and in 1845 was elected to the Council (or Senate). In 1847, the first constitution proposed and submitted to the people hav ing been rejected, he was elected a delegate to the second constitutional convention, and took a prominent part in framing the con stitution which was adopted. He and Judge Dunn were the leading characters in the con vention. Gen. David Atwood, one of the re porters of the convention, in a book called the " Fathers of Wisconsin," thus speaks of Whiton : " His whole career was strikingly marked by every characteristic of true great ness. He was profoundly educated, not only in the law, but in the minutest details of the history of his country. Possessing a mem ory of unfailing tenacity, the vast stores of learning he had accumulated were ever at instant command, available to illustrate any mooted point either in law or political sci ence." The little library in Lee, so carefully read years before, stood the librarian in good stead when out in the new region he became a state-builder, with few books at hand, and the foundations of a great commonwealth to be laid. Chief-Justice Whiton served on the first Supreme Court until 1853, when he was elected Chief-Justice of the Separate Su preme Court, of which more is narrated later on. He presided over the new Court with great dignity and ability, constantly rising in the confidence and esteem of the people. He was re-elected in 1857, and served upon the bench till his death. Early in 1859 he was observed to be visibly failing in strength, and, on the 1 2th of March, his associates prevailed upon him to retire for a short time to rest. He repaired to his home in Janesville. He declined rapidly and, on the 1 2th of April following, died, in the house built with his own hands, honored, beloved and sincerely mourned by bench, bar and people. He left a record of most conspicu ous ability. During his term the important cases growing out of the Fugitive Slave law, of which mention is elsewhere made, were
decided. The quo warranta case of State ex rcl. Bashford v. Barstow was before the Court in 1855, involving an inquiry into the election of governor, the ousting of the in cumbent and seating of the relator. In this the State was shaken with profoundest agi tation. The new questions that beset the courts of a newly created State are legion. Constitution, statutes, practice, all are to be construed and settled, and the legislature, by frequent changes, give the judicial de partment little rest. In this formative period, Chief-Justice Whiton, so learned in the law, so profoundly read in the wider range of statesman's culture, of such incorruptible integrity and finely balanced intellect, was regarded by all as " standing four square to all the winds that blew." His labors as a judge on the Separate Supreme Court are reported in the first eight volumes of Wis consin reports. Those of his earlier service find record in the third volume of Pinney's reports. Few incidents have survived to enrich the stock of anecdotes of Chief-Justice Whiton. It is said that his feet were re markable for their symmetry and smallness, while he was not handsome in the face, a sad, far-away expression adding to the plainness of his features. Isaac Woodle, one of the wits of the Bar in those days, said, " if he could have Whiton's feet he would almost be willing to have his head." It is told that while at the Bar and on the circuit, he had one night retired to his bed at the tavern, a man came to his room desirous of having him take a case. The man's grievance was that he had put his horse out to pasture in the field of a neigh bor at an agreed price, and that a massasauga (rattlesnake) had bitten the horse, so that he died. He insisted that the owner of the field was liable for the horse. Wish ing to be rid of the fellow, Whiton said, "Can't take your case. I am retained for the snake." He was ever in general com pany a still, reticent man, apparently ab
