee, for granting favors from the bench. Hubbell's trial threw all Wisconsin courts into disrepute. Whiton worked hard to restore the Court's reputation. He succeeded brilliantly in 1854 when the Court, armed only with its own courage, overturned the fraudulent re-election of incumbent Governor William Barstow.

From the beginning, Barstow threatened to hold his office by force if the court ruled against him. Whiton calmly ignored Barstow's threats. The court gave both Barstow and his opponent, Coles Bashford, full opportunity to state their positions. Over the course of several weeks it listened to the arguments of lawyers for both sides and then issued a well-reasoned opinion that Bashford had in fact been elected. Barstow finally yielded when he saw that the public was convinced Whiton and his fellow judges had acted fairly. One of Whiton's colleagues later commented that "but for the implicit confidence which nearly all the people of the state felt in the judicial integrity of Judge Whiton, bloodshed would almost certainly have followed the Court's decision."

Whiton also played an important role in another highly controversial matter involving Milwaukee abolitionist Sherman Booth. In 1854 federal officials captured Joshua Glover, a runaway slave, near Racine and tried to return him to his master. Booth helped Glover escape to freedom and was then jailed by the federal government for obstructing its efforts to return Glover south as required by law.

Whiton's fellow justice, Abram Smith, defied federal law and ordered Booth released from jail. The other Supreme Court justice, Samuel Crawford, protested that whether or not the justices liked federal laws they were bound to obey them. The final outcome was in Whiton's hands. He sided with Smith and chose freedom over the strict enforcement of the law.

In the Booth case, unlike the Barstow case, Whiton's actions did not end the controversy. The federal government appealed Whiton's decision to the U.S. Supreme Court, which reversed Whiton several years later. The high court's decision set off political turmoil in Wisconsin. Most Wisconsinites agreed with Whiton and Smith, but a vocal minority agreed with Crawford that the court was obligated to enforce all laws, including those which it disliked. Congress, not the Court, must change bad laws.

Whiton did not live to see the end of this controversy; he died suddenly in 1859, shortly before the U.S. Supreme Court overturned his decision. His passing was mourned by political supporters and opponents alike. Both factions recognized that whatever the merits of his decision in the Booth case, Whiton had contributed mightily to making the Supreme Court an institution which would be respected and obeyed by all Wisconsinites.

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.

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