Capitals & Capitols
CHAPTER II - Building Madison's First Capitol
The Board of Commissioners
Section 3 of the 1836 law, which established Madison as the permanent seat of government and Burlington as the temporary capital, called for the creation of a board of three commissioners - to be elected by a joint ballot of both houses of the Legislature - whose duty it would be to "cause the necessary public buildings to be erected at the said town of Madison." In very precise language, this section delineated the structure, functioning and some of the specific duties of the board; they were to "agree upon a plan of said buildings . . . issue proposals, giving due notice thereof, and contract for the erection of said buildings without delay." They were to elect, among the three of them, a treasurer and an "acting commissioner", the former to be responsible for drawing from the United States Treasury "such sum or sums of money as may have been or may hereafter be appropriated by Congress" for public building construction, for paying bills and for annually rendering an accounting to the Legislature, and the latter to be responsible for the day-to-day overseeing of the actual construction. The act, as a whole, did not take effect until March 4, 1837, three months after Dodge approved its passage.
In spite of the law's specific provisions, the envisioned process that was expected from its meticulous wording did not materialize. After Dodge signed the law, the Legislature elected Augustus A. Bird, John F. O Neil and James D. Doty as commissioners, who immediately selected Doty as treasurer. Doty was the clear winner of the "capital sweeptstakes". Doty, however, did not wait for the law to take effect three months hence or for the board to formally meet. Instead, on his own initiative, Doty hired Moses M. Strong to go to Madison and resurvey the town to confirm the initial platting and to stake out the Capitol Square (which Doty had donated to the Territory) in preparation for construction. Strong spent several bitterly cold days in February 1837 carrying out this task.
By the time the board of commissioners finally did meet on May 4, 1837, it was clear that a considerable amount of planning had already taken place in the intervening six months. Although only Doty and O'Neil were present, sweeping decisions were made about which the absent Bird was apparently aware. They adopted a plan for a capitol (it is at this point where "public buildings" somehow became "public building", that is, a capitol) which, by their own estimate, would cost between $40,000 and $45,000 to construct. This, of course, was over twice the amount appropriated by Congress. Rather than scale down their plans, the board decided to depart from its lawful instructions and chose not to advertise for bids but to attempt the project on their own. According to later testimony by Bird before a joint legislative investigating committee, the board was "of the opinion that it (the Capitol) could be build much cheaper than anyone would be willing to contract to do it - they therefore, in the exercise of their discretionary powers, concluded to commence and continue the work until they were able to ascertain how it could be done with the least expense and the best advantage to the Territory." Notwithstanding the board's noble intentions as stated by Bird, the fact that no "discretionary powers" to ignore the bid procedure existed in the law establishing the board seemed to be overlooked. After taking this unwarranted step, the board appointed Bird the "acting commissioner" with the power to purchase materials, hire workmen and do whatever else was necessary to get the project underway.
A watercolor by Johann B. Wengler of Madison's King Street and Second Capitol,
on the left side is the Madison Hotel.
Construction Begins in the Wilderness
Bird lost little time in organizing and hiring a construction crew in Milwaukee and buying the necessary tools and provisions for building a city and a capitol from scratch. At the end of the month, with 36 workmen, six yoke of oxen, wagons, tools, supplies, cooking utensils, etc., Bird set out from Milwaukee on the overland journey to Madison. It proved to be very difficult going since there were no established roads at that time between Milwaukee and Madison, and they were forced to make one as they went along. To make things worse, it rained constantly from the start, further slowing their progress as the ground became muddy and the streams to be forded became swollen. The only break in the rain came as they neared the end of their trek; coming out of a stand of trees onto an open prairie drenched in sunshine, they jubilantly nicknamed the place "Sun Prairie". The name has remained to this day.
Bird's party finally arrived in Madison on June 10, a ten-day trip which would shortly afterward take little more than four hours, greeted by the Peck family, who had arrived a few months earlier to start an inn at the new capital. Since the Pecks' tiny log cabin was not nearly large enough to house the entire work party, the crew immediately began construction of temporary houses and cabins to shelter themselves and their livestock and to store their equipment and provisions. These were built at the end of King Street on Third Lake (Lake Monona) and "were not of the highest order of architecture." William Woolcock, a stonecutter from Canada who arrived later that summer, leaves us with some impression of what these early accommodations were like: "We slept at the building known as the bedroom, about eighteen feet square and two stories high and the sleeping berths were all around the sides, two or three, one above the other, and the bedsteads were made out of small oak trees and covered with marsh hay ... (T)he mosquitoes were so thick that the men made a fire on the floor to smoke them out."
The mosquitoes were not the only problem facing the workmen, for Madison was still very much a wilderness in 1837. The census the year before had enumerated only about three dozen settlers in what is now Dane County, and many of these tended to be "birds of passage" like Michael St. Cyr, the French trader who had a cabin in the City of the Four Lakes tract on Fourth Lake's northwest side. The nearest population center of any size was Fort Winnebago, some 35 miles to the north. Hence, isolation posed a very real, as well as psychological, problem with medical services, military protection and sources of resupply some distance away. None of the workmen, however, turned around and returned to Milwaukee or left Madison for other parts in the face of short rations, annoying swarms of mosquitoes and primitive housing conditions, but not because of any idealized "indomitable frontier spirit". When Bird had signed the men on, they signed an agreement to work for $2.25 per day, rather a good wage in that day, but a stipulation in their agreement allowing for substantial deductions in their pay if they left within the first three months. After the first three months, many of the workmen did leave, but excavation and construction operations had gained enough momentum and progressed far enough that the temporary loss of labor (Bird had no trouble replacing them) did not bring work to a halt.
Another hardship that the men had to bear, and one which they had not bargained for, had to do with the medium in which they were paid. Doty had withdrawn the $20,000 in specie from the United States Land Office in Green Bay and deposited it in his bank in the same town. When the monthly payday would arrive for the men working at Madison, Doty would send the pay in banknotes. Since the notes were issued by the bank, their exchange rate for specie and, hence their value, only remained at par at that particular bank. Other banks, both within and outside the territory, commonly discounted such notes and, as a consequence, their value was diminished in common exchange. Andrew Jackson's Specie Circular of the previous year, requiring the use of specie to pay for government lands, further devalued paper currency. These combined forces operated strongly enough by mid-1837 to provoke several strikes among the workers at Madison until finally, in mid-September according to Rosalind Peck, Doty personally accompanied a contingent of soldiers from Fort Howard near Green Bay bringing a large amount of specie, presumably to meet the payroll. Before this time, Eben Peck, Rosalind's husband, would leave Madison for Green Bay two weeks before payday and return in time with the banknotes, but, after swimming streams and rivers on the return trip, the notes would have to be spread out to dry before the men could be paid.
Bird managed to get work underway early enough in June to have the foundation laid out and the excavation for the basement story begun in time for the Fourth of July celebration. Doty insisted upon a formal celebration of the holiday, the first such in Madison, which would undoubtedly reinforce Madison as the future seat of government for the territory. He virtually ordered Mrs. Peck to prepare for a large celebration and, acting as her agent, sent wagons to Galena for provisions; Mrs. Peck took advantage of a herd of cattle being driven past Madison en route from Illinois to Green Bay and purchased a few head on July 2, so that the celebrants could have "something besides pork." Attended by two to three hundred people (according to Mrs. Peck's count), including Doty and other territorial officials, the cornerstone of Madison's first capitol was set on the northeast corner of the building site, amid appropriate speeches and ceremony on July 4, 1837. The festivities continued for three days, as long as it took for the whiskey to give out.
Bird and his crew continued work throughout the summer, but, as it turned out, the Capitol was not the only object of their labor. They found a source of suitable building stone in what is now the village of Maple Bluff, on the northeast side of Madison, but the marshy isthmus presented a carriage problem, which they surmounted by building two wharves, one near the quarry and one near the foot of North Hamilton Street, and two scows for hauling the stone across Fourth Lake. They also constructed a steam sawmill to cut the timber felled near the Capitol Square into useable lumber. As the summer continued, more workmen arrived, swelling the construction force to nearly one hundred.
By September, the board of commissioners decided to attempt to turn over construction to a contractor and advertised for bids for completion of the Capitol, but rejected all that were submitted, apparently because they were too high. Bird continued work until November, at which time the foundation and the construction season were finished. After holding a small celebration, most of the crew left Madison for the winter. A problem - which developed undiscovered and which would remain uncorrected for over 70 years - occurred during this summer's activity. The Capitol was intended to be erected precisely in the middle of the square, the center of the building directly over the spot where the corners of the four sections - 13, 14, 23 and 24 - joined. Whether Strong had erred in surveying the square in February or the center stake had been moved or removed is not clear, but the effect was to place the west doorway of the capitol over the conjunction of the four sections. Moreover, the building was supposed to be aligned with the streets around the square, requiring the axis of the Capitol to coincide with the avenues and streets. For some unknown reason the foundation was also mislaid, slightly out of alignment. Both these errors were discovered some years later and were not corrected until early this century when the current state capitol was being built.
The Winter Hiatus
Raising More Money
During the winter hiatus, although construction activity ceased at Madison, efforts were being pursued at Burlington to further enhance the project. Doty had arrived in the Mississippi River town early for the second meeting of the Territorial Legislature and his intentions were soon abundantly clear to all: he intended to ask for the Legislature to memorialize Congress for more money to carry on construction at Madison. Doty still enjoyed the support of a majority of the Council and the House of Representatives, but a minority who opposed him now had some rather substantial ammunition to use in their fight. Governor Dodge again joined this latter group, his antipathy to Doty unabated since the previous session's events. Dodge was of the opinion that the initial grant of $20,000 "was no doubt sufficient, if it had been properly expended." Moreover, Dodge felt it was totally unnecessary to pour a great deal of money into Madison, since (he reasoned), with the addition of the Indian lands to the north of the Wisconsin River, the center of population must move north, as must the capital. Clearly, Dodge appeared to be fixated with the notion that the Capital must be collocated with the center of population, which would necessarily cause the eventual removal of the seat of government "at least one hundred miles north of the Wisconsin River."
The Legislature formed a Committee on Public Expenditures to consider the question of asking for an additional appropriation from Congress and, in early spring 1838, the majority issued a favorable report, noting that "some progress has been made." The minority, however, echoing some of Dodge's sentiments, was critical of the use of the initial grant, pointing out that the board of commissioners had spent at least $7,500 "in the erection of a steam mill, two boarding houses, a lodging house, a barn and a cellar, two scows, a bridge, and two wharves". (Strong estimated the amount to be $17,900, but, as will be seen, he had more than ample reason to be biased.) The memorial was drawn up and sent to Congress, which appropriated an additional $20,000 on June 18, 1838, but Doty's difficulties over the construction of the Capitol were just beginning.
Obtaining A Contractor
In late February 1838, the board of commissioners for a second time advertised for bids from contractors to complete the Capitol, confident that the additional federal money would be forthcoming. The bid specification leaves us with the most complete description of what would become Madison's first Capitol. The building was to be 104 feet by 54 feet, with two stories above the half-submerged basement story and with stone walls from two to two-and-one-half feet thick. As with the two succeeding capitols, there would be no evident front and back, for although the specification described a "front" facade, it was to be identical in every detail to the "back". Both were to have an oak-floored piazza, even with the top of the basement, projecting 12 feet from the building and 30 feet long, with a roof supported by four Doric columns. The roof was to be covered with pine shingles except for a tin-covered dome in the center, 26 feet in diameter with a clear skylight in the center. (There is some uncertainty whether this last feature was ever installed; existing drawings and photographic images of this Capitol do not show any evidence of a skylight in the center of the dome.) The fact that a dome was specified for a Capitol was not as foregone an assumption in that day as one might think. A dome as a feature of a capitol or statehouse was somewhat of a recent innovation, used the first time in the renovation of the Maryland State House less than 50 years before. (This was pointed out by William R. Seale in a paper delivered before a group discussing state capitol renovation at the National Conference of State Legislatures' meeting, 1982.)
The interior of the Capitol was to have a great hall, running from front to back, 24 feet wide and open to the dome skylight above; the walls were all to be corniced and triple-plastered. A flight of stairs on either side of the great hall would take people to the second floor, while the first floor had, on one side, the circular Council chamber and, on the other, the 40 by 38 foot House chamber, both with elevated galleries for public spectators. Even decorative nuances, such as egg-and-dart molding around the doors, were detailed in the bid specification. Clearly, this was not intended to be a temporary capitol, such as Maj. Jerry Smith's building, nor was it meant to be abandoned when the center of population shifted.
Several bids were again received ranging from $24,450 to $125,000, and James Morrison, one of Doty's partners in a Mineral Point bank, was awarded the contract to complete the structure for $26,200 on April 17, 1838. Morrison was to
have the shell of the Capitol and the first floor rooms finished by October 15, 1838, and the building completed in all its details by September 20, 1839. Two months later, Congress would approve the second $20,000, which would not provide the necessary funds to cover Morrison's contract, but this detail seemed to deter him not at all. By May, Morrison had hired many of the workmen who had come to Madison the year before with Bird and continued construction on the Capitol where Bird had left off the previous November. He also entered into a partnership with Bird to build a hotel, called the American House, on the corner of North Pinckney Street and East Washington Avenue, which, ironically, would see use as a meeting place for the Territorial Legislature before the Capitol.
The Lawmakers Come to Madison
Accommodations Still Inadequate
While at Burlington in June 1838, the Wisconsin Territorial Legislature received word that Iowa had been granted territorial status, reducing Wisconsin to its current boundaries. As indicated by the requirement in Morrison's contract that the shell of the capitol and the first floor (which included the legislative chambers) be completed by October 15, this development was anticipated by Bird, O Neil and Doty. Although the law establishing the seat of government at Madison specified that the public buildings be completed by March 1839, it was clear now that the territory would need them sooner, for the fall 1838 session. After Doty's last trip to the well for additional money for construction, the legislators were understandably concerned with what would be facing them when they assembled again in Madison, and they appointed a committee to look into the accommodations that waited them.
The legislative committee's report, coming as it did on the eve of the fall session, would deepen the lawmakers' concerns, which would grow after they met and would have far-reaching consequences for Doty, the Capitol and the territory. Of the three hotels in Madison, the committee found "that at the Madison House there was one room that would accommodate four persons; and at the American Hotel, eight rooms, sufficient to accommodate twenty-six persons." In all, the committee estimated that lodging could not be found in the whole village for more than 50 people. If legislators feared from this report that they would be laboring under conditions more similar to those at Belmont than at Burlington, they were not far from the mark. Judge J. G. Knapp leaves us with a vivid image of the early days of the Legislature in Madison: "Though we paid metropolitan prices, it cannot be said that we had exactly metropolitan fare. But men were remarkably accommodating in
those early times, and without a grumble could eat "hog and hominy" or "common doings" when "chicken fixings" could not be had, and they would occupy a "field bed" when they were required to sleep "spoon fashion". The "school section" of the "American", embracing most of the garret, was marked into lodging places by cracks in the floor, and its other rooms were equally crowded. At the Madison House, only six men were placed in a room sixteen feet square, and four others had a place at the fire during the day and evening Happywere those men who could find places in the few private houses where four men might find two beds in a cold room ten or twelve feet square.
An Unfinished Capitol
While the legislators may not have grumbled at the table, they certainly were not so reticent about voicing their displeasure on the floor of the Legislature - once they could use it! When the lawmakers arrived in November they found the Capitol unfinished and unfit for immediate use. Even the progress that Morrison was supposed to have made by October 15 had not been attained. The shell of the building was up, but the chambers were not complete, without desks or benches, the flooring incomplete and the plaster still wet. The Legislature, without a capitol to meet in, made do with the basement dining room of the American House, where Governor Dodge delivered his first message to the Legislature in Madison. The House and the Council would meet and adjourn from day to day, patiently waiting for Morrison and his workmen to hurriedly prepare two rooms for their immediate use in the southern portion of the building. In their haste, however, they used uncured, ice-encrusted oak planks for the floor, the desks and the benches, and by the time the legislators moved in, the temperatures had dropped and the plaster, still wet, had developed an icy glaze, matching that on the floor boards. The chilled lawmakers started fires in the small stoves and fireplaces to provide a comfortable environment for their debates, but, in the long run, this worked to make matters worse. After a short while, the green wet oak dried out and shrank as a result of constant exposure to the heat; the gaps that developed between the floor boards got to the point where "a person could run his hands between the boards." Since the basement was still open, the temperatures in the chambers dropped once again.
One legislator, however, made the best of a miserable situation and used the gap between the floor boards to his advantage, leaving us with an entertaining anecdote. As mentioned above, the basement story was unfinished, but still afforded some measure of shelter. Morrison took advantage of this unused area to keep his rather sizeable herd of reportedly very scrawny hogs out of Madison's bitter cold. Ebenezer Child, a rather down-to-earth Council member from Green Bay, having little use for self-important frontier orators who tended to carry on too long in debate, noticed the opportunity afforded by the proximity of Morrison's herd. "When members of this ilk would become too tedious, I would take a long pole, go at the hogs, and stir them up; when they would raise a young pandemonium for noise and confusion, the speaker's voice would become completely drowned, and he would be compelled to stop, not, however, without giving his squealing disturbers a sample of his swearing ability."
Finally, in late December, the lawmakers could stand the freezing cold and Morrison"s hogs no more, and they declared a one-month Christmas recess but not before entering a bill to move the seat of government to Milwaukee. This was to be the first of many unsuccessful attempts over the next century to move the capital to another city. During the recess, Ebenezer Childs, who had been appointed Chairman of the House Committee on Arrangements, bought all the carpeting he could find "in the Territory," brought it to Madison and, after laying down a thick coating of hay, covered the House chamber with it. This made the chamber warmer and presumably quieter since Childs could no longer invoke his particular brand of ad hoc cloture.
Investigations of the Use of the Funds to Build the Capitol
Before the Legislature left for the Christmas recess in December 1838, two resolutions were introduced concerning the Capitol, Doty and the board of commissioners, which would develop into controversies of major proportions and which would haunt the continuing construction of the Capitol until the end of the territorial period. One asked the new United States Attorney, Moses Strong, to investigate the validity of the territory's title to the Capitol Square, and the other created a committee to look into the use of the two federal appropriations by the board. After the Legislature returned in January 1839, the latter motion was quickly adopted. A joint committee with three members from each house was created "to investigate the affairs of the commissioners for the building of the Capitol, with the power to send for persons and papers and administer oaths," and report to both houses. The tide had finally turned against Doty; he no longer enjoyed the support of a majority of either house. The miserable accommodations, the half-finished Capitol and the shadow hanging over not only the title to the Capitol Square, but, indeed, virtually all land titles in Madison, many of which were held by individual lawmakers, all combined to quickly erode public confidence in the former judge. The strength of this movement became abundantly clear when a relatively facetious resolution "to inquire into the expediency of bringing in a bill to remove the seat of government, and converting the present public building into a penitentiary" received nine of 25 votes in the House.
Throughout February 1839, the joint committee conducted its investigations, calling Bird, Eben Peck, several of the workmen and others as witnesses. On March 4, the committee submitted its report to the Legislature without recommendation. The report detailed the actions of the board, and of Doty and Bird individually, noting that labor and supplies purchased with the federal money were used in construction of private buildings, as well as the sawmill, bridge, wharves, lake-scows, etc. noted earlier. Testimony also revealed that Bird had paid Eben Peck $20 for brandy and wine to reward the workmen from time to time. But the report was most critical on the matter of the board s refusal to follow the bid procedure specified in the 1836 law: ". . . the commissioners instead of entering upon the discharge of their duties agreeably to the requirements of the law under which the board was created, and in which their duties were plainly marked out, boldly assumed the power of purchasing materials, employing mechanics and laborers, and proceding in the construction of the buildings on their own account." The Legislature referred the report back to the committee with instructions to draft a bill to correct the abuses they outlined. The committee quickly responded, redoubling their criticism of the commissioners by stating that they had "acted from the commencement of their duties in direct violation of the laws under which they were appointed" and reported a bill repealing Section 3 of the 1836 law (which created the board) and forming a three-member Commission of Public Buildings to be elected annually by joint legislative ballot. The old board was required to turn over all books, accounts, funds, and territorial property in its possession", and Morrison was required to provide assurances that he would complete his contract. If the board, individually or collectively, or Morrison refused, the commission was to institute a suit against them in the name of the territory. The law was passed March 9, 1839, and James L. Thayer, Nathaniel C. Prentiss and Lester H. Cotton were elected to the new Commission of Public Buildings.
The New Commission
The commissioners held their first meeting on May 8, 1839, at which time Prentiss was elected acting commissioner and Thayer treasurer. The commission immediately took steps to carry out its mandate by requesting the appearance of each member of the old board and Morrison, with the appropriate accounts, at its May 28 meeting. Only Augustus A. Bird attended, and the commission again summoned the remaining board members and Morrison for its June 10 meeting with the same results. Finally, the commission in frustration submitted a report to Governor Dodge in late July accusing the first board of "showing a fraudulent design to speculate and trade upon the funds of the Territory" and claiming that they still had over $20,000 in their possession. Nor was the commission too generous toward Morrison and the prospects for the completion of his contract by September 20, 1839, concluding "that there is little or no intention on the part of the contractor" to meet his deadline. They went on to calculate that, to date, no more than $13,500 could have been spent in construction of the Capitol and that Morrison had received almost $20,000 from Doty, leaving a balance of $6,500 in the former's hands. The commission was clearly not about to allow for the necessity of constructing shelter for the workmen, the sawmill, the wharves, etc. and expected Doty and Morrison to turn over the amounts they estimated. Doty and Morrison refused, leaving the commission with no funds to continue construction on the Capitol apart from that which Morrison desultorily carried out. In fact, the commissioners later had to advance the territory over $200 out of their own pockets to prepare the building for the fall session of the Legislature.
Doty, now the territorial delegate to Congress in Washington, flatly refused to make any accounting to the commission or to turn over any funds. In an open letter to the public, published in the Wisconsin Enquirer shortly after Dodge released the commission's report, Doty defended his stand with involved legal arguments. He contended that the original board s creation, as specified in the 1836 law, was sanctioned by Congress when it approved that law and reconfirmed when it voted the additional $20,000 in June 1838, and, since the March 9, 1839, law eliminating the old board and creating the new commission had not yet been submitted to Congress for approval, it was not valid. Doty reasoned that no territorial law was effective until Congress had the opportunity to nullify it, and when and if the Congress ever "approved" the March 9 law, he promised to "willingly surrender" his office as treasurer of the old board and all records and money in his hands. Doty, of course, was fully aware that, as territorial delegate, he was in a position to recommend to Congress and lobby quite effectively for the nullification of any territorial law that he submitted, including this one, which he did several months later.
As Morrison's contract deadline (September 20) approached, it became increasingly apparent that the commission's contention that he would not complete the work would be confirmed. Three days after the expiration of the contract, Commissioners Thayer and Prentiss physically took possession of the building, after Morrison's agent had refused to turn over the keys; they then put their own lock on the Capitol. Enraged, insulted, or both, Morrison broke their lock and forcibly regained possession of the structure, replacing his locks. Rather than continue this childish head-to-head confrontation, the commission brought suit against Morrison for forcible entry and secured a restraining order and a writ of restitution against him, all of which resulted in the commission quietly regaining control of the Capitol from an uncharacteristically quiet Morrison. The success in pursuing a legal recourse must have heartened the commissioners and influenced their subsequent course. This court action was soon followed by another one for the recovery of almost $7,500, which the commission reckoned the old board had overpaid Morrison. Results in this litigation did not come as quickly, however.
All the difficulties between the commission and Doty and Morrison and the lack of progress in finishing the Capitol gradually added to the growing uncertainty about Madison s future as the seat of government. But after the commission successfully wrested control of the building from Morrison, the acting commissioner, Nathaniel Prentiss, took charge of the task of hiring laborers and mechanics to continue the work on the Capitol interior. Prentiss concentrated on the rooms used in the previous session by the legislators, laying new floors in the House and Council chambers, lathing the walls on the second floor and finishing a committee room. By the end of October, things were beginning to look up, causing the Wisconsin Enquirer to comment that "there is now a fair prospect of the capitol being one day completed" while candidly admitting earlier doubts about its ever being finished. By the beginning of the fall legislative session in November, the Capitol was in useable shape, but the issue of its final completion and Doty's refusal to turn over the books and unexpended funds did not rest.
Governor Dodge, in his opening address to the Legislature of 1839-40, formally called for another investigation to determine what had become of the unused portion of the two federal appropriations to build the capitol. The House responded first, appointing a select committee to look into the matter, and the Council later secured the reconstitution of the committee into a joint body of five legislators. At the same time, the Commission of Public Buildings issued its report to the Legislature, reiterating much of what was contained in its earlier report to Governor Dodge and adding the information that they had instituted suits against the old board for the recovery of the unspent funds and against Morrison for the same and for breach of contract. However, they glumly concluded that "the Capitol must remain for some time to come in its present unfinished condition" and that the outlook for a timely settlement of the lawsuits was dim.
In early January 1840, the joint committee reviewing the whole situation issued its report and recommendations. As with earlier investigations, the committee found that Doty had drawn both appropriations and, according to the records that they could find, had spent all but about $21,000, which should still have been in his hands or disbursed to Morrison and which the territory was attempting to recover through the lawsuits. The report summarized the whole situation to date in severe and quite uncomplimentary terms: "Although more than two years had elapsed from the time the commissioners were elected, until they were superseded, and although they were supplied with funds that were more than ample for the erection of suitable buildings, yet at the time of the election of new commissioners, they had done little more than erect a shell of a capitol, which is scarcely capable of sustaining its own weight, and which, unless it is speedily secured by extensive repairs must become a heap of ruins."
The report went on to characterize the old commissioners as "reprehensible in the highest degree", charging that they were involved in a conspiracy with James Morrison to profit by his contract, an accusation which A. A. Bird hotly denied in a statement read into the House record within the week. The committee also recommended a bill eliminating the present three-member Commission of Public Buildings, replacing it with a single commissioner, answerable to, and elected by, the Legislature. The bill passed without difficulty and was approved by Governor Dodge on January 11, 1840. The same day, both houses jointly elected Nathaniel Prentiss to the new post.
Doty continued to evade summonses and his critics while in Washington; but, by the spring of 1840, the controversy over the disposition of the federal funds began to catch up with him. In late February, he wrote a letter to the Chairman of the U.S. House Committee on Territories explaining his position in basically the same terms as he did in his published defense in the Wisconsin Enquirer the previous July. At the same time, he recommended that Congress invalidate the March 8, 1839, law eliminating his board and creating the successor commission, but by the time the bill had been given a second reading and referred to a committee of the whole in early April, Doty had resigned from the original board. Doty continued to avoid accounting to the Wisconsin Territorial Legislature, however, until the Whig victory in the presidential elections later that year, after which he submitted an itemized statement and $1,700 in undisbursed funds (by his calculations). The lawsuit against him dragged on until 1848, when, in its final session, the Territorial Legislature requested that the suit be dropped in an effort to clear the books before Wisconsin became a state.
Controversy Over Title to Capitol Square
The question of the validity of the territory's title to the Capitol Square surfaced in Madison in early December 1838. Rumors - apparently planted by Moses M. Strong, the new United States Attorney for Wisconsin - concerned Doty's legal authority to sell or convey titles to Four Lakes Company lands in the capital city.
After Doty had vanquished his competitors in the race for the capital prize in 1836, he had donated the public square to the territory and continued to sell lots with some vigor. The following May, he finally got around to recording these transactions at the Iowa County Courthouse in Mineral Point. At the same time, he filed several documents concerning the Four Lakes Company and the whole Madison venture, all about a year old. These consisted of the original plat, the articles of incorporation for the company, Doty's deed transferring all his interests in the Madison land to Michigan Governor Stevens T. Mason, Mason's power of attorney to Doty, and Francis Tillou's power of attorney to Doty. Shortly after Doty's filings, Strong, who was practicing law in Mineral Point at the time, discovered these documents and, upon close examination, realized a fatal error in Doty's hasty machinations of the previous spring. Doty, together with Mason, had purchased 1,000 acres on the Four Lakes isthmus and a few weeks later had transferred all his interests in the purchase to Mason. This was followed a month later by Mason's power of attorney authorizing Doty "to divide, lay off, or otherwise dispose of my interest in and portion of certain land jointly owned by said Doty and myself." Strong astutely noticed that, as a result of his earlier deed to Mason, Doty was no longer a joint owner of the isthmus property; hence, the power of attorney was technically and legally invalid for all the sales and transactions that Doty had negotiated since, including the transfer of the title to the public square. Had Madison not been selected the seat of government, the issue most probably would not have garnered much interest nor would the power of attorney have been challenged, but the land was now prime real estate.
Strong saw an immediate opportunity to make a great deal of money and quietly charted a course of action. He wrote Stevens Mason relating what he had found and offered the following arrangement: without revealing the connection between themselves, Strong would take the issue to court to test the validity of Mason's claim to all the land in question; confident of a favorable outcome, Strong's terms were simple and direct - no charge if he failed, half of the settlement if a compromise was struck with Doty, and half of all the land if he was completely successful in court. Mason must have pondered the possibilities deeply, since it was six weeks before he finally responded to Strong's proposal. What Mason had entered into the previous year was a one-thirteenth share (he had two shares of a total 26) of a highly speculative venture in wilderness real estate. The prospect he now faced was the possibility of acquiring a quarter of all the land in Wisconsin s future capital. (He had sold one of his two shares to Kinzing Pritchette, Secretary of Michigan, in late March 1837 and stood to realize only half of his portion of Strong's deal.) Strong had his father, who had been visiting him in Mineral Point, stop in Detroit on his way back to his native Vermont. The elder Strong spent the better part of an afternoon convincing Mason that his son could successfully pursue the case to a beneficial conclusion.
Finally, Mason sent Kinzing Pritchette to Mineral Point in July to meet with Strong and, presumably, come to some agreement with him to follow the course that he had proposed. Strong, however, was not there. Having been recently appointed United States Surveyor for the lands west of the Mississippi, he had just departed to carry out his duties. Nevertheless, Pritchette discussed the matter with Strong's partner, John Catlin, and later entered a deed to the half of the lands in Mason's original shares which he had earlier purchased. At some time following these events, Mason or Pritchette approached Doty (without mentioning Strong) with the intention of seeking a quick compromise and a settlement, but Doty flatly refused, and there the matter rested until December 1838.
The rumors circulating in Madison in December slowed the construction of desperately needed housing to a standstill and implicitly called into question the validity of the territory s right to the ground on which the half-finished Capitol stood. Strong, who apparently started these rumors, covertly wrote Mason and Pritchette again with a new plan while a resolution was between the House and the Council to request formally that he, in his new capacity as United States Attorney, investigate and determine the true ownership of the Capitol Square. This time Strong was more vague about his fee but clearly expected a substantial reward for his efforts on Mason and Pritchette's behalf. He would file a new plat of Madison, identical to Doty's, except that it would list Mason and Pritchette as proprietors. Mason and Pritchette would then execute a new power of attorney authorizing Strong to convey new titles, and the latter would give new deeds to lot owners who had improved their property and would sell for a nominal charge new deeds to absentee landowners who had not. In order to keep the territory from getting too deeply embroiled in the conflict, a new title to the square would be executed and the trio would once again face Doty with an offer of a negotiated settlement. If Doty again refused, Strong planned a test case involving the most valuable commercial property in Madison - the land upon which stood the American House.
When the Legislature returned from the winter recess, Strong's report was ready for them and was laid on the table by the Speaker of the House on January 23, 1839. With the documents Strong had discovered in Mineral Point, a power of attorney from Mason and Pritchette, and a title for the square deeded to the territory for one dollar appended, Strong s report wended through tortuous legal reasoning to the inescapable conclusion that Doty had been selling and granting property which he had no power to transfer. Two weeks later, the Legislature appointed a six-member commission to consider the charges in Strong's report, but with a title to the square from each camp in the territory's name, there was little urgency to act. The battle among Strong, Doty, Mason and Pritchette continued in the press and the courts, with Strong temporarily taking possession of the American House, until the summer of 1841, when then Governor Doty bought all rights and titles from a discouraged Stevens Mason for $5,000. Strong, for all his maneuvering and intrigue, never realized a dime from his scheme.
The Capitol Staggers to Completion (1841-1848)
While Strong was dogging Doty and Morrison in the courts, the Capitol began its long, staggering journey to completion. In January 1841, the Territory faced the prospect of having to complete the structure with no available funds. The money earmarked for the work was (and would be for some years) tied up in the maze of litigation. At this point Jefferson, Watertown and Aztalan saw an opportunity, and each made unsuccessful bids to replace Madison as the seat of government. After considering all the possibilities, the Council's Committee on Territorial Affairs reasoned that, since the only basis for such a move lay in the unfinished condition of the Capitol and the lack of good accommodations, it made little sense to start all over again and incur more expenditures building a new capitol in a place with inadequate accommodations. "The present Capitol can be finished easier and sooner than one could be build in any other part of the Territory, and it is highly probable that no other site would be selected that would afford better accommodations . . . " However, the committee's report continued with a warning that "unless it is soon completed or repaired, the expenditure already laid out upon the Capitol will be wholly lost." This warning, combined with the coolly reasoned rejection of the three small-scale pretenders, was stimulus enough for action.
The committee's counterpart in the lower house estimated that less than $6,800 would be required to finish the Capitol, and a bill was subsequently introduced authorizing the sale of $100 bonds to raise $7,000 to complete the building. Before the measure found its way to final approval, however, two significant amendments were attached. The first was an attempt to avoid incurring the additional appropriation by allowing James Morrison the option of renewing his original contract by March 25, 1841, with a new completion date. He would, of course, be paid by James Doty, since his original contract was with the original board. The second amendment must have been more menacing to Doty and others with a stake in Madison's retention of its status as the seat of government. If the final completion of the Capitol, whether performed by Morrison or another contractor, had not been reached or if it was clear that it could not be reached within a reasonable amount of time, the second rider read, the Governor was empowered to convene the next annual session of the Legislature in Milwaukee provided suitable accommodations in that city could be assured. Governor Dodge's initial ambivalence, then antipathy, toward Madison, owing to Doty's machinations at Belmont and subsequent actions, were well-known to the legislators. Doty was clearly intended to be the runner in a squeeze play by these two amendments. What the legislative architects of this last amendment did not count on, however, was the replacement that summer of Dodge by Doty as territorial governor.
The bill was approved on February 19, 1841, and, after half the bond issue was sold, Commissioner of Public Buildings Prentiss advertised for bids, as Morrison had ignored the option for renewal. On April 27, Prentiss awarded the contract to Daniel Baxter for the full $7,000 with a completion deadline of December 1, 1841. Almost as if to confirm the pattern and in spite of sincere efforts, Baxter, too, failed to meet his contractual deadline; but, when the annual legislative session approached, the new territorial governor, James Doty, understandably declined to convene the Legislature in Milwaukee. In his annual report, Commissioner Prentiss assured the Legislature that Baxter had, indeed, made good progress and that the outlook for his completing his contract was favorable. Besides, there was $1,000 from bond sales still in the territory's hands awaiting Baxter at the conclusion of his work.
On February 18, 1842, John Y. Smith inherited Prentiss's headaches when he was elected by the Legislature to succeed Prentiss as Commissioner of Public Buildings. Smith took his responsibilities seriously and, within a few days, formally took possession of the Capitol and began urging Baxter to complete his contract. While in the concluding stages of construction, the inadequacies of the tincovered dome became glaringly apparent. Two years before, Elizabeth Baird, in Madison with her husband Henry Baird, had described the Capitol as a "squattylooking house". Noting that its dome looked like an inverted wash basin, she dubbed the structure "Doty's Washbowl". The moniker stuck and dogged the building until its demolition during the Civil War. Now, Smith and Baxter realized that the dome was "leaking very badly and the rains were seriously injuring the interior of the building." If the territory ignored the situation and Baxter had hurried to complete his contract, the finished building would certainly not survive. Smith took the initiative, getting Baxter to agree to repair the dome if he could get the territory to furnish the necessary money, a paltry $100.
If the Legislature had been in session, Smith would undoubtedly have had little trouble in securing the necessary funds, but having to submit his request to Governor Doty s handpicked Territorial Treasurer - none other than James Morrison - was bound to mean resistance. Indeed, Morrison refused to supply the $100 for repairs without the approval of the Governor; and, when approached, Doty allowed that he could see his way clear to permit the expenditure if the still-pending lawsuits against himself and Morrison were discontinued. Smith rejected the deal and managed to patch up the dome the best he could without an authorized appropriation, but the pine-shingled roof around the dome still leaked.
The following spring, the Legislature once again tinkered with the structure of the position which controlled the Capitol. After combining the Commissioner of Public Buildings and the Territorial Librarian into the new post of Superintendent of Territorial Property, the Legislature reelected Smith. The restructuring of the territorial posts did not solve the problem of a leaky roof, however. Baxter's contract was still uncompleted, but it made little sense to put on the finishing touches if they would only be stained and begin to disintegrate and rot after the first heavy rain. Before another appropriation could be sought from the Legislature for further repairs, a proposition came from an unexpected source which eventually solved the immediate problem. Dane County had been created in the spring of 1839 and had never accumulated sufficient revenues to construct a courthouse in which to install the county's few offices. Early in 1843, the Dane County Board of Commissioners approached the Territorial Legislature with a deal: in exchange for office space in the then roomy Capitol for the next seven years, the board would agree to underwrite the repair of the building s leaky roof. The lawmakers jumped at the opportunity and quickly passed a law authorizing Superintendent Smith to enter into a contract with the county for the repairs and other work bypassed in the previous contracts. The deal was struck and the completion of Wisconsin's Capitol was now in sight.
Over the next two years, construction continued apace; Baxter finished his original contract with the territory in 1843 and promptly secured the contract with Dane County to reshingle the Capitol and install new lead flashing on the roof hips. The county also hired Augustus A. Bird in 1844 to finish off the building, retinning the dome, completing the back piazza and adding an interior staircase without securing a commitment from the territory to reimbuse them for the $2,600 outlay. This last step was taken by county officials purely on faith that the Legislature, once it returned to Madison for its fall session, would approve the necessary appropriation; but the county was very aware that they could just as easily be left with the bill. Fortunately for Dane County, the legislators authorized the reimbursement in early 1845 and, after seven and one-half years, "Doty's Washbowl" was finished.
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